Allen G. Breed/File/AP
- The Supreme Court maintained access to the abortion drug mifepristone on Friday.
- Justices Clarence Thomas and Samuel Alito publicly dissented.
- The court took on the issue after a federal judge in Texas issued a ruling suspending FDA approval of mifepristone.
The Supreme Court on Wednesday ruled that the abortion pill mifepristone could still be purchased and used in the US, freezing a lower court ruling that temporarily suspended FDA approval of the drug.
The issue reached the nation's top court last week after the Biden administration submitted an emergency application to preserve the US Food and Drug Administration's 20-year-old approval of the medication mifepristone, which is used alongside a second drug, misoprostol, to end pregnancies.
Justice Samuel Alito last Friday issued a temporary stay on lower court rulings that would have greatly restricted access to mifepristone. That ruling was set to expire Friday at midnight.
The sparse ruling came Friday night with no oral arguments or public reasoning from the other eight justices for their decisions. While Alito and Clarence Thomas publicly dissented, it's unclear from the ruling which, if any, other justices may have also dissented — only that there was a majority that favored the stay.
Drugs like mifepristone and misoprostol have been under heightened scrutiny from abortion opponents since the Supreme Court overturned Roe v. Wade last June. Anti-abortion activists and lawmakers have sought to limit access to the drugs, while their opponents — including the Biden administration — have sought to expand access.
Scott Lemieux, a professor of political science at the University of Washington and an expert on the Supreme Court and constitutional law, told Insider that the decision was "less troubling" than many were anticipating, but not necessarily indicative of how the justices will rule on the larger matter come oral arguments.
"A year after [Dobbs v. Jackson Women's Health Organization], I don't know if the Supreme Court is going to be up for a nationwide ban on the most common way of obtaining an abortion," he said.
But there are still other legal challenges to abortion access moving through lower courts. On May 17, a 5th circuit judge in New Orleans will hear appeals related to the FDA's scope in regulating the drugs, as well as the SCOTUS decision on Friday, according to CNN.
Lemieux said that while the Texas decision at the heart of Friday's decision is legally weak, the top justices may be more friendly toward the 5th circuit case.
A similar appeal against access to the abortion pills likely will not happen until the court's next term, after October.
Mifepristone is most commonly used as the first part of a two-step process to terminate pregnancies. Patients typically take a mifepristone pill, which blocks the hormone progesterone and ends the pregnancy, and follow it up 24 to 48 hours later with misoprostol pills, which induce contractions.
Leading medical organizations, such as the American Medical Association, have argued that medication abortions have been proven safe and effective in hundreds of medical studies and over two decades of widespread use.
After the decision, President Joe Biden said that his administration would try to protect access to the pill.
"As a result of the Supreme Court's stay, mifepristone remains available and approved for safe and effective use," Biden said in a statement on Friday. "My administration will continue to defend FDA's independent, expert authority to review, approve, and regulate a wide range of prescription drugs."
Earlier in April, a federal judge in Amarillo, Texas, issued a ruling suspending mifepristone's FDA approval, arguing the approval itself was unlawful. A federal appeals court then modified the Texas judge's ruling and imposed new restrictions on the drug while the case was being litigated — including restricting approval to the first seven weeks of pregnancy, down from 10.
Complicating matters, just minutes after the Texas judge published his ruling, a federal judge in Washington issued a contradictory ruling, forbidding the FDA from pulling the medication from the market in 17 states that have Democratic attorneys general.
In response to the dueling rulings, the Department of Justice accused the lower court rulings of "countermanding FDA's scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone."
According to Pew Research, the Supreme Court's decision to strip federal abortion protections by Roe v. Wade was wildly unpopular — nearly six in ten Americans polled said they disapproved of the court's decision, including 43% who "strongly disapproved."
Following the Supreme Court's reversal on abortion rights, Democrats heavily campaigned on the issue of abortion in the 2022 midterm elections.
The Republican Party and many experts at the time expected a "red wave" in the voting booths, but Democrats surprised political pundits by maintaining control of the Senate and just narrowly losing control of the House of Representatives.