The U.S. Supreme Court on Friday said that access to abortion medication as approved by the Food and Drug Administration will remain the same while its approval is being challenged in court.
The guidance came two days later than expected. The court had temporarily blocked the rulings of lower courts that restricted access to mifepristone, one of two pills used to induce an abortion, while considering if those restrictions should stand throughout the appeals process.
Since the high court’s decision last year that overturned the 1973 Roe v. Wade decision, which guaranteed the nationwide right to abortion, anti-abortion advocates have set their sights on mifepristone, which health care professionals use to induce an abortion at up to 10 weeks of pregnancy.
Several states, including Georgia, have imposed limits to the procedure, while others have written expanded access into their laws. The Supreme Court’s ruling means the access remains the same for those seeking abortions across the country and in Georgia, which already is limited.
A Texas judge revoked the federal government’s long-standing approval of the drug, which was granted by the U.S. Food and Drug Administration in 2000. An appeals court disagreed but imposed its own restrictions.
In 2019, Gov. Brian Kemp signed a law that bans most abortions in Georgia once a doctor can detect fetal cardiac activity, typically about six weeks into a pregnancy and before many know they are pregnant. It took effect last year.
A flurry of national court decisions and counterdecisions in recent weeks has put the legality of the abortion medication in question. The Texas judge revoked the 2000 approval of mifepristone for use in all abortions. The appeals court said that the 2000 approval was settled and instead ruled that FDA approvals made on the medication after 2016 were no longer legal, meaning mifepristone could only be used up to seven weeks into a pregnancy and could not be sent through the mail.
The FDA in 2021 issued guidance that allowed abortion medication to be prescribed through a telehealth visit and sent through the mail. Georgia’s abortion laws require an ultrasound to determine how far along a pregnancy is before an abortion — medical or surgical — can be performed, which requires an in-person visit.
It’s unclear what effect a final decision at the national level will have in Georgia. State law prohibits abortion at the moment when the embryo’s still-developing heart — known medically as a primitive heart tube — starts to quiver, typically at about six weeks. That means the use of mifepristone was already illegal in the state beyond that point.
A recent report from the Society of Family Planning, #WeCount, said the monthly number of abortions in Georgia dropped by nearly half once the state’s abortion law took effect in July. Participating abortion providers reported administering 4,430 abortions in June 2022, the last full month before Georgia’s law took effect. In December, providers reported administering 2,350 abortions.
Georgia’s abortion law is being challenged in the state Supreme Court. Justices will soon decide whether the law should remain in effect — or if, as attorneys for abortion providers argue, it was illegal from the start because Roe v. Wade was the law of the land in 2019 when the state law was passed.
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