You all are well aware of how much things have changed with abortion over the past few years—we’ve seen many states completely outlaw abortion while other states double down and promote abortion like a twisted spa experience. The past couple of weeks brought news of a potential landmark change to mifepristone abortion access.
It all started when Alliance Defending Freedom (ADF) sued the Food and Drug Administration on behalf of four physicians and four medical organizations. The problem actually started 23 years ago when the FDA pushed through the approval of the medication abortion duo of mifepristone/misoprostol1. What most people didn’t, and still don’t realize, is that the FDA broke laws and fast-tracked the drug using a pathway designed for getting new and urgently needed treatments out quickly for conditions where there are no other good options. They classified pregnancy as a "life-threatening illness" and surgical abortion was readily available as a satisfactory option for abortion. In fact, according to one study, medication abortion is four times riskier than surgical abortion2.
The FDA has studiously ignored prior petitions to correct their egregious errors, but a lawsuit is pretty hard to ignore. The bottom line is that the FDA failed to do the one thing we count on them for: to protect the public. Once mifepristone was “out there,” the FDA did put in place some safeguards surrounding its use, recognizing that there are very real harms associated with these drugs. Instead of holding strong to these few safeguards, the FDA caved to pressures and kept removing more and more requirements, such as moving the gestational age from 7 weeks to 10 weeks from a woman’s last menstrual period, and, most importantly, removing the need for ANY in-person visits!1
Okay, let’s get back to what’s going on this week. So, the ADF lawsuit was heard, and Judge Kacsmaryk from the U.S. District Court in Amarillo, TX agreed with the claims and ordered the FDA to put a halt on the chemical abortion drug mifepristone! To say that the abortion industry was dealt a seismic blow is putting it mildly. Anticipating a strong reaction from the FDA, the judge held off on putting the order into action for seven days, allowing an appeal to be made.
No surprise: the U.S. Department of Justice filed an appeal to the Fifth Circuit Court to prevent his ruling from going into effect.
The drama—and confusion—continue... The same day as Judge Kacsmaryk ruled, Judge Rice of the U.S. District Court in the state of Washington made his own ruling, representing 17 states and Washington, D.C. He ordered that the status quo of access to the abortion pill should be maintained, including via pharmacies and the mail. The FDA is in a hot mess: whose order do they follow? Because this decision is narrower in scope and involves a minority of states, it may not hold. We’ll see what happens next...
Remember I mentioned the appeal? Well, the Fifth Circuit Court judge decided to partly overrule Judge Kacsmaryk’s order to pull mifepristone from the market, allowing time for the case to be fully heard and decided for the long term. However, he did order that the original 2000 FDA labeling and requirements for use be reinstated. This is HUGE!
Who always has the last word in U.S. politics? Yup, cue the Supremes. Next, the DOJ issued an appeal to the U.S. Supreme Court (SCOTUS) requesting a stay for emergency relief. This means that SCOTUS could put the lower court’s ruling on hold while the normal appeal process is pending.
SCOTUS did issue "a brief administrative stay" which is standard procedure when considering an emergency request. This put the lower court's ruling on "pause" for a few days until the Court can think through their decision.
On April 19, the Supreme Court issued another temporary decision regarding the lower courts’ rulings on the status of the chemical abortion pill regimen. They decided (drum roll)... to do nothing.
Justice Alito, who oversees the 5th Circuit court, decided to extend the stay on the lower court's ruling two more days until Friday, April 21st at 11:59 pm.
On April 21, the Supreme Court ruled 7-2 (Thomas and Alito dissenting votes) to continue the stay until the 5th Circuit Court of Appeals hears the case in its entirety on May 17. This means that access to abortion pills remains the same as it was prior to the District Court's ruling earlier this month.
What Could Change and When?
SCOTUS put the future of the abortion pill regimen back in the hands of the 5th Circuit Court. They are expected to hear arguments on May 17. The case will be heard on its merits. The three-judge panel will release their decision a month or two after the hearings. It is possible that the initial ruling by Judge Kaczmaryk may be upheld--completely removing the abortion pill mifepristone from the market! Two other outcomes are possible. Nothing will change about the current access to the abortion pill OR the use of the mifepristone/misoprostol abortion regimen could revert back to the original 2000 FDA parameters.
This means that in states where mifepristone-induced abortion is legal, it must be used as follows:
1. Three required visits:
a. First visit: confirm pregnancy, dispense mifepristone
b. Second visit: check for complications, dispense misoprostol
c. Third visit: check for complications and for completion of the procedure
2. Gestational age limit: up to 49 days or 7 weeks from the last menstrual period.
3. Physician oversight required
4. Original dosing restored
5. Providers are required to report ALL serious adverse events, not just maternal death
6. No telemedicine abortions
7. No pharmacy or mail-order distribution of pills
8. No generic version use
The next week will be another roller coaster of emotion and change, as this new chapter in our country unfolds. I am grateful for the work of Alliance Defending Freedom and the brave physicians and organizations who took this bold step!
As important as these court decisions are, abortion will continue to be part of the fabric of our country until it becomes unthinkable in the hearts and minds of the people. The ultimate battle is a spiritual one, and it needs a spiritual solution.
One of my favorite passages of scripture is Ephesians 6: 10-20:
Finally, my brethren, be strong in the Lord and in the power of His might. Put on the whole armor of God, that you may be able to stand against the wiles of the devil. For we do not wrestle against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this age, against spiritual hosts of wickedness in the heavenly places. Therefore take up the whole armor of God, that you may be able to withstand in the evil day, and having done all, to stand.
Stand therefore, having girded your waist with truth, having put on the breastplate of righteousness, and having shod your feet with the preparation of the gospel of peace; above all, taking the shield of faith with which you will be able to quench all the fiery darts of the wicked one. And take the helmet of salvation, and the sword of the Spirit, which is the word of God; praying always with all prayer and supplication in the Spirit, being watchful to this end with all perseverance and supplication for all the saints— and for me, that utterance may be given to me, that I may open my mouth boldly to make known the mystery of the gospel, for which I am an ambassador in chains; that in it I may speak boldly, as I ought to speak.
1. Alliance for Hippocratic Medicine; American Association of ProLife Obstetricians & Gynecologists; American College of Pediatricians; Christian Medical & Dental Associations; Shaun Jester, D.O.; Regina Frost-Clark, M.D.; Tyler Johnson, D.O.; George Delgado, M.D.
2. Niinimäki, Maarit MD1,2; Pouta, Anneli MD, PhD1; Bloigu, Aini3; Gissler, Mika BSc, PhD4,5; Hemminki, Elina MD, PhD4; Suhonen, Satu MD, PhD5; Heikinheimo, Oskari MD, PhD5. Immediate Complications After Medical Compared With Surgical Termination of Pregnancy. Obstetrics & Gynecology 114(4):p 795-804, October 2009. | DOI: 10.1097/AOG.0b013e3181b5ccf9
Dr. Sandy Christiansen is a board-certified obstetrician/gynecologist and advocate for the sanctity of human life from conception to natural death. She is the National Medical Director for Care Net, the Medical Director for the Care Net Pregnancy Center of Frederick, MD, and an adjunct professor at Mount St. Mary’s University's Masters in Health Administration program. Dr. Christiansen is a writer and speaker on pregnancy, abortion, and Hippocratic medicine, addressing a variety of forums and legislative bodies and providing commentary to national media outlets. She completed medical school and residency training in Philadelphia, PA at the Medical College of Pennsylvania and is a member of the American Association of Pro-life Ob/Gyns. Also a member of the Christian Medical and Dental Association, Dr. Christiansen serves as the Maryland state representative and is the director of the Maryland chapter of the American Academy of Medical Ethics. She lives in Frederick, MD with her husband Kyle of 31 years. They are grateful followers of Jesus Christ and praise God for their three sons, daughters-in-law, delightful granddaughter Georgie, and grandson Jesse, due in June!