If the Supreme Court gets involved, it could set national precedent for states to ban medications approved by the FDA.
A federal appeals court just made it a lot harder for West Virginians to access abortion and in the process may have given abortion opponents a new path to banning abortion through the courts. And the Food and Drug Administration (FDA) and federal agencies may have taken a serious blow.
The Fourth Circuit Court of Appeals, in a divided decision among a three-judge panel, upheld West Virginia’s draconian law that bans FDA-approved medication abortion. This marks the first time a federal court has allowed a ban on medication abortion to remain in effect, outright sanctioning a ban on the most common form of abortion care in the U.S. Not only that, but it undermines the FDA’s authority and ability to regulate medication nationwide.
Medication abortion — a regimen of mifepristone and misoprostol — accounted for 63 percent of all abortions in the U.S. as of 2023. Mifepristone has been approved by the FDA for a quarter of a century, and it’s extremely safe, with fewer complications than Viagra and penicillin. It’s become even more popular as a means of pregnancy termination since the Dobbs decision in 2022. In 2020, medication abortion accounted for just over half — 53 percent — of abortions. Now that some states, like New York, have instituted shield laws to protect abortion providers from out-of-state litigation, telehealth providers in protected states have been able to prescribe medication abortion to patients in banned states. As abortion bans have spread, shield laws have become a critical tool to protect abortion providers, funders, and support volunteers in protected states from being criminalized in states with bans.
