February 3, 2023

A court decision expected soon on medication abortion could have wide implication

Bill Moree

Abortion rights sit in, Washington D.C. 2022

A pending federal lawsuit could impact the use of medication abortion for patients nationwide, including New Mexico.

A religious group filed a complaint in November in a district in Texas where the likely federal district judge to consider the case is a Trump appointee with long standing connections to politically active religious groups, the Center for Reproductive Rights has said. The suit asks the court to overturn the U.S. Food and Drug Administration’s approval of mifepristone in 2000, claiming that the FDA approved the drug through its accelerated drug approval authority. The complaint states that the FDA “never studied the safety of the drug” that it approved as safe for abortion care 22 years ago.

Mifepristone is one part of the two-drug regime for medication abortion. Abortion medication now accounts for 53 percent of abortions in the U.S., according to the reproductive research organization the Guttmacher Institute.

The FDA approved an expansion of mifepristone in January, allowing retail pharmacies to dispense the medication if the pharmacy undergoes a certification process. Prior to the COVID-19 pandemic – for 20 years after approval – the FDA would not allow medical providers to prescribe mifepristone. Instead, a patient had to travel to an abortion clinic to purchase the medication but could take it at home or wherever the patient felt comfortable. Medication abortion is approved by the FDA up to 10 weeks of gestation.

But because of the pandemic and a lawsuit filed in Maryland, the FDA, under the Biden Administration, began to reconsider this rule. Nearly two more years after the pandemic began, the FDA established the new guidelines in January that allows the drug to be prescribed through a pharmacy. 

Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, called the lawsuit to end the use of mifepristone “an attack.”

“Let’s be clear, this is not only about banning medication abortion. This is about criminalizing patients and providers,” she said by email.

Rushforth said that if the suit is successful, New Mexico abortion clinics and “our local health care infrastructure” will continue to be over taxed “while creating insurmountable barriers to care for our communities and neighbors.”

Since the U.S. Supreme Court overturned Roe v. Wade last June, New Mexico has become known as a safe haven state for abortion access and both providers and abortion fund organizations have reported an influx of patients traveling from other states seeking an abortion. This has led to stress on an already fragile health care system and longer wait times for individuals seeking both abortion care as well as other time-sensitive reproductive health care issues such as testing for sexually transmitted infection. 

Advocates have said that if the Texas judge rules against the FDA, an appeal would go before the U.S. Court of Appeals for the Fifth Circuit. That court has routinely favored conservative-backed arguments and several of the judges are Trump appointees. Another appeal from that court would take the case to the U.S. Supreme Court.

Rushforth said that if mifepristone becomes unavailable because of the court case, the loss of a drug that has been used safely for over two decades would impact more than abortion patients.

“Anti-abortion extremists are doing everything they can to not only push abortion care out of reach, but to ban and criminalize abortion completely. Banning medication abortion — which accounts for more than half of abortion care across the country — would have devastating effects. Effects felt not only by people seeking abortion care, but for people managing a miscarriage, uterine fibroids, Cushing’s Syndrome, and beyond,” she said.