For California, New York and some other states trying to position themselves as safe havens for those seeking abortions, a federal court ruling this week could be a setback, adding barriers to obtaining one of the two drugs usually used in combination to end pregnancies.
A ruling from the 5th U.S. Circuit Court of Appeals in New Orleans on Wednesday partially overturned a lower court, which said earlier this month that mifepristone sales should be stopped while its initial approval by the Food and Drug Administration, in 2000, is reconsidered.
But the new ruling came with a catch: The drug must be used in compliance with the FDA’s prescribing rules from 2000 rather than a series of more permissive regulations adopted starting in 2016. For example, the drug must be taken in the presence of a physician, which rules out mailing it to patients.
“That’s not good for all of these states that are trying to help other people,” said Jolynn Dellinger, a senior lecturing fellow at Duke Law School who has been following the mifepristone litigation.
As with other abortion policies since last June when the U.S. Supreme Court overturned Roe v. Wade, the landmark 1973 decision declaring a nationwide right to an abortion, the impact is expected to vary widely. And it’s not clear how long this ruling will be in effect. President Joe Biden’s administration and a drug manufacturer on Friday appealed to the U.S. Supreme Court, asking it to restore full access to mifepristone.
The ruling doesn’t affect the other abortion pill, misoprostol, which can be used alone to end pregnancies but is more effective when taken in combination with mifepristone.
For the 13 states with bans on abortion at all stages of pregnancy and the one with a ban on abortion after cardiac activity can be detected, the ruling will change little in abortion policy.
At least 10 other states had restrictions that already placed limits on medication abortion, according to an analysis by the Kaiser Family Foundation. For instance, in Georgia, it’s legal only in the first six weeks of pregnancy; in Kansas, an ultrasound at an office visit is required before it’s dispensed; and in North Carolina, it can’t be prescribed via telehealth.
On the other side, 17 states controlled by Democrats apparently won’t be affected by the change; in a separate but closely related case last week, a judge sided with them in their request that mifepristone access not be changed there.
Oregon Attorney General Ellen Rosenblum’s office emphasized in a statement that it remains legal in the state to be prescribed abortion drugs by phone and receive them by mail. Besides Oregon and Washington, the other states where the medication access is protected are Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, Pennsylvania, Rhode Island, Vermont — plus Washington D.C.
That leaves just eight states where the pre-2016 rules will make much of a difference when they take effect Saturday: Democrat-controlled California, Massachusetts, New Jersey and New York — all states that have protected abortion access and welcomed out-of-staters seeking abortions — Republican-controlled Alaska and Montana and politically divided New Hampshire and Virginia.
California, Massachusetts and New York have stockpiled abortion pills in case of restrictions. New Jersey Gov. Phil Murphy has said he’s considering doing so.
All four states have policies intended to protect women who travel from states with abortion bans in order to obtain them, though it’s states closer to those with bans, such as Colorado, North Carolina and Florida, that have seen the biggest upticks in the number of abortions. On Thursday, Florida Gov. Ron DeSantis signed a new law banning abortion after six weeks of pregnancy, but it won’t take effect unless a court upholds the state’s current 15-week ban.
Duke’s Dellinger said requiring a doctor’s appointment to receive abortion drugs could make travel for abortions even more cumbersome, even if supplies of the drugs are available.
But David S. Cohen, a law professor at Drexel University, said he believes only the visit where mifepristone is taken would have to be in-person, while other required appointments could possibly be conducted by phone in those six states.
Julia Spiegel, the deputy legal affairs secretary to California Gov. Gavin Newsom, said the state is still assessing the full impact of the 5th Circuit’s ruling, but said it does affirm that mifepristone is legal, and that it will remain available in California.
“We are preparing for and have been prepared for this moment,” she said.
New Jersey Attorney General Matt Plantkin said in an emailed statement that the state did not join in the appeal with many blue states because “we were generally not in favor of emergency efforts to interfere with the FDA approval process,” even though it disagrees with rulings “that undercut the FDA and medical consensus.”
He said the office is supporting the federal government’s appeal to the nation’s top court.