April 23, 2023. Following the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, anti-choice, anti-equality interests have been attempting to restrict reproductive rights across the country. These efforts have far-reaching consequences beyond abortion and impact the healthcare and lives of pregnant women and their families, as well as the medical professionals who treat them.
Recognizing that certain states will continue to support reproductive healthcare, the anti-choice, anti-equality interests tried something novel to restrict abortion services in the supportive states.
In November 2022, the Alliance for Hippocratic Medicine and certain healthcare professionals filed a Complaint challenging the FDA’s approval of mifepristone, which has been deemed safe and effective for over 20 years and is the most common means for terminating a pregnancy. The case was brought in federal court in Texas before Judge Kacsmaryck, an openly anti-choice judge, raising issues of judicial forum shopping.
On April 7, 2023, Judge Kacsmaryck issued a ruling in Alliance For Hippocratic Medicine v. FDA, withdrawing the FDA approval of mifepristone. However, the decision, which was grounded in neither fact nor law, was stayed for seven days to give the FDA time to appeal.
The appeal was filed with the conservative 5th Circuit of the US Court of Appeals by the FDA on April 10, 2023.
On April 11, 2023, Shattering Glass, along with its partners in the Reproductive Health Coalition, including founding members Doctors For America and American Medical Women’s Association, filed an amicus brief in support of the FDA and the continued approval of mifepristone.
The 5th Circuit Court of Appeals upheld certain restrictions on mifepristone, including availability by mail and after seven weeks of pregnancy, and the FDA immediately filed an appeal with the US Supreme Court (“SCOTUS”). On April 14, 2023, Shattering Glass and the Reproductive Health Coalition filed an amicus brief with SCOTUS.
Our amicus briefs detail the far-reaching impact removing and/or restricting access to mifepristone will have. They depicts real events experienced by OB/GYNs and pediatricians and demonstrates the consequences removing FDA approval will have on all pregnant women and their families. We urge you to read them to understand the breadth of what is at stake.
On April 21, 2023, SCOTUS stayed the lower courts’ rulings and mifepristone remains available for the time being, the fight continues. SCOTUS simply ruled that mifepristone will remain available while the action is pending. Oral argument on the merits of the appeal to the 5th Circuit is scheduled for May 17th.
It should be noted that mere hours after Judge Kacsmaryck issued his ruling, a Washington judge issued a preliminary injunction, blocking the FDA from altering availability of mifepristone. However, that decision is limited to the 16 states and the District of Columbia, who sued the Biden Administration to protect access.
The conflicting rulings have all but guaranteed that the issue of mifepristone access is on the fast track to SCOTUS, which has been mired in controversy. From a lack of ethical guidelines, to the leaked Dobbs opinion, to relationships with political donors. And we already know from SCOTUS’s ruling on the preliminary injunction, that Justices Thomas and Alito would have granted the injunction. The question is whether three more join them.
We will continue to fight for access and against the far-reaching, “unintended” consequences should access be denied or further restricted and keep you updated.
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