by Gloria Rebecca Gomez, Arizona Mirror
May 2, 2023
As legal battles continue over the FDA approval of abortion drug mifepristone, Arizona and nearly two dozen Democrat-led states urged the court to preserve access to the medication.
On Tuesday, Arizona Attorney General Kris Mayes joined 22 other states and the District of Columbia in filing an amicus brief with the U.S. Court of Appeals for the Fifth Circuit, which is currently weighing an appeal of a ruling issued by a Texas judge last month. That decision, swayed by alarmist and evidence-free claims made by a coalition of anti-abortion doctors, would effectively rescind the FDA’s certification of mifepristone past seven weeks of pregnancy, stripping away even more health care access for women and throwing into doubt FDA approvals for a myriad of other medications, critics say.
In a statement, Mayes, who campaigned on the promise to protect reproductive rights, slammed the Texas ruling as out of touch and vowed to continue advocating for abortion access.
“We cannot allow anti-abortion activists and an extremist judge to undo over two decades of medical consensus. Mifepristone is safe and effective and has been used by millions of Americans over the past two decades,” she said. “I will never stop fighting for the rights of Arizonans to make their own personal medical decisions.”
This is the second amicus brief Democrat-led states have filed in support of mifepristone, and is part of a two-pronged approach to protect access to it. Earlier this year, Mayes joined with several other states to counter-sue the FDA, asking a Washington judge to assert mifepristone’s safety and expand access to the drug. Their success preserved the drug’s legality in those states, including Arizona, despite the Texas ruling.
In the most recent filing, the states once more reiterate the legitimacy of mifepristone and the devastating consequences for women across the country if its approval were to be struck down. The drug has seen widespread use since its initial approval in 2000 and has helped an estimated 5.6 million women with very rare adverse effects. It’s far safer, the states point out, than many more noncontroversial and commonly used drugs, including acetaminophen and penicillin.
Rescinding its approval, the attorneys general argue, would only pose increased risks for marginalized populations and strain already overburdened medical systems still adjusting to a post-Roe world. Arizona’s nine abortion clinics are buckling under out-of-state demand, and one of them is facing imminent closure due to state laws that prohibit the procedure after 15 weeks.
But the only alternative to medication abortion, which makes up roughly half of all abortions across the country, are surgical abortions which are more invasive and less accessible, and the states worry crippling access even further will harm both women and the health care system.
“The availability of mifepristone has proven critical to…improving abortion access, particularly in low-income, underserved, and rural communities which experience higher rates of maternal mortality and morbidity, and where non medication abortion alternatives (e.g., ‘procedural abortion’) may be unavailable,” they wrote.
Undermining the FDA’s approval process would have long-reaching consequences, add the attorneys general. Necessary medications could suddenly be placed under scrutiny at the behest of similar groundless accusations and the pharmaceutical industry on which so many ailing Americans depend would be jeopardized.
“The district court’s disregard for the FDA’s drug-approval process creates an untenable risk to amici States, whose health care systems rely on the stability and integrity of the FDA’s regulatory regime and the continued availability of FDA-approved drugs to prevent and treat a range of conditions and diseases,” reads the brief.
Importantly, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health returned control of abortion access to the states, but the ruling issued in Texas threatens to overrule that by introducing outside controls, according to the filing.
“Allowing the district court’s order to stand could eviscerate the sovereign decisions of many amici States by disrupting access to medication abortion in States where abortion remains lawful,” wrote the attorneys general.
The Texas decision is currently paused while litigation continues, and the appeals court is set to hear arguments in the case on May 17. In Arizona, women seeking an abortion continue to have full access to mifepristone, although their ability to obtain an elective abortion is currently limited to 15 weeks of gestation. After that, only medical emergencies qualify.
The Grand Canyon State is itself seeing renewed efforts from anti-abortion groups to eliminate access to abortion entirely, but those efforts have been somewhat tempered by Mayes’ refusal to champion them. And this week’s action from the pro-choice state attorney isn’t the only one: also on Tuesday, Mayes joined another multi-state action to support an appeal filed by the U.S. Department of Health and Human Services in defense of federal health and family planning protections for minors. The department filed against a December Texas court ruling that struck down Title X protections for minors, effectively shutting them off from reproductive healthcare without parental permission.
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