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Mifepristone is on the market today, but that could change tomorrow

AILSA CHANG, HOST:

The abortion pill mifepristone remains available in many states and fully on the market today, but that could change soon. NPR's Sarah McCammon joins us now with an update on that. Hey, Sarah.

SARAH MCCAMMON, BYLINE: Hi, Ailsa.

CHANG: So, I mean, there's been so much back and forth, Sarah, in the courts the past 10 days or so around access to this abortion pill. Can you just remind us, where do things stand at this moment?

MCCAMMON: Well, at this moment, an administrative stay from the U.S. Supreme Court is still in effect. It is temporarily preserving the status quo. And that means that mifepristone is still available in states where abortion is legal. It can be sent through the mail in those states. But, Ailsa, that may not be the case for long. That stay from the Supreme Court, which stems from a federal case out of Texas, expires late tomorrow night.

CHANG: Tomorrow night. OK. And then what happens?

MCCAMMON: Well, if the court were to do nothing, as of tomorrow night, mifepristone would still be technically on the market but with new limitations, at least in some states. Just to back up slightly, this case started with a lawsuit when anti-abortion groups sued the Food and Drug Administration over its approval of mifepristone in 2000. That pill, of course, is used in a majority of abortions in this country now. A conservative federal judge in Texas, Matthew Kaczmarek, sided with that group earlier this month and blocked the FDA approval. The Biden administration appealed, and then the Fifth Circuit Court of Appeals said mifepristone could stay on the market but with some significant restrictions, the most important one being it could no longer be mailed. So the Justice Department then went to the Supreme Court. Justice Sam Alito said they would keep things as they are right now until that stay expires tomorrow at 11:59 p.m. But legal experts I've talked to say they think the court will weigh in in some fashion.

CHANG: Wow. OK. What a windy path. That is all what the Justice Department wants at this point, but what are anti-abortion groups asking for?

MCCAMMON: So the Alliance Defending Freedom, which is representing the anti-abortion groups in this case - they're urging the Supreme Court to allow the restrictions from the Fifth Circuit, that lower court, to take effect. So that, again, would mean pills could not be sent in the mail. They could only be prescribed up to seven weeks of pregnancy, down from 10.

CHANG: OK.

MCCAMMON: But even if the Fifth Circuit decision does take effect, it could be complicated, Ailsa, by another lawsuit in play here. You may remember a federal judge in Washington state has said that mifepristone should remain fully available in the 17 states and D.C. that filed a lawsuit in his court. That conflict between these two cases is something that also could come up before the Supreme Court.

CHANG: Whew. OK, can we just step back for a moment? It's been less than a year since the court overturned Roe v. Wade. What do you think the larger significance is here of how the court decides to move forward on this?

MCCAMMON: Yeah. Whatever the court does is going to be very closely watched because it could tell us a lot about what to expect, both in terms of this case, abortion pill access, and future cases related to reproductive health. I talked to Greer Donley today. She's a law professor at the University of Pittsburgh. And she says as counterintuitive as it might sound, she thinks the Supreme Court may actually be the friendliest court so far to the Biden administration's arguments here.

GREER DONLEY: So the Fifth Circuit is more restrained than Judge Kaczmarek but still extremely conservative. And then you have the Supreme Court, which is the Supreme Court that overturned Roe v. Wade and is, you know, one of the most conservative Supreme Courts we've had in decades. But it's still the least conservative judicial body to hear the case.

MCCAMMON: The court is being asked to consider some procedural issues like standing here. But then there are these bigger-picture questions this case raises, Ailsa, like whether the courts have the power to overturn the FDA's approval. And that could have implications for lots of other issues.

CHANG: That is NPR's Sarah McCammon. Thank you so much, Sarah.

MCCAMMON: Thank you.

(SOUNDBITE OF DESTINY'S CHILD SONG, "GIRL") Transcript provided by NPR, Copyright NPR.

Sarah McCammon is a National Correspondent covering the Mid-Atlantic and Southeast for NPR. Her work focuses on political, social and cultural divides in America, including abortion and reproductive rights, and the intersections of politics and religion. She's also a frequent guest host for NPR news magazines, podcasts and special coverage.