Supreme Court takes up cases over eased access to medication abortion drug

The justices also denied review in the underlying challenge to the FDA's 2000 approval of mifepristone — meaning the drug will remain available going forward.

On Wednesday, the U.S. Supreme Court agreed to hear cases over changes since 2016 that have eased access to the medication abortion drug mifepristone.

The Justice Department and Danco Laboratories, the maker of Mifiprex, asked the high court to hear their cases after the U.S. Court of Appeals for the Fifth Circuit issued a decision that would eliminate that eased access and put back restrictions in place prior to 2016. Those include changes in how far into a pregnancy mifepristone can be prescribed and whether it needs to be dispensed in person.

Also in Wednesday morning’s orders, the Supreme Court denied review of a request by the Alliance for Hippocratic Medicine for the justices to consider whether the underlying 2000 approval of mifepristone by the U.S. Food and Drug Administration should be reversed.

The three orders, taken together, represent a best-case scenario for abortion rights supporters. If the court had not taken up the DOJ and Danco requests, the eased access would have been ended. If the court had taken up the Alliance for Hippocratic Medicine’s request, the case would have put overall approval in question.

Given Wednesday’s news, mifepristone will remain approved. The only question at this point is on what terms it will be available. That is still an essential question, particularly in this post-Roe landscape but — given the Fifth Circuit’s decision — it is, again, the best-case scenario for abortion rights supporters here.

The case, brought in Texas, had been closely watched since its filing in front of U.S. District Judge Matthew Kacsmaryk, an extremely conservative Trump appointee. In April, he issued a ruling purporting to end approval of the drug altogether. The Supreme Court issued an order later that month keeping the drug approved and available on its current terms until it was able to review the case.

The Fifth Circuit, in an August ruling, pulled back the part of Kacsmaryk’s decision rejecting the 2000 approval — holding that that challenge is untimely — but the appeals court agreed with Kacsmaryk’s decisions that the challengers have standing and that the eased restrictions should be tossed.

That August decision sent all three parties — DOJ, Danco, and the Alliance for Hippocratic Medicine — to the Supreme Court in September.

The DOJ and Danco cases will be heard together at the Supreme Court in 2024, with a decision then expected by the end of June.

This is a breaking news story. Check back at Law Dork for the latest.