Federal appeals court abortion pill mail ban could have significant, immediate impact in New York

A federal appeals court ban on dispensing the abortion pill mifepristone by mail could prove to have a significant impact on women’s reproductive rights in New York in wake of the Supreme Court’s decision to overturn Roe v. Wade last year.

Many of the restrictions that have been rolled out so far on a state-by-state basis have had little effect in New York, where abortion is legal and additional safeguards have been put into place. But since the federal court ruling affects the mail – and many women have mifepristone shipped to their homes – New Yorkers could soon feel the effects, even as the broader question of access to mifepristone is debated in the courts.

“Everybody who thought there was a safe space or a safe state – there aren’t any safe spaces,” said Merle Hoffman, longtime abortion activist and founder of Choices Women’s Medical Center in Queens.

In a ruling issued just before midnight Wednesday, a divided three-judge panel ruled mifepristone, can mostly continue to be prescribed for now as challenges from both abortion opponents and the federal Food and Drug Administration play out in wake of the landmark Texas ruling that attempted to undo the FDA’s approval of the drug.

But by a 2-1 vote, judges from the conservative 5th Circuit Court of Appeals in New Orleans ruled a ban on mailing the drug could go into effect immediately and narrowed the time during pregnancy that it can be prescribed.

The Justice Department quickly said it would ask the conservative Supreme Court for an emergency order to put the entire ruling on hold.

If put into place, though, the decision could thwart abortion access in New York and in other blue states with strong abortion laws that have pledged to be safe havens for out-of-state patients.

“This ruling makes abortion less accessible and less safe for all women, including in New York,” said Rep. Pat Ryan (D-N.Y.), the Hudson Valley lawmaker who won a special election that focused on protecting abortion rights. “This is about reproductive freedom, and defending freedom requires us to continue showing up and fighting back.”

The ruling could restrict access for those who relied on telemedicine, cut off a convenient way to receive the pill and increase the number of patients who undergo a surgical abortion – straining clinics in NYC that are already meeting an increased need from out-of-state patients seeking reproductive health care, advocates said.

“It’s a restriction in terms of their own choice on what type of abortion they want to have,” Hoffman added. “And then if you have women who … may have relied on getting the pills by mail or calling up their telemedicine providers – yes, it will impact women in New York.”

“It’s a moment of great danger and challenge,” Hoffman said.

Dr. Laura MacIsaac, an obstetrician-gynecologist at Mount Sinai, said the most critical part of the ruling is the move back to a seven-week window where patients can use the pill.

“To go to seven weeks is bizarre, and there’s no evidence for it whatsoever,” MacIsaac said.

In combination with the ban on mailing the pill, more patients will undergo more time-consuming and costly procedures.

“I think people falsely believe that seven weeks is a lot of time to figure out: You’re pregnant and figure out what you want to do about it and then find a provider,” said MacIsaac, who is sub-specialized in Complex Family Planning at the Icahn School of Medicine. “But in fact, for the first four weeks of that seven, you don’t know you’re pregnant, because we count pregnancy from the first day of your last menstrual period.”

That leaves patients with at most three weeks to get an appointment, make a decision, take time off work, find childcare and scrape together money for a procedure. Many appointments are filled weeks in advance by patients both in NYC and those traveling from out-of-state to get an abortion.

It also means millions of women who live in Republican-dominated states that have banned abortion altogether will have no legal way of terminating pregnancies.

Vice President Kamala Harris denounced the decision as another major step toward a Republican-backed nationwide ban on abortion.

“Our administration will continue fighting to protect women’s health and the right to make decisions about one’s own body,” Harris said.

Senate Majority Leader Chuck Schumer denounced the panel’s ruling as based on “dubious legal grounds and baseless pseudo-science.”

“These extremist judges are putting their own anti-choice opinions before the medical expertise of providers and the FDA and the interests of patients,” Schumer (D-N.Y.) said in a statement.

Other local lawmakers also spoke out.

“This is a brazen attack on access to safe reproductive health care,” Councilwoman Carlina Rivera told the Daily News. “It’s another step forward for the movement to ban abortion nationwide. ... If this drug were to become unavailable, New York City would only be able to provide the misoprostol-only treatment regimen and that would eliminate the most commonly used treatment in the United States.”

After Roe v. Wade was overturned last year, Rivera sponsored a bill that requires city-run health clinics to supply abortion pills at no cost.

City elected officials have little power to stop federal rulings like this one, threatening New York’s status as an oasis for reproductive care.

“It’s certainly alarming,” Rivera said. “It’s very, very unsettling to have this go even as far as it has, to see Roe. v. Wade overturned, and now to see these decisions made by a panel of judges.

The controversial mifepristone case is likely to go at some point to the top court, which less than a year ago overturned the landmark Roe v. Wade decision that legalized abortion nationwide a half century ago.

“We are going to continue to fight in the courts, we believe the law is on our side, and we will prevail,” White House press secretary Karine Jean-Pierre said Thursday, speaking to reporters from Dublin during a visit by President Biden. Mifepristone was approved for use by the FDA more than two decades ago and has been used by more than 5 million American women. Government regulators say it’s safer than commonly used pills like Tylenol and Viagra.

More than half of all abortions in the U.S. are carried out by medication, not surgery, raising the stakes for the effort to ban mifepristone.

In a far-reaching ruling last week, a federal judge in Texas blocked the FDA’s approval of the pill following a lawsuit by the drug’s opponents.

There is virtually no precedent for a lone judge overturning the regulator’s medical decisions.

In the more recent appeals ruling, the 5th Circuit ruled that the FDA’s initial approval of mifepristone in 2000 could remain in effect.

But in the 2-1 vote, the panel of judges put on hold changes made by the regulator since 2016 that relaxed the rules for prescribing and dispensing mifepristone.

Those included extending the period of pregnancy when the drug can be used from seven weeks to 10, and also allowing it to be dispensed by mail, without any need to visit a doctor’s office.

The judge who opposed the ruling said she would have put the lower court ruling on hold entirely for now.