The Supreme Court issued a stay in the Texas mifepristone case on Friday, April 21, pressing the “pause” button on the recent lower court decisions and allowing mifepristone to remain available pending a full appeal. Although this is welcome news, it is frightening that Americans came so close to losing access to this safe, effective medication — and may yet still. That’s because this isn’t the end of the line: even though legal experts across the political spectrum have pointed out flaws in the case, it now will return to the Fifth Circuit for oral arguments in mid-May.
If you’re feeling confused or overwhelmed about the recent legal decisions surrounding medication abortion, you’re not alone. In fact, creating confusion and chaos is part of the anti-abortion playbook, meant to intimidate people from obtaining the health care they need and deserve by creating fear and anxiety about criminalization. Indeed, nearly half of adults reported being “unsure” as to whether medication abortion is legal in their state — including 41% of women ages 18-49.
But we’re fighting back, both in the courts and by staying informed and enraged by judicial opinions that ignore science, rewrite laws, and disregard the realities of our lives. Let’s be clear: medication abortion is still available. For precise information about accessing abortion care and specific information about the abortion laws in your state, refer to Reprocare’s Abortion Hotline and If/When/How’s Repro Legal Helpline.
What happened in the district courts?
On Friday, April 7, 2023, two federal district courts dropped decisions out of Texas and Washington, issuing conflicting rulings on mifepristone. Mifepristone is one of the two drugs used for medication abortions, which constitute more than half of all abortions in the US. No court decision can change the science: there is over 20 years of data in millions of people showing that medication abortion pills, including mifepristone, are safe and effective.
In Texas, extremist Judge Matthew Kacsmaryk jumped through hoops to land on his intended ideological outcome. His decision is both legally wrong and an incredibly dangerous abuse of power. For additional background on this case, see our earlier Attack on Abortion Pills post. The Texas decision regurgitates vitriolic language straight out of the anti-abortion playbook, including repeated use of “abortionist,” rather than doctor or provider, and using the term “chemical abortion” to stigmatize medication abortion.
Kacsmaryk cherry-picks selective studies to support his decision, ignoring a wide body of data to falsely claim that mifepristone is dangerous. The reality: Mife is one of the most studied medications in the US, safer than common drugs like Tylenol. And, dangerously, he frames the FDA as a bad actor. This is an unprecedented attack on the FDA’s drug approval process, a system globally viewed as the gold standard. If upheld, it could lead to an increasingly politicized regulatory scheme with judges weighing in on drugs that they are unqualified to review.
The Texas opinion partially relied on a law from the 1800s — the Comstock Act, an anti-vice law that barred mailing “lewd” materials. This interpretation is in direct conflict with the Justice Department’s Office of Legal Counsel, which issued an opinion concluding that abortion medications could be sent by mail.
In the hours after the Texas decision was issued, a Washington court at the same level released its own decision in a separate case brought by a coalition of Democratic Attorneys General from 17 states and the District of Columbia. Judge Thomas O. Rice held that the FDA could not change the status quo surrounding mifepristone as to those states and D.C.
The Washington opinion is night and day from that in Texas: no partisan language, just a straightforward analysis of the law. Judge Rice explains that the role of Article III judges is not to second guess the FDA’s expertise.
What happened on appeal?
The Kacsmaryk decision included a provision that it would not go into effect for 7 days in order to allow time for appeals. On April 11, 2023, the notoriously conservative Fifth Circuit Court of Appeals issued a late-night decision holding that mifepristone would be partially accessible, with significant restrictions. This holding, just like Kacsmaryk’s, disregards both the applicable laws and the scientific evidence. The Fifth Circuit rolled back decisions made according to FDA scientific judgment and expertise.
The decision out of the Fifth Circuit would have widespread effects, if allowed to stand: it will impact not only Texans and those in the Circuit’s jurisdiction, but also everyone nationwide — even in states where abortion is protected — except for the 17 states and DC that are protected under the Washington district court ruling. The result, if this decision goes into effect, is that mifepristone will be significantly more difficult to access.
The parties immediately appealed to the Supreme Court, which granted a stay as described above. Justice Clarence Thomas dissented without an opinion, and Justice Samuel Alito — who authored the opinion overturning Roe v. Wade— dissented, falsely claiming that placing limitations on mifepristone would not have “any real harm.” Such a stance ignores the science and the reality of people’s lives, putting abortion and miscarriage care in jeopardy for millions.
The Fight Continues
These rulings do not happen in a vacuum: since Kacmaryk’s early April ruling, telehealth abortion providers reported a massive increase in virtual appointments and website visits. People are proactively ordering abortion medication before becoming pregnant, and certain states are stockpiling mifepristone in light of the rulings. This baseless lawsuit shows that extremists will use every trick in the book in their efforts to ban abortion nationwide.
Abortion is healthcare. For now, clinics and providers will continue dispensing mifepristone and are prepared for misoprostol-only regimens as well. We won’t stop pushing back on the attempts to undermine reproductive justice in America. Everyone deserves access to abortion care, free from stigma and without fear of criminalization.