Eyes are once again on the United States Supreme Court on Friday, which is set to rule on the fate of the abortion pill in the country following confusing conflicting court rulings.
It is nationwide access to mifepristone that is at stake. In combination with another drug, it is used for more than half of abortions in the United States.
The outcome of the case is extremely uncertain and hardly anyone ventures to predict what the conservative-dominated high court, which last year struck down the constitutional guarantee to abortion, might decide.
But some of the options at his disposal would wreak havoc, abortion rights advocates have warned, and could even challenge the authority of the FDA.
Without a stay by the Court, the "
unprecedented lower court rulings would cloud the regulatory regime for a drug that the FDA has said is safe and effective under approved conditions
," argued on behalf of the Department of Health. Justice attorney Elizabeth Prelogar.
She also warned that if the high court decides to leave these judgments in force, the existing wafers of mifepristone would immediately become non-compliant and therefore could no longer circulate.
More than five million American women have taken mifepristone since it was approved by the FDA more than 20 years ago.
The temple of American law had been seized urgently by the government of Joe Biden.
Court battle
The conundrum began when a federal judge in Texas, known for his Christian faith and his ultra-conservative positions and appointed by Donald Trump, on April 7 withdrew the marketing authorization for mifepristone after being seized by anti-abortion activists.
Despite the scientific consensus, he felt that it posed risks to women's health.
An appeals court in New Orleans, seized by the federal government, then allowed the abortion pill to remain authorized, but by limiting the access facilities granted by the FDA over the years.
His judgment amounted to prohibiting the mailing of mifepristone and returning to use limited to seven weeks of pregnancy, instead of ten.
The federal government then rushed to the Supreme Court.
The latter temporarily maintained access to the abortion pill a week ago, suspending the decision of the court of appeal in order to have more time to examine the file.
Further complicating the matter, a federal judge sitting in the state of Washington, appointed by Barack Obama, had ruled immediately after the decision of his colleague in Texas that mifepristone was "safe and effective"
and
had prohibited the FDA from withdrawing its approval in 17 states and in the capital.
"Politics before women's health"
The first suspension decided by the Supreme Court was valid until Wednesday just before midnight and its decision on the subject was anxiously awaited.
But Judge Samuel Alito said Wednesday that the suspension was extended by 48 hours, until “
11:59 p.m. Friday April 21
”.
The Court can, at its option, decide to suspend the decisions of the lower courts, uphold them, take over the case or, on the contrary, refuse to get involved.
A coalition of anti-abortion doctors on Tuesday urged the high court to leave the appeals court ruling in place.
The FDA and the pharmaceutical company Danco, which manufactures mifepristone, have "
continuously put politics ahead of women's health
", denounced these associations of gynecologists and pediatricians campaigning against abortion.
“
Without a suspensive decision, mifepristone will cause even more physical complications, emotional trauma and even death in women
,” the doctors argued.
President Biden had judged that the decision of the judge in Texas "
exceeded the limits completely
".
The abortion pill is already no longer officially available in some fifteen American states that have recently banned abortion, even if roundabout routes have been developed.
The impact of restrictions or a ban on this pill would therefore primarily concern states where abortion remains legal – for many Democrats.