Attorney General Merrick Garland said Thursday that the Justice Department will take an emergency dispute over medication abortion drugs to the Supreme Court. Garland’s announcement came after a federal appeals court froze parts of a Texas judge’s order on Wednesday, that would have suspended the FDA’s approval of a medication abortion drug, mifepristone. Mifepristone manufacturer Danco Laboratories also plans to appeal the ruling to the Supreme Court
The U.S. 5th Circuit Court of Appeals only partially granted the request by the Justice Department and the drug’s manufacturer to put the ruling from US District Judge Matthew Kacsmaryk on hold, effectively making the drug harder to obtain by leaving in place aspects of Kacsmaryk’s ruling that will reverse moves by the FDA that expanded access to medication abortion pills. A federal appeals court said Wednesday abortion drug can remain available but placed restrictions.
AG Garland indicated that the Justice Department will ask the Supreme Court to intervene now in the emergency dispute over how the FDA has approached mifepristone: “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 … 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 appeals court ordered a return to the stricter FDA regime around the drug, which prevents mailing the pill to patients who obtained it through telehealth, or virtual visits with their providers rather than traveling to a clinic or hospital in person to obtain the drug. The restrictions also affect the instructions on the label for the medication, shortening the window of obtaining the pill to seven weeks into pregnancy as opposed to 10. The 5th Circuit said the current FDA rules around the drug “chose to cut out doctors from the prescription and administration of mifepristone … in fact, as far as the record before us reveals, FDA has not structured the distribution of any comparable drug in this way.”
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