by Erik Gunn, Wisconsin Examiner
October 13, 2023
Wisconsin joined a brief Friday by nearly half of all U.S. states urging the U.S. Supreme Court to overturn a lower court decision that placed new restrictions on the abortion medication mifepristone.
The friend-of-the-court brief, backed by a coalition of attorneys general in 24 states, urges the high court to reverse a decision by the Fifth Circuit Court of Appeals that would reduce access to mifepristone. That ruling was stayed pending an appeal to the Supreme Court, which has not yet formally decided whether to take the case.
Mifepristone is used in combination with misoprostol to end a pregnancy, typically before 12 weeks of gestation. The drugs are also used to help manage early miscarriages.
“If it stands, the decision of the court of appeals in this case would further erode abortion access,” Wisconsin Attorney General Josh Kaul said. “The Supreme Court should reverse that decision and protect women’s freedom and health.”
“If permitted to take effect, the Fifth Circuit’s poorly reasoned decision regarding the appropriate labeling and dispensation requirements for mifepristone could disrupt access to the most common method of abortion,” the coalition brief states, “harming countless individuals in need of abortion care or management of pregnancy loss, with widespread implications for the health care system.”
It adds that the ruling could lead to patients having to undergo abortion procedures instead of medication abortions. It could also push abortions later in pregnancy, “drive up risks, costs, and delays [and] deprive many individuals of access to reproductive health care altogether,” the brief asserts.
The brief also warns of a ripple effect, creating “confusion among providers, distributors, and pharmacies, and radically destabiliz[ing] the regulatory process for drug approvals, stifling scientific innovation and imperiling the development and availability of thousands of drugs nationwide.”
In the year since the high court canceled a nationwide right to abortion by overturning the nearly 50-year-old ruling in Roe v. Wade, medication abortion has emerged as a leading alternative for women seeking to terminate a pregnancy, particularly in states where abortion has been effectively outlawed.
Gov. Tony Evers signed off on Kaul’s decision for Wisconsin to join the Supreme Court brief.
“Mifepristone has been proven safe and effective and has been used for legal abortion services for decades,” Evers stated Friday. “We are going to keep working to restore reproductive freedom in Wisconsin and across our country and protect access to the healthcare services people need, when and where they need them.”
The appeals court ruling followed a ruling in April by a Texas federal judge who revoked the FDA’s approval of mifepristone two decades ago.
The Fifth Circuit disagreed with the lower court judge’s ruling that the FDA’s 2000 approval of mifepristone should be overturned and that the generic version of the pharmaceutical should no longer be available. But the appeals judges agreed with his opinion that changes the FDA made in 2016 and 2021 regarding dosing and use of the prescription should no longer be in effect.
Rolling back those instructions would mean the medication could be prescribed only up to seven weeks gestation rather than 10 weeks and would change dosage and timing. It would mean only doctors, not other qualified health care providers, could prescribe mifepristone. It would require patients to have three in-person visits with a doctor and prevent the medication from being prescribed via telehealth and shipped through the mail.
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