Analysis: 4 questions answered about the courts and the abortion pill mifepristone

Caption

FILE PHOTO: Boxes of mifepristone, the first pill given in a medical abortion, are prepared for patients at Women's Reproductive Clinic of New Mexico in Santa Teresa, U.S., January 13, 2023. Photo by REUTERS/Evelyn Hockstein/File Photo

Dueling, back-to-back rulings by federal judges about access to the drug mifepristone, which is used in most abortions in the United States, have raised questions about the future of reproductive health care in the country.

On Friday in Texas, U.S. District Judge Matthew Kacsmaryk ruled that the Food and Drug Administration's approval of mifepristone should be put on hold, more than 20 years after the agency first authorized the drug. Kacsmaryk stayed his own order for seven days to give the federal government time to appeal.

WATCH: Mifepristone ruling is latest in series of moves to curb abortion access

At nearly the same time in Spokane, Washington, U.S. District Judge Thomas O. Rice ruled that federal officials could not hinder access to mifepristone in at least 17 of the states where Democratic attorney generals had sued to maintain availability.

The deadlock is likely to be settled in the Supreme Court, where Republican-appointed justices hold a 6-3 majority. Last year, the Supreme Court overturned the landmark 1973 case of Roe v. Wade which enshrined the right to an abortion in the nation's law. The Dobbs v. Jackson Women's Health Organization decision found that Roe was wrongly decided and that questions about abortion should be left to voters and elected leaders.

Mifepristone is one of two abortion drugs which are used together to induce an abortion in the first 10 weeks of a pregnancy. Mifepristone blocks a hormone necessary for pregnancy while the second drug, misoprostol, induces cramping and bleeding, leading to the end of the pregnancy.

Greer Donley, an associate professor of law at the University of Pittsburgh School of Law, co-wrote a scholarly article published January in the Columbia Law Review predicting that self-managed abortion care, which commonly uses mifepristone, would be the next battleground over abortion rights. She and her co-authors have since written another article describing strategies to restrict access to abortion pills since Roe was overturned.

The PBS NewsHour asked Donley about Friday's medication abortion rulings and what they mean.

What do these rulings say, in lay terms?

The order in Texas says that in seven days, unless an appellate court intervenes, the approval for mifepristone will be stayed and no longer in effect. In other words, the drug would become unapproved. Manufacturers and dispensers cannot market unapproved drugs, and the FDA can go after entities that violate the law.

The order in Washington says that the FDA cannot alter the status quo related to the availability of mifepristone. These orders are contradictory, but there is a way for the FDA to comply with both: enforcement discretion. Enforcement discretion provides safe harbor for entities that are technically violating the law, but where enforcement would be more harmful for public health than nonenforcement. Here, even if the Texas order takes effect and mifepristone becomes unapproved, the FDA can announce that it will not go after any entities that are technically violating the law by marketing and dispensing mifepristone, but otherwise complying with the REMS, thereby maintaining the status quo.

Why are these cases important and who do they affect?

Medication abortion is the primary way that people access abortion in this country. Abortion pills allow people to end pregnancies in the privacy of their own homes, with fewer barriers to care, often at a cheaper price. The predominant medication abortion regimen in this country -- and the only one the FDA has approved -- involves mifepristone followed by misoprostol. If mifepristone is no longer approved, absent the FDA exercising enforcement discretion, then it would become illegal to market the drug. It would as a result become much harder to access.

In that scenario, abortion providers would most likely switch to misoprostol-only abortions, which are slightly less effective with slightly more side effects. So ironically, a case premised on patient safety would have the effect of making medication abortions less effective. Because red states' abortion bans also prohibit medication abortion, the impact of the Texas case would only be felt in states that permit abortion, making abortion harder to access where it is legal. The Washington case should protect the status quo in the 17 states that joined that litigation, assuming the FDA complies with the order. If the FDA exercises enforcement discretion, it could protect the status quo everywhere.

How do these decisions, in particular the Texas one, accord with the Supreme Court's Dobbs ruling that said abortion 'is returned to the people and their elected representatives?'

This case highlights something we have known for a while: the anti-abortion movement was never going to be satisfied with overturning Roe. It wants to ban abortion nationwide and will use any means necessary to do that. Unfortunately for them, voters in both red and blue states have made clear that they do not want abortion to be banned. So instead, the anti-abortion movement is trying to bypass voters by having an unelected judge chip away at abortion access across the country, including in states that permit and protect abortion access. If the Texas order takes effect, it will primarily impact blue and purple states where abortion medication is still used. It is aimed, therefore, at curtailing access to abortion in states where their elected representatives have permitted abortion, contradicting the stated justification in Dobbs to allow each state to decide its own abortion laws.

What happens next in the legal fight over abortion?

Most immediately, we will wait for the appeals process to play out in the Texas case. It's possible the Fifth Circuit or Supreme Court will overrule the district court, and the stay may never go into effect. But either way, this won't stop the anti-abortion movement from working to end abortion nationwide. And given how important medication abortion has become to abortion access, we can expect many of the future battles to center on pills.