How Abortion Providers Are Planning for a Ruling That Could Force Mifepristone Off the Market

Abortion rights demonstrators outside of the Harris County Courthouse during the Women’s March in Houston, Texas, on Oct. 8, 2022. (Mark Felix / AFP via Getty Images)

The ruling in a lawsuit out of Texas seeking to reverse FDA approval of mifepristone is expected as soon as this week. If Trump-appointed District Court Judge Matthew Kacsmaryk rules in favor of the Alliance Defending Freedom (ADF), the far-right group bringing suit, mifepristone would be forced off the market and clinics’ capacities could significantly fall.

The Trust Women clinic in Wichita, Kansas—where abortion is currently legal up to 21 weeks—already gets more than 16,000 calls a day and is booking out weeks ahead. If the clinic is forced to stop providing medication abortions, its capacity will be greatly reduced. Aspiration abortions must be performed in person, with specialized equipment, and appointments can be more than three hours long—three times that of medication abortion appointments. Ashley Brink, the clinic director of Trust Women, said the clinic would only be able to serve a fraction of their current patient load if they could only provide aspiration abortions. 

Luckily, Brink and other providers have been preparing backup plans—which they shared at a roundtable held by Physicians for Reproductive Health and the Abortion Care Network earlier this month. Abortion providers’ continuity plans include providing medication abortions using only misoprostol. The medication can be used alone to provide safe, effective abortions, and the WHO recommends this method when mifepristone is unavailable. But this method will take some adjustment for clinics and patients: Using a misoprostol-only treatment plan changes the dosage, timing and side effects of medication abortions.

The FDA has also not labeled misoprostol for abortion, despite its proven safety and efficacy—which ranges from 88 to 99 percent.

While some providers are preparing to switch to misoprostol-only abortions, others are wary of the legal risks. “There is a strong appetite, to punish to jail, to imprison, to vilify abortion care specifically,” said Dr. Jamilla Perritt, an ob-gyn and president and CEO of Physicians for Reproductive Health. “So we cannot operate, we do not operate, under the same set of circumstances that people not providing this care do. The risk is greater for us. So while we have this legacy of being able to prescribe off-label to be able to manage our patients’ care based on evidence, as opposed to what the FDA approves, we know that they’re going to target us in a different way than if we’re using [misoprostol] for labor induction or something that they deem is worthy care.”  

There are potential benefits to switching to a misoprostol-only regimen. Misoprostol is cheaper and more widely available than mifepristone, and it’s often stocked in pharmacies. (Of course, this assumes Kacsmaryk will spare misoprostol in his ruling.) 

Leah Coplon, the clinical director of Abortion on Demand, an online abortion provider, warned telehealth is at risk if Kacsmaryk’s ruling includes the Comstock Laws or any other laws involving mailing abortion pills. 

Kacsmaryk is anticipated to rule in defense of ADF. The anti-abortion group filed suit in Amarillo specifically to draw the conservative Trump appointee with a reputation for being anti-immigrant, anti-reproductive rights and anti-LGBT. Appeals from Kacsmaryk’s court go to the Fifth Circuit Court of Appeals, regarded as the most conservative court in the country. The case could eventually work its way up to the Supreme Court.

Regardless of the way Kacsmaryk rules, Brink is worried that the existence of the lawsuit itself will hurt those seeking an abortion: “It’s continuing to create fear around abortion care access. … Whatever comes down, there will be people who believe that medication abortion has been banned in this country and they will not be able to access it.” 

The abortion providers on the call said as the legality of abortion changes rapidly across the country, the fear-mongering and creating confusion is strategic—and it’s working: Patients are confused and scared.

“In light of the fact that we know thanks to decades of irrefutable medical research that both aspiration and medication abortions are safe, both of these options should be available to everyone,” said Coplon. “It’s unjust to deny people healthcare options due to the wind and political machinations of those using junk science to control our bodies.”

Providers urged the passage of policy to allow them to care for their patients—including the Women’s Health Protection Act (which would codify Roe v. Wade) and the Equal Rights Amendment.

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Phoebe Kolbert is an undergraduate student at Smith College studying sociology and reproductive health and justice. She is an editorial intern with Ms. and a contributor to the Mainer News Cooperative. Find her columns for Mainerhere.