On Wednesday, the three-judge panel of the Fifth U.S. Circuit Court of Appeals granted a stay requested by the U.S. Justice Department to allow access to mifepristone — the key element of a two-drug cocktail commonly used in medical abortions — while ongoing litigation seeking to bar access to the pill moves through the courts.

Last week, Massachusetts Gov. Maura Healey requested the University of Massachusetts Amherst purchase 15,000 doses of mifepristone. The state estimates that this supply will last more than a year.

Other states have sought to stockpile the drug’s companion, misoprostol, in an effort to bridge a potential gap in access to mifepristone.

California Gov. Gavin Newsom said his state has ordered 2 million doses of misoprostol, while New York Gov. Kathy Hochul announced that her state has secured 150,000 doses of misoprostol, an estimated five-year supply.

New York added that if the decision to ban mifepristone stands, the state will also dedicate an additional $20 million toward reproductive health.

“This is an incredibly confusing and stressful time for those seeking and providing abortion care, and New York State must do everything in its power to support, safeguard, and expand access to this critical option,” the National Institute of Reproductive Health – New York said in a statement.

“In this uncertain time for reproductive care, we continue to call on state and local governments across the country to address increased barriers for those most marginalized so that everyone has access to the abortion care they need, on their own terms, and in their own community.”

Stockpiling is a short-term solution

These stockpiles, and the potential others to come, are finite. A year’s supply of mifepristone does not secure access for year two, said David Cohen, professor of law at Drexel and author of Obstacle Course: The Everyday Struggle to Get an Abortion in America.

“Whenever the stockpile runs out, there goes your sustainability,” Cohen said in an interview with UPI. “This is a short-term fix that is limited to the states that can do it.”

Cohen also added that while he was not presently aware of any distribution issues related to the drugs, stockpiling can lead to concerns about limiting access to the drug for those who need it.

He added that while misoprostol is not under immediate threat of being barred in court, such an outcome can’t be ruled out. It is proven to be effective for terminating pregnancy in the first trimester when used alone, with about 78% of women having a complete abortion without the need for surgery, according to the National Library of Medicine.

Whether misoprostol remains available or not, it is not as effective by itself as it is in tandem with mifepristone. Commonly mifepristone is the first pill used in the two-pill regimen.

In 2020, approximately 53% of abortions in the United States were medication abortions through the use of mifepristone and misoprostol, according to the Guttmacher Institute, a non-government organization focused on reproductive health and rights.

For many places in the world, misoprostol represents the standard for care. While alone misoprostol is still effective, it is not the “gold standard” without mifepristone, according to Cohen. By itself, misoprostol can take longer to work and cause significantly more cramping and bleeding, meaning users will be put through more discomfort without mifepristone.

Putting women through more pain during an abortion is a step backward, Cohen said.

“People who get abortion pills on the black market, they’re going to have access to the gold standard of care because they’re going to get mifepristone and misoprostol,” he said. “Whereas patients who go through the standard U.S. healthcare system will only have access to misoprostol — not the gold standard in care.”

Reliving history

U.S. District Judge Matthew Kacsmaryk ruled to suspend the approval of mifepristone, arguing that the Food and Drug Administration rushed through its approval process.

Kacsmaryk also used a precedent terminated long ago to justify his ruling, the Comstock Act. The act, brought forth by 19th-century moral crusader Anthony Comstock, was enacted in 1873. It made it a crime to mail what was deemed as lewd, immoral and indecent material. It was terminated in 1957.

“In any case, the Comstock Act plainly forecloses mail-order abortion in the present, and Defendants have stated no present or future intention of complying with the law,” Kacsmaryk wrote.

Kate Masur, a history professor at Northwestern University who taught a class on abortion in the United States, said Kacsmaryk’s use of the Comstock Act equates reproductive healthcare materials to pornography.

“It’s kind of like a zombie law that is being brought back for these reactionary purposes,” Masur said in an interview with UPI. “It’s a throwback to the 19th century before women could vote. Another aspect of the 19th century is back in action now.”

Masur noted that many of the arguments to criminalize abortion for women and healthcare providers are the same arguments that have been made for more than a century.

“The idea that medication abortion is actually harmful to women and that’s why the drug needs to be unapproved is very similar to past arguments about why abortion should be limited,” she said. “What science shows is that mifepristone is not dangerous to people who take it for these purposes. Since Roe v. Wade, abortion is one of the safest medical procedures you can have – safer than a whole range of really minor procedures.”

The next steps

While mifepristone will remain available following Wednesday’s decision, the Fifth U.S. Circuit Court’s ruling shrinks the pregnancy window during which it can be taken to seven weeks, requires in-person visits to obtain the pill and bars it from being distributed through the mail, among other restrictions.

Longterm access to the drug also remains at risk as the legal case seeking to ban it is expected to reach the Supreme Court, where Cohen said proponents of mifepristone’s legality may not find a reason for optimism should the decision fall in the laps of the majority-conservative justices.

“The Fifth Circuit Court system is hostile to abortion — very conservative. This Supreme Court, that is almost as conservative, just overturned Roe v. Wade,” he said. “If recent history tells us anything they are very difficult venues for the FDA when it comes to abortion.”

A federal judge reversing the FDA’s approval of a drug that was greenlit 23 years ago sets a dangerous precedent even beyond the FDA, Leslie J. Reagan said in an email to UPI. Reagan, the author of When Abortion Was a Crime, a comprehensive look at the history of abortion, said even more is on the line.

“The decision is dangerous for American medical care in general. In declaring that the FDA’s medical testing and approval process can be overruled by lone judges, the decision opens all FDA decisions regarding American medical health and safety to lawsuits and to potentially being overruled,” Reagan said.

“This decision, if it stands, will apply not only to medications used for abortion, but can be used to decide that various contraceptives are ‘unsafe’ and should be banned or any other drug or technology.”

Reagan said the Texas court’s decision also has implications beyond healthcare.

“All other federal agencies could similarly be subject to politicized lawsuits whether by politically invested groups or by corporations interested in getting rid of regulations regarding worker safety, environmental protection, consumer safety and much more,” she added.