by Megan Burbank
On Wednesday, Aug. 16, the Fifth Circuit Court of Appeals ruled that the Food and Drug Administration should revoke its approval for mifepristone, one of two drugs commonly used in medication abortions. The case has drawn widespread attention, given the impact it could have on access to mifepristone and spurred confusion about whether medication abortion is still available.
It is. Before we get into the nitty-gritty, it’s important to be clear on this point: Mifepristone remains legal and accessible in states where abortion is, and will remain that way until the case makes its way to the Supreme Court. If you take away just one piece of information from this column, that should be it. But if you want to know more, let’s dig in.
What Does the Ruling Actually Say?
The ruling is 93 pages long, and argues that the FDA wasn’t authorized to approve mifepristone because pregnancy isn’t an illness: “Pregnancy is not a bad or unhealthy condition of the body—it’s a natural consequence of a healthy and functioning reproductive system,” reads the ruling. This is an odd thing to say about pregnancy in the United States, where maternal mortality is increasing, meaning that pregnancy can quite literally be a life-threatening condition, especially for pregnant people from BIPOC communities, who face an ongoing perinatal health crisis.
The decision also makes comparisons between mifepristone, a drug that is demonstrably safe, and pollutant emissions, which are not, and draws on environmental cases to suggest that prescribing mifepristone has the same effect as a development project that harms wildlife. “It’s well established that, if a plaintiff has ‘concrete plans’ to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal,” the decision reads. Applying this logic to abortion, the decision continues: “Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.”
This argument is so illogical that it borders on the surreal, but has the impact to do real, lasting damage. Let’s get into it.
When Does This Go Into Effect?
For now, if you live in Washington, mifepristone isn’t going anywhere — at least not until the Supreme Court rules on this case, which it could take up in the fall. Given the court’s willingness to curtail abortion access, privileging the views of a small minority over those of most Americans, it’s easy to assume the justices will affirm the lower court’s decision.
But there’s no way of knowing how this will go until we get there. It’s also important to note that the Supreme Court has blocked new restrictions on mifepristone from going into effect before the case makes its way through the courts. And our own attorney general, Bob Ferguson, has filed a separate lawsuit along with 16 other states and the District of Columbia, arguing that the restrictions on mifepristone were too narrow to begin with. How will this play out? It’s a weird and fluid situation, but it’s important to remember amid all of this that mifepristone is still legal and available in Washington.
What Happens if Mifepristone Is Taken Off the Market?
We’re not there yet, and that’s an important point, because whenever rulings related to mifepristone come down, there’s often a lot of confusion about access, with abortion rights advocacy groups and news organizations framing the decision as a total ban on the pill — for now, that’s not what it is. But even in a hypothetical scenario where that happens, it’s important to remember that there are two pill protocols for medication abortion, one using mifepristone and a second drug, misoprostol, and one using misoprostol alone. In the event that access to mifepristone is compromised in the future, Washington abortion providers have said that they’ll switch to prescribing misoprostol-only medication abortions. This protocol is slightly less effective than those that include mifepristone, and it can take longer, which can place additional logistical barriers on clinics. Still, the availability of misoprostol means that panicked headlines suggesting that the ruling in this case could spell the end of medication abortion more broadly simply aren’t accurate. With legal decisions comparing pregnant people’s bodies to nature sites for others to enjoy, we have enough to be concerned about right now without whipping up needless panic.
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Megan Burbank is a writer and editor based in Seattle. Before going full-time freelance, she worked as an editor and reporter at the Portland Mercury and The Seattle Times. She specializes in enterprise reporting on reproductive health policy, and stories at the nexus of gender, politics, and culture.
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