The Supreme Court on Friday preserved women’s access to a drug used in the most common method of abortion, rejecting lower-court restrictions while a lawsuit continues.
The court’s decision means women can still obtain mifepristone by mail, take it at home and use it up to 10 weeks into a pregnancy, as litigation continues in the lower court.
“As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts. I continue to stand by FDA’s evidence-based approval of mifepristone, and my Administration will continue to defend FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs,” President Joe Biden said. “The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health. But let’s be clear – the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v Wade.”
In the U.S., prescriptions for mifepristone may be filled by any pharmacy – online or brick-and-mortar – that has obtained a special certification. This regulation was provisionally implemented in Dec 2021 and was finalized by the FDA in January 2023.
From 2011 until 2021, a patient was required to visit a healthcare provider in-person (at a clinic or office) and receive mifepristone directly from the provider. The requirement to visit a clinic to receive the drug was removed by the FDA in December 2021, during the COVID-19 pandemic. Under the new rules, the prescription may be obtained via telehealth (phone calls or video conferencing with a healthcare provider) and then filled at any certified pharmacy.
At the same time the FDA removed the requirement for an in-person visit, they added a requirement that dispensing pharmacies be “certified”, which requires the pharmacy to have special permission to dispense the drugs – a requirement the FDA imposes on only 40 drugs out of more than 19,000 it manages.
The second drug used in medical abortion, misoprostol, is most commonly used for treating ulcers, was never subject to the in-person dispensing constraints of mifepristone, and was always available from pharmacies with a prescription.
The FDA does not authorize the use of mifepristone for medical abortion after 70 days, unlike most other countries, which authorize medical abortion into the second trimester and even the third trimester.
Some states have passed laws that prohibit providers from examining the patient via phone or video conferencing and instead require the patient to make an in-person visit to the provider to get the prescription.
In most states, abortion drugs may be sent from a pharmacy to the patient via mail, but certain states have passed laws making that illegal, and requiring the drugs to be obtained from a pharmacy or provider in-person.
Interest in abortion medications in the United States reached record highs in 2022 after the Supreme Court of the United States drafted Dobbs v. Jackson Women’s Health Organization ruling that would overturn 1973’s Roe v. Wade decision was leaked online. Interest was higher in states with more restrictions on access to abortion. Pro-choice activists in the U.S. were exploring ways to make medical abortion more available, particularly in states where it is subject to limitations, with social media resources being utilized for this purpose.
In March 2023, Governor Mark Gordon of Wyoming signed a bill outlawing the use of abortion pills in the state, making it the first US state to do so. The new legislation, which will go into effect on July 1, 2023, criminalizes the “prescription, dispensation, distribution, sale, or use of any drug” to obtain or perform an abortion. Those who violate the law, excluding the pregnant individual, may be charged with a misdemeanor and could face a $9,000 fine and up to six months in jail. Abortion providers are expected to challenge the new law in court.