U.S. Supreme Court

Supreme Court will consider whether FDA wrongly expanded access to abortion drug mifepristone

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Boxes of the drug mifepristone sit on a shelf at the West Alabama Women’s Center in Tuscaloosa, Alabama, on March 16, 2022. The drug was approved by the Food and Drug Administration in 2000. Photo by Allen G. Breed/The Associated Press.

The U.S. Supreme Court on Wednesday agreed to decide whether the U.S. Food and Drug Administration acted properly when it expanded access to the abortion drug mifepristone.

The Supreme Court agreed to consider the issue in two combined cases in which a federal appeals court blocked FDA decisions in 2016 and 2021 that made it easier to obtain the drug. Among other things, the FDA allowed mifepristone to be dispensed by mail; allowed some licensed nonphysician health care providers to prescribe it; and allowed the drug to be used for up to 10 weeks of pregnancy, rather than seven weeks.

The Supreme Court issued a stay in April that blocked the injunctions approved by the appeals court, the 5th U.S. Circuit Court of Appeals at New Orleans.

SCOTUSblog, the Washington Post and the New York Times are among the publications with coverage.

According to the New York Times, the new case is the Supreme Court’s first major look at an abortion issue since it overturned the constitutional right to an abortion in June 2022. Mifepristone is used in more than half of the abortions in the United States.

The 5th Circuit did not rule on the FDA’s initial approval of the drug in 2000 on the ground that the plaintiffs waited to late to challenge that action. That issue is not before the Supreme Court; it declined to hear a third case challenging the initial approval.

The Supreme Court did agree to consider two issues: whether the FDA’s decisions to expand access to the drug were arbitrary and capricious and whether the anti-abortion doctors and groups who filed the lawsuits had standing.

The cert petitions are here and here.

The two cases are U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine.

See also:

“Can court ban abortion pill? Federal judge considers authority, plaintiffs’ standing”

“One mifepristone decision ‘runs roughshod’ over procedural issues, the other ‘is no better,’ law profs say”

“5th Circuit faults FDA for expanding access to abortion drug; next move is up to SCOTUS”

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