The Supreme Court issued a stay on April 14 before blocking a decision by a Texas judge that would threaten widespread access to mifepristone, a drug used as part of a medication abortion. The Daily spoke with experts on abortion access about what this decision means for reproductive health care access and how states are responding.
The case was initially brought by the Alliance for Hippocratic Medicine, a coalition of anti-abortion doctors and organizations.
“They went to Texas specifically … so they could get this particular judge to hear this case, because Judge Kacsmaryk, before he was seated on the bench, was an anti-abortion activist, and his family still is,” Sarah Lee Day, a lawyer, said. Day has taught an ExCollege class on abortion and the U.S. judicial system for two semesters.
On April 7, Texas U.S. District Judge Matthew Kacsmaryk ruled that 23 years ago, the Food and Drug Administration improperly approved mifepristone as a way to terminate a pregnancy, arguing that the agency had ignored safety concerns. Kacsmaryk has previously criticized Roe v. Wade and has worked for the First Liberty Institute, a conservative Christian legal advocacy group.
Mifepristone blocks the hormone progesterone from being released, and when taken with the drug misoprostol, is used to end a pregnancy up to 10 weeks gestation. If mifepristone’s FDA approval is revoked, misoprostol will still be available and can be used by itself to trigger an abortion, albeit with worsened side effects.
“We know that medication abortion is safe and effective,” Day said. “We know that it’s safer than Tylenol; we know that it’s safer than Viagra. There’s already a very, very, very, very low percentage of the time that medication abortion isn’t going to be effective. … These doctors should never have had standing to bring this case.”
Around the same time Kacsmaryk issued his ruling, another U.S. District Court in Washington issued an injunction protecting access to mifepristone in 17 states and the District of Columbia.
“You’ve got these dueling injunctions,” Day said. “So they went to the Fifth Circuit.”
The Fifth Circuit, which Day said is known to be a conservative court, issued a preliminary ruling that partially overturned Kacsmaryk’s decision, finding that the statute of limitations to challenge the FDA’s initial approval of mifepristone had long passed. However, they did roll back approvals made since 2016, namely rules that allowed patients to obtain mifepristone by mail and with a telehealth appointment.
The Supreme Court heard the injunction from the shadow docket, ultimately deciding to temporarily block the lower courts’ decisions to ban or limit mifepristone, with Justices Samuel Alito and Clarence Thomas dissenting.
“They [just heard] about the procedural posturing of the case; nothing has happened in terms of the merits of the case,” Day said. “It will go back to the Fifth Circuit, the Fifth Circuit will hear the merits, and then it will go up [to the Supreme Court.]”
Abortion advocates are concerned about this latest attempt to block access to abortion; today, medication abortion accounts for over half of all abortions in the U.S., according to the Guttmacher Institute.
“This action is very scary to a lot of people. It is very uncertain to a lot of people,” Paige Duff, a junior and sexual health advocate, said. “What many people were turning to as a source of solace in the wake of the Dobbs decision was that medication abortion was accessible.”
Day said that while she thinks the Supreme Court should dismiss the case procedurally, the current makeup of the court indicates that the future of mifepristone approval is up in the air. She predicted that She predicted that Justices Thomas, Alito and Neil Gorsuch and would likely rule against the FDA, and that the three liberals on the court and Chief Justice John Roberts would rule in favor.
“The big question marks become [Justices Amy Coney Barrett and Brett Kavanaugh],” she said. “In terms of the FDA approval process, I do not think that Coney [Barrett] or Kavanaugh is going to be willing to say, ‘No, judges should be able to override the FDA in this matter.’ … So the bigger question becomes the Comstock Act.”
The Comstock Act was originally passed in 1873, and among other things, prevents the mailing of abortion medication; however it has not been enforced by the federal government in decades, and judges as well as legislators have repeatedly narrowed the law’s scope.
Day said she was unsure of how Coney Barrett and Kavanaugh would approach the Comstock Act, which she characterized as a “zombie law.”
“If this was a normal group of justices, there would be no question,” she said. “But our Supreme Court and our federal judiciary is not normal anymore.”
In response to this insecurity, some states have stockpiled thousands of doses of mifepristone. At a press conference on April 10, Massachusetts Gov. Maura Healey announced that in addition to signing an executive order clarifying protections for medication abortion providers, the University of Massachusetts at Amherst purchased around 15,000 doses of the drug at her request.
“That’s sufficient to ensure coverage for well over a year,” Healey said at the press conference. “Medication abortion will remain safe, legal and accessible here in the Commonwealth.”
If the Comstock Act is enforced, Day said, it would not be legal to distribute mifepristone and other abortion medication to patients via mail. However, Day said that it would also prevent the distribution of some other drugs, such as Viagra.
“Ultimately, I think that this is going to turn out okay … in states where you have [an] attorney general that isn’t hostile towards the right [to an abortion],” she said. “In states that are hostile to the right, that’s a completely different story.”
In the meantime, Duff said that efforts to clarify and educate people on their rights are important to ensuring access to reproductive health care, giving the example of people getting confused between mifepristone and Plan B.
“There’s all of this fear-mongering, [and] there’s all of this really scary rhetoric,” she said. “I would say that one of the basic things that people can do is make an effort to stay informed. … It’s an unfortunate reality that this [case] might not go our way, and Dobbs didn’t go our way, but we kept fighting.”