Patients’ access to lifesaving medicine is under threat because an anti-abortion rights organization sued in federal district court to overrule the Food and Drug Administration’s approval of mifepristone, which has been used to terminate early pregnancies for almost a quarter century in the U.S. If the judge, appointed by the previous federal administration, rules for the plaintiffs, a medicine considered essential by the World Health Organization will become illegal to distribute or use in the U.S.
How did we get here? In 2000, the FDA approved the drug mifepristone for use in medication abortions. Mifepristone blocks the activity of progesterone. It comes from a class of drugs also used to control hyperglycemia caused by Cushing’s syndrome; treat brain and ovarian cancers, endometriosis and fibroids; and even induce labor. This policy move changed the game for reproductive health care, making abortion care safer, cheaper and easier to access, thus increasing equity and decreasing unnecessary delays in care.
Almost 90% of abortions occur within the first 10 weeks of pregnancy, during the blastocyst or embryonic stage, and over half of U.S. abortions are medication abortions. Up to 11 weeks, medication abortions can be used instead of surgery to terminate pregnancies in most cases. A combination of mifepristone and misoprostol, both of which are safer than taking Tylenol, are considered the gold standard treatment and deemed safe and effective across the globe.
Mifepristone and misoprostol are on the WHO’s model list of essential medicines, and both medicines have been embraced around the world in low-income countries. For example, mifepristone was introduced in Colombia in 2017 during President Juan Manuel Santos’ administration for abortions carried out early in pregnancy. Although abortions with only misoprostol can also be safe and effective, they usually result in more pain for patients.
Policies related to mifepristone distribution and use in the U.S. are already far less permissive than those in many other countries. The WHO recommends that medication abortions do not need to be provided exclusively by medical professionals in clinical settings. The WHO also offers instructions for self-managed abortions using these medicines on its website.
In contrast, the U.S. still requires that prescribers and distributors of mifepristone be explicitly certified. In line with WHO standards, the FDA moved in 2021 to allow mifepristone to be mailed directly to patients and, this January, allowed some retail pharmacies to distribute it with a prescription. This critical expansion of care occurred at a time when reproductive health care options were suddenly limited by the COVID-19 pandemic.
Banning mifepristone puts the lives of pregnant people in danger and violates their human rights, making it a very poor policy choice. The WHO, the United Nations Committee on the Elimination of Discrimination Against Women and the U.N. Committee on the Rights of the Child have condemned abortion restrictions. While the U.N. Human Rights Committee, the U.N. Committee on Economic, Social and Cultural Rights, and the U.N. Committee against Torture have called for “the removal of penalties for abortion and for the implementation of measures to ensure safe, legal access to abortion.”
Banning mifepristone will do little to decrease the number of abortions overall, as research shows repeatedly. It would, however, make abortion more expensive, increase travel burdens and delay care to later gestational ages. This would compound other burdens imposed by various states, such as mandatory waiting periods and forced ultrasounds that serve no medical purpose and are designed to make pregnant people less likely to get an abortion. Although these burdens exist for all who seek abortions, they are especially burdensome for Black, brown and Indigenous individuals, for those who live in rural areas and for many immigrant populations.
Because some clinics now offer only medication abortions, if mifepristone is banned, the percentage of people who live in a county with a functioning abortion clinic will drop significantly, including in states where abortion is more protected. Indeed, the Guttmacher Institute has identified 10 states where banning mifepristone would have an especially negative impact, including states on the more restrictive end of the spectrum — Indiana, Pennsylvania, Montana, Iowa and Georgia — and those on the less restrictive end — Washington, New Mexico, Vermont, Maine and Colorado. In short, the ramifications of such a move would be severe, and they would be felt in every state, regardless of its politics.
Finally, from a legal perspective, we must consider the effectiveness of bans as policy tools. Bans are often the tool of choice when state capacity is limited, when the state cannot manage a more nuanced approach. They work well when violations are highly visible.
Abortion is notoriously difficult to regulate in part because the existence of a pregnancy at its earliest stages is very difficult to detect, as is its termination. Similarly, it is very challenging to control what is sent via U.S. mail. Examining every parcel in search of banned pills is not a viable option when medication is commonly sent via post. As countries such as El Salvador have shown, even where abortion is illegal, medications are readily available for a price.
Given these parameters, a ban on mifepristone is virtually guaranteed to be a political stunt, as it could only ever be a regulatory failure. If the goal is to reduce the prevalence of abortion, evidence-based and tested policies such as improved access to contraception would be a more prudent path to pursue.
