Recommendations of the Editorial team
American women and doctors are once again experiencing one shocking moment after another: The justice system first revoked, then restored, access to the country’s most used abortion drug in a week and a half – and is about to tip it again.
Last Friday, the Fifth Circuit Court of Appeals issued a ruling in Louisiana v. FDA that prohibits abortion providers from sending mifepristone – the first drug in the typical two-step medication abortion protocol – by mail to patients across the country.
The following Monday, the Supreme Court temporarily reinstated access to the drug at the request of two manufacturers, Danco Labs and GenBioPro.
Deadline expires
This injunction expires next Monday. If the court doesn’t act first, women across the country will once again be unable to receive the important medication in the mail. Medication abortion is the most common method used in the United States, accounting for nearly two-thirds of all annual abortions.
“If the Supreme Court rules in Louisiana’s favor, it would be a massive setback for access to evidence-based health care – that is, mifepristone – across the country,” said Skye Perryman, longtime general counsel for GenBioPro and CEO and president of legal advocacy organization Democracy Forward.
At the heart of the case is a decision by the FDA under the Biden administration to eliminate an outdated regulation that required personal dispensing of mifepristone. Lawyers for the state of Louisiana argued that the Biden-FDA was deliberately trying to “undermine” the “Dobbs” ruling – the 2022 Supreme Court decision that struck down the right to abortion 50 years after it was first recognized in Roe v. Wade.
The FDA, now controlled by Trump appointees, is currently formally reviewing the safety of mifepristone. (Both the drug’s safety and effectiveness have been extensively proven in dozens of studies since its approval more than 25 years ago. The pill works in over 97 percent of cases, and serious complications occur in less than 0.025 percent of cases.)
FDA is silent
The FDA had previously asked a lower court to stay the case until its review was completed. However, after the Fifth Circuit ruled against them last week, the agency decided not to take the case to the Supreme Court itself.
“It’s troubling that we didn’t hear from them yesterday,” said Carrie Flaxman, senior legal counsel at Democracy Forward. “It is clear from their pleadings to date that the court should cite the ongoing FDA review and vacate the nationwide injunction that the Fifth Circuit erred in issuing.”
For its part, the state of Louisiana, fresh from its victory in the Fifth Circuit, took the opportunity to respond to the manufacturers’ arguments – including the argument that the state lacked standing to sue. Louisiana argued it had a right to sue because, among other things, the FDA’s policy allowing abortion drugs to be shipped by mail violated the state’s “sovereignty.”
Hypocrisy with announcement
The hypocrisy of this is hard to beat, says Flaxman: The lower court’s ruling ultimately prohibits the shipping of mifepristone not only to residents of Louisiana, but to people in every state in the country. “They are suing in court for sovereignty damage, completely ignoring that the nationwide decision they won from the Fifth Circuit fundamentally undermines the interests of other states,” she says.
Louisiana asked the Supreme Court to let the lower court’s ruling stand, but if the justices rejected it, the state requested that the Supreme Court take up the case immediately and schedule oral arguments before the summer recess, i.e. in the next few weeks.
The Supreme Court has not yet weighed in on the request – nor has it given any indication as to whether it will continue to make medication abortion available to women across the country. Meanwhile, healthcare providers and their patients wait to see how the court’s next ruling will impact their lives.
