Doctors and reproductive rights advocates are bracing for a decision in a court case that, if successful, could end legal access to abortion pills nationwide.
Abortion pills have become one of the next major fronts in the fight over reproductive health care in the wake of the Supreme Court’s decision overturning Roe v. Wade, and the lawsuit is seen by both sides as the start of the battle to come.
The lawsuit was filed in November by the Alliance Defending Freedom (ADF), a powerhouse conservative legal group that has helped author states’ anti-abortion laws and defended Mississippi in the case that led the Supreme Court to overturn the abortion protections granted in Roe v. Wade.
Providers and activist groups said they are preparing for a range of outcomes. They’re making sure people know the other options available for self-managed abortions, and how they might still be able to obtain pills from overseas if necessary.
“Everybody’s kicking the tires on all of the options. None of which are great, because this is totally unprecedented,” said Kirsten Moore, the director of the Expanding Medication Abortion Access Project.
Mifepristone, a drug that blocks hormones necessary for pregnancy, was approved by the Food and Drug Administration (FDA) in 2000 to induce an abortion up to 10 weeks into a pregnancy. It must be followed by a second drug, misoprostol.
Providers are looking into the prospect of being able to use misoprostol without mifepristone. Advocates said there’s plenty of evidence to show that it is safe and effective, but it is not as effective as the two-drug regimen.
“There are workarounds. But, you know, obviously, I feel very strongly that we should not need to use workarounds to access lifesaving health care. So, the fact that there are workarounds should not be a part of the analysis of whether this is just or unjust,” said Rachel Carmona, executive director of the Women’s March.
District Court Judge Matthew Kacsmaryk in Amarillo, Texas, could issue an injunction as early as the end of this month that would revoke the decades-old FDA approval of mifepristone.
He could also roll back other recent efforts by the White House to expand access to mifepristone, like allowing U.S. retail pharmacies to offer abortion pills directly to patients with a prescription.
In a filing last month, FDA said the case has no merit, and argued granting the request from the ADF would be “unprecedented,” because the drug has lawfully been on the market for 23 years.
Mifepristone has been used by more than 3 million women in the United States since receiving FDA approval.
On Friday, the ADF responded and urged Kacsmaryk to ignore the administration’s arguments and issue a preliminary injunction. The group contends the FDA illegally approved mifepristone and never studied the safety and effectiveness under real-world conditions.
The latest deadline for briefs is Feb. 24, after mifepristone’s manufacturer moved to intervene in the case.
Any appeal of the decision would go to the right-leaning 5th Circuit Court of Appeals and, eventually, to the same Supreme Court that struck down Roe v. Wade.
Medication abortion is the most common method for terminating a pregnancy, and ever since the Supreme Court’s decision in June, pregnant Americans have increasingly turned to abortion pills.
Abortion rights advocates say much of the public is largely unaware of the looming threat of the court case. They are meeting with public health leaders, administration and elected officials, though some advocates think the White House can be doing more to spread awareness.
Many states with strict abortion bans also limit the availability of mifepristone. But a far-reaching decision in the case would also impact states without abortion restrictions, effectively imposing a ban.
Renee Bracey Sherman, executive director of We Testify, which represents people who have had abortions, said she was extremely disappointed that President Biden did not mention the court case in his State of the Union speech, calling it a “missed opportunity.”
“I think if the President would come out and say something, literally anything and actually talk about this as an issue, that could actually go a long way for starting the larger conversation,” Bracey Sherman said.
Morgan Hopkins, president of the abortion justice group All* Above All, said she also felt Biden missed an important opportunity with the State of the Union, both to inform the public about the case and to talk about protecting access to abortion.
Hopkins said she thinks the administration has done a lot in the eight months since Roe was overturned, but “they really have to take it up a notch in terms of public education.”
“I think the entire administration has a role to play in making sure that the public understands both what’s happening in terms of the interference from anti-abortion politicians and judges, but also the very real implications on abortion care,” she said.