NEW UPDATE: Late Friday afternoon, the U.S. Supreme Court suspended the rulings by a federal judge in Texas and the 5th U.S. Circuit Court of Appeals that would have limited current use of the abortion drug mifepristone. The Supreme Court’s stay of the rulings expires at midnight (11:59 p.m.) Wednesday, April 19, Eastern time. Until then, mifepristone use can continue in the U.S. as it has been for years, while the appellate courts have slightly more time to consider the merits of the Texas ruling and the U.S. Food and Drug Administration’s appeal.
In the wake of a flurry of court decisions and counter-decisions over the past 10 days, the abortion pill is still legal in the U.S. and in Georgia, but rules are shifting on when the drug can be prescribed and whether it can be mailed to women here.
In Texas, Judge Matthew Kacsmaryk revoked the government’s longstanding approval of the drug, mifepristone, one of two drugs widely used in early abortions. On Wednesday, an appeals court disagreed but imposed its own restrictions. The whole matter is likely headed to the U.S. Supreme Court.
What does that mean for Georgians, and when? Here are some answers.
Q: What is mifepristone?
A: The most common type of abortion in the U.S. is no longer surgical, it’s medical. A medication abortion commonly uses two pills. First, a mifepristone pill, to stop the pregnancy’s development. Then a misoprostol pill, to start contractions to empty the uterus.
Abortion by pill has been used in the U.S. for early pregnancies, those up to 10 weeks pregnant.
Mifepristone has other uses as well. Under the brand name Korlym, the drug in mifepristone is used at a higher dose to treat the hormonal disorder known as Cushing’s disease, according to Georgia State University law professor Allison Whelan. Some studies have also found that mifepristone may relieve symptoms of fibroid tumors.
Q: What did the rulings decide for Americans?
A: The lower court judge, Kacsmaryk, decided last week that when the U.S. Food and Drug Administration approved mifepristone as safe and effective 23 years ago, it didn’t go through the right scientific and regulatory steps. Therefore he revoked the approval of mifepristone for abortion.
The Biden administration appealed. On appeal, the higher-level 5th U.S. Circuit Court of Appeals in New Orleans decided Wednesday night that Kacsmaryk went too far because the drug approval was too old and settled. However, the appeals court said Kacsmaryk had the right to quash more recent FDA decisions on mifepristone, which are those made since 2016.
So under the 5th Circuit’s ruling, mifepristone is now back to where it was in 2016 in the U.S.: It can be used up to 7 weeks of pregnancy, not 10. And it can not be sent to patients by mail.
M.K. Anderson, a spokeswoman for the Feminist Women’s Health Center, which provides abortion in Georgia, said that depending on the appeals court’s final ruling, the center may have to stop buying the generic version of mifepristone because it was approved after 2016. It can still use the brand name medication, but that’s more expensive.
The court rulings and prescribing limits in place as of Thursday are still just temporary. Most expect the case must ultimately be settled by the U.S. Supreme Court.
Q: What does it all mean in Georgia?
A: The rulings so far mean a lot less for Georgia patients than for those in other states, because Georgia already had many state restrictions on abortion put in place after the reversal of Roe v. Wade last year.
Georgia under state law already outlaws abortion after about 6 weeks. Known as the “heartbeat law,” it prohibits abortion at the moment when the embryo’s still-developing heart -- known medically as a primitive heart tube -- starts to quiver, typically around 6 weeks. That means the use of mifepristone was already illegal here beyond that point.
And Georgia law mandated that to do an abortion, a doctor must do a reading of the embryo to determine if that primitive heart tube has started activity. That can’t be done by mail, so most Georgia patients likely were already required to physically go to a clinic to receive the abortion pills.
That said, there are providers such as Aid Access, run by a Dutch doctor, who are trying to mail the pills from pharmacies abroad. It’s unclear how that flow will be impacted.
Q: So mifepristone is still legal. If mifepristone were to be outlawed, would that outlaw abortion by pill?
A: No. Abortion by pill, in general, is still legal wherever abortion is legal. These rulings so far are about one drug, mifepristone.
The second drug in the medication abortion combination, misoprostol, can cause abortion on its own. It’s slightly less effective and can cause worse physical side-effects such as cramping.
The acting CEO of Planned Parenthood Southeast Advocates said Thursday that they were uncertain what the eventual appeal court’s ruling would be, but if they lose access to mifepristone they would continue to provide abortion by pill using misoprostol alone.
Q: Do people understand these impacts?
A: Experts from Duke University said that regardless of what’s legal, the Texas ruling is already causing problems. Some patients think mifepristone is already illegal. Or they’re trying to move up their scheduled abortion because they think it will be illegal. Doctors are getting jumpy about whether they’re still performing abortion within the lines of the law.
“Chaos and confusion — these things are not accidents here, in my view,” said Jolynn Dellinger, a senior fellow at the Kenan Institute for Ethics at Duke University in North Carolina who teaches ethics, law and tech. “I think this is a feature and not a bug of the situation.”
Whelan, of GSU, agreed. “I think that is one of the biggest problems: just simply not really knowing and understanding from a legal perspective what kind or type of care you can provide to your patients,” she said.
Q: Are there impacts beyond abortion?
A: Yes. Drug manufacturers are up in arms. They have protested that for the courts to wade into the scientific decisions, not the legal decisions, made by FDA opens up the drug approval process to chaos as competitors or anyone with an agenda could seek to ban a drug in court.
Q: What’s next?
A: The Biden administration has said it will ask the Supreme Court to put the ruling on hold. In the mean time, the 5th U.S. Circuit Court of Appeals could hold hearings and issue its ruling on the merits of the case, or allow it to proceed to the Supreme Court. The case is headed to further court hearings and rulings.
What it means
A federal appeals court ruled that the abortion pill mifepristone can still be used for now but restored restrictions on the drug in a decision that the Justice Department said Thursday it would swiftly challenge at the Supreme Court.
At stake in an accelerating legal battle that began in Texas is nationwide access to the most common method of abortion in the U.S., less than a year after the reversal of Roe v. Wade prompted more than a dozen states to effectively ban abortion outright.
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