Abortion Providers Sue FDA Over Abortion Pill Restrictions in Virginia, Montana, Kansas

FILE - Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Ala., March 16, 2022. Abortion providers in three states filed a lawsuit Monday, May 8, 2023, aimed at preserving access to the abortion pill mifepristone, even as the drug is threatened by a separate Texas lawsuit winding its way through U.S. court system. (AP Photo/Allen G. Breed, File)

By Sarah Vogelsong, Virginia Mercury

May 9, 2023

by Sarah Vogelsong, Virginia Mercury

A group of abortion providers, including two clinics in Charlottesville and Alexandria, are suing the Food and Drug Administration in an effort to block potential new restrictions on the use of the abortion pill mifepristone in Virginia, Montana and Kansas. 

The case, which was filed Monday in the U.S. District Court for the Western District of Virginia, is the latest in a string of legal challenges related to the FDA’s approval of mifepristone, which is used as part of a two-drug regimen to terminate pregnancies up to about 10 weeks. 

In Virginia, 56% of the roughly 17,000 abortions that occurred in the state in 2021 were the result of medication. 

56% of Virginia abortions were performed via medication in 2021

“In order to meet the needs of their patients, Plaintiffs rely on the ability to prescribe medication abortion, which is safe and effective, less expensive and less resource-intensive than procedural abortion, and preferred by many patients,” states the suit. 

Among the groups who filed the lawsuit are Whole Woman’s Health Alliance, which operates a clinic that provides abortions in Charlottesville; Whole Woman’s Health, which operates a clinic providing abortions in Alexandria; and Whole Woman’s Health of the Twin Cities, which provides telehealth services for medication abortion in Virginia, Maryland, Minnesota, New Mexico and Illinois. Other plaintiffs provide medication abortion services in Montana, Kansas and Oklahoma. 

Mifepristone has become the latest flashpoint in abortion debates after the U.S. Supreme Court last year overturned Roe v. Wade and declared “the authority to regulate abortion is returned to the people and their elected representatives.” 

This April, a federal judge in Texas revoked federal approval of mifepristone in response to a challenge by anti-abortion group Alliance for Hippocratic Medicine arguing that the FDA hadn’t adequately reviewed the drug before approving it in 2000. The U.S. Supreme Court later paused the ban until the broader case works through the appeals process. 

Moments after the Texas decision, a federal judge in Washington state handed down a ruling in a separate case that temporarily blocked the FDA from “altering the status quo” on mifepristone in 17 states and the District of Columbia, which had argued the agency was imposing unnecessary regulations on the drug. 

The most recent case filed by the abortion providers would bring Virginia, Montana and Kansas in line with the 17 states and Washington, D.C. 

“Plaintiffs — independent abortion providers with limited resources in hostile states — are caught in the middle of this maelstrom,” the groups wrote. “They provide care in states that are party to neither case and are thus in a particularly precarious and uncertain provision. Plaintiffs cannot retool their practices overnight with no notice — healthcare has no on/off switch. They and their patients require clarity around their continued provision of mifepristone.” 

Virginia currently allows abortion with few restrictions in the first and second trimesters and permits it in the third if three doctors decide continuing the pregnancy would impose a severe risk to the mother. 

Republicans have sought to narrow that access since the overturning of Roe. But while Democratic control of the state Senate has stymied those efforts to date, all 140 seats in the legislature will be on the ballot this fall, with control of both chambers hanging in the balance. 

Besides asking the court to grant Virginia, Montana and Kansas the same protections for mifepristone access put in place by the Washington judge for the 17 other states, the abortion providers also challenge current restrictions placed by the FDA on the drug. Those include requirements that patients sign a special form prior to being prescribed mifepristone and that providers be certified to prescribe it.   

Those “burdensome restrictions,” the groups argue, make mifepristone “seem uniquely dangerous” while making it “harder for clinicians to prescribe, harder for pharmacies to dispense, and harder for patients to access.” 

Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence. Contact Editor Sarah Vogelsong for questions: [email protected]. Follow Virginia Mercury on Facebook and Twitter.

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