The U.S. Fifth Circuit Court of Appeals ruled on Wednesday in a split decision in favor of returning the U.S. Food and Drug Administration’s approval of the abortion medication mifepristone to its 2016 regulations. The decision agrees with U.S. District Court Judge Matthew Kacsmaryk’s decision in part and disagrees with it in part. But, the Fifth Circuit’s decision would keep the FDA’s original approval of the drug, made in 2000, in place. It would also keep the generic version of mifepristone on the market. But, the Fifth Circuit Court of Appeals’ decision agreed with Kacsmaryk’s earlier decision in part, which, if allowed to stand, would require the FDA to return to its 2016 regulations around the drug.
Many reproductive health care advocates in New Mexico declared a victory when the U.S. Food and Drug Administration announced Thursday that a birth control pill will soon be available over the counter. The news comes after months of uncertainty as the federal courts consider the future of the FDA’s approval of mifepristone, the first in a two-step regimen for abortion care. That decision is on pause for now and the U.S. Supreme Court is likely to consider the issue during its upcoming 2023-2024 session. The over-the-counter birth control pill will be sold under the brand name Opill and is expected to become available by January 2024. Heather Smith, Bold Futures policy manager, said the news is a victory for public health, equity and evidence-based research.
As New Mexico continues to be a state that offers legal abortion services, Planned Parenthood of the Rocky Mountains opened a new clinic in Las Cruces in May and expanded services at its Farmington location to include medication abortion. Adrienne Mansanares, chief executive officer and president of Planned Parenthood of the Rocky Mountains, said the new Las Cruces clinic began seeing patients and offering medication abortion up to 11 weeks the second week of May. The Farmington Planned Parenthood clinic began offering medication abortion a week later. The Albuquerque Planned Parenthood, which has been planning a larger building for a few years, is expecting to open its new and expanded clinic in August, Mansanares, told NM Political Report. In the current abortion landscape, safety is a constant consideration.
The U.S. Fifth Circuit Court of Appeals heard oral argument on Wednesday about the abortion drug mifepristone.
The case against the U.S. Food and Drug Administration, brought by a conservative group called the Alliance for Hippocratic Medicine, was first heard in Texas by Amarillo-based District Judge Matthew Kacsmaryk earlier this spring. Kacsmaryk ruled in favor of the plaintiffs, a group of doctors who say they have had to treat women in emergency room settings when a medication abortion has led to complications. The doctors say they have conscientious objections to caring for abortion patients. The group, who have been accused of “judge shopping” since they have no known relationship to Amarillo but filed suit there, claim the FDA’s approval process of mifepristone in 2000 was rushed to market too soon and that the FDA did so by calling pregnancy “an illness.” They want to see the drug removed from the market and restudied. The U.S. Department of Justice, which argued the case on Wednesday, said the plaintiffs lack standing and that the case is time barred because the approval process took place 23 years ago.
Gov. Michelle Lujan Grisham told Face the Nation on Sunday that court-ordered bans on abortion will lead to a national ban. Lujan Grisham spoke to Margaret Brennan, the moderator on CBS News’ Face the Nation, on Sunday about mifepristone, the abortion medication that is now at the center of a legal battle that reached the U.S. Supreme Court last week.
Legal experts have said that abortion medication will remain legal in New Mexico because of a separate court case in the state of Washington. There are 33 states that could be affected if the Supreme Court rules in agreement with the U.S. Fifth Circuit Court of Appeals’ to require the Federal Drug Administration to return to its 2016 restrictions on the drug. Lujan Grisham also called stockpiling mifepristone, which some safe-haven abortion states have announced, instead of fully protecting reproductive rights as “minimizing the work we have to do to make sure that women and families are fully protected.” She also said that “we are going to make sure that medication abortion is available in our state.”
Lujan Grisham highlighted the recent reproductive and gender-affirming healthcare bills she signed this year. One protects providers and patients from out-of-state efforts to obtain information to pursue civil or criminal action in other states where abortion is banned.
The U.S. Supreme Court issued a temporary stay on the appellate decision about the abortion medication drug mifepristone on Friday, but one abortion provider in New Mexico said her staff are already seeing fewer people request abortion medication when making appointments. Whole Women’s Health, formerly known for its work as an abortion provider in Texas, moved to a new location in Albuquerque last month. Amy Hagstrom Miller, founder and chief executive officer of Whole Women’s Health, told NM Political Report that even though abortion medication remains legal in New Mexico, she and her staff have noticed a decline in patients requesting abortion medication when setting an appointment in the three weeks the clinic has been open in the state. Hagstrom Miller said the legal battle around abortion medication causes confusion for patients. She also said it increases the stigma around abortion and that is an equity issue.
Two separate lawsuits and decisions issued on the same day last week regarding the Federal Drug Administration and its approval and rules around the abortion medication mifepristone has caused confusion over the drug’s legality in the day since then, but a federal district judge in Washington state clarified the drug’s status as legal in New Mexico late on Thursday. Washington state federal district Judge Thomas Rice clarified that his decision last week to further lift FDA regulations on mifepristone will remain in effect in those 18 jurisdictions, including New Mexico, regardless of the conflicting decision released by the U.S. Fifth Circuit Court of Appeals late Wednesday night. Rice issued his clarification that his decision holds true for the 17 states and the District of Columbia less than 24 hours after the U.S. Fifth Circuit Court of Appeals, based in New Orleans, determined that the FDA must return to how it regulated mifepristone prior to 2016. The attorneys general in 17 states and the District of Columbia sued the FDA earlier this year asking the agency to lift its remaining restrictions on the abortion medication mifepristone. Rice, in eastern Washington, ruled last Friday in favor of the plaintiffs but his ruling came on the same day as Texas federal district Judge Matthew Kacsmaryk’s rule against the FDA restricting mifepristone.
Two conflicting rulings on Friday leave the future use of the abortion medication mifepristone uncertain, though because of one of the rulings, it could remain legal in New Mexico. There are two rulings in separate states that conflict with one another on the use of the abortion medication mifepristone and the judicial decisions both order the U.S. Federal Drug Administration to act differently with regard to the drug. The ruling made by a Texas federal district judge could force the FDA to remove mifepristone off the market after a seven-day injunction period. But, a ruling also made by a Washington state federal district judge could mean that in 17 states, including New Mexico, the drug would continue to be legally available. But, with two different rulings provided by two different judges that are in direct conflict with each other, there is considerable uncertainty as to the future of abortion medication, reproductive rights advocates said during a national press conference on Monday.
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.
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.