Despite the appellate court ruling, the abortion pill is still available under the post-2016 rules as the lawsuit awaits action from the U.S. Supreme Court. This is because of an April decision by the Supreme Court to keep mifepristone available under the post-2016 regulations for the duration of the litigation process.
In September, the Biden administration, through the Department of Justice, appealed the Fifth Circuit’s ruling to the Supreme Court. The administration argued in its appeal that the Fifth Circuit failed to demonstrate the FDA’s scientific and research errors and that the ruling has “especially disruptive implications for the pharmaceutical industry and those who depend upon the drugs it supplies.”
Danco Laboratories also filed an appeal to the Supreme Court.
In October, the Alliance Defending Freedom (ADF), the law firm representing the pro-life groups in this case, filed what’s called a “conditional cross-petition.” In its petition, ADF argued that if the Supreme Court takes up the Biden administration and Danco’s appeals, they should invalidate the FDA’s 2000 mifepristone approval as well as its post-2016 changes.

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According to ADF’s petition, the FDA “disregarded law, science, and safety in pursuit of a political end” and the “Fifth Circuit erred in rejecting the challenges to FDA’s approvals of chemical abortions.”
The amicus brief sent by the members of Congress is in support of ADF’s conditional cross-petition.
The lawmakers’ brief states that “since the FDA’s lawless approval of mifepristone subverts patient safeguards and contravenes federal laws, Amici urge the court to grant Alliance for Hippocratic Medicine’s conditional cross-petition if the court grants the Food and Drug Administration and/or Danco’s petitions for a writ of certiorari.”
One of the signees, Rep. Mark Green, a Tennessee Republican and a doctor, said in a Nov. 16 statement: “To this day, we still have no idea how mifepristone affects adolescent girls because the FDA didn’t bother to run trials. Coupled with the Biden administration’s policy allowing mifepristone by mail, this makes for a dangerous situation for women.”
“I urge the Supreme Court to consider this case carefully,” Green said. “Abortion is wrong, period, but this chemical abortion drug has a greater risk for women’s health than even surgical abortions. I am appalled at the FDA for putting politics before its mission — protecting Americans.”
The Supreme Court has not yet signaled whether or not it will take up the Biden administration or Danco’s appeals.
The U.S. Conference of Catholic Bishops also signed onto the amicus brief urging the Supreme Court to revoke the FDA’s 2000 abortion pill approval, according to a statement by Pfluger. Other organizations that have also signed onto the brief according to Pfluger include CatholicVote, Susan B. Anthony Pro-Life America, March for Life, Students for Life of America, National Right to Life, and Live Action.
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Peter Pinedo is a DC Correspondent for CNA. A graduate of Franciscan University, Peter previously worked for Texas Right to Life. He is a first lieutenant in the U.S. Army Reserve.

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