A federal court blocked a North Dakota law on Tuesday requiring doctors to inform patients seeking abortion care that it is scientifically possible to undo a medication abortion. (It is not.)
In American Medical Association (AMA) v. Stenehjem, the AMA and Red River Women’s Clinic—the last remaining abortion clinic in North Dakota—challenged what they call the “Compelled Reversal Mandate” in HB 1336. They argue that the provision amounts to unethical experimentation on patients and violates the First Amendment, which “protects physicians against laws that compel them to speak against their will.”
“H.B. 1336 disrupts medical practice by encouraging patients to participate in unmonitored and experimental research,” the plaintiffs argued, according to court documents.
U.S. District Court Judge Daniel L. Hovland agreed and issued a preliminary injunction blocking the Compelled Reversal Mandate. Specifically, he ruled:
The Court finds that the mandate of HB 1336 violates the First Amendment rights of physicians. Rather than focus on relevant medical information designed to assist a woman in making a free choice, HB 1336 expresses ideological beliefs essentially designed to make it more difficult for women to choose an abortion.
The Compelled Reversal Mandate requires that a pregnant patient be informed—as part of the state’s “informed consent” requirements—that if the patient changes their mind about wanting an abortion, “it may be possible to reverse the effects of an abortion-inducing drug.” The law also requires the state’s health department to publish materials detailing the possibility of abortion reversal and directing patients to where they can obtain additional information and help in locating a medical professional who “can aid in the reversal of abortion-inducing drugs.”
But that’s not how the medications used to end a pregnancy work.
A patient undergoing a medication abortion takes an initial dose of mifepristone, and then 24 to 48 hours later takes a dose of misoprostol to end the pregnancy at home. Medication abortion is an extremely safe alternative to in-clinic abortion, and is often more desirable for pregnant patients who prefer to complete the abortion in the privacy of their own home.
The notion that medication abortion can be reversed has been gathering steam over the last several years, even though there is not a shred of scientific evidence to suggest that abortion reversal is possible.
That did not stop the state of North Dakota from peppering the court with opinions from so-called medical experts, who claim that after a patient takes a dose of mifepristone, the abortion can be undone if the patient takes a heavy dose of progesterone instead of the misoprostol dose. These “medical experts” claim that progesterone could help counteract the effects of mifepristone.
Only a single report—published in 2012 by Dr. George Delgado and Dr. Mary Davenport, two California doctors who oppose abortion—supports the false notion that a medication abortion may be reversed by taking progesterone instead of misoprostol.
As Rewire.News reported in 2017, that paper relies on anecdotes from only seven women in total and attempts to extrapolate from that small sample that abortion reversal works. What’s worse is that Delgado and Davenport conducted the study without using a control group—one of the key requirements for any scientific study to be valid—and also conducted it without any ethics oversight review.
The state’s own experts acknowledged the lack of rigorous scientific studies to support the claim that abortion can be reversed. The best evidence that one of the state’s experts, Dr. Richard Vetter, could muster was based on his experience with a single patient. He concluded after observing the patient that the dose of progesterone “likely was at least partially responsible” for the patient carrying her pregnancy to term.
The court found this testimony insufficient and concluded that HB 1336 is likely unconstitutional “because it requires physicians to disclose information which is either untruthful, misleading, and/or irrelevant to the patient’s decision to have an abortion.”
Judge Hovland noted that “the statement that ‘it may be possible to reverse the effects of an abortion-inducing drug’ is misleading at best.” He pointed out that one of the state’s experts, Dr. Jerry Obritsch, admitted that the term “abortion reversal” is “somewhat misleading in that an abortion is not reversed but rather, abortion is prevented from occurring … by preventing the antiprogesterone effect of mifepristone from exerting its effect upon the pregnancy.”
This same expert agreed that the American College of Obstetricians and Gynecologists has expressly rejected Dr. Delgado’s studies as junk science.
In addition, Judge Hovland pointed out that HB 1336 requires physicians to inform every abortion patient that “it may be possible to reverse the effects of an abortion inducing drug” even if that patient is seeking a surgical abortion. The state of North Dakota did not dispute the fact that the alleged abortion reversal procedures are irrelevant to surgical abortion patients. Yet, the law nonsensically requires doctors to discuss abortion reversal with surgical abortion patients.
Judge Hovland’s ruling prioritizes credible medical evidence over junk science and anti-choice propaganda, something that is increasingly rare in the current anti-abortion climate. Judge Hovland quotes at length the written testimony submitted by the plaintiffs’ medical experts and reinforces the importance of doctors providing evidence-based, peer-reviewed medical care.
“State legislatures should not be mandating unproven medical treatments, or requiring physicians to provide patients with misleading and inaccurate information,” Hovland wrote. “The provisions of [this law] violate a physician’s right not to speak and go far beyond any informed consent laws addressed by the United States Supreme Court, the Eighth Circuit Court of Appeals, or other courts to date.”
In recent years, abortion reversal has become the next frontier in abortion restrictions. Eight states have passed so-called abortion reversal laws, with five of those states passing such laws in 2019.
It is not clear whether there is even a demand for abortion reversal. The very idea suggests that abortion isn’t something that pregnant people really want—that they are being duped into the service by unscrupulous abortion providers. Or that they will come to regret the decision, even though study after study has found an overwhelming majority of people who had abortions do not come to regret the decision.
North Dakota already requires abortion providers to complete an “informed consent” process with their patients as mandated by the state. Forcing doctors to provide unsubstantiated claims about abortion reversal to pregnant patients who have already made a decision to proceed with an abortion will inevitably weaken the trust between a patient and their doctor.
“It’s simple: patients need to be able to trust their providers,” said Tammi Kromenaker, director of Red River Women’s Clinic, according to a statement released by the Center for Reproductive Rights. “Forcing us to give our patients false medical information would violate our medical ethics and endanger the trust our patients place in us.”
The law will remain blocked while the case proceeds to trial.