The Most Common Way to Have an Abortion Is Still on the Market—For Now | Abortion
But it can only be obtained with significant restrictions, due to a new court order.
A common and effective abortion pill may remain available in the United States—for now. But people can get it only with significant restrictions, a federal appeals court ruled Wednesday night.
The decision from three judges from the US Court of Appeals for the 5th Circuit froze part of the a court order issued last week from Texas-based Judge Matthew Kacsmaryk, who ruled to completely suspend the Food and Drug Administration’s approval of mifepristone, one of two drugs commonly used to induce drug abortions in the United States. Rather than agree to suspend approval entirely, the federal appeals court instead ruled that mifepristone should be held to the FDA’s older standards.
This controversial case could rewrite the future of abortion nationwide, even in states that protect abortion rights.
Under this decision, mifepristone must be obtained in person from a provider—not through telehealth visits, which the FDA agreed to allow after the coronavirus pandemic. Its labeling should instruct providers to use it only to induce abortions before seven weeks of pregnancy. The FDA changed that label in 2016, when mifepristone was relabeled for use for abortions up to 10 weeks of pregnancy.
The justices also appeared sympathetic to arguments about the Comstock Act, a 19th-century anti-obscenity law that banned the mailing of abortion-related material but has long been considered an irrelevant vestigial structure in the law of US. Since overturning Roe v. Wade last year, Anti-abortion activists grew in Comstock as evidence for a de facto federal ban on abortion.
“To the extent that the Comstock Act introduces uncertainty into the ultimate merits of the case, that uncertainty favors the plaintiffs,” the judges wrote Wednesday.
Despite the decision, it is still possible for abortion providers to go “off-label” and prescribe mifepristone for abortions later in pregnancy. In addition, many abortion providers said that if mifepristone were taken off the market, they would return to another drug commonly used in medical abortions, misoprostol, to induce abortions.
The vast majority of research on mifepristone has concluded that the drug is safe. Before Roe was overturned, medication abortions accounted for more than half of all abortions in the US.
The FDA first approved mifepristone for use in abortions in 2000, but Kacsmaryk’s ruling found that the FDA violated federal rules in that approval process and cited studies—many of which conducted by anti-abortion organizations—suggesting that mifepristone may have harmful effects. . The appeals court found that it was too late to challenge the 2000 approval, but not too late to review the FDA’s other recent changes to mifepristone’s use.
Regardless of this decision, it is unlikely to be the final word on mifepristone. The case will likely end up in the Supreme Court.
