Alito extends reprieve for abortion pill access, maintaining status quo for 2 more days

Justice Samuel Alito maintained the current level of access to a widely used abortion pill for two more days, a temporary measure that gives the Supreme Court more time to weigh emergency appeals from the Biden administration and a company that makes the drug.

Alito’s move — issued through a pair of brief orders Wednesday afternoon — extends a hold that he put in place last Friday. The earlier hold was scheduled to expire Wednesday night.

As is customary with such orders, Alito offered no explanation for his decision, but extending the hold signals that the justices need additional time to decide whether to allow a set of sweeping restrictions on the drug, mifepristone, to take effect as a result of lower court decisions.

The justices are mulling whether a ruling from the 5th Circuit Court of Appeals should go into effect or whether it should be blocked while further appeals proceed.

If allowed to take effect, the 5th Circuit's April 12 ruling would suspend various policies the FDA has enacted since 2016 to make mifepristone more accessible — including telemedicine prescription, mail delivery, retail pharmacy dispensing and the approval of a generic version of the drug. The ruling also would scale back the approved “on label” use of the drug from 10 weeks of pregnancy to seven weeks — before many patients know they are pregnant.

The appeals court suggested its ruling was a middle-ground approach because it did not go along with a Texas federal judge’s order to suspend mifepristone’s registration altogether.

However, the FDA and the two drug companies that make mifepristone told the Supreme Court that the 5th Circuit’s ruling could amount to a nationwide ban of the drug because of lengthy delays in returning to labeling and protocols that have not been required for years.

Anti-abortion medical groups that are challenging the drug disputed that characterization, saying the ruling would reimpose important safety restrictions on the drug.

Alito acted single-handedly because he oversees emergency appeals from the 5th Circuit. It is not a clear signal about how Alito or the other justices will ultimately vote on whether to allow the 5th Circuit’s ruling to go into effect.