The Supreme Court this evening issued a ruling permitting the continued distribution of the abortion drug mifepristone, which had been restricted by lower courts because of grave safety concerns. The Court, in a 7-2 decision, granted applications by the FDA and abortion drug manufacturer Danco to “stay” or temporarily suspend a ruling by a federal judge in Texas that would have revoked the FDA’s approval of the drug. Tonight’s Supreme Court ruling also suspends an order by the U.S. Court of Appeals for the Fifth Circuit that would have allowed the sale of Mifepristone under limited circumstances.
Justices Clarence Thomas and Samuel Alito would have denied the stay, and Alito strongly condemned the FDA’s history of lawlessness regarding Danco’s abortion drug.
The FDA and Danco claimed they would suffer “irreparable harm” if the Supreme Court upheld even partial limits on the sale of mifepristone ordered by the Fifth Circuit Court of Appeals. But Justice Alito argued that the government was unlikely to comply with any restrictions on the distribution of the abortion drug: “The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force prohibited, and here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections.”
Danco’s abortion drug was fast-tracked after the FDA claimed pregnancy is a “life-threatening illness.” The FDA permits drugs to come to market without rigorous safety testing in cases where a drug is deemed a necessary, life-saving cure. The FDA caved to pressure from Danco and the Population Council, which sponsored the abortion drug, to forego safety testing, resulting in the deaths of dozens of women and injuries to thousands more.
Life Legal recently prevailed in a whistleblower lawsuit against Danco. Mifepristone is Danco’s only product, so our lawsuit resulted in a significant blow to the company.