Updated at 7:42 p.m.
The question of long-term accessibility to a widely used abortion medication in Vermont is in limbo as dueling federal courts continued to issue contradictory opinions into Thursday evening.
Late Wednesday, the 5th Circuit Court of Appeals in New Orleans issued a decision that would drastically restrict access to the procedure in Vermont, though not as severely as an earlier ruling made by a federal judge in Texas.
Less than 24 hours later, a federal district judge in Washington state issued a contradictory ruling, barring the Food and Drug Administration from imposing any new restrictions on mifepristone, one of two medications used in tandem to induce abortions, in 17 states, including Vermont, and the District of Columbia.
Reached Thursday evening in the wake of the Washington ruling, Vermont Attorney General Charity Clark confirmed that access to mifepristone in Vermont remains status quo with U.S. District Judge Thomas Rice’s latest order in place. But there are more legal battles to be had over the case, which will almost certainly make its way to the U.S. Supreme Court.
Clark, who was one of the 18 plaintiffs to sign onto the lawsuit in Washington, said she was “very pleased” by Rice’s ruling Thursday evening. The Washington lawsuit was brought by state attorneys general who were urging the FDA to protect access to mifepristone in light of unprecedented legal challenges to the drug’s accessibility.
The legal roller coaster has left stakeholders and legal experts in disarray over the past week as they struggle to understand what the various conflicting decisions mean for health care providers and patients on the ground.
“In a way, this is just a continuation of the Dobbs decision itself, which was unprecedented,” Clark told VTDigger, referring to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the federal right to an abortion in June.
“Especially here in Vermont,” she said, “where Vermonters feel so strongly — I think every town voted to enshrine their right to an abortion in our constitution — we really feel it because it seems shocking that other places in our country, and especially at our Supreme Court, could feel so differently about that.”
The legal chaos began to unfold last Friday, when Judge Matthew Kacsmaryk — a Trump-appointee based in Amarillo, Texas — issued a legally unprecedented decision to revoke the FDA’s approval of mifepristone — a move that threatened to take the pill entirely off the market, more than two decades after its initial approval.
Kacsmaryk’s decision was quickly appealed. On Wednesday, just before midnight, the 5th Circuit Court of Appeals stopped some of the most extreme aspects of last week’s decision from taking effect as the court process continues.
However, the three-judge, conservative-leaning panel voted 2-1 to impose new restrictions that would prohibit the remote prescription of mifepristone by telehealth appointment, the delivery of the drug by mail, and the ability for non-physicians (such as nurse practitioners or physician assistants) to prescribe and administer the drug.
“None of these rulings are going to increase access,” Lauren MacAfee, an OB-GYN with the University of Vermont Medical Center, told VTDigger earlier on Thursday, referring to Kacsmaryk and the 5th Circuit’s latest decisions. “They are all going to decrease access to medication abortion care in some way or another, either because people see the news and think it’s not available, or the limitations mean that they don’t have the same number of providers, or the providers aren’t able to access them through telemedicine or on-site in a nearby clinic.
“It’s going to cause a lot of chaos and uncertainty across the board,” MacAfee said.
A typical medication abortion regimen consists of two steps: first, mifepristone, then a second pill, misoprostol. A pregnancy can be terminated with just misoprostol, but it is slightly less effective and can cause more uncomfortable side effects.
Abortion, carried out by medicine or surgery, remains legal in Vermont. Rice’s decision means patients’ access to mifepristone in the state will not be imminently revoked, as was possible earlier this week.
But the 5th Circuit’s most recent ruling still looms, as the case continues through the federal courts. According to the Vermont Department of Health, medication is by far the most common method to carry out an abortion, accounting for more than 75% of abortions conducted in the state in 2020. If restrictions like those proposed by the 5th Circuit were to take effect in Vermont, abortion, as a whole, would still remain legal, but the state’s most commonly used method would be tightly restricted.
The 5th Circuit also ruled on Wednesday to reinstate previously held reporting requirements for “non-fatal adverse events” associated with the drug’s use, and it rolled back FDA approval of the drug to end pregnancies up to 10 weeks gestation. Should the court’s decision remain in effect, mifepristone will be FDA-approved to end pregnancies aged up to seven weeks gestation.
MacAfee said Thursday that of the 5th Circuit’s newly proposed restrictions, she is less concerned about about the tightened gestational limit, because “we use medications off-label all the time — and I would say, in obstetrics, probably even more so.”
Medical providers often prescribe mifepristone up to the 11-week mark, she said, though it’s only approved for 10 weeks. Before Rice’s Thursday evening decision changed the playing field once again, MacAfee told VTDigger she planned to continue prescribing mifepristone up to 11 weeks, regardless of a seven-week rule.
What worries MacAfee, though, is the appeal court’s proposal to bar non-physicians from prescribing or administering mifepristone. As it is, Vermont is facing a critical lack of medical providers. Barring nurse practitioners, physician assistants and nurse midwives from offering mifepristone would make the state’s pool of abortion providers even shallower.
“In reality, the majority of providers of abortion care in our states are non-physicians,” she said. “That would have a humongous impact on our ability to provide medication abortion across the state.”
In a rural state like Vermont, mail-order delivery and telehealth have been game-changers for abortion accessibility. The right to an abortion is now enshrined in Vermont’s state constitution following a yearslong process that culminated in voter approval in November. But for many residents, cost, travel, time off work, child care and threats of domestic violence pose barriers to accessing abortion care. Medication abortion provided through telehealth and mail order delivery have helped fill those gaps.
Planned Parenthood of Northern New England has come to rely on such remote options. According to Lucy Leriche, the organization’s vice president of Vermont public affairs, the expansion of telehealth in recent years factored into Planned Parenthood’s decisions to close numerous clinics throughout Vermont. Now, there are fewer locations to get in-person services.
“Part of our analysis and part of our decision-making process took into account the growth in telehealth and the fact that we could provide more services through telehealth. That was our assumption,” Leriche said.
Planned Parenthood has a backup plan, though. Even if it is barred from prescribing mifepristone via telehealth in the future, it can still use this method to prescribe misoprostol, the second pill in the usual two-step process.
“The grand irony here is this claim by (the Texas judge) and the plaintiffs that their concern is patient safety,” Leriche said. “Yet, they are essentially relegating patients to something that is the second tier in terms of ideal.”
Alison Bates, a nurse practitioner for Planned Parenthood of Northern New England, said at a press conference Monday that patients who take the one-step, misoprostol-only regimen can experience extended bleeding, cramping, nausea and vomiting.
MacAfee said that as a provider, she’s disappointed to see federal judges “using their ideological beliefs and backgrounds to guide their rulings” — as opposed to the medical data she studied for 10 years to become an OB-GYN. She said she was struck by the language utilized in last week’s Texas ruling and last night’s 5th Circuit ruling, as much of the judges’ terminology mirrored that used by anti-abortion activists, such as “unborn human” and “the remains of their aborted children.”
Another term stood out to MacAfee: “abortionist.” The judges were referring to abortion providers, such as herself.
“While yes, abortion care is absolutely a very important piece of the work that I do, it is not the only work that I do,” she said. “In fact, I’m covering labor and delivery tonight, so I will be caring for women coming in to have happy, healthy deliveries and babies. … I will be in the operating room next week doing surgery to manage gynecologic conditions because I’m also a gynecologic surgeon.
“I do all of these other things, and abortion care is critical as another piece of that, but it’s not all of who I am.”
