Medication Abortion Access: The Legal Battle Over Mifepristone in PA, NJ, and DE

Medication abortions account for 53% of all facility-based terminations in the U.S. Recent court rulings have created uncertainty around future access to a key abortion drug. By Nicole Leonard, updated Apr. 19, 2023, the situation remains in flux as legal challenges progress.

The Judicial Conflict and Conflicting Rulings

At the center of the legal conflict is an April 7 ruling by a federal judge in Texas in a case between a Christian legal group and the U.S. Food and Drug Administration over mifepristone, one of two medications approved for abortions up to 10 weeks of gestation. The Texas judge ruled that the drug should have never gone to market, despite the medication’s 23-year safety and efficacy history under FDA approval, and ordered that mifepristone’s approval status be suspended on April 14.

Contributing to the confusion around the fate and status of mifepristone in the U.S. is a contradictory ruling made by a federal judge in Washington in a different lawsuit on access to the abortion medication. On the same day as the Texas ruling, a Washington judge ruled in favor of attorneys general from the District of Columbia and 17 states, including Pennsylvania and Delaware, who sued the FDA to maintain expanded access to the drug.

Impact on Patients and Healthcare Providers

Reproductive health law expert Rebecca Rebouché, dean of Temple University's Beasley School of Law, said this has all created an unprecedented situation. “This issue is so confusing because we really are in uncharted territory,” she said. Amidst this uncertainty, a nurse practitioner works in an office at a Planned Parenthood clinic where she confers via teleconference with patients seeking self-managed abortions as containers of the medication used to end an early pregnancy sits on a table nearby.

“These [rulings] are creating pandemonium and chaos,” Dr. Lisa Perriera, chief medical officer of the Women’s Center, said. “But the message that needs to be shared is abortion is still available at our centers.”

Appellate Restrictions and Supreme Court Involvement

Before the suspension took effect, the U.S. Department of Justice under the Biden administration filed an appeal to the Texas ruling. The 5th Circuit Court of Appeals granted that request, but only partially. The appeals court said mifepristone could retain its approval status, but health providers could no longer prescribe the drug to patients through the mail, and it could only be used for abortion through 7 weeks of gestation. A suspension of the drug’s status could effectively freeze manufacturing and distribution of the medication nationwide.

Now, the U.S. Supreme Court will decide whether to uphold the lower court’s restrictions on mifepristone, or restore full access to the medication while the Department of Justice appeals the Texas suspension ruling. The U.S. Supreme Court is expected to issue a decision by midnight Friday night on how much access women and health care providers will have to a common abortion medication.

Current Status of Mifepristone Access and Statistics

• Market Share: Medication abortions account for 53% of all facility-based terminations in the United States.
• FDA Approval History: Brand version approved 23 years ago; generic version approved in 2019.
• Original Gestation Protocol: Approved for abortions up to 10 weeks of gestation.
• Appeals Court Restriction: Use restricted to 7 weeks of gestation and no mail-order access.
• Regional Coverage: Each state, including Pa., N.J., and Delaware, has its own laws regarding the timing and circumstances under which someone can access care.

Where does it leave medication abortion in Pa., N.J., and Delaware? While lawsuits play out, providers continue to navigate the situation. As Rebecca Rebouché noted, “We are in this kind of no person’s land of, ‘can a court do this?’” and the implications of these rulings remain a critical focus for public health and medicine.