A legal battle over a medication called mifepristone is brewing, positioning the Supreme Court to weigh in once again on a key abortion case. For the anti-abortion movement, this was always the plan. Because while the Dobbs decision to overturn Roe v Wade one year ago was a shock to our system, we must recognize that overturning Roe is not their end goal – it is to upend sexual and reproductive rights and freedom for millions of people. And number one on their list of priorities is banning abortion across the country, at any point in pregnancy.
To that end, their next line of attack targets mifepristone, one drug in a two-drug regimen of medication abortion. Medication abortion accounted for more than half of all US abortions in 2020 (53%), a sign of its wide acceptance by both patients and providers. Mifepristone is used in the majority of medication abortions in the U.S., making its availability critical to abortion access – even for people living in states where abortion remains legal. Further, mifepristone is approved in almost 100 countries globally and considered so vital that it is listed on the World Health Organization’s list of essential medicines.
In November 2022, after court-shopping for a judge who shares their views, anti-abortion advocates filed a baseless lawsuit challenging the FDA’s initial approval of mifepristone, which it is worth noting occurred over twenty years ago in 2000, and its more recent actions to remove burdensome and medically unnecessary restrictions on access.
The attacks in court were not only rife with misinformation about the safety and effectiveness of medication abortion, but they completely disregarded the robust, evidence-based process that the FDA uses to make decisions about a drug’s availability and prescribing protocol. And yet, as expected, the judge put ideology over facts and ruled in favor of restricting access to mifepristone. The 5th Circuit Court of Appeals, well-known to be hostile to abortion rights, upheld most of this flawed decision.
Fortunately, the decision is not in effect while the case makes its way through the courts, so mifepristone remains available. Of course, there are caveats. We now live in a country where abortion is completely banned or unavailable in 15 states, with more trying. In states where abortion is banned, providers cannot offer procedural or medication abortion. The resulting chaos and confusion and the deeply unjust patchwork of state-by-state laws mean pregnant peoples’ rights depend on where they live and whether they can navigate extreme barriers to access abortion care. Guttmacher’s latest research does indicate that people are taking on the enormous burden of traveling out-of-state to obtain abortion care if they are able, aided by state policies that expand access to abortion care in some places and practical support services that provide people with financial and logistical support
The battles being waged in state legislatures and the courts aren’t the whole story. At the federal level, Republicans in Congress are currently holding up a bill to fund multiple government agencies over a provision to further restrict access to medication abortion. Meanwhile, candidates running for President and many in Congress, mindful that anti-abortion advocates for pushing for a complete ban, are discussing what parameters they would place on a national abortion ban – perhaps 15 weeks? six weeks? As if our human right to bodily autonomy and reproductive freedom can be negotiated away after a certain number of weeks and seem like a reasonable compromise.
To be clear, elected officials and judges have no right to compromise away anyone’s reproductive rights – any ban on abortion is an attack on our human rights. Attacks on mifepristone are an attempt to ban one method of abortion; they are about politics and not about health or safety or scientific evidence. Like other restrictions on reproductive health care, the harm that will be done if the Supreme Court decides to overrule the authority of the FDA and to further restrict access to mifepristone cannot be overstated:
Hundreds of thousands of pregnant people rely on medication abortion and that would be threatened if the medically unnecessary restrictions – such as how mifepristone was delivered, including through the mail, and who could prescribe it – were reinstated. Not only do millions of people live far from an in-person clinic, thus making access to medication abortion via telemedicine a life-line for many who want to end their pregnancy, even for those who can access in-person care, many prefer medication abortion to a procedural abortion. And while it is worth noting that taking misoprostol, the second drug of the two-drug regimen, on its own to end a pregnancy is safe and a very common method used around the world, the point is that patients should not have their options for care limited by politics and, if access to mifepristone were unnecessarily restricted, it would cause a major disruption in care.
Any restrictions on mifepristone would fall hardest on those who are already struggling to access health care, face overlapping systems of oppression, and who, in many cases, face the most risk from pregnancy. Bans and restrictions make accessing care more expensive and logistically challenging, forcing many to decide whether to travel long distances to obtain an abortion, self-manage and take on the legal risks, or carry an unwanted pregnancy to term. These barriers push abortion care further out of reach for Black people and other people of color, those living with low incomes, LGBTQ+ people, young people, those in rural areas, and people with disabilities.
Any ruling that overrides an FDA decision will weaken the authority of the FDA, not only in the US, but also in the eyes of people and countries abroad who consider FDA approval the gold standard. The roll out of the COVID vaccine demonstrates why it is important that people trust our government to make sound decisions based on science. That trust is eroded if any court or judge can simply overrule those evidence-based decisions. Such a decision would also set a precedent for additional lawsuits and potential bans on the next therapy or medication that individuals or groups may disagree with, whether it be certain methods of contraception, vaccines, drugs that relied on stem cell research, etc.
Anyone who needs an abortion should be able to get timely, compassionate and affordable care, and access to the method that best meets their needs. This case needs to be seen for what it is – the next step in banning abortion outright and eviscerating all autonomy over our sexual and reproductive lives. The attacks on our bodily autonomy are coming on all fronts, and our response requires the same. State policies, efforts by the White House, innovative legal theories, strong grassroots organizing, and congressional leadership are all required to ensure we realize a future of true reproductive freedom for all.
Amy Friedrich-Karnik is the Principal Policy Associate for Federal Issues at the Guttmacher Institute.