The US Supreme Court on Friday temporarily upheld access to the abortion pill, a very common method of abortion in the United States. She suspended the decision of a lower court in order to have more time to consider the file.
This suspension is valid until Wednesday just before midnight, said the Supreme Court, and the parties will have to present their arguments before Tuesday noon. The temple of American law, with a conservative majority, had been urgently seized by the Biden government, which asked it to act before restrictions on access to this pill, ordered by an appeals court, take effect in night from Friday to Saturday.
The final decision remains uncertain
The temporary suspension ordered by the Supreme Court does not predict its future decision on the case, the outcome of which remains very uncertain.
The current legal battle, the latest twist in the assault on the right to abortion in the United States, is at stake in access to mifepristone throughout the United States.
Read also: The abortion pill, a symbol of America’s divisions
A popular pill
In combination with another drug, this pill is used for more than half of abortions in the United States. More than five million Americans have already taken it since its authorization by the American Medicines Agency (FDA), more than 20 years ago. The Supreme Court’s decision on Friday “provides little consolation for five short days,” said Jenny Ma of the Center for Reproductive Rights. “This case is far from over” and “the Supreme Court must act next week to stop the chaos generated”, she added.
In some fifteen American states that have recently banned abortion, the abortion pill is no longer officially available, even if roundabout routes have been developed. The impact of restrictions or a ban on this pill would therefore primarily concern states where abortion remains legal – for many Democrats.
The argument: health hazards
The legal saga began last week: a federal judge in Texas, seized by anti-abortion activists, had withdrawn the marketing authorization for mifepristone, given by the FDA. Despite the scientific consensus, he felt that it posed risks to women’s health.
A period of one week was provided before his decision applied. Seized by the federal government, the court of appeal had allowed the abortion pill to remain authorized – but it had reversed the access facilities granted by the FDA over the years.
His judgment thus amounted in particular to prohibiting the sending of mifepristone by post, and to returning to a use limited to seven weeks of pregnancy, instead of ten. In its motion, the Biden government asked the Supreme Court to “preserve the status quo”, pending a review of the case on the merits.
Another federal judge prohibited the FDA from changing the conditions for the distribution of the abortion pill in the 17 states at the origin of the appeal and the capital Washington, placing the agency in an “untenable situation”, had argued the government .
The industry is worried
One of the two companies that market mifepristone in the United States, the Danco laboratory, had also asked the Supreme Court to intervene. The fear of pharmaceutical industry bosses, like many experts, is that these legal actions will pave the way for the courts to challenge other drugs – or even vaccines.
This is the first time that a court of justice has sought to annul the authorization conditions of a drug on the basis of an assessment of its safety, thus replacing the scientific experts. White House spokeswoman Karine Jean-Pierre said in a statement that the Biden administration will “continue to defend the expert and independent authority of the FDA to evaluate, approve and regulate a broad range of drugs”.
Abortion now restricted in Florida
On Thursday, the parliament of Florida, one of the most populous American states, has also passed a law prohibiting abortions beyond six weeks of pregnancy, which is before most women know they are pregnant. States have been free to legislate on the subject since the Supreme Court overturned, in a historic decision in June 2022, the federal protection of abortion, burying the emblematic judgment “Roe v. Wade” from 1973.
In states where abortion is now prohibited (with rare exceptions), some women have recourse to organizations mobilized to send abortion pills from abroad or from other states, or to commercial sites selling them on the Internet. Where abortion remains legal, if access to mifepristone is restricted, women would still have the option of an aspiration abortion – a more cumbersome procedure, requiring a visit to a clinic.
Some doctors are considering continuing to offer medical abortions using only the second tablet, misoprostol. But this protocol is a little less effective and has more side effects (severe cramps, etc.) than the one combining misoprostol and mifepristone.