After last year’s landmark U.S. Supreme Court ruling that overturned the federal right to abortion, individual states were left to decide whether to let people terminate their pregnancies. But now, a court fight in Amarillo, Texas, has the potential to restrict nationwide access to the most common type of abortion — even in firmly pro-choice states like New York and California.
U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas is expected to rule any day now in a case brought by an anti-abortion group that seeks to rescind the U.S. Food and Drug Administration's approval of the abortion pill mifepristone, which has been used safely in a two-drug regimen for pregnancy termination for more than 20 years, per the FDA. If the judge grants a preliminary injunction to take mifepristone off the market as the case winds its way through the courts, the decision could abruptly remove the drug from the market nationwide.
“The most disruptive scenario would involve a broad remedy against the FDA — ordering them to revoke mifepristone’s approval, applying that ruling throughout the country, and commanding that it take effect immediately,” says Alan Trammell, a doctor of jurisprudence and an associate professor at the Washington and Lee University School of Law in Lexington, Virginia.
“It would be an extraordinary remedy, especially for a drug that’s been marketed this long,” adds Dr. Trammell.
A Washington State Lawsuit May Temper Any Ruling in Texas
Other scenarios are possible, including a ruling to allow the drug to remain on the market while the case plays out. “This would be the most prudent course,” Trammell says, because of the novelty of the case and the disruptiveness of removing mifepristone from the market.
At the same time, a separate federal lawsuit, filed February 24 in Washington state by a dozen attorneys general, seeks to loosen current FDA restrictions on mifepristone to make it more widely available.
Conflicting rulings in Texas and Washington “would be a recipe for chaos,” Trammell says. “In the face of such potential chaos, courts have tended to narrow the scope of injunctions and left the status quo in place as appeals play out. So this new lawsuit could be a way of preventing an immediate disruption to medical abortion access, even if it doesn’t succeed in making mifepristone more widely available.”
The Majority of Abortions in the U.S. Are Completed With Medication
More than half of abortions in the United States are now done with medication, not surgery, according to a report from the Guttmacher Institute, a reproductive health policy group. Abortion pills have been legal for more than two decades as an option for ending pregnancies up to about 10 weeks of gestation.
Patients are typically given a two-drug regimen of mifepristone, which stops production of a hormone needed for pregnancy to continue, followed by misoprostol, which causes cramping and bleeding to remove tissue from the uterus, similar to what happens in a miscarriage.
In December 2021, the FDA permanently lifted a federal requirement for patients to obtain prescriptions for medication abortions at in-person visits. This enables patients to receive medication by mail, aided by telemedicine visits.
RELATED: Is It Safe to Take the Abortion Pill at Home?
But a different possible outcome in the Texas case is that telehealth abortion will be banned, and patients will once again be required to get in-person checkups in order to receive medication abortion pills, says Chelsea Thibodeau, DO, a family medicine physician in Minnesota and a fellow with Physicians for Reproductive Health.
“If the ruling applies at a federal level, it is unlikely that obtaining mifepristone through the mail in the U.S. will be a legal option,” Dr. Thibodeau says.
Medication Abortion Is Still Possible Without Mifepristone, but May Be Less Effective
While a two-drug regimen of the abortion pills mifepristone and misoprostol has long been the standard of care in the United States for nonsurgical pregnancy terminations, it is possible to safely and effectively end pregnancy by taking only misoprostol, Thibodeau says.
“Both regimens have an excellent safety profile,” Thibodeau says. But misoprostol on its own is somewhat less effective and can have more pronounced side effects than the standard two-drug regimen.
“Medication abortion with both mifepristone and misoprostol has a success rate of over 95 percent, versus 80 to 90 percent with misoprostol alone,” Thibodeau says. “A misoprostol-only regimen typically causes more symptoms and side effects, including cramping, nausea, vomiting, diarrhea, and chills.”
Misoprostol Might Still Be Available by Mail for Telehealth Abortions
Reproductive health providers who currently offer telehealth options for abortion care and provide medications through the mail may continue doing so even if mifepristone is pulled from the market, because they can still offer misoprostol on its own, says Melissa Grant, the cofounder and chief operations officer of Carafem, an online abortion provider.
“If mifepristone becomes restricted in the United States by the actions of anti-abortion extremists, Carafem hopes to be able to continue to provide abortion care with misoprostol alone,” Grant says. “This regimen is safe, effective, and used by pregnant people around the world in countries where mifepristone is not available.”