To my surprise, the Supreme Court ruled to block Federal Judge Matthew Kacsmaryk's ruling on mifepristone 7-2, meaning that millions of women will be allowed to continue using the drug.
For now, at least.
The Supreme Court on Friday allowed the most commonly used abortion pill in the U.S. to remain widely available.
The court blocked in full a decision by Texas U.S. District Judge Matthew Kacsmaryk on April 7 that had invalidated the Food and Drug Administration’s longtime approval of mifepristone and handed a sweeping victory to abortion opponents.
Two of the nine justices — conservatives Clarence Thomas and Samuel Alito — said they would have let part of Kacsmaryk's ruling take effect.
The Justice Department and Danco Laboratories, which makes the name brand version of mifepristone, Mifeprex, had asked the justices to step in after a federal appeals court kept in place a number of provisions in Kacsmaryk's order that would have imperiled widespread access to the drug, including restrictions on distributing the pill to patients by mail.
The court, which has a 6-3 conservative majority, issued a temporary stay of Kacsmaryk's ruling April 14, which was extended for two days Wednesday while the justices considered what steps to take.
Alito said in a brief dissenting opinion Friday that a decision to suspend regulatory changes made since 2016 would not have prevented mifepristone from being available.
"At present, the applicants are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim," Alito wrote.
"Contrary to the impression that may be held by many, that disposition would not express any view on the merits of the question whether the FDA acted lawfully in any of its actions regarding mifepristone," he added.
The court's decision means women can still obtain mifepristone by mail, take it at home and use it up to 10 weeks into a pregnancy, as litigation continues in the lower court. The generic version of the drug, made by GenBioPro, will also continue to be available.
The case will now go back to the 5th Circuit for oral arguments before a three-judge panel on May 17. Nothing will change mifepristone’s availability in the interim.
So the legal fight will continue in the months ahead. I was right about Alito siding with the 5th Circuit, but he only got Clarence Thomas to agree with him, and none of the other four conservatives.
That's a good sign for now, but the road is going to be long on this one.
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