Abortion pills: A changing legal landscape

Packets of Misoprostol, one of the drugs used in a medical abortion, may be part of an upcoming decision by the U.S. Supreme Court. PHOTO BY LILY SEXTON

By Lily Sexton

In a potentially devastating blow to reproductive rights, the U.S. Supreme Court is re-entering the debate on abortion. 

The justices agreed to take on a case this spring challenging the federal approval of mifepristone, a commonly used abortion pill that has been used by millions of women, with a decision likely by late June. The defense in the case argues that this pill has decades of research backing it’s safety, but the conservative controlled court could make a decision that will further restrict abortion to millions of women.  

Abortion pills have been approved for use in the U.S. since 2000. Since then,  research has shown that the pills are safe and effective. 

The Food and Drug Administration published data on the safety of the pills. That data said there were five deaths associated with mifepristone use for every 1 million people in the U.S. who have used the drug since its approval. That’s a death rate of 0.0005%.

A report published by the National Academies of Sciences, Engineering, and Medicine also found that complications after medication abortion are very rare – occurring in no more than a fraction of a percent of patients. 

“They’re super safe and super effective,” said Lauren Hattaway, an engagement leader for Plan C, a group that works to expand access to abortion pills. 

But these reports were challenged by The Alliance Defending Freedom, a group of Christian conservatives, when they filed suit against the FDA–trying to overturn their original approval of mifepristone. They argued that the FDA had messed up in its scientific assessment of the drug and asked the court to suspended the organizations approval of the drug in addition to the later changes to the conditions on it’s use–such allowing health-care providers who are not physicians to prescribe the drug via teleheath. 

“Our representatives in Congress created the FDA and gave the FDA the responsibility to make sure that drugs are safe before they’re allowed on the market. The FDA failed that responsibility,” they wrote in the lawsuit document. 

The FDA responded, saying that they did follow standard procedures and that it actually took four years to approve the drug after the manufacturer first submitted its application. 

Texas Judge Matthew Kacsmaryk, who has shared anti-abortion views publicly, sided with the Alliance Defending Freedom–ordering that the drug be removed from the market entirely. This case then went to the U.S. court of appeals, where they ruled that it’s too late to invalidate the FDA’s initial approval of the drug but upheld the rollback of the teleheath condition. 

The Biden administration and the drug manufacturer Danco then intervened and brought the case to the U.S. Supreme Court, asking them to keep the pill legal until the dispute is resolved. The justices granted that request,  so all of those cases are now on hold until arguments are heard in the Supreme Court. 

If the court decides that the FDA was wrong to approve the conditions challenged in this case, women would no longer be able to obtain mifepristone through teleheath appointments and mailed medicine–regardless of state laws that protect access to abortion.

Activists say limiting access to mifepristone to people who make in-office visits is a major setback, especially with the growth of telemedicine over the past few years. 

“We know that getting a telemedicine abortion is just as safe and effective as getting an abortion in a clinic, where you might have to wait or put yourself at risk by crossing protestors,” said Lauren Dubey, a nurse practitioner who sees patients through a telehealth clinic. 

Data collected by three public health scientists shows that telemedicine increased access to abortion care across the country. According to the study, the convenience of appointment times and ensured privacy played a role in that. 

And thanks to the accessibility, more women have been turning to medication abortions than ever before. According to data published in the The Guttmacher Institute, medication abortion currently accounts for more than half of all abortions obtained in the United States, up from 39% in 2017. 

If mifepristone is banned by the decision from the U.S. Supreme Court, the teleheath that those millions of women relied on will undergo significant changes–most likely, for the worse. 

Plan C published that even if the courts decision results in restrictions on mifepristone, they expect a different pill known as misoprostol to remain available by mail. But for many women, this is not ideal. 

Dubey said that pill induced abortions with just misoprostol are possible, but they are less effective and often more painful for the woman than if the mifepristone and misoprostol pills are combined. 

“Patients could see nausea, vomiting and diarrhea, and a longer duration of cramping and bleeding,” she said. 

Advocates say these symptoms should not be something women have to deal with, especially when mifepristone is already proven to be a safe solution. 

“It’s been clear that women are able to use abortion pills at home, even with no doctor supervision, and be very healthy,” said Hattaway.  “It allows women to not have to jump through barriers to access their healthcare when they need it.” 

The other option women would have in the situation where mifepristone is banned from telehealth is to go to a clinic to obtain the pills, which is not possible for everybody. 

Ever since the last U.S. Supreme Courts ruling on abortion, 21 states have passed anti-abortion legislation and 12 of those completely ban abortion at any stage of pregnancy. Women in those states previously relied on shield laws that were introduced over the summer, allowing medical professionals in certain safe haven states–including New York, Massachusetts, Washington, Vermont and Colorado–to prescribe and mail pills directly to patients no matter what state they’re in, even if it was banned there. But because the system is built on telehealth, it would also be affected. 

If the court does not side with the FDA, anyone seeking an abortion in those states are no longer going to have a mifepristone option without serious obstacles. 

“I was raised to believe that access to abortion should be a human right, not something people have to beg for,” said Elise Warren, a young adult who had an abortion last year. 

Warren exercised her right to choose and opted for an abortion after finding out she was pregnant. She ordered the pills through an online reproductive care service after talking to a medical expert and received her order in the mail two days later. 

“Taking both abortion pills was definitely the right decision for me,” said Warren. 

With months before the U.S. Supreme Court takes on the case, advocates can only hold out hope that the justices won’t prevent access to the medication that is so widely used and is proven to provide safe, accessible healthcare. 

“It’s clear that mifepristone is safe,” said Hattaway.  “If anything, the real danger is banning this medication that’s helped out millions.”

About Lillian Sexton 4 Articles
Lily Sexton is a broadcast news producer. She was raised in Queens, NY and now lives in Boston, MA. She loves music, baking and indoor cycling.