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SCOTUS: Mifepristone to Remain Available Without Tightened Restrictions, for Now

The drug, used for self-medicated abortions up to the 10th week, may be distributed by mail until 11:59 PM ET Friday.

The Supreme Court of the United States, on April 19, 2023, in Washington, D.C.

This story was originally published by The 19th.

A Supreme Court ruling Wednesday will allow abortion care providers to continue providing mifepristone — one of two drugs used for medication abortion — as usual, despite recent efforts from anti-abortion groups to restrict access. With Wednesday’s decision, which extends a stay on a previous ruling out of Texas, mifepristone can be used for abortions up to 10 weeks of pregnancy and distributed by mail without an in-person visit to a doctor’s office until at least 11:59 p.m. ET on Friday.

Medication abortions account for over half of all abortions in the United States. As states have banned abortion after Roe v. Wade was overturned last year, patients have flooded clinics in nearby states. For those clinics, medication abortions have become crucial to treating patients swiftly and expanding clinic capacity.

“We know the only acceptable and just decision is to allow the continued distribution of mifepristone without political interference or restrictions that are not rooted in science. We hope that this is the decision the Supreme Court justices will come to on Friday,” said Kimberly Inez McGuire, executive director of abortion rights group Unite for Reproductive and Gender Equity.

However, as a case out of Texas wound its way through courts, it was unclear if mifepristone would continue to be distributed. Although medication abortions can be safely done only using the other pill, misoprostol, they are more painful and less effective than the two-pill regimen. Some clinics told The 19th they would halt medication abortions completely if they could not use mifepristone.

The mifepristone case was first filed in November in a district court in Texas by a conservative legal advocacy group and several anti-abortion medical groups. The plaintiffs challenged the Food and Drug Administration’s decades-long approval of mifepristone, arguing that the agency had failed to consider appropriate safety concerns.

On April 7, Judge Matthew Kacsmaryk ruled in favor of the anti-abortion groups, holding that FDA approval of mifepristone should be revoked. On the same day, however, a federal judge in Washington state issued a conflicting ruling in a separate case concerning mifepristone access. Judge Thomas Rice ordered the FDA to do nothing to restrict access to mifepristone in 17 states and Washington, D.C., the plaintiffs in that second suit.

Amid the legal contradictions and confusion, the Department of Justice quickly stepped in and appealed the Texas judge’s decision to the U.S. Court of Appeals for the 5th Circuit. The three-judge panel of the 5th Circuit partially blocked Kacsmaryk’s ruling to completely withdraw FDA approval, but instead held that the FDA would have to reimpose restrictions that were in place in 2016. This would have narrowed the drug’s use to up to seven weeks of pregnancy, prohibited its distribution through telemedicine and required three in-person physician visits to obtain a prescription.

But last Friday, Justice Samuel Alito issued an order to temporarily block the federal appeals court ruling, allowing mifepristone to continue to be distributed without those limitations.

Mifepristone underwent several years of assessment before its approval in 2000. At that point, it had already been approved in France, the United Kingdom, China, Sweden and nearly a dozen other countries. Since then, a robust body of evidence has shown its safety and effectiveness: When taken as part of the two-pill regimen alongside misoprostol, mifepristone is more than 99 percent effective in ending a pregnancy and has an extremely low risk of major complications and a mortality rate of .0001 percent.

“The fact is, abortion is an essential and vital component of an individual’s health care — period. The data speaks for itself that abortion pills are proven to be safe and effective for miscarriage and abortion care,” said Sylvia Ghazarian, executive director of the Women’s Reproductive Rights Assistance Project.

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