The US Justice Department and Danco Laboratories, the manufacturer of the abortion pill mifepristone, turned to the country’s Supreme Court on Friday to overturn the limits set on access to the drug by lower courts.

This follows a partly unsuccessful appeal by the two parties for the stay of a ruling last week by Texas Judge Matthew Kacsmaryk that the US Food and Drug Administration (FDA) had erred in its approval of mifepristone.

A Fifth Circuit Court of Appeals ruling on 12 April only granted a partial stay of the Texas judgment, ruling that the statute of limitations bars challenges to the initial FDA approval of the drug in the year 2000.  However, the New Orleans-based Circuit Court of Appeals rolled back more recent FDA moves easing access to the pill. The Court of Appeals ruling thus limited access to mifepristone to women who are less than seven weeks’ pregnant (as opposed to 10 weeks) as well as limiting access to women who received in-person prescriptions, preventing women in states that have recently banned abortion to receive the pill in the post.  

These new limits will come into take effect on Saturday unless the Supreme Court issues a judgement before that.

“We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care,” said US Attorney General Merrick Garland in a statement. 

Garland added that the Justice Department “strongly disagrees” with the Fifth Circuit court’s decision to “deny in part our request for a stay pending appeal”. 

Court playing medical expert

US Vice-President Kamala Harris said in a statement that the appellate court decision “invalidates the scientific, independent judgment of the FDA about when and how a medicine is available to Americans”. 

Mifepristone, which was approved over 20 years ago, is also used to treat miscarriages,  endometriosis, fibroids and hyperglycemia.

“The Fifth Circuit’s decision – just like the district court’s– second-guesses the agency’s medical experts,” added Harris. “If this decision stands, no medication – from chemotherapy drugs, to asthma medicine, to blood pressure pills, to insulin – would be safe from attacks.

“This decision threatens the rights of Americans across the country, who can look in their medicine cabinets and find medication prescribed by a doctor because the FDA engaged in a process to determine the efficacy and safety of that medication.”

The Texas decision has already been contested by over 200 executives from pharmaceutical and biotech companies who this week released an open letter condemning Kacsmaryk’s “judicial activism”, while urging support for the “continued authority of the FDA to regulate new medicines.”

Harris described the mifepristone case as “the next step to a nationwide abortion ban”, adding that “our Administration will continue fighting to protect women’s health and the right to make decisions about one’s own body”.

However, the conservative-dominated Supreme Court has already struck down Roe v Wade, the case that legalised abortion in the US.

Meanwhile, on Thursday night Florida Governor Ron DeSantis signed a bill banning abortion after six weeks, prohibiting telehealth for those seeking abortion and allocating $25 million annually to anti-abortion pregnancy centres.

“We are proud to support life and family in the state of Florida,” DeSantis said in statement. “I applaud the Legislature for passing the Heartbeat Protection Act that expands pro-life protections and provides additional resources for young mothers and families.”

The law won’t go into effect until the Florida Supreme Court rules on a challenge to the state’s current 15-week ban on abortion. However, this is unlikely to succeed as the supreme court is dominated by conservative judges.

Image Credits: State of Florida.