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Josh Stein files briefs to U.S. Court of Appeals, Supreme Court regarding medication abortion

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Packages of Mifepristone tablets are displayed at a family planning clinic on April 13, 2023, in Rockville, Md. A Massachusetts appeals court temporarily blocked a Texas-based federal judge’s ruling that suspended the FDA’s approval of the abortion drug Mifepristone, which is part of a two-drug regimen to induce an abortion in the first trimester of pregnancy in combination with the drug Misoprostol.
Photo Courtesy of Anna Moneymaker/Getty Images/TNS.

On April 10, North Carolina Attorney General Josh Stein and two dozen other state attorneys general filed an amicus brief in the U.S. Court of Appeals for the Fifth Circuit regarding a recent district court order that suspended the federal approval of mifepristone, an abortion pill.

The brief urged the court to stop the order made by Judge Matthew Kacsmaryk of the U.S. District Court of the Northern District of Texas that would overturn the U.S. Food and Drug Administration’s 23-year-long approval of the pill.

"The court does not second-guess FDA’s decision-making lightly," Kacsmaryk said in the ruling, "But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions."

Since the coalition filed the amicus brief, U.S. Supreme Court Justice Samuel Alito issued an order temporarily ensuring that mifepristone remains widely available.

The district court's order will be paused until Wednesday, April 19 at 11:59 p.m. while the U.S. Supreme Court considers whether to grant the Biden administration’s emergency request to preserve the FDA’s approval. 

Stein and over 20 other attorneys general from across the nation filed another brief urging the U.S. Supreme Court to maintain approval and access to mifepristone while the Texas case is appealed. 

“Abortion is a deeply personal decision and is an issue that people have wide-ranging opinions. But, ultimately, that's a decision that women should have the freedom to make for themselves,” Stein said. “And that's why I'm in court fighting to ensure women can continue to access this medication.”

Mifepristone is the first of two drugs used in a medication abortion — the second being misoprostol. Mifepristone is used to end a pregnancy up to 10 weeks after a person's last menstrual period by blocking the hormone progesterone, breaking down the lining of the uterus so the pregnancy cannot continue.

“It's proven to be safer than Tylenol or Viagra and many other drugs,” Stein said. “Women should have the right to continue to access that medication as they choose what to do with their pregnancy.” 

The FDA reported that only 26 out of approximately 4.9 million women died after taking mifepristone for medication abortions between September 2000 and June 2021.

However, the FDA said these instances "cannot with certainty be causally attributed to mifepristone" because of information gaps about patient health status, clinical management of the patient, additional drug use and other medical or surgical treatments and conditions.

According to a study by the Guttmacher Institute, medication abortion accounted for 53 percent of all abortions in 2020. 

Tara Romano, executive director for Pro-Choice North Carolina, said access to medication abortion helps people get care who otherwise would not.

"It really is also a way to help people access care who can't necessarily get to a clinic very easily," she said. 

She added that there are many reasons why a person may not have access to a clinic, such as travel costs, accessible child care and access to reliable transportation. 

She said Pro-Choice North Carolina hopes briefs from legal experts — like Stein — will help judges as they review these cases to understand "what really is at stake" for reproductive health care. 

Romano said that abortion is not a procedure limited to people from certain backgrounds, political parties or religious beliefs. 

“All kinds of people access abortion, and they're not making political decisions when they are accessing abortion. They are thinking about what is best for them and their lives," she said. 

Liz Barber, senior policy counsel for the ACLU of North Carolina, said it is important that people have access to the method of abortion that is best for them. She added that no one can make that decision other than the person considering their own individual circumstances.

Barber said the order is incredibly harmful. It will not only affect states where abortion is under attack, but even abortion-friendly states, she said. 

“It's going to apply equally to California and New York as it would Georgia or Texas,” Barber said. 

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Amongst the other attorney generals involved in the coalition, New York Attorney General Letitia James and California Attorney General Rob Bonta have been active in the efforts to maintain federal access to medication abortion.

In a press release on April 14, James said "the constant assault on abortion access is putting the health care and rights of millions of Americans at risk." 

@mkpolicastro

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