Abortion Providers Pivot Ahead of Supreme Court Pill Decision

Courtroom threats to the abortion pill mifepristone are pushing providers toward prescribing an alternative treatment regimen, but the backup may not be safe from the same legal playbook of the medication’s opponents.

A federal appeals court order blocking mifepristone from being mailed to patients threatens to cut off millions of Americans in abortion-restricted states from reproductive care. The Supreme Court has paused that order until May 11, though reproductive rights groups say the uncertainty is complicating patients’ search for care.

The courtroom conflict over mifepristone access comes as conservative states and legal groups ratchet up attacks on abortion access across the US. A ban on mailing mifepristone could spell chaos for people living in restrictive states that are seeking abortion access, pushing them to seek different treatment options amid a constantly shifting reproductive rights landscape. Providers and patients aren’t only facing legal uncertainty over mifepristone, but challenges about whether any treatment can endure the courts.

“The same playbook is already being used: testing novel legal theories, exploiting hostile courts, and attempting to control how and where providers can prescribe medications,” said Jennifer Driver, senior director of reproductive freedom & health equity at the State Innovation Exchange.

“So the question isn’t whether opponents will try. What we’re seeing is not really about one drug or another,” Driver said. “It’s about a coordinated effort to dismantle access to reproductive health care piece by piece.”

Conservative groups, however, may look to treat both abortion drugs similarly.

The Heritage Foundation, the group behind the Project 2025 policy plan for a conservative president, said in 2023 that the “plain and ordinary meaning” of federal law “unambiguously prohibits” mailing mifepristone and misoprostol. When asked by Bloomberg Law about providers’ plan to mail misoprostol to beat a mifepristone ban, Melanie Israel, a visiting fellow at The Heritage foundation, said using misoprostol alone can put women “at even greater risk of complications.”

“Leave it to the abortion industry to remind everyone what it really cares about: abortion at the expense of women’s health and safety,” she said. “Does the abortion industry care that more women will have to seek emergency care when things go wrong? Of course not. These online pill pushers won’t be the ones dealing with the fallout in emergency rooms and urgent cares clinics, just like they aren’t now under the current mifepristone protocol.”

Open to Attack

Medication abortions in the US typically use a two-drug regimen of mifepristone, which blocks progesterone, followed by misoprostol, a drug that empties the uterus. Misoprostol-only abortions are widely touted as a safe alternative, but that fallback is already being treated like mifepristone in at least one state.

“Everybody was pretty ready to pivot to a miso alone regimen,” said Kirsten Moore, director of the Expanding Medication Abortion Access Project.

The Supreme Court’s Monday order comes in response to a Friday US Court of Appeals for the Fifth Circuit decision staying Food and Drug Administration safety decisions that allowed mifepristone to be mailed. In the days between the court decisions, Jenna Hudson, senior counsel, US litigation at the Center for Reproductive Rights, said she’d “heard from providers who are having to cancel appointments and pivot abruptly to make sure they are continuing to meet their patients’ needs.”

Kiki Freedman, CEO and cofounder of virtual abortion clinic Hey Jane, said the organization is confident in the outcome of the case and the scientific evidence supporting mifepristone’s safety and effectiveness via telehealth. “At the same time, we plan for every scenario. In the unlikely event that FDA ultimately restricts telehealth provision of mifepristone, we are prepared to shift to a misoprostol-only protocol. It’s safe and effective, was used for decades before mifepristone was first approved by FDA, and wouldn’t be impacted by the current case.”

But even a safe pivot could be destabilizing in practice.

“These back-and-forth rulings on the status of mifepristone create confusion for everyone and could disrupt patient safety and care,” Hudson said.

The legal challenge to mifepristone was triggered by Louisiana, which sued the FDA and claimed that the agency’s decisions on the drug allowed it to be mailed within its borders where abortion is banned.

But unlike mifepristone, “misoprostol is a widely available medication used for many medical purposes,” said Elisa Wells, co-founder and access director of Plan C. “It would likely be difficult to pull it back and regulate its availability in the same way that mifepristone has been over-regulated to date.”

Although misoprostol has yet to be targeted by the same type of ongoing legal attacks facing mifepristone, Louisiana has already categorized the drug — along with mifepristone — as a Schedule IV controlled substance.

Still, Driver said it “would be naive” to think misoprostol won’t be targeted.

‘Access Routes’

Abortion pills are widely used in the US, accounting for over 60% of all abortions in 2023, according to Guttmacher Institute.

Isaac Maddow-Zimet, a data scientist with Guttmacher, said that providers were already switching to misoprostol-only protocols the weekend after the Fifth Circuit order, a trend he expects to continue should something like the Fifth Circuit’s restrictions ultimately remain in place.

Guttmacher notes that as of late April, over a dozen states have a total abortion ban, while 28 have bans based on gestational duration.

If the Fifth Circuit’s decision is upheld, “anybody who lives in a state with an abortion ban or a six-week ban, their options are going to be slim to none,” Moore said. She noted that some people may be able to fly to other states for care, though said rising airline costs and greater pressure being put on out-of-state clinics are obstacles.

With the Supreme Court’s pause in place, “I wouldn’t be surprised at the very least if there are some people who are like, okay, now that we’ve got a little bit of break, I’m just going to go ahead and get these pills and keep them on hand, because who knows what’s going to happen,” Moore said.