You Should Order Abortion Pills Right Now, Just in Case

If Kacsmaryk sides with the plaintiffs, “The case could result in an injunction requiring the federal government to pull the drugs from the market immediately,” according to Stateline.

As I explained in December:

If Judge Kacsmaryk issues a nationwide ruling revoking the FDA’s approval of mifepristone, it would ban health care providers from prescribing it for abortion. (The drug is also sold as Korlym to treat Cushing’s syndrome.) Even people seeking care in states where abortion is still legal wouldn’t be able to get the pills from brick-and-mortar clinics or from telemedicine services. The only option would be Aid Access, based in Europe, or word-of-mouth networks.

The ruling won’t directly affect abortion procedures at clinics, but it could indirectly make it harder to get an appointment. In 2020, abortions with pills made up a staggering 54 percent of abortions done in medical settings. If U.S.-based telemedicine sites can’t operate, and pills are no longer an option for clinics, clinics will be slammed with requests for in-person appointments. The ripple effects could be devastating, as Greer Donley, associate professor at the University of Pittsburgh Law School, told Jezebel in December.

“The waiting times that we see are going to balloon to the point where it’s really making abortion almost inaccessible throughout the country,” Donley said. “Not just for people in red states traveling, the people in New York wouldn’t feel safe…if the New York clinics are backed up, and you need an abortion, you’re not going to feel like you have access.”

It seems wrong that a single judge could declare that an FDA-approved medication can no longer be prescribed. But Joanna Grossman, a law professor at Southern Methodist University in Dallas, told the Dallas Morning News that, while it’s an “illegitimate use of law,” it wouldn’t be impossible given who’s making the call. Kacsmaryk used to work for the Christian First Liberty Institute and is the same judge who recently ruled that teenagers don’t have a right to birth control.

“Any sort of normal judge, I would say there’s no scenario in which they’re gonna cause a long standing approved drug to suddenly be unapproved, you know, disapproved basically on political grounds,” Grossman said. “But if any judge is gonna do it, this is the judge.”

Surely the FDA would appeal this potential ruling, you say. Yes—but the appeals court that would hear the case is the ultraconservative Fifth Circuit, the very same one that let the Texas bounty hunter abortion ban take effect in September 2021. The next level after that is, you guessed it, the Supreme Court.

If Kacsmaryk orders mifepristone pulled from the U.S. market, Aid Access could still operate—it has a pharmacy in India ship pills to the U.S.—but it’s unclear if the service would be slowed from demand. It can already take up to three weeks for people to get their pills.

It’s horrifying that this is the world we live in, but as the past few years have shown, it’s better to be prepared for the worst.

If you or someone you know needs assistance self-managing a miscarriage or abortion, you can call the Miscarriage + Abortion Hotline at (833) 246-2632 for confidential medical support, or the Repro Legal Helpline at (844) 868-2812 for confidential legal information and advice.

Update, 2/1/23: This post has been updated to include information about legal risks for people self-managing abortions.