PHOENIX–In light of last night’s order by the Court of Appeals for the Fifth Circuit and the events of the past week, the Arizona Attorney General’s Office (AAGO) is providing a summary of the legal status of mifepristone in Arizona – as it stands this afternoon – and offering guidance to abortion-care providers and patients seeking reproductive care in this state.
“This is a fast-moving situation, and we are likely to see further court orders in the coming days and weeks. My office is actively monitoring these cases and is in an ongoing dialogue with members of the reproductive rights community on these issues. We will release updates as circumstances may require,” said Attorney General Mayes. “Rest-assured, we will use every tool at our disposal to fight back against rulings from extremist judges seeking to interfere with the rights of individuals to make their own personal medical decisions.”
Status of Court Cases (as of April 13, 2023)
- On Friday, April 7, 2023, a federal court in Texas issued a preliminary injunction in Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, 2:22-cv-223-Z (N.D. Tex.), which, in effect, temporarily undid the FDA’s approval of mifepristone. Arizona is not a party in this case.
- That same Friday, shortly after the Texas order was released, a federal court in Washington issued an order in Washington, et al. v. U.S. Food & Drug Administration, 1:23-cv-3026-TOR (E.D. Wash.). The Washington order preliminary prohibited the FDA from doing anything to change the status quo regarding the “availability of Mifepristone” in the eighteen jurisdictions that are plaintiffs in the case, which includes Arizona.
- Yesterday evening, on April 12, 2023, the U.S. Court of Appeals for the Fifth Circuit released a decision that changes the scope of the Texas court’s injunction against the FDA, which will take effect in certain states at midnight on Friday, April 14. In essence, the Fifth Circuit’s decision temporarily reinstates the FDA’s 2000 approval of mifepristone, but not the more relaxed restrictions the FDA implemented since then. The FDA will go to the United States Supreme Court now to try to pause the rest of the Texas court’s order while the litigation in Texas continues.
- This afternoon, the federal court in Washington state granted the FDA’s request for additional clarification on the earlier order. The court reiterated, in no uncertain terms, that “irrespective of the Northern District of Texas Court ruling or the Fifth Circuit’s anticipated ruling, Defendants … are preliminarily enjoined from: altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 Risk Evaluation and Mitigation Strategy under 21 U.S.C. § 355-1 in Plaintiff States and the District of Columbia.”
- So far, the FDA has not asked the appellate courts to pause the Washington order.
Guidance to Arizona Providers and Patients (as of April 13, 2023)
Providers and patients should know that the Washington order governs in Arizona. Here’s what that means:
- First, consistent with the standard of care and other applicable laws, providers can continue to prescribe mifepristone for abortion and miscarriage care, just as they did before these court orders were issued.
- Second, consistent with the standard of care and other applicable laws, providers can continue to prescribe misoprostol to patients for abortion and miscarriage care, just as they did before these court orders were issued. These court rulings do not apply to misoprostol, which has long been prescribed off-label—safely and effectively—for several gynecological purposes.
- Third, under Arizona law, patients in other states who need reproductive care can still travel to Arizona to receive care here.
As the federal court in Washington again made abundantly clear this afternoon—regardless of what follows in the Texas litigation—as it stands now, the Washington order applies to the eighteen plaintiff jurisdictions in that case, including Arizona, and preserves entirely “the status quo and rights” regarding “the availability of Mifepristone” under the current FDA regulatory standards.