WASHINGTON -- The Bush administration told the Supreme Court yesterday that it is only doing what Congress wants in keeping the abortion pill, RU-486, out of this country, and argued that no American woman should be allowed to defy Congress' choice.
Stung by a federal judge's accusation that the government acted illegally and bowed to political pressure by banning all imports of the French-made pill three years ago, the administration fought back in a 13-page legal brief filed with the justices. It accused the judge of "arrogating [to himself] the role of supervisor of the public's health and safety."
The Supreme Court is expected to act today on a plea by a pregnantCalifornian, Leona Benten of Berkeley, to reinstate the judge's order allowing her to take 600 milligrams of RU-486 by tomorrow, so she may begin an abortion by the end of her eighth week of pregnancy -- a medical deadline for the pill.
RU-486 allows abortion by medicine, rather than surgery, and thus allows pregnancies to be terminated in complete privacy -- at home or in a doctor's office -- rather than in a hospital or clinic.
The drug has not been approved for medical use in this country, because the French and German drug firms that own the patent have not sought approval here, for fear of a boycott of all their products by abortion foes.
On Tuesday, U.S. District Judge Charles P. Sifton of Brooklyn ruled in Ms. Benten's favor, ordering the government to return 12 RU-486 pills to her promptly. The pills had been seized from her in New York, after she had gone to London to buy them. She had planned to take the drug in an abortion research experiment.
A higher court, the 2nd U.S. Circuit Court of Appeals in New York, temporarily blocked Judge Sifton's order, and Ms. Benten's lawyers then took the issue Wednesday to the Supreme Court. Originally, their request was filed with Justice Clarence Thomas, who handles emergency legal requests from the 2nd Circuit, but he apparently planned to refer it to the full court for a decision.
The administration's response was a broad defense of the import ban. It argued that drugs that do not have official government approval as safe and effective are not supposed to be allowed in the country anyway.
By enforcing those laws specifically against imports of any quantity of RU-486, even for one woman's personal use, the government was simply doing what Congress had mandated, the brief contended.
Judge Sifton, however, had ruled that the federal Food and Drug Administration acted illegally under federal drug laws by first clearing the way for individuals to import a wide array of experimental new drugs with no official approval yet by the FDA, and then by changing its mind to impose a ban only on RU-486 after anti-abortion members of Congress had complained.
The judge ruled that the issue was not the government's power to ban imports of RU-486, but rather its failure to weigh individual imports of it on a person-by-person basis and its failure to consult the public before imposing a total ban.
The administration, however, told the Supreme Court that the issue was whether the government "must be required to permit [Ms. Benten and her doctor and supporters] to bring this unapproved drug into the United States." That decision, the brief argued, is a matter left to official discretion, and judges ought not to interfere.