AILSA CHANG, HOST:
The Supreme Court has extended its order allowing access to the abortion drug mifepristone. Earlier this month, a federal appeals court ruled back telemedicine access to mifepristone nationwide, and a few days after that, the Supreme Court put that ruling on hold. Well, now the high court has extended access to mifepristone at least until Thursday, and to help us understand what all of this means is Mary Ziegler, a law professor at UC Davis and a historian of the debate over abortion in the U.S. Welcome back to ALL THINGS CONSIDERED.
MARY ZIEGLER: Thanks for having me.
CHANG: So the way I understand it, Mary, this is, like, a brief reprieve - right? - for telehealth access to mifepristone. Like, from a legal standpoint, what does this new extension this week tell you about where this could all be going?
ZIEGLER: Well, we don't know. I think the one thing that's clear is that the court is disagreeing about something. And we don't know if that means that it's more likely we're going to get something meaty when this latest pause expires on Thursday, but it does suggest there's some disagreement. And whether that results in the court allowing the Court of Appeals order to go into effect, so mifepristone access goes away...
CHANG: Right.
ZIEGLER: ...Or the court is just disagreeing about something else, we won't know, but this does suggest that there's something the court is still struggling to resolve.
CHANG: OK. And just to explain to listeners who may not have been following this legal fight, what exactly is at stake here?
ZIEGLER: So mifepristone is a drug used in more than two-thirds of all abortions nationwide, and well over a quarter of those abortions take place via telehealth. That's consequential, particularly in states where abortion is illegal, because there's been a network of what are called shield laws that have sprung up to mail pills from states where abortion is legal into states where it is not.
CHANG: Right.
ZIEGLER: That would go away or at least have to change fundamentally if telehealth is no longer an option. But telehealth, of course, has also transformed access for people in states where abortion is legal who no longer have to visit a clinic. So we'd have to see new medical protocols introduced.
CHANG: Right. Well then, just to be clear, even if you are someone who lives in a state, say like California where I am, that has less restrictive abortion laws, if the Supreme Court upholds this appeals court ruling later this week, that could limit even options for reproductive care here in California, correct?
ZIEGLER: Absolutely. So there are a nontrivial number of counties in those states that don't have an abortion clinic, and people would be obliged to go to a clinic if this ruling does stand.
CHANG: Exactly. OK, what about if you are a doctor or a medical worker in reproductive care? What might your potential liability look like if the appeals court ruling is upheld?
ZIEGLER: So if that ruling is upheld, these shield doctors who are mailing pills into states where abortion is a crime, assuming that their state laws will protect them, will likely lose that protection, at least as far as mifepristone is concerned, and potentially even more, depending on how broad the court's ruling is. So they'd either need to pivot to a new medical protocol or risk losing the potential protections they've enjoyed in the past.
CHANG: Right. And I noticed that the Trump administration did not file a brief on this. What do you make of that? Does that seem surprising at this level?
ZIEGLER: In a sense, yes, in a sense, no - the Trump administration quite clearly hasn't known how to deal with this issue from the beginning and has been trying to essentially kick the can down the road, at least until after the midterm, to avoid either angering base voters or swing voters who don't see eye to eye on what the administration's abortion policy should be. So I think the administration not doing anything is in some ways consistent with what we've seen so far, just because this is a tricky issue politically.
CHANG: OK. And then to make this very clear-cut, if this ends up rolling back telemedicine access to mifepristone, would this be the first restriction on abortion with nationwide reach since the Supreme Court overturned Roe v. Wade?
ZIEGLER: It absolutely would. So we're talking about one of the most consequential developments on the reproductive health front since 2022.
CHANG: That is Mary Ziegler, who teaches law at UC Davis. Thank you very much, Mary.
ZIEGLER: Thanks for having me. Transcript provided by NPR, Copyright NPR.
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