The abortion drug mifepristone can remain on the market, a federal appeals court ruled on Wednesday, at least until the far-right U.S. Supreme Court takes up an expected appeal of a lawsuit backed by Alaska Gov. Mike Dunleavy.
Despite abortion being protected as a constitutional right in Alaska, the Dunleavy administration and Attorney General Treg Taylor signed the state onto a lawsuit seeking to reverse the Food and Drug Administration’s approval of the drug in 2000. A Trump-appointed judge ruled earlier this year in favor of the Dunleavy administration and the plaintiffs, issuing a reversal of the approval that was almost immediately put on hold by the U.S. Supreme Court.
That hold continues following the decision by the conservative U.S. Fifth Court of Appeals, according to a report by States Newsroom, where a three-judge panel this week ruled that the attempt to overturn the 2000 approval of the drug was unlikely to succeed. However, it did rule that the guidelines for the prescription should be reverted to far more restrictive ones in place before 2016. According to several reproductive care groups, that would severely limit access to a drug that’s also widely used to treat miscarriages.
“The [mifepristone] decision from the Fifth Circuit Court of Appeals is another example of judicial activism that reflects ideology, not science,” said Dr. Christopher Zahn, the interim CEO of the American College of Obstetricians and Gynecologists, in a statement. “Mifepristone is safe and effective for its FDA-approved use for medication abortion and miscarriage management up to 10 weeks of gestation. It’s safe and effective when used as directed by telemedicine and when prescribed by qualified advanced practice clinicians.”
The U.S. FDA has pledged to appeal the decision to the U.S. Supreme Court, which put the lower court’s decision on hold in April.
According to States Newsroom, rolling the mifepristone guidelines back to pre-2016 would shorten the timeframe for prescribing the medication from 10 weeks to 7. It would also alter the dosage amounts and timing for the drug and require patients to attend three in-person doctor’s office visits, eliminating telehealth and greatly impacting patients in Alaska, where travel and health care access are costly and limited. It would also require doctors to prescribe the drug rather than qualified health care providers.
Alaska law technically prohibits medication abortions unless provided by doctors in a clinic setting, but that rule was put on hold in 2021 when Anchorage Superior Court Judge Josie Garton found the law was likely to be struck down under a challenge brought by Planned Parenthood Great Northwest. That case is set to go to trial later this year, but the preliminary injunction has allowed advanced practice clinicians to carry out the medication abortions.
Garton wrote that Planned Parenthood “has shown that it is likely to succeed on the merits of its claim that prohibiting advanced practice clinicians from providing medication abortion violates patients’ right to privacy under the Alaska Constitution by significantly restricting the availability of abortions in this state without sufficient justification. … The law also likely violates patients’ right to equal protection, since it prevents patients seeking abortions from receiving care from advanced practice clinicians that patients experiencing miscarriage may receive from the same providers.”
The Court of Appeals, including one Bush-appointed judge and two Trump-appointed judges, argued that the changes approved in 2016 didn’t adequately consider the safety in what it claimed was the lifting of safeguards.
Dr. Zahn disagreed with that in his statement critical of the court.
“The FDA changed mifepristone’s regulation for these uses based on robust scientific data and with the support of the medical community, including the American College of Obstetricians and Gynecologists,” he wrote. “We’re relieved that because of prior Supreme Court action, mifepristone remains available under its current regulatory oversight, as it should. We look forward to sharing with the Supreme Court the overwhelming evidence and consensus of the medical community in support of mifepristone for medication abortion and miscarriage management.”
Why it matters
The reversal of Roe v. Wade by the U.S. Supreme Court last summer saw Republican states launch a wave of attacks on reproductive rights that severely limited access to abortion in several states. While abortion has been legal in Alaska under the Alaska Constitution’s voter-approved privacy clause, that hasn’t stopped Alaska Republicans from mounting attacks on the procedure.
Gov. Dunleavy became the first sitting governor to openly advocate for a constitutional convention in last year’s election, which many right-wing activists saw as an opportunity to gut the state’s privacy clause. Voters in Alaska rejected the vote by a large margin—with about 70% voting against the convention—outdoing the margin of defeat that the constitutional convention saw in the 2012 election when there was no organized campaign in favor of calling a convention.
Still, even rejection by Alaska voters hasn’t cooled the governor’s efforts to make abortion more difficult to access in Alaska. At his State of the State address, he said he planned on making Alaska “the most pro-life state in the nation.” Earlier this year, Walgreens announced it wouldn’t carry mifepristone in Alaska after Attorney General Treg Taylor threatened legal action—a move legislators say was overstepping his authority.
Matt Acuña Buxton is a long-time political reporter who has written for the Fairbanks Daily News-Miner and The Midnight Sun political blog. He also authors the daily politics newsletter, The Alaska Memo, and can frequently be found live-tweeting public meetings on Twitter.
