Access to mifepristone, a widely used abortion drug, is in jeopardy after a pair of conflicting court rulings on Friday.
Allen G. Race/AP
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Allen G. Race/AP
Access to mifepristone, a widely used abortion drug, is in jeopardy after a pair of conflicting court rulings on Friday.
Allen G. Race/AP
Access to common abortion medication currently hangs in the balance in a pair of conflicting rulings by federal judges, setting the stage for the most significant legal action on abortion since they were overturned. Roe v. Wade last year.
Mifepristone is widely used throughout the United States to terminate pregnancies in the first 10 weeks of pregnancy. About half of all abortions nationwide are performed using mifepristone as the first two-pill regimen. The drug is also commonly used to help manage injuries.
The brand name drug Mifeprex was first approved by the Food and Drug Administration more than 20 years ago. Since then, it has been used millions of times, and major medical groups they say it has a strong safety record. A generic version was approved in 2019.
Now, the future of drugs is in jeopardy. A federal judge in Texas issued a preliminary injunction that revokes the FDA’s approval of mifepristone nationwide starting this Friday. Meanwhile, a decision to compete outside of Washington state could limit the reach of the Texas injunction.
The Biden administration appealed the Texas decision, and a federal appeals court is likely to weigh in this week. Ultimately, it may be up to the Supreme Court to resolve the conflicts.
“Everybody’s eyes are now pointed back to DC,” said Katie Glenn Daniel, the state policy director at Susan B. Anthony Pro-Life America. “We anticipate that eventually, whether it is the merits of this case or these injunctions – now dueling injunctions – that the Supreme Court will have to weigh in some way.”
Here’s what you need to know:
Where are things now?
As of Monday, there has been no change in Americans’ ability to access mifepristone.
But this could change as soon as this Friday, when the preliminary injunction issued by US District Judge Matthew Kacsmaryk should come into force.
The Texas lawsuit, filed by a coalition of abortion rights opponents, has raised questions about the process by which the FDA originally approved the drug in 2000.
Kacsmaryk, a Trump appointee, agreed with their concerns and, in a preliminary ruling on Friday, declared the FDA approval invalid. He withheld his own decision for seven days to allow time for an appeals court to weigh in.
Meanwhile, there is a decision to compete outside the state of Washington, where the attorneys general of 17 states and the District of Columbia had sought to force the FDA to expand access to medicine.
The judge in that case, US District Judge Thomas Rice, an Obama appointee, did not go as far. But he ruled on Friday that the agency cannot change access to the drug while the case continues. That decision could offer relief if the Texas injunction goes into effect — though it would be limited to those 17 states and the District of Columbia.
(Those states are Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont and Washington.)
For residents of those states, Rice’s decision “preserves the status quo to ensure that access to mifepristone remains available,” Washington Attorney General Bob Ferguson told NPR on the -Friday.
For the rest, Ferguson said, the Texas decision “seriously has the potential to eliminate that access to mifepristone here in the coming days.”
The quick timeline of the Texas ruling has left open a number of questions for medical providers and pharmacies about access to the widely used drug.
“For example, if the medication is already in the pharmacy and has already been prescribed, can those prescriptions be filled?” said David Donatti, an attorney at the ACLU of Texas. “These are questions that the lower court order simply does not answer.”
What are the next steps in the legal process?
Ultimately, this will likely be headed to the US Supreme Court.
The US Department of Justice has already appealed the Texas ruling. This will be heard by the Fifth Circuit Court of Appeals, which is generally a more conservative appellate court.
The appeal court’s decision is likely to come before Friday, April 14. Regardless of which way it decides, the decision will almost certainly be appealed to the Supreme Court.
“We absolutely hope the Supreme Court settles this issue once and for all. It’s been decades in the making,” said Chelsey Youman, an attorney with the Human Coalition, an anti-abortion rights group that filed an amicus brief in the case. ‘Texas.
How are abortion providers responding?
Like most of the last few years since the Supreme Court has swung conservative and Roe v. Wade reversed, abortion providers have been consulting with lawyers and prepare for multiple scenarios.
“You’re going to be working closely with legal counsel in a really fast-changing environment. That’s what I envision in the next seven days, and probably beyond that,” said Melissa Grant, the -chief operating officer of Carafem, an abortion provider that supplies mifepristone. in its three physical clinics and through telehealth.
One possibility is for providers to switch to a single-pill protocol. In the United States, mifepristone, which works by blocking the pregnancy hormone progesterone, is used along with a second pill, misoprostol, which causes the uterus to expel the pregnancy tissue. Used together, there are fewer side effects for medication abortion.
But using only misoprostol can still be effective. Several major health organizations, including the World Health Organization and the American College of Obstetricians and Gynecologists, say that the single-drug protocol is acceptable, especially when mifepristone is not available.
