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Without Supreme Court intervention, abortion pill could be heavily restricted


All right. Around midnight tonight, access to abortion pills could be heavily restricted in some states.


That's unless the U.S. Supreme Court intervenes. Mifepristone has remained available under an emergency stay requested by the Biden administration after an appeals court order that would have restricted the drug.

MARTÍNEZ: NPR's Sarah McCammon joins us now for a look at what could happen next. So, Sarah, what is the Biden administration asking the Supreme Court to do?

SARAH MCCAMMON, BYLINE: Well, first, it's important to understand that anti-abortion groups are trying to overturn the Food and Drug Administration's approval of the abortion pill mifepristone, and they've gotten a couple of favorable rulings from lower courts. Those are the ones on hold. So the Biden administration is asking the Supreme Court to put those rulings and any restrictions on mifepristone on hold for a longer period of time to allow for the case to be more fully argued in court. Now, in its request for an emergency stay last week, the DOJ described the litigation in this case as troubling and argued that the lower court orders would be disruptive and would, quote, "profoundly harm women, the nation's health care system, FDA and the public interest." Lawyers for the FDA, as well as outside experts, have noted that it would be unprecedented for a court to overturn a drug approval that has been in place for more than two decades, as this one has, and has been used internationally for longer than that and has a well-established safety record.

MARTÍNEZ: What are anti-abortion groups arguing?

MCCAMMON: Well, most abortions in the U.S. involve pills, and mifepristone is used in nearly all medication abortions. So some of the plaintiffs in this federal case out of Texas are doctors who oppose abortion. And they say this widespread access to the pills means they sometimes have to care for patients experiencing complications, which they say violates their beliefs. They object to the FDA's original approval of mifepristone back in 2000, as well as some rule changes that have made it more available since then, like letting pills be sent in the mail. And they cite the Comstock Act, and that's a 19th century anti-obscenity law that prohibits sending anything related to abortion in the mail.

Now, the Department of Justice said last year that doesn't apply if pills are intended for legal use. But anti-abortion groups want the Supreme Court to affirm that Comstock does apply in that way. And by the way, legal experts say that interpretation could lead to nationwide abortion restrictions if the court accepts it.

MARTÍNEZ: All right, Supreme Court, then - what might they do next?

MCCAMMON: Well, if the Supreme Court does nothing, an appeals court ruling would take effect that would limit access to the drugs. So in addition to prohibiting the pills from being distributed by mail, it would mean mifepristone could only be prescribed up to seven weeks of pregnancy instead of ten. And it could require drugmakers to relabel the pills as a result. The appeals court ruling I just mentioned would also appear to overturn the FDA's approval of a generic form of mifepristone. Carrie Flaxman is a lawyer with Planned Parenthood. She says all of that could have a major impact on the supply chain.

CARRIE FLAXMAN: That means that if the Supreme Court doesn't step in and block the decisions below, the majority of the mifepristone supply could disappear. Just to be clear, this judicial pingpong game impacting the accessibility of safe, effective, decades-long-approved medication is causing chaos and confusion.

MCCAMMON: It appears those new restrictions I just mentioned would apply in a majority of states, but not all. That's because 17 states and the District of Columbia are involved in a competing federal lawsuit in Washington state. And for states where abortion is legal, there is a second drug called misoprostol that's usually used together with mifepristone in the U.S., and that two-pill regimen is preferred. But misoprostol can be used alone, and some providers have said they're ready to move in that direction if they lose access to mifepristone.

MARTÍNEZ: NPR's Sarah McCammon, thanks a lot.

MCCAMMON: Thank you. Transcript provided by NPR, Copyright NPR.

A Martínez is one of the hosts of Morning Edition and Up First. He came to NPR in 2021 and is based out of NPR West.
Sarah McCammon
Sarah McCammon is a National Correspondent covering the Mid-Atlantic and Southeast for NPR. Her work focuses on political, social and cultural divides in America, including abortion and reproductive rights, and the intersections of politics and religion. She's also a frequent guest host for NPR news magazines, podcasts and special coverage.