Supreme Court Blocks Abortion Pills’ Return : Medicine: Import ban on RU486 is upheld. Berkeley woman loses option to end pregnancy without surgery.

The Supreme Court refused Friday to order U.S. officials to return abortion pills confiscated from a pregnant Berkeley woman, thereby leaving intact a government ban on importing the French drug that induces abortion.

For 29-year-old Leona Benten, the high court’s action forecloses the chance that she will be able to end her pregnancy by taking the 600-milligram dose of RU486. The drug is only effective during the first eight weeks of pregnancy, a threshold she will cross this weekend.

Benten immediately denounced the decision as “anti-choice and anti-women,” and said she would proceed instead with a surgical abortion.

At the Food and Drug Administration, chief spokesman Gary Fendler said: “We’re pleased with the decision. We have felt all along that this (position on RU486) was a medical decision made by doctors and scientists at the FDA, and we’re disappointed that we were dragged into the political arena in an election year by a special interest group.”

On a 7-2 vote, the justices rejected Benten’s petition for an emergency order overturning an appeals court order that prevented her from keeping the drug. In so doing, they rejected her lawyers’ claims that she would suffer “irreparable harm” if the pills were not returned.

Justices Harry A. Blackmun and John Paul Stevens dissented, with Stevens arguing that the policy put an “undue burden” on women seeking an abortion.

The case now returns to lower courts in New York, where judges may consider the broader challenge to the ban on importing RU486.

However much Benten’s lawsuit failed to resolve her own predicament, it may have succeeded in its calculated attempt to focus national attention on RU486.

Invented by French researchers in 1980, the abortion pill has been used widely in Britain and France, and abortion rights advocates say it offers women in the United States a safe, painless and private means of ending an unwanted pregnancy.

But abortion opponents have urged the Bush Administration to keep the drug out of this country and have threatened to boycott all the products of any pharmaceutical firm that seeks to test and market it.

The court action in New York and Washington this week certainly did not resolve that larger dispute and indeed dealt with only a narrow aspect of it.

Benten’s lawyers challenged a 1989 policy of the FDA, which alerted U.S. Customs agents that RU486 was subject to “automatic detention.” In some instances, the FDA allows a person to import unapproved drugs for “personal use,” but it removed RU486 from the list of acceptable imports.

On Tuesday, U.S. District Judge Charles P. Sifton in Brooklyn ruled that the FDA “acted illegally” in promulgating this policy because it had not made a public announcement or sought comments on it. A federal law requires agencies to follow such procedures before adopting new regulations.

He said the policy was adopted for “policy considerations” by Bush Administration officials who are sensitive to the concerns of anti-abortion advocates. But Sifton stopped short of invalidating the import ban entirely, ruling only that the FDA and Customs agents had no authority to confiscate the pills from Benten at Kennedy International Airport on July 1.

A New York-based organization, Abortion Rights Mobilization, had enlisted Benten, an unmarried social worker, to bring a test case challenging the FDA’s import ban. Its leaders alerted Customs agents and the press in New York to be there when Benten’s flight arrived.

While her lawyers contended that the FDA policy violated a woman’s right to abortion, Sifton avoided a sweeping ruling.

“The FDA is ordered to immediately release the impounded dosage of RU486 to plaintiff. No broader decision from this court is warranted at this time,” said Sifton, an appointee of former President Jimmy Carter, in his July 14 opinion.

But within hours, Justice Department lawyers went to the U.S. 2nd Circuit Court of Appeals in Manhattan and won an order blocking that ruling. The panel of three judges--all appointed by President Ronald Reagan or President Bush--agreed that the pills could be retained by Customs.

Lawyers for Benten then petitioned Justice Clarence Thomas on Tuesday evening, arguing that their client would suffer “irreparable harm” if the pills were not returned. Benten said she wanted to avoid a surgical abortion if possible.

Thomas has jurisdiction over emergency appeals from New York, Connecticut and Vermont. He in turn handed over the issue to the full court, which rejected the petition Friday evening.

“We conclude that petitioners have failed to demonstrate a substantial likelihood of success on the merits of these claims,” the court said in an unsigned order.

The high court’s rejection was not unexpected, although court officials gave no explanation of why the justices took three days to act on an emergency appeal. One possibility is that several members are away from Washington. In such instances, they can cast their votes by telephone, usually after having the papers faxed to them. Rarely does the full court agree to act on an issue that is under consideration in a lower court.

The task now before the lower courts in New York is to first determine whether the legal challenge to the import ban is now moot, given the stage of Benten’s pregnancy and her decision to proceed with a surgical abortion.

The courts could dismiss the matter entirely.

But the suit also sought a ruling on behalf of other “similarly situated” women who in the future may want to import RU486 for their own use.

“This is not the end. We intend to press forward with the challenge to the import ban,” said Simon Heller, an attorney for the Center for Reproductive Law and Policy in New York.

In cases involving disputes of a short duration--and abortion is the classic example--the courts have waived the usual rule about mootness to rule on the underlying issue. Otherwise, the Supreme Court could never have ruled in the Roe vs. Wade case because such disputes normally take three years to reach the justices.

The Justice Department has maintained all along that federal law requires the FDA to keep out “unapproved drugs” and that neither Benten nor anyone else has a “legal entitlement” to import a drug such as RU486.

In their brief to the high court, Justice Department lawyers said Sifton’s ruling was in error and should have been blocked from taking effect.

While the FDA allows some people to import unapproved drugs for personal use, U.S. attorneys said this exception applies only to “certain innocuous drugs,” such as untested headache remedies, and to “certain drugs of unproven efficacy for serious conditions,” such as cancer or AIDS.

RU486 fits neither category, they said, and therefore was properly confiscated.

“The government and the public interest are irreparably harmed when the judiciary mandates contravention of fundamental safety laws,” the Justice Department argued.

U.S. attorneys refused comment Friday on whether they will seek to have the lawsuit dismissed as moot. Heller, Benten’s attorney, said the appeals court will probably return the case to Sifton next week to consider the broader challenges to the import ban.