How the Supreme Court could rule Friday as abortion pill deadline looms
Kaelan Deese
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The Supreme Court is anticipated to make a decision Friday over the legality of the abortion pill mifepristone after it kept a lower court’s rulings from drastically limiting nationwide access to the drug.
The Biden administration and the manufacturer of the drug have asked the justices to pause a ruling from U.S. District Judge Matthew Kacsmaryk that was issued earlier this month. And Friday’s forthcoming decision will more than likely not be the last time the high court decides a case over mifepristone.
JUSTICE SAMUEL ALITO EXTENDS ADMINISTRATIVE STAY ON MAJOR ABORTION PILL CASE UNTIL FRIDAY
Kacsmaryk suspended the Food and Drug Administration’s 2000 approval of mifepristone, saying the agency’s approval process was improperly rushed and resulted in an unsafe drug regimen on the market. His order wouldn’t go into effect for seven days, and the government appealed.
Just hours after Kacsmaryk’s ruling, a Washington state federal judge ruled the FDA could not alter anything related to its approval of mifepristone in 17 states and the District of Columbia.
Last week, the U.S. Court of Appeals for the 5th Circuit allowed the FDA’s initial approval of mifepristone while the Biden administration appeals. However, it allowed some parts of Kacsmaryk’s decision to take effect, blocking steps the agency has taken since 2015 to make the drug more accessible.
Justice Samuel Alito, who handles emergency requests stemming from the Louisiana-based 5th Circuit, issued a temporary administrative stay last Friday, handing relief to the Biden administration. He then extended it again on Wednesday before it was set to expire, setting the new expiration deadline at 11:59 p.m. Friday.
Here are the possible outcomes the court could decide on Friday:
Alito could extend the temporary pause once again
Alito has paused the lower court rulings and extended that delay one other time, so it’s possible that could happen again on Friday.
Such an outcome would allow mifepristone access to remain unchanged, though issuing another delay would only prolong the need for a more concrete decision to address the conflicting rulings and the 5th Circuit partially upholding Kacsmaryk’s decision.
Supreme Court pauses total district court ruling while appeal proceeds
The Biden administration, mifepristone manufacturer Danco, other pharmaceutical companies, and abortion rights supporters all want the Supreme Court to freeze Kacsmaryk’s ruling while the appeal plays out in the 5th Circuit.
The ruling would ensure mifepristone remains on the market until at least a three-judge panel decision by the 5th Circuit, which is slated to address topics such as the statute of limitations and the ability for anti-abortion proponents to bring their suit against the FDA.
5th Circuit ruling could take effect while appeal plays out
Anti-abortion litigants have asked the Supreme Court to allow the 5th Circuit decision.
If this outcome happens, mifepristone would only be approved for use up to seven weeks into a pregnancy and could not be sent through the mail.
Danco also wrote that such an outcome would require the company to change the drug’s packaging label and request FDA approval, a process that could take months.
Justices could pause ruling and schedule case on normal docket
The Supreme Court could tee up a schedule to hear arguments in the case due to the element of uncertainty surrounding lower court rulings, as the justices may need to offer guidance on how the orders intersect with each other.
Alternatively, the justices could send the case back with an order to dismiss it outright due to a lack of standing.
Legal experts were hesitant to predict how the court could rule, given how quickly Kacsmaryk’s decision moved from his court to the nation’s highest court.
“It’s hard to say, but if they appear to be rushing to judgment, that’s even worse in some ways in terms of undermining confidence in the court,” Carl Tobias, a law professor at the University of Richmond, told the Washington Examiner.
Less than a year ago, Supreme Court justices suggested their intent to wipe their hands clean by returning “the issue of abortion to the people’s elected representative,” Alito wrote in his ruling that allowed states to impose laws severely limiting abortion access.
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After a leak of that consequential decision last year, public approval dwindled to historic lows. The public’s approval of the court reached its highest level since that opinion in January, finding that 47% of those surveyed approve of the high court, while a 53% majority disapproves, according to a Marquette Law School poll.
That same poll showed public approval sank back down to 44% in March, with 56% disapproving of the high court’s handling of its job.