US Supreme Court to hear abortion medication case. How will that affect KS and MO?

WASHINGTON – In recent years, Kansas has become a major access point for abortion in the Great Plains.

Clinics in the state are seeing an increasing number of patients and the majority of them are getting abortions via medication. But that method could be at risk of tighter restrictions.

On Tuesday, the U.S. Supreme Court will hear arguments in a case challenging the Food and Drug Administration’s approval of the drug – specifically whether doctors should be allowed to prescribe the drug without seeing the patient in person and whether it can be sent over the mail.

The case comes less than two years after the Supreme Court overturned Roe v. Wade, which allowed states like Missouri to ban the procedure. It could have sweeping implications for how doctors offer medication abortion and the FDA’s larger authority to approve and regulate prescription drugs.

Emily Wales, the CEO of Planned Parenthood of the Great Plains, said their clinics are already preparing for a scenario where the court restricts access to mifepristone this summer.

“This is a great example of something that’s happening in a different state that’s gone all the way to the highest court in the country and could affect us here in a state where there was an overwhelming support for abortion rights in a public vote,” Wales said.

The case also holds larger political implications, as some anti-abortion activists continue to push for a federal ban on the procedure and abortion rights activists push for a federal law guaranteeing a federal right to abortion.

Republican Sens. Roger Marshall, of Kansas, and Josh Hawley, of Missouri, signed on to an amicus brief urging the court to rule that the FDA overstepped its authority. It was also signed by Missouri Reps. Sam Graves, Blaine Luetkemeyer, Mark Alford and Eric Burlison, and Kansas Reps. Jake LaTurner, Tracey Mann and Ron Estes.

Democrat Reps. Emanuel Cleaver, of Missouri, Cori Bush, of Missouri, and Sharice Davids, of Kansas, signed onto a separate amicus brief urging the court not to override the FDA.

“I am very concerned about a potential decision that could limit Kansans’ reproductive freedoms,” Davids said in a statement. “In 2022 and now, folks in our state are very clear: we don’t want politicians or extremist actors making these critical medical decisions for us.”

At the heart of the case is another Missourian – Erin Morrow Hawley. Hawley is an attorney with the Alliance Defending Freedom, a conservative legal group that’s representing the doctors and medical groups challenging the FDA’s approval of the drug.

Her husband, Josh Hawley, said the case is really a response to the Biden administration’s attempts to circumvent states that have banned the procedure.

“I just think the bottom line here is this really ought to be voted on in the states,” Hawley said. “And what the Biden administration has done here is they’ve deliberately tried to make it impossible for voters and states who want to limit abortions.”

Abortion is currently banned in Missouri, even in cases of rape and incest. And in Kansas, neither Planned Parenthood of the Great Plains nor Trust Women, a clinic in Wichita, offer abortion medication without in-person visits.

But the suit is intended to crack down on the ability of medical providers to provide abortion pills using telehealth and medication by mail – including some clinics that attempt to provide abortion care to people who live in states where the procedure is banned.

While Trust Women, in Wichita, does not currently prescribe the abortion drugs via telemedicine, it attracts patients from states where the procedure is banned. Zack Gingrich-Gaylord, the communications director for Trust Women, said 80% of the people who seek care from their clinic are from out-of-state, including around 55% from Texas.

The current method for medication abortion, which has been in place for about 20 years, typically includes two pills – mifepristone followed by misoprostol. If the courts were to restrict access to mifepristone, abortion providers say they would be able to adjust using just misoprostol.

“Yes, we can do medication abortions differently, but why would we be doing it?” Gingrich-Gaylord said. “It’s because of these political reasons. It’s not about the most effective way to perform this health care. It’s not what’s best for the patient. It’s not about medical expertise.”

The doctors challenging the case argue that two decisions by the FDA – one in 2016 decision that expanded when mifepristone can be used and a 2021 decision that allowed the drug to be prescribed through telemedicine – failed to follow the proper procedure.

They argue that the FDA decision to approve the drug later into a pregnancy and to remove the requirement for in-person visits increased the harm to patients. They say the procedure didn’t properly follow the law and that now some doctors have to take care of patients who go to the hospital because of complications from the drug.

Marshall, who was an OB/GYN before he was elected to the Senate, said he believes the FDA overstepped its authority and increased the risk of adverse effects on women who take the drug.

“I think that this is a patient safety issue,” Marshall said. “And the FDA should not let this be given out without an examination by the doctor.”

But a group of reproductive healthcare researchers and former heads of the FDA each filed separate briefs for the court saying scientists have proven the drug is safe to use and that the FDA followed the correct procedure.

The seven former heads of the FDA said the ruling by the Fifth Circuit Court of Appeals that temporarily restricted access to mifepristone fundamentally misunderstood the science involved in the decision and jeopardized the drug approval process in the future.

“The Fifth Circuit’s decision, if allowed to stand, would harm patients that rely on FDA-approved drugs to treat serious diseases by allowing courts to second-guess FDA’s evaluation of scientific evidence supporting the approval of new drug applications or modifications of those approvals,” they wrote.

Wales said many of the Planned Parenthood patients opt for medication abortion because it gives them a sense of more control over the process, rather than having to go into the clinic for the surgical procedure.

She said Planned Parenthood is used to politics determining how they are allowed to operate and they’re used to adjusting. But she expressed concern for the broader implications of the case and whether it could affect the FDA approval of other, non-abortion related medicine.

“When you have non-medical professionals making judgments about how care is offered, it is hugely disruptive to care and it absolutely hurts patients,” Wales said.