Activists, doctors await Supreme Court's mifepristone decision

Telehealth abortion access hinges on what nine justices do about FDA approval conflicting with state jurisdiction

(Kirsten Moore, director of the EMAA Project)

Since the new court term started this week, abortion rights activists and pharmaceutical companies have implored the Supreme Court to take up the case that will decide the fate of mifepristone. How abortion care proceeds going forward hinges on that. 

Mifepristone works in conjunction with misoprostol to induce abortion. Kirsten Moore, director of the Expanding Medication Abortion Access Project, told me that Mifepristone may have to go back through the FDA approval process again. Doctors would use misoprostol, which alone can cause abortion but isn’t as effective as it could be. 

“People would not be getting the gold standard of care,” Moore said. “And that's just for no good reason.” 

In April, Judge Matthew Kacsmaryk, a member of the U.S. District Court for the northern district of Texas, invalidated the Food and Drug Administration’s long-time approval of mifepristone. In the decision, Kacsmaryk uses antiquated terms like “abortionist” to refer to abortion providers. His ruling was quickly invalidated by a Washington State judge who said the pill could continue to be available. 

Later that month, the Supreme Court protected access to mifepristone, the first pill in a two-pill regimen that causes abortion. It was then sent down to the Fifth Circuit Court of Appeals.

The Fifth Circuit Court of Appeals vacated some parts. It upheld others. The Supreme Court still has a stay in effect on the lower court’s ruling, which means the current preferred method of combining those drugs will remain an option for women nationwide. The court of appeals vacated the district court’s suspension of mifepristone’s FDA approval. However, it left intact Judge Kacsmaryk's suspension of actions taken in 2016 and 2021 to adjust the drug's Risk Evaluation and Mitigation Strategies to make it more accessible. 

The decision, or lack thereof, will reverberate nationwide. While telehealth abortions aren’t happening in states where it’s illegal, removing FDA approval of mifepristone could eliminate the option for women in states where it’s currently permitted. 

For Moore and others in the abortion rights movement, the decision seems simple enough–federal drug approval means the medication should be available to anyone living in any American state or territory. 

“In my ideal world, an FDA-approved medication must be available, at least under some circumstances, in all 50 states,” Moore said. “I don't understand how that isn't a reality.”