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Attorney General Clark Argues for Continued Medication Abortion Access in Supreme Court Brief

April 14, 2023

Attorney General Charity Clark today joined a multistate coalition challenging 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 restrict access to medication abortion nationwide.

The amicus brief, filed in the U.S. Supreme Court, urges the court to stay, pending appeal, the Fifth Circuit Court of Appeal’s ruling, which, if allowed to take effect, would halt the FDA’s approval 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.

Today’s filing is the latest action Attorney General Clark has taken to protect access to medication abortions nationwide. Vermont and 17 other states sued the FDA in February to expand access to the medication abortion drug mifepristone—and achieved a victory on April 7, when the judge in that case ordered the FDA to preserve the status quo with respect to availability of mifepristone. Last night, the judge in that case issued an order reiterating that, notwithstanding the orders from the Texas court and the Fifth Circuit, the FDA must preserve the status quo with respect to mifepristone in the states involved in that lawsuit, including Vermont. Therefore, access to mifepristone remains protected in Vermont.

Moreover, this afternoon, Supreme Court Justice Samuel Alito issued a temporary administrative stay until midnight on Wednesday, allowing mifepristone to remain available nationwide while the Supreme Court decides whether to grant a stay for the remainder of the appeal.

“The U.S. Supreme Court needs to hear how its decision could affect Vermont, a state where abortion is a right that is protected by statute and the state Constitution,” said Attorney General Clark. “Mifepristone is a safe and effective drug that has been used for more than two decades. I will do everything in my power as Attorney General to make sure that our right to an abortion is preserved and our bodily autonomy is respected.”

The Texas district court order 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 Clark 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 Fifth Circuit 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, limiting 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.

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