The Justice Department on Friday asked the Supreme Court to push pause on a looming ban on mail prescriptions of abortion medication mifepristone — a ruling that would apply to women in New York and other pro-choice states.
Justice Samuel Alito will need to decide by 1 a.m. Saturday whether to place a hold on the ruling by an appeals court panel that imposes severe restrictions on the use of the widely-used pill.
If Alito, an arch-conservative pro-life jurist, does not act, the ban on mailing the popular drug and prescribing it to women after seven weeks of pregnancy will go into effect immediately nationwide, including in New York.
The feds and drugmaker Danco Laboratories filed emergency requests with the high court less than two days after the Fifth Circuit Court of Appeals panel partially upheld a controversial ruling by a Texas federal judge last week.
The appeals court did put on hold the portion of District Court Judge Matthew Kacsmaryk’s ruling that effectively banned all use of mifepristone, which was approved by the Food and Drug Administration 20 years ago and has been safely used by 5.6 million American women.
But it allowed the other serious restrictions on its use to go into effect while appeals to Kacsmaryk’s unprecedented ruling play out.
The fight over mifepristone has now landed at the Supreme Court less than a year after conservative justices reversed Roe v. Wade and allowed more than a dozen Republican-run states to effectively ban abortion outright.
Attorney General Merrick Garland said the appeals panel did not go far enough to “protect Americans’ access to safe and effective reproductive care” especially while the courts make a final ruling on the case.
Adding to the uncertainty, a separate federal judge in Washington on Thursday reiterated his order that the FDA should not do anything to block mifepristone’s availability in 17 Democratic-led states.
It’s unclear how the agency could possibly comply with both court orders.
The emergency appeals are being handled by Alito because he is assigned to oversee appeals from the Fifth Circuit. He could either put the rulings on hold or allow them to go into effect during the litigation.