It’s Thursday afternoon, and Dr. Audrey Lance isn’t totally sure what she’s going to tell her patients at Northland Family Planning tomorrow. Neither are the doctors at Planned Parenthood of Michigan, the University of Michigan, and several other major health providers after the U.S. Fifth Circuit Court of Appeals ruled late Wednesday that mifepristone can remain available for now — but with some limitations.
Specifically, the ruling has left Michigan doctors wondering how, if at all, it applies to their patients?
“We just don't know,” Lance said, speaking by phone between patient appointments. “We haven't gotten a go ahead from anybody yet to say exactly what this means. And so it's hard when I know that I'm going to walk into work tomorrow to provide care to patients with these medications — am I allowed to do that? I don't know yet. I don't know what's going to happen.”
What the court said this week
The Fifth Circuit’s ruling partly granted a request from the Justice Department to stay a Texas federal judge’s decision blocking FDA approval of mifepristone, more than twenty years after the drug was approved. The FDA’s approval can stand, at least while the case moves through the courts, the appeals judges decided.
But the changes the FDA has made since 2016 to make mifepristone more accessible (like getting it through the mail, providing it to patients up through 10 weeks of pregnancy rather than just seven, and allowing patients to get the medication after just one in-person visit instead of three) were not included in that stay.
What that means in Michigan, a state involved in a separate lawsuit where a federal judge in Washington recently issued a dueling decision saying the FDA cannot make mifepristone less accessible, is still an open question.
“We are confused,” said Dr. Sarah Wallett, chief medical officer of Planned Parenthood of Michigan. “It is very frustrating, because there are zero questions about what is right for my patients. And that would be to continue to provide evidence-based medication abortion care in the way that we have been doing. And unfortunately, it appears that there are lots of things in play that may make that impossible.”
Can Michiganders still get mifepristone through the mail?
For Michiganders, the biggest impact of the appeals court’s decision may be telehealth, where providers like Planned Parenthood meet virtually with patients and send mifepristone and misoprostol directly to their homes through the mail. Those are often patients who unable to get into a clinic, Wallett said.
“We see patients who are in their car, on break from their job. We see patients at home with their small children. We see people doing their regular lives, who don't have the time to get to one of our health centers. Who don't have the ability to take time off work, to get child care, to get gas money,” Wallett said. “...And it'll be people who don't have resources…who will suffer the most.”
If mifepristone is restricted, medication abortions (which account for more than half of the abortions in the U.S.) will still be widely available in the state. But there may be times when doctors must prescribe misoprostol alone. While still safe, using only misoprostol is slightly less effective, with a success rate of about 85%. (Whereas the combination of mifepristone and misoprostol is closer to 95% effective.)
That puts patients at greater risk of having an incomplete abortion, Wallett said.
“The medication that we give can cause birth defects, so continuing a pregnancy could be risky. Whenever we give this medication and it doesn't work initially, people do face the risk of having a miscarriage later in pregnancy or in early preterm delivery,” she said. “...It also means that when they find out later, they might need a second trimester abortion…to end the pregnancy.”
Hoping for clarity
Health care workers are looking to state officials for some clarity, said Dr. Dee Fenner, professor of obstetrics and gynecology at Michigan Medicine.
“We are waiting, and our attorneys are reaching out to the state,” Fenner said Thursday. “We expect the state to come out with some recommendations that we’ll obviously follow.”
But Michigan Attorney General Dana Nessel’s office could not immediately provide much clarity about what the appeals court ruling means for Michigan.
“Our department is actively reviewing the decision out of the 5th Circuit Court to determine if and how it impacts Michigan,” an AG spokesperson said via email Thursday afternoon. “We remain committed to protecting access to safe, reproductive care for all Michigan residents, and will release an official statement once we know more.”
Both Nessel and Michigan Governor Gretchen Whitmer have voiced strong support for full access to mifepristone.
But Dr. Lance worries that, even if there aren’t any restrictions on the medication, the uncertainty alone has an impact.
“There are definitely going to be patients wondering if this is safe,” she said. “Because of course, they're going to wonder, ‘Well, why are people saying that this isn't safe? So is it really safe?’ People are going to question that. The truth of the matter is it's one of the safest medications available…And this is just completely politically motivated by people that want to completely get rid of abortion at all cost.”
