The Supreme Court on Wednesday got more time to think about what it wants to do on women’s access to a widely used abortion drug, with no action probably until Friday.
Justice Samuel A. Alito, Jr., acting in his own name but very likely after consulting with other Justices, delayed until just before midnight this Friday a lower court ruling that would have required that the drug be taken off the market entirely.
Mifepristone, used in combination with another drug, misoprostol, is now the method used for more than half of all abortions performed in the nation. The medication method, repeatedly ruled safe and effective by the federal drug control agency over the past 23 years, is regarded as safer and less expensive than abortion by surgery.
The medication method, though, is only available for use within the first ten weeks of pregnancy – about one fourth of the ordinary term.
On April 7, a federal judge in Amarillo, Texas, ruled that the Food and Drug Administration has been wrong for all of the 23 years in authorizing use of mifepristone. The decision would have made it illegal to make and distribute the drug in any dosage.
That is the ruling that Justice Alito has temporarily blocked twice. He did so last Friday, just hours before the judge’s decision was to go into effect. That order only delayed the judge’s decision until midnight tonight, if no action had been taken.
All nine Justices are no doubt fully aware of what has been filed at the Court, even though Justice Alito has been acting formally alone in his role as the Justice handling emergency pleas in cases that originate in Texas.
It seems likely that one of two developments – and maybe both – are unfolding within the Court. First, Alito may have learned that his colleagues simply want more time to ponder what to do, but, second, it may also be that there have already been some preliminary discussions about what to do because the pressures of time are so obvious.
There is also at least a possibility that the Justices have already cast at least a preliminary vote and more time will be needed for Justices to write opinions. It would be no surprise at all if the Court, when it does act as a group, were to be deeply split on the issue.
The Court’s ruling last June ending the constitutional right for women to end their pregnancies divided the Court three ways, so it is doubtful that unanimity will emerge this time.
While that decision eliminate abortion rights as a constitutional matter, it did not block states that want to keep the procedure available from doing so. It also said nothing about the nationwide availability of an abortion drug that women can use at home to end pregnancy.
Both the Food and Drug Administration and Danco Laboratories, the sole maker of the brand-name version of mifepristone (Mifeprex), have told the Court that chaos and confusion will spread rapidly across the U.S. if mifepristone is banned or even if significantly restricted. Supporting those pleas is the manufacturer of the only generic version now available.
The initial ruling by the Texas judge has been modified by a federal appeals court, but even that court’s decision would make mifepristone much more difficult to obtain and use than is presently the case.
And, if the differing actions of two courts did not mean enough confusion, a third federal judge in Washington State has ordered the FDA to do nothing to change the availability of mifepristone – a ruling that applies only to 17 states and Washington, D.C., because those were the only ones to sue in that case.
As the case has unfolded over the past week at the Supreme Court, the filings have piled up from all sides of the abortion controversy and from much of the nation’s drug-making industry, all seeking to influence how the Justices act on the emergency requests.
The Court has not yet voted to grant review of the underlying question of mifepristone’s legality and the distribution and use regime, but it has the option of doing so and even the option of granting very expedited review and issuing a final decision before recessing for the summer in late June or early July.
Although Alito’s Wednesday delay order runs only until late Friday night, he and the full Court have the authority to issue even more delays, if they have difficulty making up their minds on what to do immediately and in coming weeks.