US Supreme Court rules to preserve access to the abortion pill mifepristone

DECEMBER 24, 2024:

UNDATED (AP)- The battles over abortion in the U.S. are increasingly focusing on the pills that are now the most common way pregnancies are ended. Texas sued a New York doctor this month (Dec. 2024) over a prescription to a Texas resident. It could become the first test of a shield law that New York and some other Democratic-controlled states have passed to protect medical providers who make that kind of prescription via telehealth. There’s also a lawsuit aimed at rolling back federal approval for one of the drugs. And states are considering laws to make them harder to obtain for abortion.

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UNDATED (AP)- Opponents of abortion are increasingly focusing on restricting access to pills, which are the most common way to end a pregnancy in the U.S.

This month (Dec. 2024), the Texas attorney general’s office filed a lawsuit against a New York doctor, saying she violated Texas law by prescribing abortion pills to a patient there via telemedicine. The suit represents the first lawsuit of its kind and could lead to a legal test for the New York law designed to protect providers there who prescribe the drugs to patients in states with abortion bans.

Anti-abortion officials are taking other steps, too, through legislation and lawsuits.

Abortion rights advocates are also concerned that President-elect Donald Trump’s administration could take action to restrict access if it chose to.

Pills are the most common means of abortion

By the time the U.S. Supreme Court overturned Roe v. Wade in 2022 and opened the door for states to ban abortion, over half of all abortions were obtained using medication, usually a combination of the drugs mifepristone and misoprostol.

The drugs are different than Plan B and other emergency contraceptives that are usually taken within three days after possible conception, weeks before women know they’re pregnant. Studies have found they’re generally safe and result in completed abortions more than 97% of the time, which is less effective than procedural abortions.

By last year, nearly two-thirds of abortions were from medications, according to a tally by the Guttmacher Institute, a research organization that supports abortion access.

Much of the growth has been through abortion pills prescribed via telehealth and mailed to patients. A survey conducted for the Society of Family Planning found that by the first half of 2024, such prescriptions accounted for about one-tenth of abortions in the U.S.

That number has risen rapidly since 2023 when some Democratic-controlled states started adopting laws that seek to protect medical providers in their borders who prescribe abortion pills via telehealth to patients in states where abortion is banned.

“Telehealth for abortion has been a huge success,” said Ushma Upadhyay, a professor at the Center of Health and Community and the University of California San Francisco. “It has helped people in an incredible way.”

Texas is going after a New York doctor despite a law intended to protect prescribers

Texas Attorney General Ken Paxton rolled out a new strategy in the fight over pills this month when he sued Dr. Maggie Carpenter, who is based in New York, alleging she prescribed and sent pills to a Texas woman.

New York is one of at least eight states with a law intended to protect medical providers who prescribe abortion pills to patients in states with bans.

If Texas prevails upon a judge to block Carpenter from prescribing in the state, it’s unclear what would happen next. New York’s shield law would bar it from being enforced in New York, said David Cohen, a professor at Drexel University’s Thomas R. Kline School of Law.

Cohen said he expects any ruling would not have a major chilling effect on other doctors who prescribe out-of-state patients. “They certainly seem undeterred by legal risk,” he said.

And, he said, like illegal drugs, they’ll continue to be available if there’s a demand for them. Cohen said Paxton “is going to plug one hole if he succeeds. There’s no way he plugs them all.”

Another lawsuit from states is trying a different way to restrict pills

Pill prescribing has already withstood one key effort to block it. The U.S. Supreme Court this year ruled that a group of anti-abortion physicians and organizations that represent them lacked the legal standing to force the undoing of federal approvals for mifepristone.

The state attorneys general from Idaho, Kansas and Missouri responded in October with a legal filing contending that they can make such an argument. Instead of focusing on the drug’s initial approval in 2000, they’re looking at later changes from the U.S. Food and Drug Administration that allow its use for the first 10 weeks of pregnancy and telemedicine prescriptions.

There hasn’t yet been a ruling on their case. When there is, it will likely be appealed to a higher court.

States are also considering laws aimed at abortion pills

This year, Louisiana became the first state with a law to reclassify both mifepristone and misoprostol as “controlled dangerous substances.” The drugs are still allowed, but medical personnel have to go through extra steps to access them.

Some doctors said in a legal challenge that the change could cause delays in administering them in emergencies, such as when a woman is hemorrhaging after giving birth.

Dr. Jennifer Avengo, director of the New Orleans Health Department, said that in the first few months of enforcement, she did not hear of any cases where the drugs could not be accessed in time.

Additional states are considering ways to restrict abortion pills in their 2025 legislative sessions.

In Tennessee, a Republican state lawmaker has proposed creating a $5 million civil liability against those who deliver or help access abortion pills with the intent of helping someone end a pregnancy.

Rep. Gino Bulso said he filed the bill after learning that abortion pills were being sent to Tennessee despite state law prohibiting such actions. “I began to think about how we might be able to both provide an additional deterrent to companies violating the criminal law and provide a remedy for the family of the unborn children,” he said.

A proposal in Missouri would make it a crime to deliver mifepristone or other drugs with the intent of causing an abortion. In November, the state’s voters adopted a constitutional amendment to allow abortion until fetal viability — which is somewhere past 21 weeks into a pregnancy, though there’s no fixed timeframe.

The federal government could take steps to regulate the pills, too

Trump’s administration also could take action on the pill policy.

One approach that abortion rights advocates have warned about — and which some abortion opponents have suggested — includes enforcing an 1873 law against pills that bans mailing medications or instruments used in abortion. President Joe Biden’s administration has declined to do so.

The FDA could also change its approvals of the drugs, even without being forced to do so by a court ruling.

During his campaign, Trump flip-flopped on abortion policy and at points attempted to distance himself from abortion opponents. Since he won the election, though, he has nominated abortion opponents to administration posts.

In an interview with Time magazine published this month, he gave rambling answers to questions about pills. He said he intended to maintain access but also left the door open to changing his mind.

JUNE 13, 2024, UPDATE:

A unanimous Supreme Court ruling on Thursday (June 13, 2024) preserved access to a medication that was used in nearly two-thirds of abortions in the U.S. last year (2023), but the decision doesn’t change anything in South Dakota.

A group of anti-abortion activists challenged changes made by the federal Food and Drug Administration over the past 10 years that allowed more access to mifepristone. However, the justices determined the opponents didn’t have the legal right to sue over the FDA’s approval of the medication or the FDA’s subsequent actions to ease access to it.

South Dakota Attorney General Marty Jackley says Thursday’s decision by the U.S. Supreme Court doesn’t impact South Dakota’s current abortion law. He says in the decision, the Supreme Court did not address whether the FDA lawfully acted when it relaxed the rules for mifepristone’s use. Rather, according to Jackley, the justices based their unanimous decision on procedural grounds.

Jackley says, “The court’s decision does not change the current FDA rules, and State law on mifepristone remains the same.” South Dakota abortion law makes it a Class 6 felony for anyone “who administers to any pregnant female or prescribes or procures for any pregnant female” a means for an abortion, except to save the life of the mother. The crime is punishable by two years in prison, a $4,000 fine or both.

Earlier this year, Jackley joined 21 other attorneys general in supporting the group’s opposition to the FDA policies.

The widely watched U.S. Supreme Court case had the potential to to restrict access to mifepristone, even in states where abortion remains legal. This was the Court’s first abortion decision since the justices overturned Roe v. Wade two years ago (June 24, 2022).

JUNE 13, 2024:

WASHINGTON (AP) — The U.S. Supreme Court on Thursday (June 13, 2024) ruled unanimously to preserve access to the drug most commonly used in medication abortion. The nine justices found that abortion opponents lacked the legal right to sue over the Food and Drug Administration’s approval of mifepristone and the FDA’s subsequent actions to ease restrictions on getting it.

The medication was used in nearly two-thirds of all abortions in the United States last year.

The ruling is the court’s first abortion decision since conservative justices overturned Roe v. Wade two years ago.

Justice Brett Kavanaugh, who was part of the majority to overturn Roe, wrote for the court that “federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.”

The case had threatened to restrict access to mifepristone across the country, including in states where abortion remains legal.

While the ruling drew praise from reproductive rights groups and many Democrats, some people suggested the fight over abortion rights and women’s health care was not over.

U.S. President Joe Biden said the ruling “does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”

Meanwhile, the attorney who represented anti-abortion doctors and their organizations in the case said the push to restrict abortion pills likely won’t stop.

MAY 17, 2023:

NEW ORLEANS (AP) — A federal appeals court in New Orleans hears arguments Wednesday (May 17, 2023) on whether a drug used in the most common method of abortion was properly approved by a government agency more than two decades ago. The drug, mifepristone, remains available while the litigation — which will almost certainly wind up before the Supreme Court — plays out. At issue before the 5th U.S. Circuit Court of Appeals is whether the FDA properly approved the drug in 2000. Also under question are FDA actions in subsequent years that made the drug more accessible. An immediate ruling is not expected.

MAY 16, 2023:

NEW ORLEANS (AP) — Three appeals court judges with a history of supporting restrictions on abortion will hear arguments May 17, 2023, on whether a widely used abortion drug should remain available. The case involves a regulatory issue — whether Food and Drug Administration approval of the drug mifepristone, and later actions making it more easily available — must be rolled back. The three judges of the New Orleans-based 5th U.S. Circuit Court of Appeals won’t rule immediately. And their decision, whatever it is, won’t have an immediate effect while it is appealed to the U.S. Supreme Court. Hearing the case will be judges Jennifer Walker Elrod, James Ho and Cory Wilson.

APRIL 22, 2023:

WASHINGTON (AP) — Nothing will change for now. That’s what the Supreme Court said Friday evening (April 21, 2023) about access to a widely used abortion pill. A court case that began in Texas has sought to roll back Food and Drug Administration approval of the drug, mifepristone. Lower courts had said that women seeking the drug should face more restrictions on getting it while the case continues, but the Supreme Court disagreed. The court’s action almost certainly will leave access to mifepristone unchanged at least into next year, as appeals play out, including a potential appeal to the high court.

APRIL 21, 2023:

WASHINGTON (AP) — The Supreme Court is facing a self-imposed Friday night (April 21, 2023) deadline to decide whether women’s access to a widely used abortion pill will stay unchanged until a legal challenge to its Food and Drug Administration approval is resolved. The justices are weighing arguments that allowing restrictions contained in lower-court rulings to take effect would severely disrupt the availability of the drug, mifepristone, which is used in the most common abortion method in the United States. It has repeatedly been found to be safe and effective, and has been used by more than 5 million women in the U.S. since the FDA approved it in 2000.

APRIL 20, 2023:

WASHINGTON (AP) — The Supreme Court initially gave itself a deadline of Wednesday (April 19, 2023) to decide whether women seeking access to a widely used abortion pill would face more restrictions while a court case plays out. But on the day of the highly anticipated decision the justices had only this to say: We need more time. In a one-sentence order, the court said it now expects to act by Friday evening. There was no explanation of the reason for the delay. The new abortion controversy comes less than a year after the Supreme Court’s conservative majority overturned Roe v. Wade and allowed more than a dozen states to effectively ban abortion outright.

APRIL 19, 2023:

WASHINGTON (AP) — The Supreme Court is deciding whether women will face restrictions in getting a drug used in the most common method of abortion in the U.S. while a lawsuit continues. The justices are expected to issue an order Wednesday (April 19, 2023) in a fast-moving case from Texas in which abortion opponents are seeking to roll back Food and Drug Administration approval of the drug, mifepristone. The drug won FDA approval in 2000. Conditions on the drug’s use have been loosened in recent years, including making it available by mail in states that allow access. The Biden administration and New York-based drugmaker Danco Laboratories want the Supreme Court to reject limits on mifepristone’s use imposed by lower courts.

APRIL 14, 2023:

UNDATED (AP)- A court ruling this week keeps an abortion pill available, clarifying the U.S. abortion landscape but not settling it. Wednesday’s (April 12, 2023) decision overrules another judge’s ruling from last week that would have halted prescribing of the drug mifepristone starting Saturday. The decision comes with catches, and either side could appeal it to the Supreme Court. Other court and legislative action underway could shape abortion access in individual states. Nebraska lawmakers have advanced a ban on abortions after cardiac activity can be detected, and Florida Gov. Ron DeSantis on Thursday signed a similar measure into law. Iowa’s top court is considering whether tighter restrictions can be put into place there.

APRIL 13, 2023:

AUSTIN, Texas (AP) — A federal appeals court has preserved access to the abortion pill mifepristone for now but reduced the period of pregnancy when the drug can be used and said it could not be dispensed by mail. The ruling late Wednesday (April 12, 2023) temporarily narrowed a decision by a lower court judge in Texas that had completely blocked the Food and Drug Administration’s approval of the nation’s most commonly used method of abortion. The Texas order unsettled abortion providers less than a year after the reversal of Roe v. Wade already dramatically curtailed abortion access. The case may now be headed to the U.S. Supreme Court.

APRIL 8, 2023:

AUSTIN, Texas (AP) — Access to the most commonly used method of abortion in the U.S. plunged into uncertainty Friday (April 7, 2023) following conflicting court rulings over the legality of the abortion medication mifepristone that has been widely available for more than 20 years. U.S. District Judge Matthew Kacsmaryk ordered a hold on federal approval of mifepristone in a decision that overruled decades of scientific approval. But that decision came as U.S. District Judge Thomas O. Rice, an Obama appointee, essentially ordered the opposite and directed U.S. authorities not to make any changes that would restrict access to the drug in at least 17 states where Democrats sued in an effort to protect availability.

APRIL 5, 2023:

BELLINGHAM, Wash. (AP) — Washington state officials have purchased a three-year supply of a leading abortion medication in anticipation of a court ruling that could limit its availability. Gov. Jay Inslee announced Tuesday (April 4, 2023) that he ordered the Department of Corrections to buy 30,000 doses of the pill for about $1.28 million. Research shows that medication-induced abortions are safe. A Christian group that filed the case in federal court in Texas claims the drug was improperly approved. A ruling in that case would affect states where abortion is legal as well as those that outlaw it.

Extended version:

BELLINGHAM, Wash. (AP) — Washington state has purchased a three-year supply of a leading abortion medication in anticipation of a court ruling that could limit its availability, Gov. Jay Inslee said Tuesday (April 4, 2023).

The Democratic governor said he ordered the Department of Corrections, which has a pharmacy license, to buy 30,000 doses of the generic version of mifepristone at a cost of about $1.28 million, or $42.50 per pill. The shipment arrived in late March.

A two-pill combination of mifepristone and misoprostol is the most common form of abortion in the U.S. Research shows that medication-induced abortions are safe and effective. They were approved by the Food and Drug Administration over 20 years ago.

The awaited ruling in a Texas lawsuit brought by a Christian group — in the wake of the U.S. Supreme Court decision last year to strip away the constitutional right to end a pregnancy — would affect states where abortion is legal as well as those that outlaw it.

“This Texas lawsuit is a clear and present danger to patients and providers all across the country,” Inslee said in a statement. “Washington will not sit by idly and risk the devastating consequences of inaction.”

Former President Donald Trump-appointed Judge Matthew Kacsmaryk heard debate in March over the Alliance Defending Freedom’s request to revoke or suspend the FDA’s approval of mifepristone. The conservative group claims it was improperly approved.

Kacsmaryk said he would rule “as soon as possible” without giving any clear indication of how he might decide.

The bulk pill purchase also comes as Washington state Attorney General Bob Ferguson pursues the issue from another angle: He’s helping to lead a multistate lawsuit in federal court meant to further ease restrictions to the medication.

The lawsuit filed with Oregon Attorney General Ellen Rosenblum in February against the FDA accuses it of singling out mifepristone for excessively burdensome regulation despite evidence that the drug is safer than Tylenol, Ferguson said in a statement at the time.

The lawsuit asks the court to find certain FDA restrictions unlawful and to stop the federal agency from enforcing or applying them to mifepristone.

State lawmakers are also bringing legislation that will authorize the state Department of Corrections to sell or distribute the drug stockpile to licensed providers in Washington.

The bill’s co-sponsor, Sen. Karen Keiser, of Des Moines, said the last year has made it clear that they can’t be complacent when it comes to reproductive health.

“The Legislature is taking a number of crucial steps this session to protect abortion rights,” Keiser said, “but those rights are meaningless without access to care.”

Several moves have been made in Washington to strengthen abortion access, including a directive from Inslee instructing the Washington State Patrol not to cooperate with out-of-state abortion investigations. Other abortion and gender-affirming care bills are expected to pass the Washington Legislature this session.

Abortion has been legal in Washington since a 1970 statewide ballot referendum.

MARCH 17, 2023:

SACRAMENTO, Calif. (AP) — A new bill in the California Legislature would give legal protections to doctors who mail abortion pills to patients in other states. The bill by Democratic state Sen. Nancy Skinner would not let California extradite doctors who are facing charges in another state for providing abortion medication. It would also shield doctors from having to pay fines. And it would let doctors sue anyone who tries to stop them from providing abortions. The bill would not apply to doctors who perform abortions in other states and then come to California. Massachusetts, New York, Connecticut, Maryland and Vermont have proposed or passed similar laws.