Ruling Could Cut Off 40 Million Women’s Abortion Access, NARAL Study Says

Topline

A ruling in a court case trying to ban abortion pills could have a dramatic effect in curbing abortion access nationwide—even after the Supreme Court already overturned Roe v. Wade—as new data from pro-abortion rights group NARAL suggests an additional 40 million women will lose abortion access if a conservative judge decides to block the drug from being sold.

Anti-abortion activists protest against the availability of abortion pills at neighborhood ... [+] pharmacies outside of a CVS Pharmacy on January 18 in Washington, DC.

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Key Facts

Anti-abortion advocates have sued the Food and Drug Administration in an effort to revoke its approval of mifepristone, the abortion drug that terminates a pregnancy, and a ruling on whether to block access to the drug at least temporarily could come as soon as later this month.

If U.S. District Judge Matthew Kacsmaryk—a Trump appointee who’s been sympathetic to conservatives in the past—rules against the FDA and blocks the pills, it would mean mifepristone can no longer be sold or prescribed nationwide, including in states where abortion remains legal.

Using U.S. Census data, NARAL found the number of women who lack access to abortion would go from 24.5 million to 64.5 million—an increase of 163%—if the pills get blocked in court.

That number does not include those who can get pregnant but don’t identify as women, NARAL notes, which means the actual number of people without abortion access would be even higher.

Medication abortion is the most popular abortion method in the U.S., accounting for 53% of all abortions performed in 2020, and can be the main route for many people to obtain an abortion if there aren’t clinics that perform surgical abortions in their area.

It’s also become a primary method for people in states where abortion is banned to obtain care, with tactics like mobile abortion clinics getting set up on state borders and mail orders of abortion pills allowing people to still terminate a pregnancy.

Surprising Fact

Abortion rights activists have encouraged people to stockpile abortion pills in advance of the ruling just in case, even if they’re not pregnant, Politico reports. The pills have a shelf life of two years. The FDA has warned against doing so, however, believing that it could put patients’ health at risk. The agency says physicians should assess a pregnancy before pills are prescribed, in order to make sure it’s within the time frame where abortion pills can be used and that there aren’t any issues like an ectopic pregnancy.

What To Watch For

A ruling in the abortion pill case won’t come until at least February 24, after Kacsmaryk extended the deadline for briefings to be filed in the case Thursday. Any order would likely block the distribution of mifepristone temporarily while the litigation continues to play out. If Kacsmaryk rules against the FDA, it’s expected the federal government will swiftly appeal the ruling and try to have the judge’s order blocked. The case will be appealed to the 5th Circuit Court of Appeals, however, which is particularly conservative-leaning, though some abortion rights advocates cited by Reuters said they believe the court may not want to go so far as to revoke access to an FDA-approved drug.

What We Don’t Know

What will happen in terms of abortion access if the pills get blocked. Politico reported Thursday that Biden Administration officials are “privately worried” about the ruling because of “the limited options they have for responding,” and it’s unclear if the White House could realistically take any steps to restore access to mifepristone if the FDA approval is actually revoked. Progressive lawmakers and abortion rights advocates are urging the Biden Administration to declare a public health emergency on abortion, which could make more federal funds and assistance available to help people obtain abortions and travel for the procedure, but the White House has so far been unwilling to take that step.

Key Background

Mifepristone is one of two drugs taken during a medication abortion, as the drug terminates a pregnancy before a second drug, misoprostol, then helps expel the tissue. (Misoprostol, also used for other medical conditions, has not come under legal scrutiny.) The FDA has approved the regimen for terminating a pregnancy since 2000, but anti-abortion rights groups led by the Alliance for Hippocratic Medicine argued in their lawsuit that mifepristone was improperly approved by the FDA without adequate studies into the drug’s safety. The plaintiffs argue that further changes to the mifepristone’s approval have only removed safeguards and “failed to satisfy the rigorous scientific standards” that federal law around drug regulations requires, and allege the FDA had rejected previous efforts by the plaintiffs to address their issues with the drug. The Biden Administration has argued to the court that the drug is safe and effective—as studies have repeatedly shown—and blasted the anti-abortion rights groups’ arguments as “untimely, unexhausted, and without merit.” The plaintiffs haven’t shown they would be harmed by the abortion pills remaining legal, the Biden Administration argued, but blocking mifepristone would “dramatically [harm]” the public interest “by effectively withdrawing from the marketplace a safe and effective drug that has lawfully been on the market for twenty-two years.”

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