Justice Brett M. Kavanaugh wrote that the goal was to remove the courts from the controversial issue.
“After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans,” Kavanaugh wrote in a concurring opinion. “That issue will be resolved by the people and their representatives in the democratic process in the States or Congress.”
But the new challenge calls into question just that — the availability of abortion nationwide, as well as the authority of a government agency to decide on the safety and use of certain drugs.
The Justice Department is expected to ask the justices on Friday to block for now lower-court decisions that limit how patients obtain the drug mifepristone and how late into pregnancy it can be used. A U.S. district court judge in Texas has gone further, moving to suspend government approval of the drug, first cleared by the Food and Drug Administration more than 20 years ago.
Kavanaugh could be key to the court’s deliberations, as could Chief Justice John G. Roberts Jr.
Roberts was not among the court’s conservatives who voted to overturn Roe. He said he was reluctant to deny a woman a “reasonable opportunity to choose” whether to end her pregnancy. He said his colleagues to his left and right “display a relentless freedom from doubt on the legal issue that I cannot share.”
Now the court returns to an issue that has divided it before along familiar ideological lines — the use of mifepristone and when to defer to the FDA’s authority.
But the court’s consideration of the issue several years ago was with a different backdrop — the then-constitutional right to abortion — and with the FDA at the time opposing efforts to ease access to the drug.
In 2020, during the pandemic, U.S. District Judge Theodore D. Chuang of Maryland lifted the FDA requirement that a patient travel to a doctor’s office to receive mifepristone. He said that travel restrictions during the pandemic put a burden on those seeking the pill and that they were not necessary for safety.
The Trump administration strongly objected. After a long delay, the court declined to undo Chuang’s order immediately.
That brought a strong dissent from Justices Samuel A. Alito Jr. and Clarence Thomas. “If the FDA is right in its assessment” that mifepristone should be picked up in a doctor’s office even if ingested by the patient at home — which was the FDA’s position at the time — “non-enforcement of the requirement risks irreparable harm.”
And Alito was critical of Chuang. “A District Court Judge in Maryland took it upon himself to overrule the FDA on a question of drug safety,” Alito wrote, saying Chuang disregarded the court’s guidance against “second-guessing of officials with public health responsibilities.”
In the closing days of the Trump administration, the government went back to the Supreme Court, and the justices reimposed the requirement.
Roberts wrote that he was deferring to the expertise of the government agency, as he had in other decisions about pandemic restrictions.
“The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter,” Roberts wrote.
“The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID-19 pandemic. I do not see a sufficient basis here for the District Court to compel the FDA to alter the regimen for medical abortion,” he wrote.
Liberal justices objected. Justices Sonia Sotomayor and Elena Kagan said the court was allowing the FDA to impose unfair restrictions.
“Of the over 20,000 FDA-approved drugs, mifepristone is the only one that the FDA requires to be picked up in person for patients to take at home,” Sotomayor wrote. She said the years of experience in women taking the drug early in pregnancy had shown its safety.
But the FDA restrictions, she said, were part of a pattern. “This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks.”
Now, the FDA, under the Biden administration, has done away with the requirement that patients pick up the drug from a doctor’s office or clinic and allows health professionals besides doctors to prescribe it.
And now it is conservative judges who say the FDA has not demonstrated that it properly considered the safety concerns in implementing its new regulations.
The complicated issues at stake — there is a conflicting ruling from a federal judge in Washington state that requires the FDA to keep the drug available — make it even more difficult for the court.
Recent legal developments included the U.S. Court of Appeals for the 5th Circuit late Wednesday reinstating regulations that limit how patients obtain mifepristone and how late into pregnancy it can be used.
All requests for emergency relief from 5th Circuit orders go to Alito, who is designated by the court for that role. But in almost all cases of such importance, the justice will refer the matter to the entire court for action.
The justices have several options. They could allow the lower-court ruling to take effect while the appellate courts play their normal roles in reviewing the merits of district court decisions. But abortion providers and the Biden administration say that would create chaos because of the conflicting rulings.
Or the court could stay the rulings to maintain the status quo.
The 5th Circuit panel that issued Wednesday’s order said the merits of the case should be decided by its judges in an expedited manner. The loser in that process would almost surely go to the Supreme Court. And the justices again would be asked whether to allow that ruling to go into effect or put it on hold.
The court, which does not have to hear the case, could take up the issue in the term that begins in October. In some important cases, it has been acting more quickly and hearing matters on an emergency basis.
The court starts its last round of oral arguments for this term next week and has not decided any of the major issues on its docket. The court aims to finish its work by the end of June.
Ann E. Marimow and Perry Stein contributed to this report.
