Abortion Pill Mifepristone Is Still Available Despite Appeals Court Ruling—Here’s Where And What To Know

Topline

A federal appeals court ruled Wednesday to reinstate restrictions on the abortion drug mifepristone, such as no longer making it available via telehealth, but an April ruling from the Supreme Court means the medication’s availability is still the same as it was before for the foreseeable future, until the high court rules in the case.

The 5th Circuit Court of Appeals ruled to impose new restrictions on abortion drug mifepristone, but … [+] the drug remains legal pending a decision from the Supreme Court.

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Key Facts

Mifepristone is one of two drugs taken during a medication abortion, along with misoprostol, and though the drug has been proven to be safe and effective in terminating a pregnancy, an ongoing lawsuit has sought to revoke its approval by the Food and Drug Administration, claiming it was improperly granted.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ruled in April to throw out mifepristone’s FDA approval entirely, a ruling that the Supreme Court then put on hold as the case played out at the 5th Circuit Court of Appeals—and then, if necessary, at the Supreme Court—keeping mifepristone legal while the case moved forward.

A three-judge panel at the 5th Circuit ruled Wednesday that while mifepristone’s initial approval shouldn’t be revoked entirely—saying the challengers brought the lawsuit too late—it did throw out changes made to the drug’s approval in 2016 and 2021.

Those changes updated the regimen for taking mifepristone and made it more widely available, allowing the drug to be prescribed via telehealth and delivered through the mail.

If mifepristone is restored to its original approval from 2000, it can only be prescribed and taken in-person at a physician’s office, and only through the first seven weeks of pregnancy, rather than 10 weeks under the newer guidelines.

The abortion drug can be prescribed in every state other that those that outlaw abortion—Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, West Virginia and Wisconsin, and Georgia after six weeks of pregnancy—though the mail delivery of abortion pills and its availability via telehealth has made it more possible for people in those states to still obtain the drug.

What To Watch For

The Supreme Court’s ruling leaves the existing protocols for mifepristone in place until the high court rules in the case, if it decides to take it up, and says the lower court’s ruling will go immediately into effect if justices decide not to hear the case. The Justice Department said Wednesday it “will be seeking Supreme Court review” of the 5th Circuit’s ruling, but it’s still unclear what the timeline will be for the high court to consider the issue. While it’s possible the Supreme Court could quickly reject the case and put the 5th Circuit’s ruling into effect, a decision could also come as late as 2025, should the court take up the case for its 2024-2025 term rather than its next term starting in October.

Big Number

53%. That’s the share of abortions in the U.S. that were carried out via medication as of 2020, the most recent year for which data was available, according to the pro-abortion rights Guttmacher Institute. That percentage is likely higher now in the wake of state-level bans.

What We Don’t Know

How the Supreme Court will rule, although the 6-3 conservative court did previously overturn Roe v. Wade and pave the way for state-level abortion bans. The court’s ruling in April only indicated that Justices Samuel Alito and Clarence Thomas would have denied the request and allowed mifepristone to be banned nationwide while the litigation played out, but it’s unclear if any of the other conservative-leaning justices also voted against the request and just didn’t make that public, or how any of them could rule if the case is fully heard in oral arguments.

Surprising Fact

Medication abortion can be carried out only using misoprostol, rather than using it in combination with mifepristone, and many abortion clinics are expected to switch to that method if the 5th Circuit’s ruling takes effect so that the pills can still be prescribed virtually and sent by mail. The one-drug regimen is considered broadly safe and effective, though it can carry more side effects than using mifepristone. Misoprostol is also used for other medical conditions, making the drug more easily available and less subject to litigation than mifepristone, though abortion rights advocates fear legal attacks on the drug if mifepristone is restricted. “If [misoprostol] becomes more widely used … I do think that the next step for these plaintiffs is to bring some sort of lawsuit” targeting the drug, Allison Whelan, a law professor at Georgia State University specializing in health law, told Forbes prior to Kacsmaryk’s April ruling.

Key Background

Attacks on medication abortion have ramped up in the months since the Supreme Court overturned Roe v. Wade in June 2022, with lawmakers introducing bills targeting abortion pills specifically and Wyoming becoming the first state to pass legislation specifically banning the medication (which has since been blocked in court). With state-level abortion bans shuttering abortion clinics across the country and making surgical abortions harder to obtain, medication abortion has become a more accessible abortion method for many who need the procedure, and abortion rights advocates have created ways of getting abortion pills to people in banned states like mobile clinics on state borders and mail-order services. The Biden Administration also issued guidance saying abortion pills can legally be mailed to states in which abortion is banned under federal law—though state law can still restrict it—and moved to make mifepristone available at brick-and-mortar pharmacies, which had not previously been allowed.

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