The abortion drug mifepristone will remain available nationwide after the Supreme Court stayed a Texas federal judge’s ruling striking down the FDA’s two-decade-old approval of the medication. 

The high court had until 11:59 p.m. Friday to decide whether to keep the ruling by US District Judge Matthew Kacsmaryk in place while challenges to the drug made their way through the lower courts. 

The Biden administration and New York-based drug manufacturer Danco Laboratories had asked the justices to intervene and stay the Texas judge’s ruling

Mifepristone is used in combination with a second drug, misoprostol, in more than half of all abortions in the US. The FDA approved its use in 2000.

Justices Samuel Alito and Clarence Thomas indicated they would have allowed Kacsmaryk’s order to remain in effect while litigation continues.

In his dissent, Alito writes that the Biden administration and Danco Laboratories “are not entitled to a stay because they have not shown that they are likely to suffer irreparable harm in the interim.”

He also said that “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.”

The court’s action likely means that access to mifepristone will be unchanged at least into next year, as appeals play out, including a potential appeal to the high court.

Alito, who authored last year’s decision overturning Roe v. Wade, had issued a temporary stay of Kacsmaryk’s ruling last week, which was extended an additional two days on Wednesday. 

President Biden on Friday reacted to the court’s stay by declaring that he stands by the “FDA’s evidence-based approval” of the drug.

“As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts,” Biden said in a statement, later adding, “My Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs.

“The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear – the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v Wade,” the president went on. 

On April 7, Kacsmaryk, an appointee of former President Donald Trump, ordered a hold on federal approval of mifepristone.

Minutes after his ruling, Washington state US District Judge Thomas O. Rice, a Barack Obama appointee, barred authorities from restricting access to mifepristone in at least 17 states where Democrats sued to protect availability.

The following week, a three-judge panel of the 5th Circuit Court of Appeals upheld parts of Kacsmaryk’s nationwide injunction, which limited the FDA’s attempts to expand access to the drug, but stayed Kacsmaryk’s suspension of the agency’s 2000 approval of mifepristone.

US Solicitor General Elizabeth Prelogar urged the Supreme Court to allow the drug to remain in use, arguing that the lower court ruling in Texas was “unprecedented.”

Prelogar argued that even enforcing the 5th Circuit’s ruling “would be almost equally disruptive,” because mifepristone currently on the market “would immediately become misbranded” and the generic version would no longer have valid FDA approval.

With Post wires