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U.S. appeals court preserves mifepristone approval, but with limitations

JUANA SUMMERS, HOST:

The Biden administration is asking the U.S. Supreme Court to block a federal appeals court decision that significantly curbs access to a common abortion pill. The U.S. Court of Appeals for the 5th Circuit made a ruling that preserves the Food and Drug Administration's approval of mifepristone for now but with new limitations. NPR's Sarah McCammon has been following the story and joins us now. Hey, Sarah.

SARAH MCCAMMON, BYLINE: Hey, Juana.

SUMMERS: So, Sarah, if people can still get this abortion pill, why is the Biden administration appealing to the Supreme Court?

MCCAMMON: Well, because this 5th Circuit decision makes the pill a lot harder to get. You know, the Obama and Biden administrations had rolled back certain restrictions on mifepristone. They stopped requiring patients to make multiple in-person visits to get the pills. They allowed the pills to be prescribed up to 10 weeks instead of just seven weeks of pregnancy. And they could be sent by mail. Now, this ruling undoes all of that. So even though it's still on the market, abortion rights opponents are calling this a victory. Here's lawyer Erin Hawley with Alliance Defending Freedom, which is representing the groups that filed the original lawsuit challenging mifepristone's FDA approval.

ERIN HAWLEY: So this puts us back in a position we would have been prior to those major changes in 2016. It would require three in-person visits. It would move the gestation limit back from 10 weeks to seven weeks.

SUMMERS: And, Sarah, what will this mean for abortion providers?

MCCAMMON: I mean, that's still being sorted out, but it depends somewhat on where they're located, how they provide care, whether they're in person or not. Monica Cepak is with Wisp, which offers reproductive health care over telehealth. She says they're switching to another abortion pill option because they believe it's still safe to send it in the mail.

MONICA CEPAK: No, we will not be shipping mifepristone. We will only be shipping misoprostol starting Saturday. However, this will take us one to two weeks to fully implement.

MCCAMMON: And, Juana, another provider, Carafem, told me they're also thinking through whether they can provide mifepristone in some states but not others because there is also a conflicting federal court ruling in play here that may allow access for people in some states.

SUMMERS: Remind us, if you can, about that case and how it factors into this latest ruling.

MCCAMMON: Well, as you may recall, 18 Democratic attorneys general sued to try to protect access to mifepristone. A federal judge in Washington state responded by ordering the FDA not to disrupt access. And Judge Thomas O. Rice actually just responded this evening to a request from the Department of Justice asking to clarify because these cases are in direct conflict. Judge Rice issued an order affirming that in the states that are involved in this lawsuit, access to mifepristone should remain unchanged. And on that note, I spoke earlier with Dr. Colleen McNicholas at Planned Parenthood in Illinois. She thinks between the case in Washington and a favorable political climate in Illinois, Planned Parenthood can keep doing what they've been doing, which is prescribing mifepristone up to 11 weeks using telehealth and mailing the pills within Illinois only, at least right now.

SUMMERS: OK. And what about states that are not part of that lawsuit?

MCCAMMON: Right. There are several states, like California and New York, that aren't part of the lawsuit but where abortion is legal. Dr. Kristyn Brandi is an OB-GYN in one of those states, New Jersey. She told me she's not sure what she's going to do about prescribing mifepristone. She says this ruling could be burdensome for her patients because it requires those multiple doctor visits.

KRISTYN BRANDI: If we have to have people come in three times in person, that's definitely more than most providers are requiring patients to come in for because that's just not necessary. It's something that we were doing over telehealth, which it also sounds like we can't provide anymore.

SUMMERS: I mean, Sarah, you have been covering this issue extensively, so I'd like to ask you, is there anything else in this ruling that either surprised you or you think it's important for us to know?

MCCAMMON: Well, the court seemed interested in the plaintiff's arguments about what are known as Comstock laws. These are 19th century anti-obscenity laws that prohibit mailing abortion-related items and other materials. The Biden administration says they don't apply to abortion pills, but anti-abortion groups say they do. The 5th Circuit seemed open to the idea that they might. This is just an issue to watch because it could be significant in future cases related to reproductive health care.

SUMMERS: NPR's Sarah McCammon. Thank you, Sarah.

MCCAMMON: Thank you. Transcript provided by NPR, Copyright NPR.

Sarah McCammon
Sarah McCammon is a National Correspondent covering the Mid-Atlantic and Southeast for NPR. Her work focuses on political, social and cultural divides in America, including abortion and reproductive rights, and the intersections of politics and religion. She's also a frequent guest host for NPR news magazines, podcasts and special coverage.