Despite court ruling, abortion drug in Michigan remains accessible for now

• A federal appeals court on Wednesday upheld restrictions on mifepristone, the medical abortion drug 
• But those restrictions remain on hold as the litigation wends its way toward the U.S. Supreme Court
• Abortion rights advocates argue that the medication has proven safe and should remain easily available 

Mifepristone, one of two medications given in combination to trigger abortions, will remain on the market in Michigan, despite a Wednesday federal appeals court ruling that would significantly limit its access if it is upheld.

In a 93-page ruling, the three-judge Fifth Circuit Court of Appeals in New Orleans ruled that the drug mifepristone should not be prescribed past seven weeks of pregnancy or via telemedicine. The decision upends decades of consensus within the medical community that the drug is safe and should be made widely available.

But the ruling will not change the medication’s availability — at least not immediately.

Related:

• July 11: Michigan abortions for out-of-state patients jumped 66 percent last year
• April 13: Abortion pill chaos after flurry of rulings. Michigan providers say they won’t stop
• April 3: Abortion access expands with online prescriptions in Michigan. Some fear risks
• March 22: 'Abortion pill' under legal scrutiny; what it means in Michigan.

In May, the U.S. Supreme Court ordered that mifepristone remain broadly available as the litigation plays out in lower courts, as requested by the Biden administration and a drug manufacturer.

“Michiganders should know that medication abortion is safely legal and still available, including through the mail,” Ashlea Phenicie, spokesperson for Planned Parenthood of Michigan, told Bridge Michigan on Thursday.

Complainants in the case, a group of doctors who oppose abortion, had filed suit in Amarillo, Texas, arguing that the U.S. Food and Drug Administration erred 23 years ago in its approval of the drug which the doctor’s group claims is unsafe.

Mifepristone, known as RU-486, is the first half of the two-pill regimen to effect an abortion up to 10 weeks or so into a pregnancy. The drug blocks progesterone, a hormone necessary to continue a pregnancy. Then, a second drug, misoprostol, is taken up to 48 hours later to start contractions to expel the pregnancy tissue — much like a miscarriage.

The American Medical Association has argued that years of research has shown the pill is safe and effective and that major adverse events are “exceedingly rare,” occurring in about 0.3 percent of cases.

The anti-abortion group of doctors, known as the Alliance for Hippocratic Medicine, won its first victory in April, when U.S. District Judge Matthew Kacsmaryk in Texas suspended FDA’s approval of a  drug. Kacsmaryk, however, also delayed the effect of his order to give the FDA time to file an appeal, which it did. 

That same day, a federal judge in the state of Washington reached the opposition conclusion in a separate case. Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington issued an order reinforcing an earlier injunction that ensured access to mifepristone remained in place in Washington and 17 other states. Rice then ordered U.S. authorities not to make any changes to the pill’s availability. 

With dueling decisions, the Texas case was appealed to the Fifth Circuit Court of Appeals, leading to the Wednesday ruling. But before it could weigh in, the U.S. Supreme Court issued its ruling, ordering access to remain in place while the case played out in lower courts.

The appeals court ruling Wednesday is the latest twist in the fight over legal abortion following the U.S. Supreme Court’s ruling in June of last year overturning Roe v. Wade, which found a right to abortion services within the federal Constitution. In striking down Roe, the high court’s conservative majority returned that issue back to individual states.

In November, Michigan voters passed a constitutional amendment cementing abortion and other reproductive rights into the state Constitution. Since then, abortion providers in the state have either expanded, or plan to expand, access to online prescriptions for medication abortions. 

Meanwhile, the National Abortion Federation, the professional association of abortion providers, began working with providers throughout the country  advising them to use a “misoprostol-only” regimen if mifepristone becomes unavailable, Dr. Alice Mark, NAF’s interim medical advisor, told Bridge in March.

But access to mifepristone ultimately could end, depending on court decisions, Phenicie noted.

“We know that anti-abortion activists are weaponizing the courts to try to remove access to abortion in any way they can,” she said.

Requests for comment from the anti-abortion group Right to Life Michigan were not immediately answered on Thursday.

In 2022, 15,606 of the 30,120 abortions in MIchigan, or more than half, were considered medication abortions, according to state data.