Joe Biden’s government on Friday asked the US Supreme Court to intervene urgently to preserve the status quo on the abortion pill, before restrictions on its access ordered by an appeals court take effect overnight.
The temple of American law, dominated by conservatives, thus finds itself once again seized of a case relating to abortion, the outcome of which could not be more uncertain.
The current legal battle, the latest twist in the assault on the right to abortion in the United States, is at stake in access to mifepristone throughout the United States.
In combination with another drug, this pill is used for more than half of abortions in the United States, and more than five million Americans have already taken it since its authorization by the United States Medicines Agency (FDA), over 20 years ago.
If effective, a federal appeals court ruling on Wednesday would have “tremendous implications for the pharmaceutical industry, women needing access to medicine, and the FDA’s ability to implement its regulatory authority,” the government argued.
The legal saga began last week: a federal judge in Texas, seized by anti-abortion activists, had withdrawn the marketing authorization for mifepristone. Despite the scientific consensus, he felt that it posed risks to women’s health.
He had provided for a one-week delay before his decision would apply.
Seized by the federal government, the appeals court partially invalidated the judge’s decision, allowing the abortion pill to remain authorized for the time being – but he reconsidered the access facilities granted by the FDA over the years.
His judgment thus amounts in particular to prohibiting the sending of mifepristone by post, and to returning to a use limited to seven weeks of pregnancy, instead of ten.
” Chaos “
In its request, the government requests a “suspension” of the judgment of the Court of Appeal “to preserve the status quo”, pending an examination of the case on the merits.
Otherwise the restrictions, which will apply from 1am on Saturday, will create “regulatory chaos”.
Indeed, the boxes of pills in circulation would contain different indications than those ordered by the court of appeal, points out the government. And changing them is a process that would take “months”.
Moreover, another federal judge ruled to the contrary, prohibiting the FDA from changing the conditions for the distribution of the abortion pill in the 17 appealing states and the capital Washington, placing the agency in a ” untenable situation”, argues the government.
One of the two companies that market mifepristone in the United States, the Danco laboratory, has also asked the Supreme Court to intervene.
The fear of leaders of the pharmaceutical sector, and many experts, is that this judgment will open the way to the questioning by the courts of other drugs – or even vaccines.
This is the first time that a court of justice has canceled the conditions for authorizing a drug based on an assessment of its safety, the government was moved in its request, accusing the magistrates of going contrary to the “scientific judgment” of the FDA.
Restricted to Florida
On Thursday, the legislature of Florida, one of the most populous US states, also passed a law banning abortions beyond six weeks of pregnancy, before most women know they are pregnant.
States have been free to legislate on the subject since the Supreme Court struck down federal abortion protections in a landmark June 2022 decision, burying the landmark “Roe v. Wade” from 1973.
In fifteen states, abortion is now prohibited – including by medication.
Backdoors exist for women in these states, however: organizations are mobilized to supply abortion pills from abroad or from other states, and commercial sites also sell them online.
For states where abortion remains legal, if access to the abortion pill is restricted, women would still have the option of an aspiration abortion — a more cumbersome procedure requiring a visit to a clinic.
Some doctors are considering continuing to offer medical abortions using only the second tablet, misoprostol. But this method has a slightly lower rate of effectiveness and more side effects (severe cramps, etc.) than that combining misoprostol and mifepristone.