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Attorney General Josh Kaul speaking during the Democratic Party rally in Milwaukee on Saturday.

Supreme Court temporarily lifts abortion pill restrictions after Kaul, AGs oppose Texas ruling

The Supreme Court temporarily protected medication abortion access, but the stage is set for another national showdown over reproductive care.

United States Supreme Court Justice Samuel Alito issued an administrative stay Friday, temporarily freezing litigation on a Texas court ruling threatening abortion medication access nationwide.

The move caps off a week-long legal saga that started when a federal district court in Texas restricted FDA approval for mifepristone, a key drug used in medicated abortions. 

The Biden administration issued an emergency appeal to the conservative-leaning 5th Circuit Court of Appeals shortly after the lower court’s ruling. In their decision, the appeals court temporarily blocked the most extreme elements of the Northern District’s ruling while still upholding some restrictions, like ending mail order prescriptions, restricting retail pharmacy access and reducing the mifepristone administration time frame from 10 to seven weeks of pregnancy.

Seeking to restore full approval for mifepristone, the U.S. Department of Justice appealed the case to the Supreme Court, where Alito issued his administrative stay. The temporary order blocking the Texas court’s ruling originally lasted until late Wednesday night but was extended through Friday.

First approved by the FDA in 2000, mifepristone is a synthetic steroid designed to block a key hormone in pregnancy development, according to the agency. The drug is commonly used in hospitals and clinics to conduct medication abortions and treat miscarriages.

A study last year from the Guttmacher Institute found more than half of U.S. abortions are induced via mifepristone and its counterpart misoprostol, taken together within 10 weeks of the start of pregnancy.

Kaul, AGs chastise Texas court ruling

With mifepristone’s future uncertain, Wisconsin Attorney General Josh Kaul joined a 24-state coalition last week challenging the Texas court’s ruling and seeking to protect access to the drug. 

In their April 10 brief, the coalition of Democratic attorneys general sought to bring attention to the potentially “devastating consequences” of rolling back access to mifepristone, a drug they claimed was “safe, effective and indispensable.”

“The months following the Supreme Court’s decision to overturn Roe v. Wade have made it clearer than ever how vital it is for women to have access to the full array of life-saving reproductive health care services without interference from politicians,” Kaul said in a press release last week. “Mifepristone has been used safely for years, and the misguided district court order that would prevent the use of mifepristone must be blocked.”

Democrats and advocacy groups nationwide echoed Kaul’s sentiment. President Joe Biden called the court’s ruling “completely out of bounds” in an article from The Hill last week, while Planned Parenthood of Wisconsin worried the unprecedented ruling would ignite “catastrophic” nationwide consequences for reproductive care.

"Attorney General Kaul has been consistent in his commitment to advancing and protecting reproductive rights,” Michelle Velasquez, legal advocacy director at Planned Parenthood Wisconsin, told The Daily Cardinal. “He believes everyone should have the freedom and power to control their own bodies and understands how vital it is for people to have full access to reproductive healthcare.” 

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Legal debacle leaves mifepristone’s future uncertain

Mifepristone’s approval came under fire for the first time last November when anti-abortion groups challenged the FDA in a Texas district court. After months of arguments and deliberations, Trump-appointed Judge Matthew Kacsmaryk sided with the groups in a first-of-its-kind order to strike the drug’s FDA approval.

In a 67-page decision, Kacsmaryk invoked the Comstock Act, a 150-year-old anti-obscenity law meant to restrict the distribution of “obscene” materials. His ruling relied on controversial medical data associating significant health complications with mifepristone, and claimed a possible link between abortion and eugenics. 

Kacsmaryk gave the Biden administration seven days to seek emergency relief in the 5th Circuit in his decision. They did, and abortion advocates — including Kaul’s coalition — jumped in to protect mifepristone access.

Had Alito not stepped in, the 5th Circuit’s ruling would have gone into effect, leaving patients and healthcare providers in an uncertain position.

FDA approval of mifepristone is protected for now, but the drug’s future remains uncertain. The Supreme Court gave the anti-abortion plaintiffs until noon Tuesday to issue a brief.

After Wednesday’s administrative stay lapses, the Supreme Court has several options available to them. The court can hear the case immediately in emergency fashion, extend its stay through the summer and take up the case in full in October or simply send the case back to the 5th Circuit while maintaining access to mifepristone for a full trial in lower courts. 

Editor's note: This article was updated at 5:41 p.m. on Wednesday, April 19, 2023, to reflect new action from the U.S. Supreme Court. The administrative stay was originally set to expire on Wednesday but was extended to Friday.

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Nick Bumgardner

Nick Bumgardner is a staff writer with The Daily Cardinal covering state news and politics. You can follow him on Twitter at @nickbum_.


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