Anti-Abortion Judge Attempts to Ban Mifepristone Nationwide, Ignoring Science and More than Two Decades of the Drug’s Safe Use in the United States
Updated on April 24, 2023:
On April 21, the US Supreme Court issued a stay in Alliance for Hippocratic Medicine v. FDA that, for now, preserves access to medication abortion using mifepristone. The case returns to the lower court, which has scheduled oral arguments for May 17, 2023.
While it is critical that the current level of access can continue for the time being, it is alarming that this case could still strike another severe blow against abortion rights and access less than a year after the Supreme Court’s radical decision to overturn Roe v. Wade. The only reasonable action available to the courts is to permanently strike down attempts to restrict or ban mifepristone.
Updated on April 17, 2023:
Less than 10 months after the US Supreme Court overturned Roe v. Wade, abortion rights are back before the US Supreme Court. After a federal judge in Texas’ unprecedented decision to attempt to revoke FDA approval of mifepristone, the Biden administration appealed to the Fifth Circuit Court. Guttmacher joined more than 100 reproductive health, rights and justice partners in signing on to an amicus brief—which cites our recent research—urging the Fifth Circuit to block the Texas decision. Instead, the Fifth Circuit upheld parts of the decision and reinstated outdated restrictions that have no basis in scientific evidence.
The Fifth Circuit’s ruling was quickly appealed to the US Supreme Court, which issued a stay that will expire at 11:59 p.m. on Wednesday, April 19th on any new restrictions while deliberating the case. In states where medication abortion is available, care can continue until that time. It is unknown what will happen after the stay runs out, but if the Supreme Court allows Judge Kacsmaryk’s decision to stand or otherwise restricts access to medication abortion, it will push care further out of reach for many people.
First published on April 10, 2023:
Late Friday, less than 10 months after the US Supreme Court overturned Roe v. Wade, a federal judge in Texas known for his strong anti-abortion views handed down a decision in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration that attempts to revoke FDA approval for mifepristone. Mifepristone is used, along with misoprostol, in the most common medication abortion regimen in the United States.
Importantly, the decision does not take effect immediately and has already been appealed by the Biden administration. In addition, a federal court in Washington has ordered the FDA to not change the status quo on mifepristone. It is unclear at this time how and when these various legal proceedings will play out, but this case will likely end up at the US Supreme Court before long.
The radical and baseless decision in Texas has potentially devastating implications for medication abortion access across the country. Medication abortion accounts for more than half of all abortions in the United States. If the decision is allowed to stand, it will likely push abortion care further out of reach for many people, especially those from marginalized communities, even in states where abortion is legal.
Below are some of Guttmacher’s key resources on medication abortion, as well as the statement from our CEO on how this decision could impact US abortion rights and access:
1. Medication abortion is safe, effective, and widely accepted by patients and providers.
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 was used in the vast majority of these abortions: 98% of medication abortions in the United States in 2020 used the combined regimen of mifepristone and misoprostol.
It is important to note that misoprostol can be safely used on its own to end a pregnancy, but it is unclear to what extent and how quickly this protocol will be provided or taken up by patients.
2. Banning mifepristone would have a devastating impact on abortion rights and access across the country, and 10 states may be hit especially hard.
Barely more than half of US women of reproductive age—55%, or about 35 million women—live in a county that has an abortion provider. Without medication abortion using mifepristone, this number could drop by as much as 2.4 million women (to 51% of the US total) if medication abortion–only providers are not able to begin offering a regimen with misoprostol alone. This figure is likely an undercount given that it may leave out some people obtaining an abortion who do not identify as women.
Residents of 10 states (Colorado, Georgia, Indiana, Iowa, Maine, Montana, New Mexico, Pennsylvania, Vermont and Washington) could experience particularly large drops in the share of people living in counties with an abortion provider. Half of these states are considered protective of abortion rights and access.
It is unclear whether all current providers using the two-drug regimen would be able to offer abortion care using misoprostol only and to what extent patients would take up this method.
Without medication abortion with mifepristone as an option, demand for procedural abortions could increase substantially, meaning increased wait times for patients and more strain on clinics everywhere.
3. Abortion—both procedural and medication—is already banned or unavailable in 14 US states, and we expect more states to follow.
Abortion is already banned in 12 states (Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, South Dakota, Tennessee, Texas and West Virginia) and unavailable in an additional two (North Dakota and Wisconsin), as reflected on our interactive map, which tracks the abortion policy environment in each state.
Our analysis from earlier this year predicts that the total number of states with bans could reach 24 in the coming months. Many people who need abortions in these states may choose to travel across state lines to obtain care, and banning medication abortion with mifepristone will likely put even more strain on clinics providing procedural abortions across the country.
4. Eliminating access to medication abortion with mifepristone would intensify existing racial and socioeconomic divides that shape who in the US is able to access abortion care.
As our recent analysis shows, all abortion restrictions and bans disproportionately impact marginalized groups.
The elimination of medication abortion with mifepristone could severely impact marginalized groups' access to abortion care, as medication abortion offers specific benefits that might make it a preferable option for people with few financial resources.
It is unclear whether all current providers using the two-drug regimen would be able to offer abortion care using only misoprostol and to what extent patients would take up this method.
Because mifepristone can be prescribed via telehealth in many areas and can be safely taken in the privacy and convenience of one’s own home, this method can help reduce costs associated with transportation or child and family care, and it allows for more flexible scheduling.
Statement by Dr. Herminia Palacio, Guttmacher Institute President and CEO
“The decision handed down by Judge Kacsmaryk that attempts to revoke the decades-long FDA approval of mifepristone flies in the face of overwhelming scientific evidence. It’s critical to note that the decision will not go into effect for at least a week after it was first handed down on April 7.”
“While the legal proceedings were based on meritless claims and pretexts, the potentially devastating impact of this decision on abortion access across the nation is all too real. The facts are clear: Mifepristone is safe and effective, underwent lengthy and rigorous review by the FDA, has been used well over four million times since it was first approved in 2000, and has become so widely accepted by patients and providers that it now accounts for more than half of all US abortions.”
“Less than 10 months after the Supreme Court’s radical decision to overturn Roe v. Wade and the massive harm it inflicted, this ruling—if allowed to stand—would be another severe blow to abortion access in every state, to the rights and dignity of people across the nation, and to the very idea that policies and jurisprudence should be grounded in facts and science.”
“Following the overturning of Roe, abortion is banned in 12 states and unavailable in an additional two. Revoking the approval of mifepristone could make this abortion access crisis so much worse, furthering the hardships and indignities so callously and unrelentingly imposed on people seeking abortions across the country.”
“Like all abortion bans and restrictions, if this decision is allowed to stand, it will fall hardest on those already marginalized by economic inequity and structural racism. In addition to being safe and effective, medication abortion helps individuals mitigate logistical burdens and offers a more private alternative to an in-clinic procedural abortion. For those living with low incomes, reducing the indirect costs of abortion, such as transportation, extended time off work, and childcare, can mean the difference between receiving timely care and being forced to remain pregnant.”