Update: The judge made his ruling Friday evening and invalidated the FDA approval though the judge stayed his own order for seven days to allow the FDA to appeal. A second federal judge in Washington ordered the FDA to make no changes to the availability of mifepristone. This story appears as originally written below. A federal district judge in Texas is expected to rule in the coming weeks on whether the abortion drug mifepristone can remain on the market. The case, Alliance for Hippocratic Medicine v. FDA, was brought to the Amarillo-based federal district court, abortion advocates have said, because the sole federal judge there has ties to Christian-based organizations and has said before that he supports state bans on birth control.
The Federal Drug Administration ruled on Thursday that it would permanently lift restrictions around abortion patients receiving medication abortion by mail. This means, for instance, that abortion patients who live in places such as rural New Mexico can receive mifepristone, the first of the two-drug abortion regime, by mail. The FDA has maintained a restriction on in-person pickup of mifepristone at a clinic since the agency approved the drug for abortion 21 years ago. Reproductive experts have said that was a political move as, after 21 years, there were clear indications that taking medication abortion up to 10 weeks of gestation is safe. Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico, said by text message that the FDA’s decision is “good news” for patients but some restrictions for clinics still apply.
As Texas abortion rights yo-yo in the courts, one Planned Parenthood doctor said the volume in patients coming from Texas has not changed. Last week a federal Texas judge placed a temporary injunction on SB 8, the Texas law that bans abortion at six weeks, at the U.S. Department of Justice’s request. The DOJ is suing Texas over the law. But within 48 hours after the injunction, the 5th US Court of Appeals overturned the lower court’s injunction, making abortion illegal in the state of Texas, again, after six weeks gestation. According to national media, the DOJ has appealed and is asking the courts to reconsider placing an injunction on the ban.
An abortion provider in New Mexico said the increase in patients from Texas will no longer be manageable if it continues in the coming weeks. Adrienne Mansanares, chief experience officer for Planned Parenthood of the Rocky Mountains, told NM Political Report that the group’s clinics are “not in crisis right now.”
But she said they are “in an unhealthy place” and it “won’t be manageable in the coming weeks if we continue to see the percentage increase from Texas.”
Mansanares said of the roughly 3,000 abortions that take place in New Mexico annually, Planned Parenthood provides about 700 of them. “What we saw in the first week [of September] is what we typically see in a month,” she said. She said there are about 55,000 abortions in Texas each year. Abortion clinics in New Mexico cannot continue to absorb the need from Texas abortion patients indefinitely, she said.
Abortion care providers in New Mexico expect an increase in patients if a court allows Texas’ six-week gestational ban to take effect in September. A group of Texas abortion fund and clinic providers filed suit in a Texas state court last week to stop the state’s new law from going into effect. But because the law is new territory, providers, abortion fund organizations and legal experts in New Mexico are watching to see if the court blocks the law with an injunction and, if not, how large the ripple effect could be felt in this neighboring state. Ellie Rushforth, an attorney with the American Civil Liberties Union of New Mexico called the Texas law not just unconstitutional but “sinister.”
“The point of this [Texas] law is to instill fear and place a bounty on the head of anyone who is providing abortion care or helping people get the care they need. It’s inviting and encouraging complete strangers to stake out and continue to harass abortion providers and networks of care,” she said.
This week members of Congress introduced legislation into both chambers that would codify Roe v. Wade into law if it passes. HR 3755, more commonly known as the Women’s Health Protection Act, would protect a person’s ability to terminate a pregnancy and would protect a provider’s ability to provide abortion services. Reproductive healthcare advocates believe the bill, which has been introduced by members of Congress, has greater urgency this year because of Dobbs v. Jackson Women’s Health Organization, the Mississippi case the U.S. Supreme Court plans to hear next year. Related: The future of reproductive healthcare in NM if Roe v. Wade is overturned
Dobbs v. Jackson Women’s Health Organization, which challenges Mississippi’s unconstitutional 15-week abortion gestational ban, will be the first test of Roe v. Wade with the new 6-3 conservative majority on the Supreme Court bench. Many in the reproductive healthcare community believe Roe v. Wade could be overturned or become a law in name only as a result. The Supreme Court is expected to decide on Dobbs v. Jackson Women’s Health Organization in 2022.
If the U.S. Supreme Court overturns or guts Roe v. Wade next year when it hears the case involving a Mississippi law that would ban abortion after 15 weeks, New Mexico could face a fight and increased harassment at clinics, according to reproductive rights experts. The U.S. Supreme Court announced earlier this week it will hear Dobbs v. Jackson Women’s Health Organization, regarding the Mississippi law that prohibits abortion after 15 weeks with few exceptions. The state of Mississippi asked the court to decide on whether all pre-viability bans on abortion violate the Constitution. The court’s decision is expected to come down in 2022 before the mid-term general election. New Mexico, which was one of very few states to pass pro-abortion rights legislation this year, will feel the effects of the Supreme Court’s decision regardless of how the court decides the Mississippi case, according to reproductive health advocates.
With more than 500 pieces of anti-abortion legislation under consideration in state legislatures around the country, New Mexico’s passage of SB 10, which decriminalized abortion, bucked the nationwide trend. Only one other state passed abortion rights legislation this year. Because the U.S. Supreme Court is expected to consider and rule on an unconstitutional abortion ban in the next few years, Planned Parenthood of the Rocky Mountains President and Chief Executive Officer Vicki Cowart called the passage and signing of New Mexico’s bill to repeal an abortion ban “critical,” and a “key to protecting reproductive rights.”
Related: Governor signs bill repealing abortion ban into law: ‘a woman has the right to make decisions about her own body’
Cowart told NM Political Report by email that this year, Virginia is the only other state that has passed a bill expanding abortion access in 2021. But since the beginning of the year, 12 states have passed anti-abortion legislation, according to a Planned Parenthood report. There are a few other states with pro-reproductive legislation under consideration, Robin Marty, author of “Handbook for a Post-Roe America” and “The End of Roe v. Wade,” said.
A lawsuit over abortion rights in Texas currently pending before the federal Fifth Circuit Court of Appeals could impact women in New Mexico. A judge is expected to make a decision on Whole Women’s Health v. Paxton in the near future, according to the Center for Reproductive Rights, which is a party to the suit.
The state of Texas passed a law to make an abortion procedure illegal in that state in 2017. The procedure, called dilation and evacuation, is the form of abortion that usually occurs after the 13th week of gestation. The Texas case would make it illegal. The safety of this procedure has been documented since the 1970s, according to the reproductive policy organization the Guttmacher Institute.
Since the beginning of the pandemic, more people are seeking abortion through telemedicine than ever before in New Mexico. Though the numbers are still small, the increase is significant, according to Neta Meltzer, director of strategic communications at Planned Parenthood of the Rocky Mountains (PPRM). Meltzer wrote in an email that prior to the public health emergency, PPRM enrolled 10 patients from New Mexico into the study over the course of about a year. But in March of 2020 alone, the nonprofit screened 14 patients who were interested, and enrolled eight in that month. “The need for abortion care does not disappear in the midst of a global pandemic,” Meltzer wrote.