American women and doctors are, once again, experiencing whiplash as the court system has revoked and restored access to the most widely used abortion medication in the country — and is poised to strip it away once more — all in the span of a week and a half.
Last Friday, the Fifth Circuit Court of Appeals issued a ruling in Louisiana v. FDA, prohibiting abortion providers from mailing mifepristone, the first drug taken as part of the typical two-step medication abortion protocol, to patients anywhere in the county.
The following Monday, the Supreme Court temporarily reinstated access to the medication at the request of two of the drug’s manufacturers, Danco Labs and GenBioPro.
That temporary order is set to expire this coming Monday; if the court doesn’t act before then, women across the country will once again be unable to receive the critical drug through the mail. Medication abortion is the most widely used method in the country, accounting for close to two-thirds of abortions occurring in America every year.
“If the Supreme Court decides in Louisiana’s favor, it will be a massive setback for access to evidence-based healthcare — mifepristone — across the nation,” says Skye Perryman, longtime counsel for GenBioPro and the CEO and president of the legal advocacy group Democracy Forward.
The case revolves around a decision made by the Biden-era Food and Drug Administration to end an outdated requirement that mifepristone be dispensed in-person. Lawyers for the state of Louisiana have argued that, with that action, the Biden FDA was intentionally seeking to “undermine” the Dobbs decision, the Supreme Court’s 2022 ruling ending the right to an abortion 50 years after the court first recognized it in Roe v. Wade.
The FDA, now under the control of Trump appointees, is currently in the process of formally reviewing the safety of mifepristone. (Both the safety and efficacy of mifepristone have been thoroughly documented in dozens of studies conducted since it was first legalized more than 25 years ago. The pill has been shown to be effective in more than 97 percent of cases, with serious complications arising in less than .025 percent of cases.)
The FDA had previously asked a lower court to put the case on hold until its review was completed but, after the Fifth Circuit ruled against it last week, the agency chose not to submit its own case to the Supreme Court this week.
“It’s concerning that we didn’t see anything from them yesterday,” says Carrie Flaxman, senior legal advisor at Democracy Forward. “It’s abundantly clear from their filings below that the court should be deferring to the ongoing FDA review and vacate the nationwide injunction that the Fifth Circuit entered erroneously.”
The state of Louisiana, fresh off its win in the Fifth Circuit, did take the opportunity to respond to the manufacturers’ claims, including the argument that the state lacked standing to sue. The state argued it has a legal right to sue because, among other reasons, the FDA’s policy allowing medication abortion to be sent through the mail impinges on the state’s “sovereignty.”
The hypocrisy is thick, Flaxman says, since the lower court’s decision didn’t just end the mailing of mifepristone to residents of Louisiana, but to anyone living in any state in the country. “They’re in court complaining that they have sovereign injury while wholly ignoring that the nationwide relief that they have obtained from the Fifth Circuit fundamentally undermines the interest of other states,” she says.
Louisiana asked the high court to keep the lower court’s ruling in place, but in the event that the justices choose not to, the state requested the Supreme Court take up the case immediately, and schedule oral arguments before it adjourns for the summer — in other words, in the next few weeks.
The Supreme Court has yet to weigh in on that request — or to offer any indication of whether it will allow medication abortion to remain accessible to women across the country. Health care providers and their patients, meanwhile, are left waiting to see how their lives could change based on the court’s next whim.
