A federal appeals court recently issued a ruling that imposes new limitations on the use of mifepristone, also known as the “abortion pill.” Such mixed results set the matter for the highest court in the land: U.S. Supreme Court.

With the new court restrictions, pregnant women will no longer be able to obtain the abortion pill by mail.

Instead, they will have to obtain a prescription from their doctor and attend three in-person medical appointments to receive the pill and address any potential complications.

While the ruling is not effective immediately, legal experts predict the temporary decision will be challenged and head to the Supreme Court for a final decision.

On another note, the use of the pill has been restricted to pregnancies that are 49 days or less, which is a reduction from the previous limit of 70 days.

“The implications are dire,” said Nicole Regalado, the Vice President of campaigns for UltraViolet, a leading national gender justice organization. “Many people won’t be able to access abortion, even in states where abortion is still legal and reproductive rights are protected through state constitutions, like California. This decision will be far-reaching and will also impact those states as well.”

In April, Texas U.S. District Judge Matthew Kacsmaryk restricted nationwide access to mifepristone medications in the court case of Alliance for Hippocratic Medicine v. FDA. Moments after the Texas ruling, a federal judge in Washington ruled the FDA make no changes in the availability of the pill. The decision then moved on to the U.S. 5th Circuit Court of Appeals and will continue to make its way through the legal process.

“This is the first time a judge has unilaterally, against the FDA’s objections, removed a drug from the market,” said Greer Donley, a University of Pittsburg law professor who studies FDA law.

Judge Kacsmaryk, in his scathing ruling against FDA approval of the mail-ordered mifepristone abortion pills, described the use of the medication as “killing or starving the unborn human until death.”

5th Circuit Appellate Court Shoot Down FDA Authorizing Abortion Medication

A US appellate court in New Orleans said the FDA wasn’t authorized to allow expanded access to abortion medication mifepristone, but upheld the agency’s original approval of the drug, propelling a fight over access to the medication to the Supreme Court.

The ruling, which is contingent on the Supreme Court’s review, says the FDA went too far when it allowed providers to prescribe mifepristone through telemedicine consultations and for prescriptions to be shipped to patients by mail.

For now, telemedicine and mail access to the chemical abortion pills will stay in place due to a Supreme Court order from earlier this year that says the status quo must remain until it receives an appeal from the ruling.

The US Justice Department said the Biden administration would appeal the decision, Reuters reported.

The ruling comes roughly a year after the high court in Dobbs v. Jackson Women’s Health Organization overturned its landmark 1973 decision in Roe v. Wade, and its 1992 case Planned Parenthood v. Casey, which together secured the constitutional right to obtain an abortion up until a fetus’s “viability.”

Legal Element Left FDA Authorization of Mifepristone in Effect

The appeals court left the Food and Drug Administration’s 2000 approval of mifepristone in place and its 2019 authorization of the use of a generic form of the drug. In 2020, pills accounted for more than half of all facility-based abortions in the U.S.

If the case moved to the conservative-majority Supreme Court and the pill is outlawed entirely, the decision would impact everything the medication is used for-including inducing labor and managing and treating patients experiencing a miscarriage or an ectopic pregnancy.

Gender Equity Policy Institute Weigh in

According to an in-depth report from the Gender Equity Policy Institute, pregnant women are more than twice as likely to have a pregnancy-related death in states with abortion bans. Recent polling shows that 59% of voters disapprove of the court overturning the FDA’s approval of mifepristone.

Advocates say mifepristone helps people make their own private medical decisions and expands access to full reproductive care. Banning it, they say, will have a devastating impact on people’s ability to access abortion care by forcing patients to cross state lines to access procedural abortion in states already experiencing an overwhelming demand for abortion care.

The situation is even more challenging for patients who do not have access to private health care as the Hyde Amendment prohibits Medicaid coverage of abortion.

In the lead-up to this decision, states like Maryland have purchased a two-and-a-half-year stockpile of mifepristone in the event that the medication is taken off the market.

“This is just the beginning,” said Regalado. “If we are not able to stop restrictions on abortion and really have an answer to these attacks – meaning we as the progressive movement, the pro-women, pro-abortion movement, abortion freedom movement – the right wing will start attacking things like access to contraception, access to IVF and other forms of reproductive health care.”

Don’t Give Up Hope

Regalado says this is not a prediction for the future, but a playbook that is being seen right now. To combat what she refers to as a “culture war” on bodily autonomy, she says UltraViolet is mounting an information campaign targeting U.S. pharmacies insisting they move forward with FDA certification to provide misoprostol, the second of the two abortion pills. She also suggests folks harness their civic engagement and elect candidates that champion abortion rights.

“People need not to give up hope,” said Regalado. “There are ways that we can fight back, and I think the movement is coming up with very, very creative solutions: we have power as consumers, we have power as citizens to elect public officials, and making sure that we’re using that power to hold corporations accountable and to make sure that our government represents the very best interests of our community.”

Legal Affairs Reporter Clarence Walker can be reached at [email protected]