April 21, 2023

Supreme Court keeps access to abortion pill intact – for now

United States Supreme Court

Access to a widely used abortion pill will remain available, at least temporarily. 

On Friday evening, the U.S. Supreme Court decided to essentially pause a Texas federal judge’s decision that would have severely curtailed the distribution of the drug mifepristone until an appeals court hears the decision.

The case could have impacted access even in states like New Mexico where abortion remains legal. 

The U.S. Department of Justice sought the stay, saying the judge “countermanded a scientific judgment” from the FDA. The Justice Department noted that the drug has been used safely by millions of Americans. Others have noted that such an action could be used for other medicines, including vaccines and could undermine the authority of the FDA to approve drugs for safe use.

The stay lasts until the appeal in the Fifth Circuit, a conservative-leaning panel, and the case seems destined for review by the Supreme Court. It would be the first major case for abortion access since the court overturned Roe v. Wade last year.

The majority did not provide reasoning on why to grant the stay. Two justices, Clarence Thomas and Samuel Alito, publicly dissented from the stay.

The appeals court is slated to hear arguments on May 17.

The Supreme Court’s move came after two dueling decisions by federal district court judges earlier this month on the legality of the process used to approve mifepristone, a pill that has been safely used for medication abortion for decades.

The Texas judge is an anti-abortion, conservative judge appointed by former President Donald Trump and opponents of abortion brought the case in a district where he was the lone possible judge to hear the case.

After the court overturned Roe v. Wade, many states issued strict bans on abortion and Republicans in Congress pushed for a nationwide abortion ban. 

As of earlier this month, more than a dozen states had already restricted access to medication abortion, according to the Guttmacher Institute.

But other states, like New Mexico, expanded access to abortions. Gov. Michelle Lujan Grisham signed two bills into law this year regarding abortion access, one to protect statewide access to reproductive care and one that protected abortion providers. Both also protected access to gender-affirming care.

“I’m relieved by the Supreme Court’s stay, but I remain seriously concerned about the potentially devastating impacts the final ruling could have on reproductive health access for women around the country,” Lujan Grisham said in a statement Friday. “Make no mistake: the legal battle around reproductive health access in this country is far from over, and New Mexico is a state that will continue to fight for the bodily autonomy of women no matter what comes next.”

After the duel rulings, mifepristone remained legal in New Mexico, but at least one abortion provider in New Mexico saw an impact on those seeking the drug, perhaps because of the confusion over its legality.

A significant proportion, more than half, of terminated pregnancies are now done through a two-drug regimen that includes mifepristone according to the Guttmacher Institute.

“This is good news, but the facts remain the same: Access to mifepristone should never have been in jeopardy in the first place,” Planned Parenthood wrote on Twitter following the stay.

Update: Added a statement by Gov. Michelle Lujan Grisham.


  • Matthew Reichbach

    Matthew Reichbach is the editor of the NM Political Report. The former founder and editor of the NM Telegram, Matthew was also a co-founder of New Mexico FBIHOP with his brother and one of the original hires at the groundbreaking website the New Mexico Independent. Matthew has covered events such as the Democratic National Convention and Netroots Nation and formerly published, “The Morning Word,” a daily political news summary for NM Telegram and the Santa Fe Reporter.