The Supreme Court temporarily extends access to the abortion medication mifepristone. Here’s what’s at stake.

Less than a year after the U.S. Supreme Court voted to overturn Roe v. Wade and allow states to decide whether to ban abortion, the high court was expected to decide a case on Wednesday regarding the use of mifepristone, a widely used pill that terminates pregnancy. But instead, Justice Samuel Alito temporarily extended its access for another two days.

Mifepristone, which is also used in the treatment of miscarriages, is often paired with a second drug, misoprostol, and was approved by the Food and Drug Administration (FDA) 23 years ago.

A Texas lawsuit filed by Alliance Defending Freedom, a faith-based organization that has long sought to have abortion outlawed nationwide, wanted to overturn the FDA’s approval of mifepristone. U.S. District Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump, is overseeing the case.

Over the past month, Kacsmaryk and the Fifth Circuit Court of Appeals in Louisiana reversed the FDA’s approval of mifepristone, blocking access to the popular drug. In response, the Biden administration asked the Supreme Court to intervene and allow access to the drug to be restored.

Yahoo News spoke with legal expert Rachel Rebouché, dean of Temple University's Beasley School of Law, about the case and where access to mifepristone stands. (Some responses have been edited for length and clarity.)

Yahoo News: Is mifepristone still available?

Rebouché: Yes, nothing has changed. [A new deadline has been set for 11:59pm ET on Friday, April 21.]

What exactly did the federal judge in Texas rule on mifepristone?

Judge Kacsmaryk ruled, under powers that he interprets federal courts have, that the FDA's approval of mifepristone in 2000, 23 years ago, was improper under its authority. And so he would have lifted that approval, stayed it essentially, and said it's suspended, making mifepristone an unapproved drug. And that would've applied to everything that the FDA did for mifepristone after that 2000 decision.

All right, so then what did the Fifth Circuit say about Kacsmaryk’s ruling?

It said that Judge Kacsmaryk, the plaintiffs were outside of the statute of limitations, which is the time frame in which people can make challenges to an action, say the 2000 decision. But it was within the statute of limitations to challenge decisions that the FDA made about mifepristone in 2016, 2019 and 2021.

So, in an interesting twist, the Fifth Circuit said that it would stay the portion of the opinion, and so would suspend the portion of the district court's opinion that lifted the approval of mifepristone in the first place, but it would essentially go back in time and apply the ways in which the FDA regulated mifepristone before 2016.

(In 2016, the FDA extended the window in which a pregnancy could be terminated with mifepristone from seven weeks to 10 weeks. It also reduced the number of required in-person visits from three visits to one. Then the FDA approved a cheaper, generic form of the drug in 2019. In the midst of the COVID-19 pandemic in 2021, the FDA allowed the drug to be administered by telehealth and sent through the mail after removing requirements for the drug to be dispensed only in clinics, doctor’s offices and hospitals. The Justice Department and the manufacturer of mifepristone, Danco Laboratories, asked the Supreme Court to freeze the Fifth Circuit’s decision and preserve the status quo, meaning things will be kept the way they are for now. The Supreme Court previously said that the Fifth Circuit order was been suspended until Wednesday, April 19, but Justice Alito extended that deadline another two days to April 21.)

So what comes next?

I think probably what the Supreme Court's going to decide is whether or not it kind of keeps the status quo in play — it suspends the Fifth Circuit's order from going into effect while the Fifth Circuit hears arguments or while the Supreme Court hears arguments on the case. So what we're really looking for is the decision from the Supreme Court about whether or not the Fifth Circuit's order is going to take effect and which parts. All of it, none of it or parts of it.

(If the Supreme Court decides that the Fifth Circuit’s decision goes into effect, Americans would need to: get a mifepristone prescription from a doctor; schedule multiple in-person doctor visits and wouldn’t be able to get the abortion drug via telehealth or through the mail.)

In a separate ruling in Washington state, U.S. District Judge Thomas Rice preserved access to mifepristone in several states. Is that why the Supreme Court now has to intervene?

It certainly tees up the question for the Supreme Court because now you have two federal district courts that are similarly situated with the same columns that are being asked to do very different things. One court is saying to the FDA, “You need to keep mifepristone on the market because of the evidence, because of your statutory duty.” And the other court is saying mifepristone should be off the market because the FDA did not comply with the statutory duties.

Let’s rewind a bit. Could Judge Kacsmaryk’s ruling on suspending the FDA’s approval in 2000 come up again?

It could, if the Fifth Circuit when it hears the case on the merits, decide that Judge Kacsmaryk was right and that the FDA acted improperly in 2000 and was not outside the statute of limitations. That's not a great argument because [the Fifth Circuit] has already thought about the argument and at least temporarily said, “You don't think that plaintiffs are really going to succeed on this argument.” And so it's likely that it might fail when the court reconsiders the issue in a hearing on the case itself, not in a case about whether or not to temporarily suspend the order.

If mifepristone is restricted and unapproved for the market, what’s next?

If mifepristone is unapproved for the market and with all the consequences that follow, it's worth remembering that misoprostol is the second drug in a medication abortion, and that can end a pregnancy too, and it's not subject to the same FDA regulations. So in an ironic twist, this order might actually make medication abortion more available if clinicians turn to misoprostol only.

What are some other concerns to look out for after the Supreme Court makes a decision?

The FDA has a rigorous process for determining whether drugs are approved and complying with that process takes a lot of time and a lot of money and a lot of effort. And if all of a sudden the court can say that process can be questioned or suspended in the future, that's a big problem.