The legal challenge to the medication abortion drug mifepristone, which is being pursued in the case Alliance for Hippocratic Medicine v. FDA, continued last week with arguments heard in the Fifth Circuit Court of Appeals. Fortunately, the circuit court’s eventual ruling will not change access to the medication: the stay issued by the Supreme Court last month prevents lower court rulings from going into effect until the highest court is able to weigh in on the case’s merits.
Still, the ongoing litigation raises concerns about future rulings, as well as exacerbating the confusion and misinformation about mifepristone among the general public. During the two hours of oral arguments, an extremely conservative three-judge panel signaled their openness to the anti-abortion claims and an overall acceptance of dangerous misinformation about the drug itself. This commentary highlights some of the false assertions that the plaintiffs relied on and that were given credence by the judges—and then provides the evidence that refutes those claims.
Bad Math and False Claims: The Assault on Mifepristone’s Safety Track Record
In oral arguments, the judges on the panel—Judges Jennifer Walker Elrod, James Ho, and Cory Wilson—demonstrated both a lack of understanding of medication abortion care and a thorough acceptance of the false claims made by the anti-abortion plaintiffs. The plaintiffs’ arguments rely in part on a purported danger of mifepristone, which they allege frequently requires emergency room visits for complications after taking the medication. We already know, though, that mifepristone is extremely safe: the rate of major adverse events falls well below 1 percent. Their arguments hinge on blatant misrepresentation, claiming that the rates of all complications of mifepristone—the majority of which are incomplete abortions—result in emergency room visits. While still rare, incomplete abortions generally require additional doses of misoprostol or procedural care—not emergency medical attention.
We already know, though, that mifepristone is extremely safe: the rate of major adverse events falls well below 1 percent.
Additionally, the panel spoke disparagingly about non-physician providers prescribing mifepristone. Although this practice is not allowed in all states, numerous studies have demonstrated that provision of care by advanced practice clinicians—such as nurse practitioners, certified nurse midwives, and physician assistants—is just as safe as care provided by physicians.
Provision of Care: Unjustified Suspicion of Telehealth and Pharmacy Dispensation
The judges also displayed skepticism and misunderstanding of medication abortion care provided via telehealth. Provision of mifepristone via telehealth has been available since regulations were loosened during the pandemic, and then made permanent in the 2021 modifications to the FDA restrictions. As I’ve written before, this care is not only incredibly safe, but has important implications for expanding access beyond brick-and-mortar clinics. This panel of judges, though, asked questions that portrayed telehealth abortion care as dangerous. Their lack of understanding was clear from the jump, with Judge Elrod referring to the practice at one point as the “mail business thing on the computer.” (This degree of misunderstanding of abortion care in general was clear throughout. Elrod at one point seemed to ask the lawyer representing the FDA whether the gestational age of a pregnancy could be ascertained via a visual assessment of the patient via video conference.)
In reality, providers are well-equipped to provide care via telehealth. By speaking to patients or through online questionnaires, clinicians can assess their eligibility for medication abortion care (including screening for potential contraindications and pregnancy gestation), prescribe the medication, and follow up with patients—including confirmation of a complete abortion. A 2021 study of patients receiving care via telehealth found a 95 percent efficacy rate, comparable to in-person care. The option of telehealth is even more important for patients who cannot reach providers in-person, especially people with disabilities, people in rural communities, those struggling to make ends meet, and others for whom travel to a clinic is an insurmountable barrier.
The judges also frequently misrepresented pharmacy dispensation, claiming that pharmacies are now prescribing the drugs themselves. This is not the case: a recent change to the mifepristone regulations will allow for patients to receive the drug at pharmacies, but only after receiving a prescription, as is the case for other prescription medications.
The Myth of Easily Accessible Procedural Abortion Care
Representing the plaintiffs, lawyer Erin Hawley (whose husband is ultra-conservative Senator Josh Hawley) doubled down on disingenuous claims that people in need of abortions could simply receive procedural care. Currently, medication abortion care accounts for over half of all abortions in the United States. Even with medication abortion available, clinics are struggling to provide for the volume of patients seeking care; that capacity has been tested further with each additional statewide ban and restriction passed. Thus the narrative of easy access to procedural alternatives downplays our shortage of abortion providers and the very real barriers to accessing abortion clinics—particularly for oppressed and marginalized communities.
The narrative of easy access to procedural alternatives downplays our shortage of abortion providers and the very real barriers to accessing abortion clinics—particularly for oppressed and marginalized communities.
Hawley, shockingly, claimed that survivors of sexual abuse and sex trafficking would have other options should mifepristone be removed from the market. In addition to callously glossing over barriers to abortion care for people in those circumstances, it disregards potential preferences—including for those who may prefer the less-invasive nature of medication abortion because of a history of sexual trauma.
Flimsy Narratives and Clear Biases
Finally, the arguments and lines of questioning exposed the pre-existing biases of the judges. Beyond accepting the false allegations regarding the safety and provision of medication abortion care—not to mention their approval of the plaintiffs’ dubious merit and standing—the judges demonstrated open hostility to the defendants. At one point, the judges focused an entire line of questioning on their impressions of the language used by Danco, a manufacturer of mifepristone and a party in the litigation. Judge Elrod remarked that she found Danco’s word choice inappropriate, saying that the language is not typically heard from “learned counsel,” and that it amounted to “personal attacks” on the district court. The language in question? “Unprecedented judicial assault” and a “relentless one-sided narrative.” These phrases were used in response to the district court opinion from Judge Kacsmaryk, who used inaccurate and dangerous anti-abortion rhetoric throughout his ruling—the type of language that fuels not only abortion stigma but also encourages violence against providers. These critiques, besides being irrelevant to the issue at hand, made even more clear the biases of the panel.
The judges’ disingenuous attempts to compare this case to decisions made by the FDA itself entirely discounts the fact that judges, not scientists and not experts, are attempting to ban mifepristone.
Judge Ho went on to challenge the defendants’ characterization of Judge Kacsmaryk’s ruling as “unprecedented,” with his reasoning being that the FDA has recalled other medications because of safety concerns. Putting aside mifepristone’s safety and the robust safety reporting requirements in place, this narrative does not hold up. At issue in this case is a court attempting to reverse a medication’s approval, thereby overriding the independent authority of the FDA. The judges’ disingenuous attempts to compare this case to decisions made by the FDA itself entirely discounts the fact that judges, not scientists and not experts, are attempting to ban mifepristone.
Fighting Back against Misinformation Will Be Key to Maintaining Access
Mifepristone remains available for now, regardless of the Fifth Circuit judges’ efforts. But narratives pushed during the case’s oral arguments highlight the need to actively counter the spread of dangerous misinformation. The chaos and confusion that has escalated in the wake of the Dobbs decision makes counteraction more urgent than ever. The ongoing litigation of mifepristone should not be allowed to obscure the medication’s safety and efficacy.