WASHINGTON (States Newsroom) — The same U.S. Supreme Court that overturned the constitutional right to an abortion will hear oral arguments Tuesday over access to mifepristone, a pharmaceutical used in both medication abortion and miscarriage care.
The nine justices will then decide whether to leave access to the drug intact or require the U.S. Food and Drug Administration to revert prescribing instructions to what were in place before 2016.
The court decision will affect the entire country, including states that have sought to shore up access to reproductive rights following the Dobbs ruling less than two years ago.
The Supreme Court opinion, likely not to come until late spring, will land in the middle of a presidential campaign in which Democrats are elevating the question of reproductive rights. The debate is also likely to affect GOP efforts to grow their majority in the U.S. House and flip the Senate red.
Trend toward medication abortion
Medication abortion, a two-drug regimen that uses mifepristone and misoprostol, was used in 63% of abortions in the United States during 2023, according to a report released earlier this month by the Guttmacher Institute.
The new data shows a continued trend away from procedural abortions and toward medication abortion, which is approved up to 10 weeks gestation, that has been steadily increasing since the FDA originally approved mifepristone in 2000.
Medication abortions accounted for about 6% of pregnancy terminations in 2001, rising to 24% in 2011, before reaching 53% in 2020, according to Guttmacher.
During the last calendar year, the report says there were 1,026,690 abortions throughout the country, with 642,700 of those being medication abortions.
The numbers may not represent the full picture, however.
“The medication abortion counts for 2023 do not include self-managed medication abortions that take place outside of the formal health care system or abortion medication mailed to people in states with total abortion bans,” the Guttmacher report states. “While there are no comprehensive data on the number of self-managed medication abortions in the United States, evidence suggests they have been increasing in the past several years.”
Alliance Defending Freedom suit
The case about to go in front of the Supreme Court, Food and Drug Administration v. Alliance for Hippocratic Medicine, began in November 2022 when Alliance Defending Freedom sued the FDA on behalf of four anti-abortion medical organizations and four anti-abortion doctors.
In the original lawsuit and numerous briefs since then, ADF argued that mifepristone leads to problematic situations for doctors who have to assist patients with complications from medication abortions. They’ve also made claims about safety, which have been repeatedly refuted by major medical organizations.
The lawsuit had called for the judicial system to overturn the FDA’s original 2000 approval of mifepristone, which U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk essentially agreed with, in his April 2023 ruling.
The 5th Circuit Court of Appeals in New Orleans, Louisiana, heard oral arguments in the federal government’s appeal of that ruling in May 2023 before issuing its decision a few months later in August.
That three-judge panel said mifepristone could stay on the market, but that when and how patients can access the drug should go back to what was in place before the FDA began making changes in 2016.
Telehealth and prescriptions
That would lower the maximum gestational age for using mifepristone from 10 weeks to seven weeks as well as remove the option for patients to get the prescription via telehealth and have it mailed to their homes.
Only doctors would be able to prescribe mifepristone, not health care professionals authorized to prescribe pharmaceuticals, like physician’s assistants or nurse practitioners.
Patents would have to go back to attending three, in-person doctor’s appointments in order to complete the process.
The dosage of mifepristone and the second pharmaceutical used in medication abortions, misoprostol, were different before the changes began to take effect.
The lower courts’ rulings never took effect and the appeals court’s ruling will remain on hold until the Supreme Court issues its opinion in the case, likely this summer.
Briefs filed
Dozens of organizations, attorneys general and lawmakers have filed briefs with the Supreme Court seeking to inform the justices’ thinking in the case ahead of Tuesday’s oral arguments.
More than 15 major medical organizations, including the American College of Obstetricians and Gynecologists and the American Medical Association, sought to reinforce the FDA’s determination that mifepristone is safe and effective in their brief.
“Restricting access to mifepristone will not only jeopardize health, but worsen racial and economic inequities and deprive women of the choices that are at the very core of individual autonomy and wellbeing,” the medical organizations wrote.
They noted that “major adverse events occur in less than 0.32% of patients,” and that the “risk of death is almost non-existent.”
About 145 Members of Congress from 36 states urged the court to restrict access to mifepristone in a separate brief filed with the court.
“Since 2016, the FDA has only required adverse events reporting for deaths resulting from chemical abortion drugs; reporting is otherwise voluntary,” the members of Congress wrote, making the argument that reports are not required for injuries or impairment. “This action was not only arbitrary and capricious, but it also raised safety concerns for women seeking chemical abortion drugs.”
