USA – US court ruling on access to mifepristone: American Civil Liberties Union report

The American Civil Liberties Union (ACLU) won an injunction in federal court that will expand access to medical abortion care by mail in many (though not all) states in the US. Under this ruling, clinicians who are able to prescribe mifepristone for abortion can now mail or otherwise deliver mifepristone to patients directly – where and as state law allows. The ACLU advisesclinicians to consult their lawyers before dispensing mifepristone by mail, to ensure compliance with the injunction.

Up to now, the US Food & Drug Administration (FDA) has imposed an unnecessary restriction on provision of mifepristone. It required that the medication be dispensed only in person at a hospital, clinic, or medical office. This only burdened and delayed patients, with no benefit.During the Covid-19 pandemic, the travel, childcare, and other interpersonal contact mandated by this restriction unnecessarily exposed patients to the risk of infection through face-to-face contact. Letters were sent to the FDA by a long list of advocates and service providers, asking the agency to suspend this restriction during the pandemic – just as it has suspended other in-person requirements in response to the public health crisis. The Agency refused.

In late May 2020, the ACLU filed litigation on behalf of a coalition of medical experts and reproductive justice advocates – American College of Obstetricians and Gynecologists, SisterSong Women of Color Reproductive Justice Collective, Council of University Chairs of Obstetrics and Gynecology, New York State Academy of Family Physicians, and Honor MacNaughton, MD – challenging the in-person dispensing requirement during the Covid-19 pandemic. They highlighted the lack of medical necessity for this restriction and the ways in which it is jeopardising the health and safety of patients –particularly patients of color and low-income patients, who, because of structural racism, are both more likely to need abortion and miscarriage care and more likely to suffer severe illness or death from Covid-19.

The federal district court injunction allows a health care provider to have mifepristone mailed or delivered directly to a patientif, in their judgment, it is in the patient’s best interests not to have to travel in person to pick up the mifepristone. The court found that the in-person dispensing requirement posed a substantial obstacle to abortion care during the pandemic – in light of the risks and burdens associated with travel, the difficulty of securing childcare, the impact of the economic downturn, medical office closures and limited capacity, and the heightened health risks that patients, and particularly people of color and low-income patients, are facing during this pandemic. In addition, the court rejected each of the government’s purported justifications for the in-person dispensing requirement, concluding that it “provides no significant health-related benefit”.

The ruling is unfortunately limited to the use of mifepristone for abortion care – it does not apply to treatment of miscarriage.The ACLU are considering whether and how to try to expand the injunction to miscarriage patients.The injunction will remain in place until at least 30 days after the end of the Secretary of Health’s declared “Public Health Emergency”.Though (of course), the government may appeal.

SOURCE: E-mail, ACLU Reproductive Freedom Project, 14 July 2020. See also: ACLU Press release, 13 July 2020