Atty. Gen. Merrick Garland said Thursday that the Biden administration will ask the Supreme Court to preserve full and easy access to the abortion medication that has become the most-used method of ending early pregnancies.
He was responding to a 2-1 ruling by a conservative appeals court that would forbid sending the abortion pills through the mail and restrict their use to the first seven weeks of pregnancy.
The Food and Drug Administration approved the use of mifepristone in 2000, declaring it safe and effective when used in combination with a second drug, misoprostol.
More than 5 million Americans have used the drugs safely since then, according to government figures.
Antiabortion advocates, including a group of doctors, had taken their case against mifepristone to federal court in Amarillo, Texas, seeking a ruling that would revoke the FDA’s approval and take the drug off the market.
Last week, they won before their handpicked jurist, U.S. District Judge Matthew Kacsmaryk. Late Wednesday, a 5th Circuit Court of Appeals panel of three judges set aside part of his ruling.
The two conservative judges in the majority said it was probably too late to challenge the FDA’s approval of mifepristone, which took place in 2000, but not too late to block the agency’s more recent moves to relax regulation of the drug.
They pointed to the 2016 decision to extend the time limit for using the medication to the first 10 weeks of pregnancy, up from the original seven weeks. And in 2021, the FDA approved sending the drugs through the mail.
Garland moved quickly to announce that the Justice Department would appeal those rulings.
“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,” he said in a statement.
Ready access to abortion medication has become more important for millions due to last year’s Supreme Court ruling that overturned Roe vs. Wade, ending federal protection of abortion rights.
Abortion rights advocates said Thursday that conservative judges were once again seeking to restrict access to abortion.
“We are furious that yet another court would choose to jeopardize the health and futures of the millions of people who rely on mifepristone for abortion care,” said Alexis McGill Johnson, president of the Planned Parenthood Federation of America. “This baseless case is a politically motivated attack to further restrict access to abortion that will place care out of reach for patients — and we will not stand for it.”
Antiabortion advocates said the legal dispute was about health and safety.
March for Life President Jeanne Mancini celebrated the decision with the following statement: “We are pleased that the 5th Circuit Court of Appeals has temporarily reinstated important and commonsense health and safety protections surrounding the use of chemical abortion drugs. The FDA’s elimination of these safeguards shows a reckless disregard for women’s health when it comes to abortion.”
Justice Department lawyers will lodge their appeal with conservative Justice Samuel A. Alito Jr., author of last year’s 5-4 opinion that overturned Roe’s constitutional right to abortion.
Alito is the justice who oversees appeals from the 5th Circuit, and he will almost certainly distribute the appeal to all of the justices. They may issue an administrative stay to put the appeal on hold for some time while they consider how to rule.
