Update: The U.S. Supreme Court delays their decision on the abortion pill restrictions until Friday, April 21 at midnight. The action keeps the access to mifipristone in place nationwide.
After Friday night, millions of women could find it harder to access the abortion pill mifepristone, the fate of which is caught up in a legal tangle extending to the nation's highest court. What happens next could have ramifications not just for abortion access, but also for the future of drug approvals.
Mifepristone remains available.
Another drug used for medication abortions will remain available whatever else happens this week.
We are waiting on the Supreme Court decision, which is expected to come down Wednesday.
On April 7, a federal court judge in Texas ordered that mifepristone be pulled off the market. Judge Matthew Kacsmaryk ruled the Food and Drug Administration had violated federal rules that allowed for the accelerated approval of some drugs and erred in its scientific assessment of the abortion pill.
Mifepristone is an oral medication used with misoprostol to induce abortion or to manage a miscarriage. That protocol was approved by the FDA in 2000. When taken together, they end a pregnancy without the need for surgery in 99% of cases.
Another federal court judge in the state of Washington issued a conflicting ruling, directing the Food and Drug Administration not to alter its approval.
Because these two federal court rulings conflict, the U.S. Supreme Court may resolve this conflict and decide the merits of both cases.
Supreme Court Justice Samuel Alito placed a hold on Friday on a lower court ruling that restricts access to the abortion drug mifepristone until Wednesday night. The hold was extended to Friday, April 21 at midnight.
Alito’s order keeps the status quo in place, and mifepristone legal and available nationwide.
The hold was in response to a formal request earlier in the day from the Justice Department to block a federal appeals court decision that limits access to the drug.
Portions of a Texas district court's order that limits mifepristone would have otherwise taken effect April 15, but Alito's order put it on pause.
Despite all the headlines, technically nothing has changed.
“There has been no change yet, in the law or the regulations of the Food and Drug Administration. So we're waiting to hear from the Supreme Court on whether it's going to make any modifications to that,” said UCLA law professor Blake Emerson.
The court could issue a relatively brief opinion on what’s called its orders docket, which won’t have the detailed legal reasoning we associate with the Supreme Court.
Emerson described the potential outcomes as “a spectrum, from mifepristone no longer being approved for medication abortion to the status quo remaining in place where it is approved.”
Here are some, but not all, of the potential scenarios:
a) The U.S. Supreme Court sides with the federal district court in Texas
If this happens, mifepristone would no longer be approved for medication abortion in the U.S.
“This would be the most extreme case,” Emerson said.
California abortion providers say they will switch to misoprostol-only abortions. The side effects — fever, cramping and bleeding — can be worse with the single pill. And this method typically requires a follow-up appointment with a doctor.
California and other liberal states are stockpiling misoprostol pills ahead of the looming court decision.
b) The U.S. Supreme Court sets aside the federal district court order
Under these circumstances, the status quo remains in place and mifepristone remains approved under its current use.
c) The U.S. Supreme Court keeps mifepristone available, but with conditions
The middle of the road possibility. In this situation, the Supreme Court may side with the federal appeals court decision, which kept the drug available but limited access.
Those restrictions include requiring mifepristone to be taken in the presence of a physician, barring patients from receiving the pill through the mail without in-person appointments and shortening the window for mifepristone’s approved use from up to 10 weeks of pregnancy to seven.
“This seems maybe more probable because it doesn’t go so far as to completely decertify the use of mifepristone, while it would place greater restrictions on its use,” Emerson said. “They may uphold some restrictions, and not others.”
In Nov. 2022, California voters passed an amendment enshrining the right to an abortion in our state constitution. But federal law trumps state constitutions.
The Dobbs decision — which overturned Roe v. Wade, declaring that the constitutional right to abortion no longer exists — means the legal landscape around reproductive rights and access is uncertain.
“If the Supreme Court decides to throw a bomb in this case, upending all sorts of legal precedent, and overturning the FDA’s approval of a drug for the first time in history, the implications will be extremely far-reaching,” said Cary Franklin, faculty director of the Center on Reproductive Health, Law and Policy at UCLA.
If that happens, the FDA and California lawmakers could opt not to pursue enforcement actions against people who continue to use and prescribe mifepristone, but Franklin says the effect in California will be broad for both providers and patients.
“It will sow confusion about what’s legal, it will cause providers to worry about what might happen if an anti-abortion candidate becomes President in 2024, and it will cause some providers to worry about potential issues with licensing and medical ethics boards and with officials in other states trying to target California providers,” Franklin said.
Franklin says the Texas ruling is deeply flawed and says it cherry picks evidence and is replete with partisan terminology, including references to “unborn humans” in place of the word "fetus."
“I think the key point is that overturning the FDA’s approval of this drug would cause a lot of confusion and worry and that no state would be immune from that, even if California officials decided not to go after anybody for using this drug,” she added.
