Kansas clinics say they’ll continue to prescribe the abortion pill mifepristone this week — but big questions remain.
WICHITA, Kansas — Two dueling federal court rulings over a key abortion drug won’t immediately shut down its use in Kansas — for now.
A federal judge in Texas ruled Friday to revoke the U.S. Food and Drug Administration’s approval of mifepristone — used to end first-trimester pregnancies as part of a two-drug regimen along with the more commonly available misoprostol. Later that night, a federal judge in Washington state ordered the FDA to keep mifepristone available.
The order by Trump-appointed Judge Matthew Kacsmaryk, a federal judge in Amarillo, Texas with a conservative track record, takes effect this Friday unless an appeals court intervenes. The Justice Department is appealing the ruling to the 5th Circuit. Legal experts say it’s likely the issue will escalate to the Supreme Court.
That lawsuit, filed by a coalition of anti-abortion groups, is largely seen as an attempt to limit abortion access because mifepristone has decades-long track record of safe and effective use in the U.S., and longer in Europe. Lawyers seeking to revoke the drug’s approval argued, among other things, that its existence makes it harder for states like Texas to enforce abortion bans because the drug can be sent by mail.
“Substituting the opinions of individual judges and courts in place of extensive, evidence-based, scientific review of efficacy and safety through well-established FDA processes is reckless and dangerous,” Jack Resneck Jr., president of the American Medical Association, said in a statement.
Big questions remain about what the rulings mean for access to the abortion pill nationally and in Kansas — how higher courts will respond, and whether the FDA has the power to decide to not enforce the order. More clarity is expected in the coming days.
“Nobody really knows quite what it means yet,” said Teresa Woody, an attorney who has represented Kansas abortion providers in the past. “It’s confusing for everybody.”
It’s the first time abortion access has been under immediate threat in states like Kansas, where abortion remains legal, since the U.S. Supreme Court overturned Roe v. Wade last summer. The stakes are big: medication abortions now make up more than half of abortions nationally and over two-thirds of abortions in Kansas.
How are Kansas clinics responding?
Clinics that provide abortions in Kansas have indicated they will continue to offer the drug until further notice.
Planned Parenthood Great Plains, which operates two clinics in the Kansas City area and one in Wichita, will “continue to offer medication abortion using mifepristone as part of a two-drug regimen at its Kansas health centers and will monitor for any changes in the case that could impact abortion services,” according to a statement by spokesperson Anamarie Rebori Simmons.
Zachary Gingrich-Gaylord, a spokesperson for the Wichita clinic Trust Women, said staff will continue to prescribe mifepristone this week while they await direction from federal authorities.
“It’s still very unclear what the total jurisdiction of this (Texas) judge is, and whether (mifepristone) would become illegal immediately or whether that would start a review process by the FDA,” he said. “We’re looking to the FDA to give us direction on that.”
Even if the Texas judge’s order takes effect, medication abortion would still be accessible in some form. People would likely be able to continue ordering mifepristone through overseas pharmacies — a practice that has become more common in the last year.
And Kansas providers would be able to continue prescribing medication abortions through a misoprostol-only regimen. Misoprostol has historically been less restricted because it’s also approved for other uses, including to treat stomach ulcers.
Medical experts say misoprostol-only abortions are similarly safe, but slightly less effective — a drop from around 95% to between 87% and 93% effective. They can also be more uncomfortable or painful.
Some Kansas clinics, anticipating the Texas decision, have already prepared for the potential need to switch to that method.
“We do have (misoprostol)-only protocol in place, should we get that clear direction that (mifepristone) is no longer available for use,” said Gingrich-Gaylord about Trust Women’s plans.
What happens next?
The picture in Kansas is complicated by the state’s staunchly anti-abortion attorney general, conservative Republican Kris Kobach. In February, Kobach successfully lobbied Walgreens to reverse its plan to send mifepristone by mail in Kansas.
“Politically, there could be posturing or other things that could create uncertainty or fear in the state that could impact access,” said Laurie Sobel, associate director for women’s health policy at the Kaiser Family Foundation.
It’s unclear whether Kobach would have any real power to impact the fallout of the rulings in Kansas. His office did not immediately respond to a request for comment.
One possibility, if the Texas judge’s order takes effect, is for mifepristone to become unapproved for use in Kansas and most other states — except for the 17 states and the District of Columbia whose Democratic attorneys general signed onto the Washington state lawsuit.
“Typically, the FDA’s approvals don’t vary by state,” Sobel said. “But we would be in that very strange situation if the Kacsmaryk ruling were to go into effect.”
Rose Conlon reports on health for KMUW and the Kansas News Service. She’s on Twitter at @rosebconlon.
The Kansas News Service is a collaboration of KCUR, KMUW, Kansas Public Radio and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.