For California, New York and several other states trying to establish themselves as safe havens for those seeking abortions, this week’s federal court ruling could be a setback, increasing barriers to obtaining either of the two drugs that are commonly used in combination to terminate the pregnancy with medication. .
A ruling by the 5th US Circuit Court of Appeals in New Orleans on Wednesday partially overturned a lower court, which said earlier this month that sales of mifepristone should be halted while an initial approval by the Food and Drug Administration, in 2000, is reconsidered.
But the new decision comes with a catch: the drug must be used in compliance with the FDA prescription rules from 2000 instead of a series of more permissive regulations adopted since 2016. For example, the drug must be taken in the presence of a doctor. , which rules out mail to patients.
“It’s not good for this whole country that’s trying to help people,” said Jolynn Dellinger, a senior lecturer at Duke Law School who has followed the mifepristone trial.
As with other abortion policies since last June when the US Supreme Court overturned Roe v. Wade, the landmark 1973 decision that declared abortion rights statewide, its impact would be mixed. And it is unclear how long this ruling will be in effect. The administration of President Joe Biden and the drug maker on Friday appealed to the US Supreme Court, asking it to restore full access to mifepristone.
The ruling does not affect another abortion pill, misoprostol, which can be used alone to end a pregnancy but is more effective when combined with mifepristone.
For 13 states that ban abortion at all stages of pregnancy and states that ban abortion after cardiac activity can be detected, the decision will change little in terms of abortion policy.
At least 10 other states have restrictions that limit medication abortions, according to an analysis by the Kaiser Family Foundation. For example, in Georgia, it is legal only in the first six weeks of pregnancy; in Kansas, an ultrasound in an office visit is required before it is dispensed; and in North Carolina, it cannot be administered via telehealth.
On the other hand, the 17 Democratic-controlled states apparently won’t be affected by the change; in a separate but closely related case last week, a judge ruled in a request that access to mifepristone not be changed there.
Oregon Attorney General Ellen Rosenblum’s office confirmed in a statement that it remains legal in the state to prescribe abortion drugs over the phone and receive them by mail. Besides Oregon and Washington, other states with protected access to medicine are Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, Pennsylvania, Rhode Island, Vermont – plus Washington DC
That leaves just six states where a return to 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. – and Republican-controlled Montana and politically divided Virginia.
California, Massachusetts and New York have stockpiled abortion pills in case of bans. New Jersey Gov. Phil Murphy said he is considering doing so.
All four states have policies intended to protect women who travel from states with abortion bans to obtain them, even though those states are closer to those with bans, such as Colorado, North Carolina and Florida, which have experienced the largest increases in the number of abortions. On Thursday, Florida Gov. Ron DeSantis signed a new law banning abortions after six weeks of pregnancy, but it won’t go into effect unless a court overturns the current 15-week ban.
Duke Dellinger said that requiring a doctor’s appointment to receive abortion medication can make the journey for an abortion more complicated, even if a supply of the medication is available.
But David S. Cohen, a law professor at Drexel University, said that only visits where mifepristone is taken must be made in person, while other necessary appointments can be made by phone in the six states.
Julia Spiegel, Deputy secretary of legal affairs for California Governor Gavin Newsom, said the state is still assessing the full impact of the 5th Circuit’s decision, but said it confirms that mifepristone is legal, and it will remain available in California.
“We are ready and prepared for this moment,” he said.
New Jersey Attorney General Matt Plantkin said in an emailed statement that the state did not join the appeal of many blue states because “we generally do not choose emergency efforts to disrupt the FDA’s approval process,” despite disagreeing with the decision. “that undermines the FDA and the medical consensus.”
He said his office supported the federal government’s appeal to the country’s highest court.
Associated Press / Report for America Statehouse News Initiative reporter Maysoon Khan in Albany, New York, contributed to this report. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on hidden issues.