Update Friday, Apr. 21, 2023, at 4:15 p.m. PT: In a shadow docket ruling late on Friday, April 21, the Supreme Court has decided to block a previous ruling from the U.S. Court of Appeals for the Fifth Circuit from taking effect, allowing the abortion pill mifepristone to remain on the market under current rules.
“While SCOTUS offered temporary relief, the fate of a medication approved by the FDA more than 20 years ago should have never been before the Supreme Court to begin with,” said Kirsten Moore of Expanding Medication Abortion Access Project (EMAA Project). “The FDA has the authority and scientific expertise to evaluate and approve medications—not politicians, not activists, and not judges. We must now move forward to ensure access to safe and effective medication abortion care nationwide without any further interference—our freedom to make our own health care decisions is on the line.”
Update Wednesday, Apr. 19, 2023, at 2:15 p.m. PT: This afternoon, the Supreme Court issued an extension to its order blocking the lower courts’ restrictions on the abortion pill mifepristone until Friday, April 21, at 11:59 pm ET.
GenBioPro, the only manufacturer of generic mifepristone in the U.S., also filed a legal challenge in Maryland against the FDA, seeking to force the agency to preserve mifepristone’s availability and keep its version of the drug on the market. The pharmaceutical company said revoking the FDA’s approval of generic mifepristone would cause “catastrophic harm” to the company, as well as doctors and patients who rely on the medication.
“GenBioPro was founded on the belief that all people—regardless of their income, gender, race or zip code—should be able to access essential, evidence-based medication,” said GenBioPro CEO Evan Masingill. “In today’s action, we are seeking to enforce rights Congress provided to us, as well as protections in the United States Constitution, which protect our company and our healthcare provider customers.”
Ms. is following the case closely; stay tuned for updates.
As the Supreme Court weighs its options on the abortion pill mifepristone, abortion and women’s rights supporters across the U.S. are protesting the latest efforts to restrict access to abortion. Protests took place this weekend in small and large cities, including Amarillo and Dallas, Texas; Chicago; Detroit; Los Angeles and Santa Barbara, Calif.; New York City; Seattle; Sioux Falls, S.D.; Tallahassee, Fla.; and Washington, D.C., the nation’s capital.
Thank YOU to everyone who joined us this weekend in support of medication abortion. Together, we will secure reproductive freedom for everybody. pic.twitter.com/W5vcH6sY36— NARAL (@NARAL) April 17, 2023
The continued contradictory orders of various courts have escalated the issue to the Supreme Court. A decision could come any day.
The dueling rulings on mifepristone are as follows:
- Friday, April 7: In a much-awaited decision, Trump-appointed federal judge Matthew Kacsmaryk of the Northern District of Texas ruled that the FDA improperly approved mifepristone—setting off a chain of responses from various other courts.
- Friday, April 7: Less than an hour later, Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington issued an injunction blocking the FDA from “altering the status quo and rights as it relates to the availability of mifepristone.”
- Wednesday, April 12: The Fifth Circuit Court of Appeals issued a ruling on mifepristone limiting its use up to just seven weeks of pregnancy, which reproductive advocates warn would significantly impair access to abortion. (The appeals court concluded that the plaintiffs had waited too long to challenge the original approval of mifepristone in 2000, but were timely in their challenges to modifications of the approval in 2016, 2019, 2021 and 2023. Those modifications included allowing use of the medication through 10 weeks of pregnancy, lowering the recommended dosage to decrease side effects, allowing nurses and midwives to administer mifepristone, decreasing the number of appointments required to prescribe the medication from three to one, allowing the medication to be prescribed by telemedicine and mail, approving a generic version of mifepristone produced by GenBioPro and allowing certified pharmacies to dispense mifepristone.)
- Thursday, April 13: Rice ruled that the FDA must maintain full access to mifepristone in 17 states plus Washington, D.C.—a response to a lawsuit filed by attorneys general of those jurisdictions.
- Friday, April 14: An order from the Supreme Court preserved the status quo on abortion pills until this Wednesday, giving the justices time to study the case.
The Supreme Court has two options: allow the Fifth Circuit ruling to take effect, or maintain the previous status quo on mifepristone.
If the Supreme Court eventually allows the Fifth Circuit ruling to go into effect—despite a contradictory ruling from a different federal court in Washington state the next day—access to mifepristone will decrease significantly across the country. Such a ruling would end telemedicine abortion, which has expanded significantly since the FDA approved it in 2021.
“If allowed to take effect, the lower courts’ orders would thwart FDA’s scientific judgment and undermine widespread reliance in a healthcare system that assumes the availability of mifepristone as an alternative to more burdensome and invasive surgical abortions,” Solicitor General Elizabeth B. Prelogar told the court in the government’s filing. “Those harms would be felt throughout the Nation because mifepristone has lawful uses in every State—even those with restrictive abortion laws.”
The Fifth Circuit also sustained Kacsmaryk’s ruling that mailing abortion pills violates the antiquated 1873 Comstock Act, which banned sending obscene literature, contraceptives, abortifacients or any sexual information through U.S. mails. The DOJ last month issued its own opinion that mailing abortion pills does not violate Comstock.
If the Fifth Circuit order stands, women would have to travel long distances to find certified doctors, who are already far and few between. They would have to make multiple visits over several days to obtain abortion pills. And doctors could only prescribe the medication in the first seven weeks of pregnancy (49 days)—which means just five weeks after conception, since pregnancy is dated from the first day of the last menstrual period (although some doctors are likely to prescribe abortion pills off label later in pregnancy).
Laws Are Not Stopping People From Accessing Abortion Pills
Despite abortion restrictions and bans, people are obtaining abortion pills online. The organization Plan C has a comprehensive guide to finding abortion pills on their website, which is continually updated and has all the latest information on where to find abortion pills from anywhere in the U.S.
The Austria-based telemedicine abortion provider Aid Access serves people in all 50 states. Patients of all ages can obtain abortion pills, including advance provision, for a sliding scale fee of $110.
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