Facing an appeal that could make permanent a week-old Texas court decision invalidating FDA approval of mifepristone, also known as the “abortion pill,” Maryland officials have not formulated a plan to preserve access to the drug.
Gov. Wes Moore’s press secretary, Carter Elliott, said such a plan is coming “as soon as possible” and the administration is “exploring options” such as stockpiling mifepristone, which some other states have done. In the meantime, the governor, a Democrat, “will continue to do everything in his power to ensure that Maryland remains a safe haven for abortion and reproductive health care access, including access to mifepristone,” Elliott said in an email.
The U.S. Department of Justice appealed the judgement by Trump-appointed U.S. District judge and ardent abortion opponent Matthew Kacsmaryk to the conservative-leaning 5th Circuit Court of Appeals on Monday, and asked the court to issue an emergency injunction to block the removal of mifepristone from the market while the case is heard. Just before midnight last night, the appeals court stayed Kacsmaryk’s suspension of FDA approval of mifepristone, which maintains its availability in the U.S. for now.
Fifth circuit judges allowed some of Kacsmaryk’s other restrictions to take effect, such as shortening the approved gestational age at which mifepristone can be used to end a pregnancy from 10 weeks to seven weeks and prohibiting it from being sent to patients by mail.
Hours after Kacsmaryk’s decision was issued in Texas on April 7, another U.S. District judge in Washington, the Obama-appointed Thomas Rice, ruled on a lawsuit filed in February by 17 state attorneys general — including Anthony Brown of Maryland — seeking to expand access to mifespristone. The judge ordered the FDA to maintain current rules governing access to the medication while the case plays out.
Following the release of both rulings, the Maryland Office of the Attorney General issued a statement assuring Marylanders that the Washington decision would preserve access to mifepristone in Maryland and the other states that joined the lawsuit. “This battle is not over in either case, but we will not back down in this critical fight to ensure access to reproductive healthcare,” the statement reads.
Their optimism may be a bit premature, said Kathleen Hoke, director of the Legal Resource Center for Public Health Policy at University of Maryland Francis King Carey School of Law.
“If someone tells you they know exactly how this is going come out, they’re lying to you,” Hoke said, as the legal picture remains in flux with many variables at play.
Hoke said while she understands the argument that states involved in the Washington lawsuit are exempt from the Texas ruling, the latter case effects a nationwide prohibition on the distribution, sale, and prescribing of mifepristone on the basis that it should not have been approved by the FDA in the first place.
That means if the 5th Circuit confirms judge Kacsmaryk’s decision when the case concludes, the ban on mifepristone could well apply nationwide, she said.
The Texas lawsuit was filed by abortion opponents in November of last year, giving states months to prepare for what many predicted would be a favorable outcome for the plaintiff.
To that end, some states have obtained large quantities of misoprostol, the other drug in a two-drug regimen for medication abortion. Misoprostol faces no legal challenges.
Mifepristone, the drug at issue in the legal battle, has been subject to tighter regulatory requirements than misoprostol, which has historically been prescribed for other, nonreproductive uses, such as gastric ulcers.
Other states, such as Massachusetts and Washington, have stockpiled the embattled mifepristone.
In a statement from its president and CEO Karen Nelson, Planned Parenthood of Maryland said although mifepristone is “off the market,” it will continue to offer medication abortions via the second drug in the traditional two-drug cocktail, misoprostol. The drug causes contractions that expel the contents of the uterus, similar to an early miscarriage.
Mifepristone is usually taken prior to misoprostol and helps prepare the uterus by blocking production of progesterone, a hormone needed to maintain pregnancy, said Dr. Jessica Lee, obstetrician and gynecologist at the University of Maryland Medical Center. Although the use of misoprostol alone for medication abortion is acceptable, especially in the absence of mifepristone, it comes with many more side effects and a greater chance that the pregnancy will fail to terminate fully, Lee said.
The one-drug regimen brings higher incidence of nausea, vomiting and diarrhea, which is “intensely unpleasant for a lot of patients,” Lee said. Patients must take up to three doses of misoprostol for it to work, she said, which makes the one-drug regimen “even more miserable for patients going through it,” she said.
Misoprostol is commonly used by itself for medication abortion in “less developed” countries than the U.S. because it’s an inexpensive drug that’s been around for decades, Lee said. This means that if Kacsmaryk’s decision stands and mifepristone becomes unavailable, women and others who can become pregnant in the U.S will be subject to the same standard of care used in countries that may be decades behind in terms of access to modern medical treatments and technologies.
Medication abortion has become more commonly used in the U.S. since it was first authorized in 2000, in part because of pandemic-fueled changes in access. Medication abortions now account for over half of all abortions performed nationwide, up from less than 40% in 2017.