Supreme Court’s Mifepristone Ruling Leaves Coverage Quandary

Employers, health plans, and medical providers still face uncertainty over compliance and coverage of abortion drugs even after the US Supreme Court’s recent dismissal of a lawsuit challenging mifepristone’s approval temporarily resolved questions around patient access.

The high court’s ruling is only the latest iteration of a decades-long fight over abortion access—a fight that is still ongoing. Wide-ranging state laws and the potential for another challenge to the drug’s approval continue to pose a confusing web of regulations for clinicians and companies, attorneys say.

“I think most health care providers and industry members will likely yield to the state law just given the potential penalties for noncompliance,” said Delia Deschaine, a partner with Squire Patton Boggs. “But I think from a legal perspective that’s still still a fairly open question.”

In particular, it’s difficult to decide which law to follow where state and federal laws conflict, she said.

The Supreme Court on June 13 shot down the challenge to mifepristone’s FDA approval and the Biden administration’s 2021 elimination of a requirement that patients must receive the pill in person. But the court’s unanimous decision only ruled on the legal standing of the anti-abortion doctors and medical groups that sued, not the merits of the case.

Alliance Defending Freedom Senior Counsel Erin Hawley, who represented the Alliance for Hippocratic Medicine and other plaintiffs, indicated in a statement that the group wasn’t abandoning the fight, noting that Idaho, Kansas, and Missouri were granted the ability to intervene in the litigation when it was at the US Court of Appeals for the Fifth Circuit even though they were denied by the Supreme Court.

And in Texas federal court, Trump appointee Judge Matthew Kacsmaryk, hasn’t yet ruled on whether the states have standing to bring a suit similar to the anti-abortion doctors. The three state plaintiffs argue they can sue as they are responsible for higher Medicaid costs when patients end up in the emergency room with complications from the drug.

Navigating State Law

The uncertain outlook leaves access questions in limbo, as employers, health plans, medical providers, and pharmacies decide whether to offer the drug in states that have tightened abortion restrictions.

“If you’re in a state where there’s a lot of politicizing around the border, or where there’s very restrictive laws, then yes, there’s of course hesitancy,” said Amanda Zablocki, a partner at Sheppard Mullin.

Conflicting laws and regulations are still entangling providers and employers in a “state versus state versus federal government” web that’s difficult to navigate, Deschaine said.

Companies have been in a state of “active monitoring” of tighter state abortion laws in the wake of the 2022 decision in Dobbs v. Jackson Women’s Health Organization, said Erin Sutton, an associate with Epstein Becker & Green P.C.

“The big push after Dobbs was just trying to figure out what does everything even mean? Which ones are likely to be enforced?” she said. “And two years later, now we have a better understanding of how states are viewing their laws, even though we haven’t seen much enforcement action. But we have gained a better understanding of which laws states seem to be considering their biggest weapon.”

State laws clamping down on abortion are increasingly creative, Sutton said, citing a recent Louisiana law that places mifepristone and the accompanying abortion drug misoprostol on the state’s controlled substance list. The move could aid the state in pursuing anyone dispensing the drug to individuals without a prescription.

In Texas, a “bounty hunter” law allows private citizens to seek penalties against individuals or groups who aid in abortions—including out-of-state abortions.

Texas state lawmakers have also signaled interest in pursuing employers who cover abortion care. The Texas Freedom Caucus in July 2022 wrote a warning letter to Sidley Austin LLP over its abortion coverage.

Adding to the patchwork is an Alabama Supreme Court ruling that says embryos created through in vitro fertilization are considered children, upending the IVF space across the state even after state lawmakers scrambled to pass an emergency bill to protect medical providers from wrongful death suits.

Future Fights

On the other side of the issue are at least seven states that now offer telehealth “shield” laws protecting clinicians offering abortion services to patients in states with bans. Most abortions are achieved through prescription drugs, and telehealth plays a role in nearly one-fifth of all abortions, according to the Society of Family Planning.

“I think there’s a lot of conflicting laws and regulations that providers are grappling with,” Zablocki said.

But employers themselves may not even have the final say on drug coverage for workers, and future court cases are likely.

Further complicating the drug’s availability is the special certification process that pharmacies must undergo to dispense mifepristone, according to attorneys.

“In some ways, it’s out of the hands of employers,” said Roberta Chevlowe, senior counsel at Proskauer Rose LLP.

Future challenges to mifepristone’s legality are not far off, even if Kacsmaryk rules against the states in the Texas case. Anti-abortion groups are likely searching for a plaintiff with stronger standing, said Jill Steinberg, a partner with ArentFox Schiff LLP.

“I have to imagine that that’s going on as we speak,” she said.