The Supreme Court issued an order on Wednesday temporarily extending access to abortion drug mifepristone through Friday at 11:59 p.m. ET.
The order, signed by Justice Samuel Alito, indicates that the high court will issue a ruling by Friday.
The fast-moving case from Texas, in which abortion opponents are seeking to roll back Food and Drug Administration approval of the drug, puts the Supreme Court at the center of the debate on the procedure once again, less than a year after the court's conservative majority overturned Roe v. Wade, the landmark decision that granted the constitutional right to an abortion. More than a dozen states have effectively banned abortion in the wake of the Supreme Court's decision last year.
The court is considering whether or not to block a ruling from Texas federal judge Matthew Kacsmaryk, which threw the drug's approval into uncertainty. The drug first won FDA approval in 2000, and conditions on its use have been loosened in recent years, including making it available by mail in states that allow access.
Since its approval, more than 5 million women have used it, along with another drug, misoprostol, to induce abortions.
The Biden administration and New York-based Danco Laboratories, which produces Mifeprex, a branded version of mifepristone, filed briefings with the high court urging the justices to reject lower court rulings imposing restrictions on the drug.
"The abrupt shift in the regulatory landscape that would be required by the lower courts’ orders raises a host of unprecedented issues and has put FDA and regulated entities in an impossible position," the Justice Department's filing, submitted by Solicitor General Elizabeth Prelogar, reads.
"FDA has spent the last week first grappling with the implications of the district court’s order, then racing to untangle the different and enormously more complicated issues raised by the Fifth Circuit’s decision," the filing continues. "And in the meantime, another district court has enjoined FDA from doing anything to change the conditions on the distribution of mifepristone in 17 States and the District of Columbia -- which means that FDA risks contempt if it takes action to permit the marketing of mifepristone in a manner consistent with the Fifth Circuit’s order."
"This Court should put a stop to that untenable situation by staying the district court’s order in full," Prelogar added.
Alliance Defending Freedom, representing anti-abortion doctors and medical groups in a challenge to the drug, is defending the rulings in calling on the Supreme Court to let the restrictions take effect now.
The abortion opponents filed suit in November in Amarillo, Texas. The legal challenge quickly reached the Supreme Court after a federal judge issued a ruling on April 7 that would revoke FDA approval of mifepristone, one of two drugs used in medication abortions.
Less than a week later, a federal appeals court modified the ruling so that mifepristone would remain available while the case continues, but with limits. The appeals court said that the drug can’t be mailed or dispensed as a generic and that patients who seek it need to make three in-person visits with a doctor, among other things.
The generic version of mifepristone makes up two-thirds of the supply in the United States, its manufacturer, Las Vegas-based GenBioPro Inc., wrote in a court filing that underscored the perils of allowing the restrictions to be put into effect.
The court also said the drug should only be approved through seven weeks of pregnancy for now, even though the FDA since 2016 has endorsed its use through 10 weeks of pregnancy.
Complicating the situation, a federal judge in Washington has ordered the FDA to preserve access to mifepristone under the current rules in 17 Democratic-led states and the District of Columbia that filed a separate lawsuit.
The Biden administration has said the rulings conflict and create an untenable situation for the FDA.
If the justices aren’t inclined to block the ruling from taking effect for now, the Democratic administration and Danco have a fallback argument, asking the court to take up the challenge to mifepristone, hear arguments and decide the case by early summer.
The court only rarely takes such a step before at least one appeals court has thoroughly examined the legal issues involved.
The 5th U.S. Circuit Court of Appeals in New Orleans already has ordered an accelerated schedule for hearing the case, with arguments set for May 17.