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Attorney General Dana Nessel Releases Video Outlining Litigation That Could Alter the Legality of Medication Abortions Nationwide
February 27, 2023
LANSING – Attorney General Dana Nessel released a video today explaining two federal district court lawsuits that have the potential to alter the legality of medication abortions nationwide.
“This attempt to effectively ban abortion nationwide is just as dire, if not more so, than what we saw last year when the Supreme Court overturned 50 years of precedent and overruled Roe v Wade,” said Nessel. “Medication abortion accounts for over half of all abortions occurring in the United States, and offers women a safe, accessible, noninvasive alternative. I will continue to use the power of the Michigan Department of Attorney General to protect the health, safety, and wellbeing of our state’s residents in any way I can.”
Alliance for Hippocratic Medicine, et al., v. U.S. Food and Drug
An anti-choice organization in Texas called the Alliance for Hippocratic Medicine filed a lawsuit against the Food and Drug Administration (FDA) before the Northern District Court in Texas in November, asking the FDA to revoke their approval of mifepristone and misoprostol – two medications which are often prescribed together to induce an abortion or treat an early miscarriage. Medication abortion accounts for over half of all abortions occurring in the United States. If the anti-choice organization is successful, this lawsuit would force women either to undergo dangerous, invasive, delayed surgical alternatives or go without treatment altogether. AG Nessel signed onto an amicus brief in this case led by the New York Department of Attorney General, opposing this affront to states’ newfound authority in the wake of Dobbs, which delegated the legality of abortion to each individual state.
The anti-choice organization has also filed a motion for a preliminary injunction, requesting the immediate removal of mifepristone from the market. Even if this motion succeeds, medication abortions will still be available to eligible patients. Misoprostol can be used on its own in abortion or early miscarriage treatment, although it is not considered as effective as when combined with mifepristone. The Texas judge has yet to rule on this motion for preliminary injunction.
State of Washington, et al. v. U.S. Food and Drug Administration, et al.
Additionally, Michigan joined a coalition of 12 states, led by the Washington Department of Attorney General, who filed a separate lawsuit against the FDA before the Eastern District Court in Washington last week. In this case, the plaintiffs are asking the FDA to preserve nationwide access to mifepristone, as well as to remove the burdensome Risk Evaluation and Mitigation Strategy (REMS) which inhibits access to the medication without due scientific justification.
REMS are only applied to 60 of the over 20,000 FDA-approved medications and are typically reserved for substances that carry a risk of misuse or adverse outcomes. Mifepristone is proven to be safer than blood thinners, erectile dysfunction medicine, penicillin, Tylenol, and aspirin – none of which are subject to these restrictions. Over its 23 years of use in more than 5.6 million instances, mifepristone has only rarely been known to cause serious medical complications. Mifepristone’s REMS restrictions requiring physician, pharmacy, and patient sign-off on every step of prescription, dispensation, and treatment are not based in legitimate scientific concern. Regardless, the FDA has maintained the REMS restrictions on mifepristone despite opposition from leading medical organizations, including the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, and the American Medical Association. The coalition in this suit argues on behalf of the 59 million residents they represent that these REMS restrictions should be lifted to allow underserved reproductive healthcare patients easier access to the medication they need.
The Impact on Michigan Providers and Patients
Any alterations to the FDA approval of mifepristone and misoprostol or REMS classification of mifepristone will apply nationwide, including in states with abortion protections in place, such as Michigan. If medication abortions are criminalized, women across the country will be forced to undergo dangerous, invasive, delayed surgical alternatives or forgo treatment altogether.
In Michigan, the northernmost facility providing surgical abortion treatment is in Flint. Residents in Northern Michigan, including the entirety of the Upper Peninsula, would have to travel to receive medical care, which is oftentimes very urgent. In neighboring states without abortion protections, women would be forced to travel to places like Michigan to seek out care, likely overcrowding our state’s clinics more than they already are and increasing wait times for everyone.
AG Nessel vows that her office will not use its resources to go after patients and providers for the dispensation of safe and legal abortion medication. However, the revocation of FDA approval for these medications may mean they would not be available at all. With two federal district courts offering their judgment on separate components of this battle, it will likely make its way to the United States Supreme Court. Until then, the Michigan Department of Attorney General will continue to work on behalf of the residents of this state to safeguard the best interests of their health, safety, and well-being.