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May 2, 2023 Update


Mifepristone litigation:

On April 21, The Supreme Court issued a stay (or pause) on a Texas judge’s decision to revoke FDA approval of mifepristone, effectively removing it from the market. Since the passage of the Pure Food and Drug Act of 1906, the FDA has made decisions on the safety and efficacy of the product.

Immediately following the Texas ruling, in an unprecedented situation, a federal court in Washington state issued a conflicting decision, ordering the FDA to keep mifepristone available under the FDA’s existing regulations. Oral arguments in this case before the 5th Circuit Court of Appeals will be on May 17. ASRM and other leading medical organizations have joined amicus briefs urging continued access to abortion pills and continue to monitor this and related litigation actively.

Recent state actions (note: some discussed below go beyond abortion-specific measures):

  • Colorado: On April 28, a federal Judge declined a Catholic medical center’s request to ban a so-called “medication abortion reversal” drug treatment protocol that medical experts characterize as unfounded and ineffective. The judge, who did not weigh in on the merits of the case, essentially deemed to request moot because the state does not plan to enforce the underlying ban, meaning the plaintiff medical center cannot claim it will incur related harms.
  • South Carolina: The state Senate, on April 28, rejected a six-week (with exceptions for rape or incest, fetal anomalies as confirmed by two physicians, or to save the patient’s life/health) abortion ban after a bipartisan, multi-day filibuster by five female lawmakers. The vote marked the third time in the past year that the Senate failed to pass such a measure.
  • Nebraska: In Nebraska, where abortion is banned at 20 weeks of pregnancy, a near-total abortion ban failed to gain legislative approval, falling just one vote short of breaking a filibuster. Despite the Republican governor’s support of the measure, which banned abortion around the sixth week of pregnancy, the measure is unlikely to advance this session.
  • Vermont: On April 27, the Vermont House and Senate each passed legislation protecting access to abortion and gender-affirming care. This would include, at least pending the outcome of the related case before the US Court of Appeals for the 5th Circuit, access to medication abortion “regardless of the medication’s current FDA approval status.”
  • Minnesota: On April 27, the Governor signed into law protections for those who seek abortion and gender-affirming care.
  • Washington: On April 27, the Governor signed into law protections for those who seek abortion and gender-affirming care and ordered a three-year supply of mifepristone.
  • Tennessee: On April 28, the Governor signed a law establishing a new right for physicians to exercise “reasonable medical judgment” when determining an abortion is necessary to prevent a pregnant patient’s death or irreversible, severe impairment of a major bodily function. The new statute also clarifies that physicians may provide abortion services for ectopic pregnancies and miscarriages.
  • Kansas: In the last week of April, lawmakers in Kansas overrode two vetoes by the state’s Democratic Governor to enact provisions that mean healthcare providers could face criminal charges over accusations of their care of newborns delivered during enumerated abortion procedures. Under the new law, the state must provide $2 million to centers run by abortion opponents, and clinics are required to notify patients that medication abortions can be stopped using a drug regimen (one that has been deemed to be dangerous by medical experts).
  • Montana: The Montana health department is now requiring documentation that an abortion is “medically necessary” before the state’s Medicaid health insurance program will cover related expenses.
  • Florida: On April 13, the Florida legislature approved a near total abortion ban (prohibiting abortions after six weeks of pregnancy). Two days later, the Governor signed the measure, but it will take effect only if the state’s current fifteen-week ban is upheld in an ongoing challenge currently before the state Supreme Court. The Florida ban includes limited exceptions for instances involving rape and incest. Critics note that the requirement an alleged victim present “evidence” of their assault, such as a restraining order, is tone deaf and apt to serve as a barrier to care.
  • Arkansas: A “personhood” measure that defines life as beginning at fertilization and could have had negative implications for practice of ART, including IVF, failed.
  • Utah: On April 28, a judge signaled that he’d weigh in, the first week of May, on the status of an abortion ban currently on hold pending court action. As a workaround, state lawmakers are instead attempting to ban abortion clinics in the state - refusing to license new ones and taking steps to shut down the few that exist.

State Legislation and Reproductive Medicine

The ASRM Center for Policy and Leadership (CPL) has released reports concerning States' Abortion Laws and their Potential Implications for Reproductive Medicine. Current as of the date of publication, the reports provide an overview of states’ abortion laws, together with analysis of potential implications for reproductive medicine, including IVF.
APP healthcare professional writing on documents

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