WASHINGTON — The U.S. Supreme Court gave itself an extra 48 hours Wednesday to resolve the country's latest abortion deadlock: whether or not women should have access to the drug mifepristone in order to end a pregnancy.
The delay came in the form of a one-page, two-paragraph order from Associate Justice Samuel Alito extending the current deadline until midnight eastern time Friday night.
That order extended a stay on a pair of controversial Texas decisions: a federal court's invalidation of the 23-year-old decision to approve the drug, and a Court of Appeals finding that restricted its availability.
Even before the order was issued, President Joe Biden's White House was already girding for a fight.
"We are prepared for any outcome the Supreme Court may issue, and we are prepared for a long legal fight if necessary," White House press secretary Karine Jean-Pierre said earlier in the day.
"The stakes could not be higher, and we are going to continue to fight."
The controversy over mifepristone erupted April 7 after a pair of federal court decisions that came out within an hour of each other.
First came District Court Judge Matthew Kacsmaryk, who invalidated the Food and Drug Administration's approval of mifepristone, part of an ongoing lawsuit in that state challenging the drug's safety and the process used to approve it.
Less than an hour later in a separate case, a federal court judge in Washington state ordered that the FDA make the drug more readily accessible to women in the 17 states involved in that litigation.
The U.S. Court of Appeals for the Fifth Circuit temporarily blocked Kacsmaryk's decision, but imposed new restrictions on the drug, shortening the pregnancy window to seven weeks from 10 and barring its distribution by mail.
As a result, abortion is back before the conservative-leaning Supreme Court less than a year after last June's earth-shaking decision to overturn Roe v. Wade, the landmark 1973 decision that codified federal abortion rights.
"Three Trump-appointed judges have basically threatened the availability of a safe drug … that is used in half the abortions in this country," Sen. Amy Klobuchar (D-Minn.) told CNN.
"We are standing up — the Democratic party, President Biden — for women's rights, to say women have a right to make their own health-care decisions, and not politicians. We don't want Ted Cruz in the waiting room."
Klobuchar wasn't prepared Wednesday to assume that the decision to seek more time means the court is divided. "I think anything could happen at this point."
The dispute, coming as it does after the decision to overturn Roe, has prompted widespread concerns across the U.S. about the availability of the single most common means of procuring an abortion.
A number of states where abortion remains legal have in the meantime been stockpiling the drug in the event it suddenly becomes unavailable.
In her court filing last week, U.S. Solicitor General Elizabeth Prelogar described the question of access to mifepristone as one of "imperative public importance" and urged the high court to stay the Texas decision in full.
But she also suggested a course of action that could keep mifepristone widely available a while longer, even if the Supreme Court isn't ready to make a decision by the end of the week.
"Given the profound disruption and grave harm the lower courts' orders would produce, in no event should they take effect without further merits review," she wrote in her application.
"If this Court declines to stay the orders, it may wish to grant an administrative stay … and set this case for expedited briefing and argument on a schedule that would allow it to be argued and decided before the court's summer recess."
A flurry of accompanying amicus briefs filed by Big Pharma stakeholders and legal scholars alike have framed the original Texas ruling as a devastating blow to the federal government's ability to protect and nurture its citizens.
It "would disrupt the stability of the nation's market for medical treatment" and allow "limitless litigation" against FDA decisions, the Pharmaceutical Research and Manufacturers of America argued in their brief.
"That prospect of expansive litigation would undermine incentives for the biopharmaceutical industry's investments in drug discovery and development."
More than half of all abortions that are performed in the U.S. are induced through medication, typically mifepristone paired with another medication, misoprostol. The two drugs are sold together in Canada as Mifegymiso.
Medical experts insist mifepristone, which was approved for use 23 years ago, is safe and less prone to complications than basic procedures such as wisdom teeth removal and colonoscopies.
This report by The Canadian Press was first published April 19, 2023.
James McCarten, The Canadian Press
