WASHINGTON – Arizona health care providers are confident they will be able to continue providing safe abortions, even as courts tangle over an order that could halt distribution of a key abortion medication.
A federal district judge in Texas last week ordered the Food and Drug Administration to suspend its approval of the abortion-inducing drug mifepristone, what critics called a “misleading and political ruling” that could lead to “real damage to patients.”
The order by U.S. District Judge Matthew Kacsmaryk was upheld in part by a federal appeals court late Wednesday. A three-judge panel of the U.S. 5th Circuit Court of Appeals said mifepristone will still be available, but under the much-tighter restrictions that were in place when the drug was first approved in 2000.
The Justice Department immediately appealed, and the U.S. Supreme Court on Friday put Kacsmaryk’s injunction on hold until Wednesday, making the drug available until then at least. Justice Samuel Alito ordered both sides to make any additional filings in the case by Tuesday.
Amid all that back and forth, groups like Planned Parenthood Arizona said they have stocked up on mifepristone, which has a “robust safety profile,” and plan to continue prescribing it until the courts rule otherwise.
“Planned Parenthood Arizona will continue … to offer mifepristone as part of our medication abortion services as long as it remains lawful to do so,” said Dr. Jill Gibson, the group’s medical director, during a Tuesday press call.
Abortion opponents sued the FDA, claiming it did not follow safety procedures when it approved mifepristone 22 years ago, and Kacsmaryk’s order would have halted distribution of the drug while he hears the case, which is still pending.
The Alliance Defending Freedom, which pressed the Texas case, declined to comment Wednesday. But the Scottsdale-based group said on its website that “FDA’s approval of chemical abortion drugs under false pretenses” needs to be reversed.
But neither the suit, nor the order, would affect misoprostol, which is typically prescribed along with mifepristone but can be used alone. Gibson said misoprostol alone “is used widely around much of the world,” has an 85-95% efficacy rate and will “still provide a really good option for our patients.”
Dr. DeShawn Taylor, who owns Desert Star Family Planning clinic in Phoenix, agreed that misoprostol is an option under the circumstances. But these circumstances, she said, are unnecessary.
“Misoprostol has side effects – nausea, vomiting, fever, chills, diarrhea – and it takes several doses for it to be as effective as, you know, just being able to take mifepristone, and then generally usually one single dose of the misoprostol,” Taylor said.
“We have a better way to do this and we shouldn’t be forced to use inferior methods because judges are making rulings based on junk science,” she said.
Planned Parenthood Arizona President and CEO Brittany Fonteno said Tuesday that mifepristone has “a safety record of more than 99%, making it safer than many common medications, like Tylenol and Viagra.”
In 2021, the most recent year for which data is available, there were 6,720 medication abortions in Arizona, 48.3% of the 13,900 abortions performed in the state that year, according to the Arizona Department of Health Services. Mifepristone was used in 99.2% of the medication abortions in the state that year, the department said.
In its appeal to the 5th Circuit, the Justice Department said Kacsmaryk’s “extraordinary and unprecedented” order was based on a “misguided assessment of the drug’s safety” and should be put on hold while the case continues.
The 5th Circuit said Kacsmaryk may have overreached by extending his order all the way back to the 2000 FDA approval, but that it was appropriate for him to temporarily restrict changes to the drug’s availability that have been approved since 2016. Those changes made mifepristone available by mail – originally, it required three trips to the doctor’s office – and allowed its use up to 10 weeks, instead of the previous limit of seven weeks.
Under the appellate court’s ruling – which is on hold while the Supreme Court considers the case – the drug would still have been available, but only when prescribed and administered by a doctor during an office visit and only up to seven weeks. Arizona patients already faced many of those restrictions: The state requires that a doctor prescribe and administer the drug during an office visit and bans abortion-medication-by-mail, according to the Guttmacher Institute.
Even before the circuit court’s order, most observers believe the case would end up in the Supreme Court because a ruling by a federal judge in Washington state directly conflicts with Kacsmaryk’s order. The ruling by Judge Thomas Rice, handed down the same day as Kacsmaryk’s, prohibits the FDA from “altering the status quo as it relates to the availability of Mifepristone” in states that sued to protect access to the drug. One of those states is Arizona.
Arizona Attorney General Kris Mayes said in a statement Thursday the mifepristone “remains legal in Arizona because of the order in the Eastern District of Washington. We will provide additional updates as the situation moves through the courts.”
Arizona joined 22 states and the District of Columbia to file a brief this week in support of the Justice Department’s appeal of what Mayes called “Kacsmaryk’s outrageous and appalling ruling.”
“If allowed to stand, (it) would upend decades of scientific research and established legal principles,” Mayes said in a prepared statement Monday. “I am proud to join my fellow attorneys general in fighting for the rights of individuals to make their own personal medical decisions without interference from extremist judges and anti-abortion activists.”
The legal challenges follow a year of uncertainty for abortion providers and patients that began in June when the U.S. Supreme Court overturned Roe v. Wade, its 1973 ruling that recognized a right to an abortion. The court said last summer in Dobbs v. Jackson Women’s Health that Roe was “egregiously wrong” and that abortion decisions should be left to state lawmakers.
After first defending a 2022 law that allowed abortions until 15 weeks – a change from the previous threshold of about six months – then-Attorney General Mark Brnovich reversed course and tried to enforce a territorial-era ban that was still on the books, criminalizing virtually all abortions.
Arizona courts eventually ruled against Brnovich and said the 15-week abortion law was in effect – but not before providers in the state temporarily suspended abortions for fear of violating the ban dating from 1901.
As it stands now in Arizona, mifepristone is available and surgical abortions are allowed up to 15 weeks of gestation – the point by which around 94% of 2021’s surgical abortions had been performed, according to the health department data.
Despite the challenges, providers said they feel optimistic about their ability to provide safe, accessible abortions with Mayes and Gov. Katie Hobbs, a fellow Democrat, in office.
The Biden administration has said it will fight Kacsmaryk’s order through the courts as well as through executive orders, actions by the Department of Health and Human Services and more. In a press briefing Tuesday, White House officials said they are confident they can win and are prepared to take the fight to the Supreme Court.
“This is of course, first and foremost, a case about abortion and medication abortion in particular,” senior administration official said on the press call. “But really its broader than that and goes to the heart of, you know, the way our court system is supposed to function, and this is not it.”