The Supreme Court on Wednesday morning agreed to review a ruling by a federal appeals court that would significantly restrict (but not eliminate altogether) access to a drug used in medication abortions, which account for over half of all abortions performed in the United States. Wednesday’s announcement means that the justices will weigh in on the issue of abortion for the first time since overruling the constitutional right to an abortion last year in Dobbs v. Jackson Women’s Health Organization. Their decisions in the new cases, Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, are likely to come sometime next summer, in the middle of the 2024 presidential campaign.
The announcement that the justices had granted review in the two cases came as part of a list of orders (the rest of which will be covered in a separate post) released on Wednesday morning.
The justices declined to take up an appeal by the challengers in the case, a group of doctors and medical groups opposed to abortion who had asked them to also weigh in on the validity of the FDA’s initial approval of the drug, known as mifepristone, in 2000. A federal judge in Amarillo, Tex., agreed with the challengers and suspended both that approval and the later changes to the conditions on the use of the drug – such as allowing the drug to be used through the 10th week of pregnancy, rather than the 7th, and allowing health-care providers who are not physicians to prescribe the drug. But although the U.S. Court of Appeals for the 5th Circuit upheld Kacsmaryk’s rollback of the later changes to conditions on the use of the drug, it ruled that the challengers’ efforts to invalidate the FDA’s initial approval of the drug came too late.
The Biden administration and the drug manufacturer Danco came to the Supreme Court this spring, asking the justices to intervene to maintain the status quo until the dispute is resolved. The justices granted that request, allowing the drug to remain widely available for now.
The Biden administration and Danco came to the Supreme Court in September, asking the justices to weigh in on the propriety of the FDA’s decisions in 2016 and 2021 to make mifepristone more widely available, as well as whether the challengers have a legal right to bring their case at all. The doctors and medical groups asked the justices to take up their challenge to the FDA’s initial approval of mifepristone in 2000 – both its timeliness and the propriety of the decision itself.
In a brief order, the justices granted review of both the Biden administration’s and Danco’s appeals and indicated that they would be argued together, presumably sometime early next year.
The justices’ decision not to take up the challengers’ petition for review was the only denial of review noted on the one-page list of orders, suggesting that the justices wanted to make clear now that they would not weigh in on the FDA’s initial approval of the drug in 2000.
