The conservative 5th Circuit has blocked part of a Texas judge’s decision to pull abortion drug mifepristone off the market, but leaves in place onerous and outdated restrictions that the Food and Drug Administration determined in 2016 were medically unnecessary.
By rolling back the clock, the appeals court’s ruling increases the number of medical consultations required; bars the use of telehealth or mail-order pharmacies to fill prescriptions; and says mifepristone can be used only through seven weeks of pregnancy, rather than 10. It’s now up to the Supreme Court — which rolled abortion rights back to 1972 last year — to decide what happens next. The Justice Department said Thursday it would ask the high court to intervene immediately.
Medication has transformed the landscape of abortion in the U.S., which is why abortion foes are targeting it. Pandemic-era changes to FDA rules allowed the pills to be prescribed remotely and dispensed through the mail, and the agency recently announced that retail pharmacies would also be able to dispense the drug as long as they obtained a special license.
More than half of U.S. pregnancy terminations are now done with pills rather than procedures. In 2017, just after the FDA relaxed some of its rules for mifepristone, medication abortion accounted for just 39% of abortions. In 2022, that figure had risen to 54%.
As long as the 5th Circuit’s order is in place — and it is unclear how long that will be or on what schedule the Supreme Court might weigh in — women seeking abortions will suffer needlessly. The additional hurdles will prevent some from ending their pregnancies. Others will endure needless pain by taking the other abortion drug, misoprostol, alone — which causes more side effects including nausea and cramping when not used in conjunction with mifepristone.
Restoring unnecessary restrictions will result in delays for women seeking abortion; at the same time, moving up the deadline by which the drug must be used will mean that many women will be unable to use it, since many women aren’t aware they are pregnant until they’re further along. About 45% of abortions take place before the end of the sixth week, and about 36% of abortions occur between seven and 10 weeks. (The World Health Organization considers the drug safe through 12 weeks, but the FDA has never approved its use beyond 10 weeks.)
The appellate court’s ruling, if allowed to stand, also will increase the demand on clinics, both to provide the pills — since that will now have to be done in person by a doctor, unlike the vast majority of prescription drugs — and to perform procedure abortions for women who have missed the seven-week window to use the pills.
But there are now fewer clinics to provide those services; the number of clinics in the U.S. has fallen 35% in the last 10 years. Following the Supreme Court’s decision to overturn Roe v. Wade last summer, the average American’s distance to a clinic increased by 275 miles.
Although some states — Washington, Massachusetts and California — have announced attempts to stockpile mifepristone, and women’s rights groups have argued that the FDA could use its enforcement discretion to allow the drug to be prescribed as it was before these rulings, it isn’t clear how many doctors or pharmacists would do so. Up to this point, health care providers have followed the FDA’s guidelines for dispensing the drug, even though many consider those rules to be needlessly strict based on the pill’s decades of safe use.
Every time the government makes early abortion harder to get, it pushes some women to get later abortions. While 93% of abortions take place in the first trimester (before 13 weeks of pregnancy), women sometimes seek abortions later.
Sometimes a pressing medical need emerges later in pregnancy. But often, women need time to save up the money, find a provider and arrange work and child care schedules. Later abortions are more expensive and medically complicated, and many people find them more morally complex.
For some women, government delays mean they will be unable to terminate their pregnancies at all. In the six months following the Supreme Court decision overturning Roe v. Wade, there were an estimated 32,260 fewer legal abortions than expected, even though abortion remains legal in most states and telehealth providers and clinics in refuge states saw a surge of patients.
Some women will doubtless choose to take misoprostol on its own, at least until it, too, is banned. Abortion opponents have made it clear they won’t stop at mifepristone.
The cramping caused by misoprostol is often referred to as “discomfort,” but let’s be clear: It’s pain, and it can be hard to bear. It’s galling to suggest that women should suffer because political foes have used the legal system to remove an effective, safe drug from the market.
It’s now up to the U.S. Supreme Court to decide whether judges or doctors determine how to dispense a medication that has been on the U.S. market for 23 years, and first developed in France in 1980. It’s up to them to decide how much delay, denial and pain women experience.
That’s crazy. But that’s America in 2023.
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ABOUT THE WRITER
Sarah Green Carmichael is a Bloomberg Opinion editor. Previously, she was managing editor of ideas and commentary at Barron’s and an executive editor at Harvard Business Review, where she hosted “HBR IdeaCast.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
