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The U.S. Supreme Court has so far been silent on whether it will take up a case that could dramatically restrict medication abortions, prompting a plea from nearly two dozen Democratic-led states to preserve access.
Arizona Attorney General Kris Mayes joined 23 other attorneys general in an amicus brief filed with the high court on Friday that urged the justices, who began their new term this week, to accept the case.
Mayes, a Democrat who ran on a platform to protect abortion access during a turbulent time last year when Arizona was briefly under a Civil-War era law banning virtually all abortions in the state, said that continuing to narrow the ability of women to obtain reproductive health care only serves to worsen inequality.
“Access to medication abortion is critical for patients across our country, especially in low-income and underserved areas,” she said in a statement posted to X, formerly Twitter. “The Supreme Court should reverse the Fifth Circuit ruling and protect access to this safe and effective medication.”
In August, the U.S. Fifth Circuit Court of Appeals sided with a coalition of anti-abortion doctors in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration to invalidate years of approvals issued by the FDA that eased access to mifepristone, one of two medications used to induce an abortion.
If the appeal of the Fifth Circuit’s ruling isn’t taken up by the U.S. Supreme Court, the rules around prescribing mifepristone will be rolled back to those in effect before 2000. Among the more than two decade old guidelines was one which barred prescriptions beyond 7 weeks of gestation — a point at which most women are unaware they are even pregnant.
The use of mifepristone in Arizona is currently unchanged, due to a preemptive lawsuit launched in May by 17 Democratic attorneys general, including Mayes, against the U.S. Food and Drug Administration. In that case, Mayes and others successfully petitioned a Washington judge to assert mifepristone’s safety and direct the FDA to expand its access rather than narrow it.
But in the new brief, the states who took part in the preventative challenge point out that clarification is needed from the U.S. Supreme Court because the Washington ruling that shields mifepristone access for 17 states is in direct conflict with the Fifth Circuit’s decision.
The states also argue that their right to determine whether to protect or limit abortion access for their own residents is being undermined by the Fifth Circuit’s decision. In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court rescinded the constitutional right to abortion and sent oversight of the procedure back to the individual states. Barring access to mifepristone in the courts for all states effectively takes that right away.
“The harms from the Fifth Circuit’s unfounded decision would gravely undermine the sovereign legislative and policy judgment of those states… that have chosen to expand rather than to restrict access to abortion,” reads the brief.
Tightening the ability of doctors to prescribe mifepristone would negatively impact both women and health care systems across the country, the attorneys general added. One-third of the total population of women capable of becoming pregnant currently lives in states that restrict or outright ban access to abortion.
In Arizona, a 2022 law prohibits elective abortions after 15 weeks. Narrowing access to mifepristone, which accounts for the majority of first-trimester abortions, would mean increased roadblocks for women in the Grand Canyon State. Misoprostol, usually taken in conjunction with mifepristone, can be used by itself, but it has a higher risk and lower effectiveness rate than its counterpart.
Surgical procedures are more invasive and expensive and require more time to carry out — a resource that isn’t always guaranteed, especially for women who deal with gestational deadlines and limited clinic availability.
“The (5th Circuit) ruling could lead many individuals to undergo unwanted procedural abortions; push abortion procedures to later in the pregnancy; drive up risks, costs, and delays; and deprive many individuals of access to reproductive health care altogether,“ the Democratic attorneys general wrote.
Even states like California, which offer more expansive abortion services, would feel an impact. An influx in out-of-state demand strains clinics and increases wait times for the residents of states with protected access. Faced with record-high caseloads, abortion providers have found a boon in mifepristone.
“The availability of medication abortion has been a critical tool in meeting these challenges,” the AGs wrote. “Imposing medically unnecessary restraints on access to mifepristone could push providers to the breaking point and may leave many people without access to abortion care at all.”
The attorneys general urged the high court to consider the consequences for the medical community at large if the Fifth Circuit’s decision is allowed to go into effect. Pharmacists, distributors, and drug developers rely on the stability provided by the FDA’s authority, and the agency’s clinical research is widely respected.
And, they said, the evidence-free claims made by anti-abortion doctors to question the validity of FDA policies could lead to a domino effect for other, equally well-established medications, such as those for treating HIV and heart disease. Ultimately, it will be the states and their residents who would feel the impacts, the attorneys general wrote.
“The instability resulting from the Fifth Circuit’s ruling would inevitably chill research and development by disincentivizing drug developers from making the significant investments necessary to meet the agency’s rigorous drug approval standards,” reads the brief. “And the threatened removal of other comparably essential, safe and effective drugs from the market could have catastrophic consequences for amici States and their residents.”
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