DOJ will ask Supreme Court to pause restrictions on abortion pill use, mailing

Attorney General Merrick Garland on Thursday said the Department of Justice (DOJ) will ask the Supreme Court to pause a ruling that would roll back changes that make it easier to access mifepristone, the common abortion pill.

U.S. District Judge Matthew Kacsmaryk last week ruled that the Food and Drug Administration (FDA) violated federal standards when it first approved mifepristone 23 years ago, staying the agency’s initial approval of the pill.

Late Wednesday night, the 5th U.S. Circuit Court of Appeals ruled that mifepristone may remain on the market as the federal government’s appeal proceeds, but it meanwhile allowed portions of the Texas judge’s ruling to stand that would roll back a series of actions the FDA has taken since 2016 that eased access.

Those changes included allowing the mifepristone to be sent through the mail, lifting a requirement for three in-person visits, approving a generic and approving the drug’s use up to 10 weeks into a pregnancy, rather than seven weeks.

Garland will likely ask the Supreme Court to pause each of those remaining portions, which go into effect early Saturday morning, barring an intervention from the justices.

“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal,” Garland said in a statement on Thursday. “We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”

The request will first go to Justice Samuel Alito, who is assigned to handle emergency applications from the 5th Circuit. He could act on the application alone or refer it to the full court for consideration.

Given that the rollback goes into effect in less than 48 hours, DOJ could initially ask the justices for an administrative stay, which would bump the timing by a few days until the high court can consider the administration’s request. 

DOJ’s request is likely to then ask the justices to pause Kacsmaryk’s ruling until the 5th Circuit can hand down its ruling in the government’s appeal.

It marks one of the first abortion disputes at the high court since the justices overturned Roe v. Wade last summer.

Unlike that case, which was handled under the Supreme Court’s normal merits docket that involves a months-long process of briefing and oral argument, the DOJ’s request would be placed on the court’s shadow docket.

The high court typically acts on requests on the shadow docket in a matter of days, often without explanation or a public vote count.

“We are going to continue to fight in the courts, we believe the law is on our side, and we will prevail,” White House press secretary Karine Jean-Pierre told reporters early Thursday during President Biden’s visit to Dublin.

Updated at 12:39 p.m.