A Friday Supreme Court decision maintains protections on access to the abortion medication mifepristone while the status of the pill is decided in lower courts following a decision issued by a U.S. District Judge that would have suspended the Food and Drug Administration’s 22-year approval of it. 

Earlier this month, U.S. District Judge Matthew Kacsmaryk of Amarillo, Texas handed down his opinion in Alliance for Hippocratic Medicine v. Food and Drug Administration, effectively reversing the FDA’s approval of the abortion drug.

“The district court held that the FDA acted unlawfully when it approved mifepristone first in 2000 and then in a series of subsequent approvals in 2016, 2019, 2021 and 2023,” said Steven Vladeck, the Charles Alan Wright Chair of Federal Courts at the UT Law School. “The effect of the rule would have been to basically make it unlawful for mifepristone to be distributed, which would pretty quickly have meant that it would become impossible to legally obtain it just about anywhere in the country.”

Following the decision, the Biden administration quickly appealed, and the case now sits in the U.S. Court of Appeals for the Fifth Circuit for review. Vladeck said as the case is pending in the Fifth Circuit, the FDA and a sponsor of mifepristone, Danco Laboratories, asked the court to issue a stay to freeze Judge Kacsmaryk’s prior ruling while the appeal is made. 

“The Fifth Circuit granted the stay in part, but denied it in part, in ways that would have been, I think, really confusing had it gone into effect,” Vladeck said. “So the FDA and Danco asked the Supreme Court for a stay and (the Court) sided with the FDA and Danco and stayed all of Judge Kacsmaryk’s rule for however long it takes for the appeal to work its way through the courts.”

Vladeck said the prospect of the case making its way back to the Supreme Court for a full review is not a given. The court may not want to get involved in a nationwide debate over mifepristone, but there are also large procedural issues – like whether the plaintiffs have standing – that could keep the case from reaching the court even if they wanted to hear it. 

“I don’t know that the case is going to go forward,” Vladeck said. “It’s possible to me that the Supreme Court doesn’t end up taking it up on the merits if the Fifth Circuit sides with the government on appeal.”

The Fifth Circuit is set to hear oral arguments May 17 and then hand down its decision at an undetermined date.

“The key point is that nothing the Fifth Circuit does is going to change the status quo (of mifepristone) because the Supreme Court has frozen the status quo until and unless the case comes back to the Supreme Court,” Vladeck said.