What comes next after the Supreme Court blocked — for now — restrictions on abortion pills

By Tierney Sneed

The abortion rights community and its allies in the Biden administration secured a striking victory from the conservative Supreme Court with an order Friday night that stopped restrictions on medication abortion drugs from taking effect.

The Supreme Court’s brief, unsigned order came in an emergency dispute over lower court rulings that would have curtailed access to the drug, mifepristone. At the request of the Justice Department and a mifepristone manufacter, the high court placed a hold — known as a stay — on the lower court rulings while the appeals process plays out.

Only Justices Clarence Thomas and Samuel Alito publicly indicated their dissent from the Supreme Court’s move.

Here’s what to know about the Supreme Court’s move.

What did the Supreme Court do on Friday?

The Supreme Court handed a win to the defenders of the medication abortion drugs by pausing lower court rulings that would have disrupted access to the drug as a result from a lawsuit from anti-abortion doctors seeking to wipe away the US Food and Drug Administration’s two-decade old approval of mifepristone.

That means FDA’s current regulatory scheme around the drug remains in place, ensuring that access to medication abortion — in the states where it is legal — is maintained at least for the next couple weeks, and likely longer.

How did we get here?

Friday’s order is the latest dramatic twist in the lawsuit that was filed in November. The legal volleying ramped up two weeks ago, when US District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump — issued a ruling that would have a halted the FDA’s 2000 approval of the drug.

The dispute landed at the Supreme Court’s doorstep after the 5th US Circuit Court of Appeals weighed in last week, and paused the parts of Kacsmaryk’s ruling that would have suspended the approval while leaving undisturbed Kacsmaryk’s move to also halt the FDA’s subsequent efforts to make the drug easier obtain.

Had the Supreme Court not intervened in the way that the Biden administration had asked, the 5th Circuit’s order would have put in place restrictions on how the abortion drug could be used. Those limits would have shortened the gestational period that the drug is available, and would have required patients to obtain the drugs in-person from their provider and make two other clinical visits as part of the protocol.

What comes next in the case?

There is much still to play out in the litigation and Friday’s Supreme Court order is unlikely to be the justices’ final word on the FDA’s approach to regulating the drug.

The case now travels back to the 5th Circuit, which has set an expedited briefing schedule to give a fuller review of Kacsmaryk’s ruling. A three-judge panel from the 5th Circuit will hold a hearing on May 17 and issue another decision sometime after. (There is no deadline for the 5th Circuit to rule.)

The majority of judges on the 5th Circuit are conservative, but it is unknown who the three judges will be. Notably the three judges who will hear that step of the appeal will likely be different from those that issued the appellate order last week.

The Supreme Court’s Friday order maintains the status quo around the drug’s regulations until that 5th Circuit process plays out and until the justices have another chance to weigh in on how it handled the case.

What do we know about how the justices are thinking about the dispute?

The Supreme Court did not show its cards in the order it issued Friday night.

While Justices Thomas and Alito made their dissents public, it is not otherwise clear how the justices voted or what the exact vote count was. The support of five justices is required for the court to grant a stay.

Only Alito wrote additionally to explain his dissent, and stressed he was not expressing any views on the merits of whether the FDA broke the law in how it’s approached mifepristone.

Instead, he aired grievances about how the Supreme Court’s conservative majority has been criticized for handling the emergency disputes — on its so-called shadow docket — in the past. He also cast doubt on the claims by the government and the manufacturer that the 5th Circuit order would have caused mass disruption to access to the drug.

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