On April 21 the U.S. Supreme Court issued a brief, unsigned ruling allowing the stay on the Texas judge’s reactionary to stand while the matter reverts to the Fifth Circuit Court of Appeals — the court that ruled April 12 to limit access to mifepristone drastically by restoring all of the pre-2016 restrictions to access.
Whether access to two drugs used in medication abortion will remain available to millions of people in the U.S. has been in legal limbo since April 7, when a federal court in Texas ruled to block the Food and Drug Administration’s approval of mifepristone. Judge Matthew Kacsmaryk found for plaintiffs from anti-abortion groups, who falsely claimed the FDA did not sufficiently study the safety and efficiency of the drug it had approved over 20 years ago. Kacsmaryk ruled to revoke FDA approval of mifepristone and remove it from the market, even in states with abortion rights protections.
Then on April 12 a three-judge panel of the Fifth Circuit Court of Appeals ruled that mifepristone can stay on the market but reimposed the prior limitations that had blocked its use after seven weeks of pregnancy — when most women don’t yet know they are pregnant — and prohibited distribution by mail, along with other restrictions.
Immediately after that ruling, U.S. District Judge Thomas O. Rice in a federal court in Washington state, directed U.S. authorities to not make any changes that could restrict access to mifepristone in 17 states, where lawsuits have been filed to protect availability. Rice’s April 13 order applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington state and the District of Columbia, where the drug is available.
Since its approval in 2000, medication abortion has been used by nearly 5 million patients across the U.S. Multiple studies have shown it to be safe and effective as part of a two-drug (mifepristone and misoprostol) regimen. Over half of all abortions in the U.S. are done with medication, 98% of those having used the two-drug protocol since 2020. Leading medical organizations, including the American Medical Association and the American College of Obstetricians and Gynecologists, oppose any restrictions on mifepristone use.
The medical groups have expressed concern that lack of access to abortion, including medication abortion, will worsen the maternal mortality rate in the U.S. Pharmacy groups warn that patients’ health is at risk without access to mifepristone, which is also used to treat ectopic pregnancies, miscarriages and other medical conditions. The U.S. already has one of the highest maternal mortality rates, especially for Black and Brown people.
On April 14, Supreme Court Justice Samuel A. Alito Jr. issued an order temporarily halting the Texas court ruling, while the highest court considers whether to grant an emergency request by President Joe Biden’s administration to preserve FDA approval of the drug. The stay was set to expire at midnight April 19, but the court has extended it two more days.
Should the High Court not retain the stay, the decision would revert back to the same right-wing Fifth Circuit Court of Appeals that had voted to drastically restrict medication abortion. This would particularly impact women and pregnant people living in states with abortion bans — almost the entire Southeast — and especially low-income and Black and Brown people.
“Abortion bans and limits to health care access disproportionately affect low-income, Black and LGBTQ+ communities, who already struggle to navigate a health care system not made for them,” explained Monica Simpson, executive director, SisterSong Women of Color Reproductive Justice Collective. SisterSong had sued the state of Georgia to block an abortion ban there. The case came before the Georgia Supreme Court March 28. (reproductiverights.org)
Jenny Ma, senior counsel at the Center for Reproductive Rights, in a CRR press release after the April 14 stay, stated: “This week has created a whiplash for health care providers and patients — and this order provides cold comfort for a brief few days. But this case is far from over. The Supreme Court must take action next week to stop the chaos unleashed by these extreme decisions.
“This lawsuit was manufactured by anti-abortion advocates and based on biased anecdotes and junk science. It’s a completely baseless case that has nothing to do with preserving patients’ health or safety. Instead, this is another step in taking away the bodily autonomy of pregnant people and an attempt to end abortion in every single state. The science and facts are clear: Medication abortion is safe and effective.”
Resist and fight back!
Demonstrations took place across the country to protest the reactionary ruling and any attempt to implement restrictions on medication abortions. Thousands of people took to the streets in numerous cities on April 15 to protest yet another attack on reproductive rights.
This time a section of the ruling class, for its own selfish reasons, is opposing the trashing of reproductive rights.
It is one thing for the Supreme Court to trample on and restrict the rights of oppressed workers, taking away rights to bodily autonomy and denying hard-won civil and social rights. When SCOTUS overturned Roe v. Wade last year, Wall Street barely blinked a collective eye.
But restricting the rights of major pharmaceutical companies to make billions in profits from drugs already FDA-approved is quite another matter. By the courts attempting to deny access to mifepristone, they are stepping on big business’ toes — in an industry with a lot of clout. Concerned that if one judge can ban a drug that the FDA has approved, it could happen with any drug. Big Pharma is joining the medical community and pro-choice forces in opposing any ruling limiting access to medication abortion.
But for there to be real bodily autonomy, including the right to decide whether to have a child or terminate a pregnancy, health care needs to be taken out of the hands of profiteers, politicians and judges and made affordable and accessible to everyone.
They say get back — we say fight back!
Kathy Durkin contributed to this article.