Steve Vladeck: The Mifepristone Mess, Continued

[Nevilledog]

https://stevevladeck.substack.com/p/bonus-22-the-mifepristone-mess-continued

*snip*

Welp, the Fifth Circuit ruled late last night. And it’s a doozy. The three-judge panel (Haynes, Englehardt, & Oldham, JJ.) all agreed that Kacsmaryk’s ruling should be stayed as to the FDA’s original 2000 approval of mifepristone—because the plaintiffs’ claims likely fall outside of the relevant federal statute of limitations. (Kudos to my UT colleague Susie Morse and her student, Leah Butterfield, who have been making this point to anyone who will listen.)

But then, the panel divided. With Judge Haynes apparently disagreeing, Judges Englehardt and Oldham declined to stay Kacsmaryk’s ruling as applied to most of the FDA’s subsequent actions with respect to mifepristone. The two most important upshots of this are to put back into effect the onerous in-person dispensation requirements (so, no more mifepristone by mail); and to limit the approved on-label use of mifepristone to pregnancies in their first seven weeks (when many don’t yet know they’re pregnant), rather than the first ten weeks. In other words, the Fifth Circuit’s ruling, if not further modified by the Supreme Court, doesn’t go as quite far as Kacsmaryk’s (mifepristone would still be available and lawful in many cases); but it would dramatically curtail access to mifepristone compared to what was true as recently as last Thursday.

As I wrote on Monday, that would leave those who are pregnant but can’t obtain mifepristone in time with three less safe/effective alternatives: a misoprostol-only abortion; a procedural abortion (in states that still allow them); or carrying the pregnancy to term.

Others may (and will) have more to say about the biggest problems with the Fifth Circuit’s reasoning, but to me, there are four big points to make about the Fifth Circuit’s analysis, before turning to what this might mean for the Supreme Court.

Big point 1—Dispensation is the Biggest Issue: Although it takes a chart to map out which parts of Kacsmaryk’s ruling the Fifth Circuit is and isn’t blocking, the biggest part that is not blocked is the effective elimination of obtaining mifepristone by mail. The key reason why mifepristone has become so central to abortions nationwide (now accounting for well more than half of them) is because of how easy it has been to access and obtain since 2021—especially, after Dobbs, in contrast to the difficulties of pursuing other abortion methods in states that are hostile to them. Moving the on-label timing from 10 weeks to 7 weeks is a problem, but doctors could presumably still prescribe mifepristone off-label without running afoul of the Kacsmaryk ruling, so the 10-weeks-versus-7 feature isn’t nearly as big of a deal in practice.

*snip*

[Solly Mack]

1. K&R