Attorney General James Leads Multistate Coalition to Urge U.S. Supreme Court to Maintain Medication Abortion Access

NEW YORK – New York Attorney General Letitia James today led a multistate coalition to challenge the decision issued by the U.S. Court of Appeals for the Fifth Circuit that would leave in place restrictions on access to mifepristone imposed by a Texas trial court, and as a result restrict access to medication abortion nationwide. The amicus brief, filed in the United States Supreme Court, urges the court to stay pending appeal the Court of Appeal’s ruling, which if allowed to take effect would halt the approval from the U.S. Food and Drug Administration (FDA) of a generic version for the medication abortion drug, mifepristone. The ruling would also ban access to mifepristone by mail, and would block the ability of non-doctors to prescribe and dispense the medication. Attorney General James and the coalition of 24 attorneys general warn that the Fifth Circuit’s order will drastically reduce access to safe abortion care and miscarriage management for millions of people across the country. 

“The constant assault on abortion access is putting the health care and rights of millions of Americans at risk,” said Attorney General James. “We cannot allow these attacks, or efforts to make it harder to access mifepristone, to be ignored or normalized. I will continue to use the full force of my office to protect the rights of all New Yorkers, and all Americans.”

This decision from the U.S. Court of Appeals for the Fifth Circuit comes in response to motions filed by the FDA and Danco Laboratories LLC to stay the April 7, 2023 decision by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, which stayed the effective date of the FDA’s original approval of mifepristone in 2000. The Fifth Circuit Court of Appeals reinstated the 2000 approval, but left in place the district court’s stay on other FDA regulatory actions regarding mifepristone, including the 2016 elimination of certain dispensing requirements, the 2019 approval of the generic drug, and the 2021 elimination of the in-person dispensing requirement. Attorney General James and the coalition are urging the U.S. Supreme Court to stay this decision pending the appeal, given the critical role medication abortion plays in reproductive health care, and the need for ease-of-access, particularly in low-income, underserved, and rural communities. 

The coalition notes that if the appellate court decision takes effect, it could drastically curtail abortion access for millions of Americans. According to current estimates, medication abortion accounts for over half, approximately 54 percent, of all abortions performed in the United States. Reducing medication options by forcing the FDA to stay approval of generic mifepristone, restricting which clinicians are permitted to provide prescriptions for this safe medication, and reinstating the in-person dispensing requirement will make it more challenging for millions of Americans to access safe medication abortions. This decision could result in substantially increased demand for procedural abortions, resulting in later and more risky procedures, and more complicated and costly logistics for many patients, especially where procedural abortion is unavailable.

Attorney General James has been a national leader in protecting access to reproductive health care, including medication abortion. In February, Attorney General James led a coalition of attorneys general to submit an amicus brief in the U.S. District Court case challenging the FDA approval of mifepristone, and earlier this week, she again led a coalition in submitting an amicus brief to support efforts to stay the initial decision and maintain FDA-approval of mifepristone. In March, Attorney General James, together with Governor Hochul, sent a letter to the CEOs of Walgreens (owner of Duane Reade), Rite Aid, and CVS to demand answers about the companies’ plans to make the abortion medication mifepristone available in New York state. In February, Attorney General James led a multistate coalition to defend and protect access to medication abortion in the initial court challenge that sought to revoke FDA’s approval of mifepristone. Following the Supreme Court’s decision to end Roe v. Wade, Attorney General James launched a pro bono legal hotline to provide legal support to patients and health care providers nationwide. Attorney General James has helped lead a coalition of attorneys general to defend abortion access in Idaho, Texas, Arizona, Indiana, and Mississippi.

Joining Attorney General James in filing today’s amicus brief are the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia. 

This matter is being handled by Deputy Solicitor General Ester Murdukhayeva and Solicitor General Barbara D. Underwood — all of the Division of Appeals and Opinions, and Special Counsel for Reproductive Justice Galen Leigh Sherwin of the Executive Division, which is overseen by First Deputy Attorney General Jennifer Levy.