DemDaily: US Appeals Court Bans Access to Abortion Pill

August 17, 2023

A US Appeals Court on Wednesday ruled access to the abortion pill mifepristone must be severely restricted, ordering a ban on telemedicine prescriptions, mail delivery and pharmacy dispensing of the drug.

The ruling also rolls back access from the current 10 weeks of pregnancy to seven and reimposes a requirement that only physicians may prescribe the pills.

The decision, however, will not take immediate effect as the case is being appealed to the Supreme Court of the United States (SCOTUS) by the Biden administration.

The appeal sets up a showdown on reproductive rights in the same Supreme Court that in June 2022 reversed a woman's constitutional right to choose abortion.

Medical Abortion: The two-pill abortion regimen, first approved by the US Food and Drug Administration (FDA) in 2000, is used in a majority of abortions nationwide. The first drug, mifepristone, ends a pregnancy and the second, misoprostol, empties the uterus. Mifepristone is also used to treat women who have suffered miscarriages and postpartum hemorrhaging, as well as a hormone-related condition called Cushing syndrome and as treatment for stomach ulcers.

On April 23, SCOTUS stayed a sweeping April 7 decision by Texas US District Judge Matthew Kacsmaryk which suspended the distribution of the medical abortion pill mifepristone -- sending the case back to the New Orleans-based 5th US Circuit Court of Appeals.

Kacsmaryk, a conservative Trump appointee with deep ties to the anti-abortion movement, made the unprecedented decision to overturn FDA approval of a drug first authorized over two decades ago. He asserted "legitimate safety concerns" and falsely claimed the drug had resulted in "many deaths and many more severe or life-threatening adverse reactions.”

In his 67-page ruling siding with the conservative Christian Alliance Defending Freedom, which brought the suit, Kacsmaryk called abortion providers “abortionists” and described the use of mifepristone's intent “to kill the unborn human.”

In fact, mifepristone, when taken alongside misoprostol, is scientifically proven to be extremely safe and is recommended by the American College of Obstetricians and Gynecologists and the World Health Organization, among other health experts. Rates of patient deaths due to the drug are lower than they are for Tylenol, penicillin, or Viagra.

On a practical level, forcing the FDA -- as the expert federal authority -- to pull a drug from the market would violate federal law which requires mandatory procedures laid out by Congress.

Mifepristone manufacturer Danco, which joined in the Department of Justice's appeal of the Texas decision, called Kacsmaryk's ruling an “unprecedented judicial assault” on the nation’s regulatory process which could undercut FDA's authority and spark challenges to other approved drugs.

The abortion pill is the latest battleground in the war over reproductive rights that has raged since SCOTUS overturned the landmark 1973 Roe v. Wade decision last year -- turning the authority to implement abortion laws over to individual states.

Since then, 13 states have enacted near-total bans on abortions and another five have outlawed them after six to 15 weeks. In total, 42 states have restrictions on abortions after a certain point in pregnancy.

23 states have separate laws limiting the provision of medication abortion, although a majority are not currently applicable because providers have stopped offering all abortion care.

A June 22-26, 2023 AP-NORC poll found that 64% of US adults believe abortion should be legal in all or most cases (MOE: +/- 3.9%).

A Supreme Court decision in the medical abortion case is likely to come just months in advance of the 2024 presidential election. What can't be controlled in the courtroom can be controlled at the ballot box.

Know where your elected officials stand on the issue!

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Kimberly Scott

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Sources: SCOTUSBlog, Politico, NPR, Guttmacher Institute, Planned Parenthood, Ballotpedia

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