The high court will consider a Fifth Circuit Court of Appeals decision that would reinstitute requirements initially enacted by the Food and Drug Administration when it approved the pill, mifepristone, in 2000. The FDA required providers to see patients three times and prescribe the drug in person. In 2016, the agency relaxed those requirements, allowing the medication to be prescribed through telehealth appointments and sent by mail, making it more widely available.
The Democratic attorneys general filed their brief in the case this week. The Supreme Court will hear oral arguments in the case on March 26.
Oregon Attorney General Ellen Rosenblum said in a release on Wednesday that a decision to turn the clock back to 2016 would be wrong.
“The Fifth Circuit’s decision to unnecessarily restrict access to mifepristone ignores decades of scientific evidence and clinical research that shows this drug is both highly safe and effective,” Rosenblum said. “We are asking the United States Supreme Court to reverse that ruling so as to prevent disruption of this common, safe method of early abortion and miscarriage care and to the health care system generally.”
Mifepristone, which is used with another drug, misoprostol, has been shown to be 97% effective. It accounts for more than half of abortions in Oregon and across the country, partly because it eases access to abortion, especially for women in rural areas who lack resources and are far from providers.
A Supreme Court decision in favor of the Fifth Circuit’s ruling would apply nationwide, including in Oregon, which has some of the fewest restrictions on abortion in the country. The state has no gestational limits, no waiting periods and medications can be sent by mail to an address in the state. Since the Supreme Court overturned Roe v. Wade in June 2022, Republican-led states like Idaho have enacted abortion bans, increasing demand in Oregon. The latest full-year data from the Oregon Health Authority shows there were nearly 8,700 abortions in the state in 2022 compared with about 7,100 in 2021.
The brief by Rosenblum and her colleagues argued that the FDA’s relaxation of requirements in 2016 was based on robust scientific evidence and followed an agency mandate that it balance any restrictions on a medication with burdens on access.
“These changes have proven particularly valuable in reaching rural and low-income communities where abortion care would otherwise be unavailable or extremely difficult to access,” the brief said.
The attorneys general argue that tightening access to the abortion pill would sow confusion among providers, distributors and pharmacies; destabilize the regulatory process for drug approvals; and drive up costs, risks and delays for patients.
“Reinstating these obstacles to obtaining medication abortion could result in more unwanted surgical procedures, increase travel and waiting times to obtain care and push abortions to later in pregnancy, driving up both costs and medical risks,” the brief said.
The Supreme Court is due to hear oral arguments on the case on March 26. Joining Rosenblum in the brief are the attorneys general from Arizona, California, Colorado, Connecticut, Delaware, Hawai, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.
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