A Fifth Circuit Court of Appeals decision that removed a federal judge’s hold placed on the Food and Drug Administration’s approval of the medical abortion pill Mifepristone has done little to calm the fears of abortion supporters in Texas and elsewhere.
That’s because the higher court added in a few stipulations of its own: that the use of Mifepristone will not be allowed for women past seven weeks of pregnancy and that it cannot be distributed by mail – even in states where abortion remains legal.
Last Friday, U.S. District Judge Matthew Kacsmaryk in Amarillo, halted FDA approval of the drug, one of two used to induce abortions, agreeing with plaintiffs in that case that the FDA had not done enough to review Mifepristone’s safety. Lawyers for the U.S. Department of Justice, arguing among other things that the drug has been safely used for the past 23 years, appealed to the Fifth Circuit.
The ruling presents challenges even in legal states, said Lynn Goldman, the Dean of the Milken Institute School of Public Health at Georgetown University.
“They are slicing and dicing decisions that the FDA has already made,” Goldman said. “Which is further restricting access to abortion for lots of women who before the Fifth Circuit spoke, did not have that restriction.”
Prior to the court of appeals decision, Mifepristone could be used by any woman who was up to 10 weeks pregnant. It could be sent via mail and used without the supervision of a health care provider.
“These judges and lawyers are not trained as doctors or scientists and are second guessing this process and passing judgment on the FDA and the idea that they can be doing this is absolutely ludicrous,” Goldman said.
Goldman also shares concerns over what this could mean for Misoprostol – the secondary drug used during a medical abortion. This medication can be used on its own to terminate a pregnancy; however, there is no clarity on whether or not this drug could be the next to fall under similar legal debate.
“This is opening a threat to the FDA approval process, this action would normally be brought against the marker of the drug and not to reverse an FDA decision,” Goldman said. “I can’t even think of if this has ever been done, I can think of where people have tried to do it, but the courts have said no.”
Dr. Bhavik Kumar the medical director of primary and trans care at Planned Parenthood Gulf Coast echoed Goldman’s concerns, saying that this potential decision could pose a block in access to not only reproductive health care – but access to other medications as well.
“If the courts begin playing this game where they can tell us which medications we can or cannot use, how we can use them and when we can use them, they are going to set a very dangerous precedent,” Kumar said. “We know that the folks that oppose abortion, oppose a number of other types of care and if they get away with this, we don’t know what could come next.”
Kumar is concerned that these decisions could uproot the approval and distribution process entirely for birth control, other forms of contraceptives, treatments used in gender affirming care, and PrEP HIV preventative care could all be at risk of regulation and restriction.
Although Texans are accustomed to these restrictions due to the total ban on abortion in the state (unless the mother has a life-threatening emergency); organizations and advocacy groups that function both in state and out of state will face obstacles in the services they can provide if this medication is taken off the market, said Zaena Zamora, the executive director of the Frontera Fund.
“From my point of view, this is essentially another type of abortion ban,” Zamora said. “The proposed ruling is a coordinated effort by anti-abortion extremists to create confusing, shifting legal landscapes to try to spread misinformation around the legality of abortion in order to limit the access to abortion nationwide.”
Zamora said it creates a lot of chaos for providers of this care and requires a lot of adaptation as the legal landscape changes essentially overnight and requires those who are seeking abortions to have to educate themselves on what options they have available at a given time.
For Texas residents now, although options are limited in availability; they can travel out of state to clinics or explore other options through abortion-assistance websites, Kumar said.
Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health said that since their organization opened up a clinic nearby Texas in Albuquerque, New Mexico, almost all of the patients they have seen have been Texas residents.
“We’ve had at least two patients actually drive all the way from Houston to our Albuquerque location, which is a 13-and-a-half-hour drive,” Miller said.
Whole Woman’s Health has five other in-person clinics and a telemedical program that provides the abortion pill duo by mail – a service that could be discontinued by the court’s decision.
“Even if this decision is approved, it will take time to trickle down to the providers and people have to remember that despite this back and forth, that in legal states, abortion is still legal,” Miller said.
It is unclear if the ruling will be made official, as the Biden Administration announced that they are in support of the Department of Justice and plan to take the case to the Supreme Court.
This article appears in Jan 1 – Dec 31, 2023.
