All eyes are on the Fifth Circuit Court this week—and the future of reproductive and women’s health is unclear.
Editor’s note: Oral arguments for Alliance for Hippocratic Medicine, Et Al. v. U.S. Food & Drug Administration at the Fifth Circuit Court of Appeals are scheduled for Wednesday, May 17, at 2 p.m. ET / 1 p.m. CT. (Click here for information about the livestream.) On the day/time of the arguments, the livestream will be shown on the court’s “En Banc Courtroom.”
On Wednesday, the conservative-leaning Fifth Circuit U.S. Court of Appeals begins to hear oral arguments regarding the ban on mifepristone, one of the two medications that account for some 50 percent of abortions in the U.S. As an obstetrician and gynecologist providing abortion care in the Midwest, I’m fervently hoping this important medication will remain available—not only for my patients seeking to end a pregnancy, but also for those who have miscarried.
On April 21, the United States Supreme Court blocked a lower court’s decision, allowing mifepristone to remain on the market and be used for medication abortion. This decision came weeks after a Trump-appointed Texas federal judge issued a decision which attempted to block the FDA’s approval of mifepristone. The lawsuit, which was filed in November 2022, challenged the FDA’s approval process and was filed in an attempt to remove mifepristone from the market.
The current regimen for medication abortion, which is approved through 10 weeks of pregnancy, includes two medications: mifepristone and misoprostol. This accounts for more than 50 percent of all abortions in the United States. The FDA first approved Mifeprex (mifepristone) in September 2000, after the usual regulatory process. Mifepristone’s safety has been well documented for well over two decades, and its safety profile is comparable to many over-the-counter medications, such as Tylenol.
Even with the Supreme Court’s temporary stay of the ban, medication abortion access is not guaranteed for everyone in the United States. As of now, 14 states have complete bans on abortion care and residents of those states cannot access abortion within them. And other states are seeking to add bans: The North Carolina GOP-led legislature is fighting to revive a 12-week abortion ban just vetoed by its governor, and legislators in South Carolina and Nebraska are still fighting to restrict abortion, even after prior proposed bans failed.
That’s why this week’s mifepristone case in the Fifth Circuit is so critical. The consequences of this hearing extend further than just limiting access to medication abortion. Many patients take mifepristone and misoprostol, the same regimen used for medication abortion, for management of pregnancy complications, such as miscarriages that occur within the first 12 weeks of pregnancy. Mifepristone is recommended by the American College of Obstetricians and Gynecologists (ACOG) for the treatment of first- and second-trimester miscarriage. Some studies suggest patients are more likely to have successful treatment of their miscarriage if they take mifepristone before taking misoprostol, the medication that is necessary to expel a miscarriage.
Depending on what happens with the court case, providers all over the United States may not be able to provide their patients with the best treatment during a pregnancy complication.
While the Supreme Court’s stay holds, I’ll still be able to use the evidence-based regimen of mifepristone and misoprostol when providing abortion or miscarriage care to our patients, thanks to the U.S. Supreme Court and the fact that I work in a state without abortion restrictions. But it remains unclear how long I’ll be able to do this for—meaning that myself and other colleagues across the country will have to plan and be ready to implement alternative protocols that do not include mifepristone, even though we have decades of science supporting these evidence-based treatment options. All eyes will be on the Fifth Circuit Court this week to see how abortion access within the United States fares and how women across the country could be impacted for decades to come.
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