UPDATE 4/19/23: The U.S. Supreme Court has extended a temporary stay on the abortion pill ruling until Friday night, April 21. The decision means people can still obtain mifepristone by mail.
A Texas judge has decided to restrict nationwide access to mifepristone, a medication known as the abortion pill, even in states where abortion is legal. The decision comes as an anti-abortion group challenged the Food and Drug Administration (FDA) over their approval of the abortion pill. Moments after the Texas ruling, a federal judge in Washington ruled the FDA make no changes to the availability of mifepristone. The conflicting rulings will likely have to be resolved at the conservative-majority U.S. Supreme Court (SCOTUS). The Trump-appointed and notoriously anti-abortion U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, wrote on April 7 that the decision takes effect in one week, giving some time for the Department of Justice to appeal the decision. Kacsmaryk initially intended to delay announcing the decision to avoid a public reaction. Reproductive rights advocates say this is the biggest decision in abortion access since Roe v. Wade was overturned in June 2022.
“Let’s be clear—today’s ruling is an extreme interference in our freedom to control our own lives that will have a devastating impact across the country, including in states that have taken steps to protect abortion care,” said Morgan Hopkins, the president of All* Above All, in a written statement. “By decimating access to medication abortion based on nothing but politics and baseless claims, people will have even fewer options for care. Clinics will face even greater barriers to caring for their patients, further deepening the abortion care crisis the country is facing. This ban, like all abortion bans, will fall hardest on people of color and those working to make ends meet. The last thing we need is more restrictions—we need abortion justice now.”
The FDA approved mifepristone over 20 years ago and in 2020, pills accounted for more than half of all abortions in the U.S..The decision impacts everything the medication is used for—including inducing labor, managing and treating patients experiencing a miscarriage or an ectopic pregnancy. Without an appeal, the decision to ban mifepristone would go into effect nationwide, even in states where abortion is legal. According to a report from Gender Equity Policy Institute, pregnant people are three times more likely to have a pregnancy-related death in states with abortion bans. Recent polling shows that 59% of voters disapprove of the court overturning the FDA’s approval of mifepristone.
“Mifepristone has had a very long strong track record for safety, so the [lawsuit] is not based on any evidence,” said Ushma Upadhyay, a professor at the University of California San Francisco’s Advancing New Standards in Reproductive Health. “It’s patients that are going to bear the brunt of having to use a less effective medication.”
Upadhyay says patients seeking abortion can still access misoprostol, the second pill administered during a medication abortion. According to her recent research, misoprostol-only treatments are also extremely safe, with 99.3% of patients not requiring hospitalization or transfusion. But, they may be more likely to have side effects including diarrhea, fever, and chills. Regardless, Upadhyay’s findings support misoprostol as an effective alternative for abortion care, with 93% of patients completing their abortion without intervention.
“The bottom line is that providers should be able to give patients the treatment that is best for them,” Upadhyay said. “It shouldn’t be up to clinicians and judges.”
As states continue to restrict abortion across the country and the number of abortion deserts increases, abortion rights activists say banning mifepristone will make matters worse for pregnant people—especially Black women who are at an increased risk of experiencing maternal death.
“That pill gives people the opportunity to choose when they’re going to parent and how they’re going to parent,” said Marsha Jones, the executive director of The Afiya Center in Dallas, Texas. “To take that option away from them, now you’re forcing people to have to travel; you’re forcing people to have to go full term with pregnancies that they did not want. You’re forcing people into what we know to be generational poverty because when Black folks are having unintended pregnancies over and over again, it creates generational poverty. Now you’re setting off a whole chain of things into effect.”
Jones has been dealing with living in a post-Roe world since 2013, when Texas passed House Bill 2, which placed technical restrictions on abortion clinics, forcing at least half of the state’s abortion clinics to close.
“People lost tremendous access to abortion. People were still having to travel long journeys,” Jones said. “Getting an abortion in Texas has been extremely difficult, Senate Bill 8 made it more difficult, but it’s been difficult.”
Banning mifepristone, which advocates say helps people make their own private medical decisions and expands access to full reproductive care, will have a devastating impact on people’s ability to access abortion care by forcing patients to cross state lines to access surgical abortion in states already experiencing an overwhelming demand for abortion care. The situation is even more challenging for patients who do not have access to private health care due to the Hyde Amendment, which prohibits Medicaid coverage of abortion.
“Black folks have a conflicting relationship with the healthcare system, so that’s another way in which people could die, let’s be clear,” Jones said. “It creates an undue burden for people to navigate the healthcare system to find a physician who can provide them with an alternative.”
According to Upadhyay, the FDA could still practice enforcement discretion, regardless of the judge’s decision, following a precedent set during the onset of the COVID-19 pandemic in which they agreed not to enforce the in-person dispensing requirement for mifepristone. The Biden administration made these exceptions permanent in 2022 when the FDA lifted the requirement altogether.
The FDA can appeal the decision to the 5th Circuit Court of Appeals and then to SCOTUS. The re-approval process for mifepristone could take years.
