Supreme Court Temporarily Preserves Access to Abortion Pill

 April 22, 2023

On Friday, the Supreme Court issued an administrative stay, that preserves access to the “abortion pill” while litigation plays out in lower courts. The Food and Drug Administration (FDA Under President Bill Clinton,) approved mifepristone in 2000, a drug that causes abortion. Limiting the pill’s use in 2016 and 2019 the FDA had removed several safeguards.

President Joe Biden’s FDA allowed of the pill, to be sent through the mail in 2021, leading to the current federal lawsuits initiated by pro-life organizations. As a result the “abortion pill”, as it’s called, made its way to the Supreme Court.

According to Breitbart News-

This month, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas handed down a 67-page decision that the FDA’s decisions were illegal under federal law, issuing a nationwide injunction blocking the abortion pill.

Days later, the U.S. Court of Appeals for the Fifth Circuit partially granted a stay requested by the Biden Justice Department. The court’s 42-page opinion temporarily put on hold the part of the decision about the 2000 FDA decision because it might be past the deadline for bringing legal challenges, though added that it was a “close call” and that the court might go the opposite direction after receiving additional legal arguments. But the appellate court rejected a stay on anything from 2016 to the present, affirming the trial court’s injunction.

All of those items were for a stay pending appeal. The appeals court will now [be] receiving full legal briefing and hear oral arguments on those issues to make a final decision.

However, Biden’s Department of Justice (DOJ) asked the Supreme Court to grant a stay of the lower court decisions. Last week, Justice Samuel Alito issued an administrative stay for five days while the plaintiff in one of the cases filed papers opposing a stay.

-Breitbart News

The Supreme Court, on Friday issued a stay, that specifically said it was-

“pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”

-U.S. Supreme Court

In this particular hearing, Justice Clarence Thomas would have denied the DOJ’s application for the stays. However, Justice Alito wrote a dissent that criticized the FDA for not acting “equitably.” Alito said-

“As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market,”… “It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations.”


“Our granting of a stay of a lower-court decision is an equitable remedy. It should not be given if the moving party has not acted equitably, and that is the situation here. The Food and Drug Administration (FDA) has engaged in what has become the practice of “leverag[ing]” district court injunctions “as a basis” for implementing a desired policy while evading both necessary agency procedures and judicial review.”

-Justice Samuel Alito

Senior counsel at Alliance Defending Freedom, Erik Baptist, one of the pro-life law firms who filed the lawsuit on behalf of doctors and medical groups, said the Court’s decision is “common practice” . He added that  his firm anticipates “a final outcome in this case that will hold the FDA accountable.” Baptist said-

“As is common practice, the Supreme Court has decided to maintain the status quo that existed prior to our lawsuit while our challenge to the FDA’s illegal approval of chemical abortion drugs and its removal of critical safeguards for those drugs moves forward. Our case seeking to put women’s health above politics continues on an expedited basis in the lower courts. The FDA must answer for the damage it has caused to the health of countless women and girls and the rule of law by failing to study how dangerous the chemical abortion drug regimen is and unlawfully removing every meaningful safeguard, even allowing for mail-order abortions. We look forward to a final outcome in this case that will hold the FDA accountable.”

-Erik Baptist, Senior Counsel, Alliance Defending Freedom

The opportunity to thoroughly examine the issue, through review is in keeping with the high courts’ standard protocol. The stay ends Wednesday of this week, enabling a review of the facts and an evaluation of the dangers that, the  FDA have allowed, in approving the use of this drug. This is all, without previously and clearly addressing those safeguards that have been removed in its current use. Stay tuned, this is an ongoing story which will see some further action after Wednesday.

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