Atty. Gen. Merrick Garland said Thursday that the Biden administration will ask the Supreme Court to preserve full and easy access to the abortion medication that has become the most-used method of ending early pregnancies.
He was responding to a 2-1 ruling by a conservative appeals court that would forbid sending the abortion pills through the mail and restrict their use to the first seven weeks of pregnancy.
The Food and Drug Administration approved the use of mifepristone in 2000, declaring it safe and effective when used in combination with a second drug, misopostal.
More than 5 million American women have used the drugs safely since then, the government said.
Antiabortion advocates, including a group of doctors, went to federal court in Amarillo, Texas, seeking a ruling that would revoke the FDA’s approval and take the drug off the market.
Last week, they won before their hand-picked U.S. District Court Judge Matthew Kacscmaryk. Late Wednesday the 5th Circuit panel set aside part of his ruling.
The two judges in the majority said it was probably too late to challenge the FDA’s approval of the drug in 2000, but not too late to block the FDA’s more recent moves to relax regulation of the drug.
They pointed to the 2016 decision to extend the time limit for using the medication to 10 weeks of a pregnancy, up from the original seven. Two years ago, the FDA approved sending the drugs through the mail.
Garland moved quickly to announce he would appeal those rulings.
“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,” Garland said.
Ready access to abortion medication became more important for millions of women following last year’s Supreme Court ruling that overturned Roe vs. Wade, ending legal abortion in much of the nation.
Abortion rights advocates said Thursday conservative judges are once again seeking to restrict access to abortion.
“We are furious that yet another court would choose to jeopardize the health and futures of the millions of people who rely on mifepristone for abortion care,” said Alexis McGill Johnson, president of the Planned Parenthood Federation of America. “This baseless case is a politically motivated attack to further restrict access to abortion that will place care out of reach for patients — and we will not stand for it.”
Antiabortion advocates said the legal dispute was about health and safety.
March for Life President Jeanne Mancini celebrated the decision with the following statement:
“We are pleased that the 5th Circuit Court of Appeals has temporarily reinstated important and commonsense health and safety protections surrounding the use of chemical abortion drugs,” said Jeanne Mancini, president of March for Life. “The FDA’s elimination of these safeguards shows a reckless disregard for women’s health when it comes to abortion.”
Justice Department lawyers will lodge their appeal with Justice Samuel A. Alito Jr., the author of last year’s 5-4 opinion that overturned Roe vs. Wade ending the constitutional right to abortion.
Alito is the justice who oversees appeals from the 5th Circuit, and he will almost surely distribute the appeal to all of the justices.
They could issue an administrative stay to put the appeal on hold for some time while they consider how to rule.