Another Likely Supreme Court Showdown
Any day now, a federal District Court judge in Texas could wipe out the use of abortion-inducing medications, the result of yet another legal assault by anti-abortion forces.
Final arguments in a lawsuit brought by a small coalition of anti-abortion lawyers and doctors were due on Friday in a case that questions whether the Federal Drug Administration did enough testing before authorizing the use of mifepristone, one of two drugs used in a medication abortion, in the year 2000.
In practical terms, most abortions in the United States are by medication. The outcome of this case could force the FDA to have to withdraw use of the medication approvals even from states that now have moved to enshrine abortion rights after last year’s Supreme Court decision overthrowing Roe v. Wade.
Since then, of course, millions have used the drugs safely.
From all accounts of the lawsuit, the case is unique for attacking the medical procedures involved in testing — and in the filing of the suit in Amarillo, where U.S. District Court Judge Matthew Kacsmaryk, nominated by Donald Trump and confirmed by Republican senators, is known for his conservative views on same-sex marriage and abortion. Indeed, any appeal of an opinion would then proceed to the conservative Fifth Circuit U.S. Court of Appeals.
Undoubtedly, this will end up once again before a U.S. Supreme Court lineup turned antagonistic about finding legal reasoning to retain abortion rights.
The abortion wars are far from over, and advocates for women, women’s health and decision making in abortion are geared up for a street fight now over the science of the medications. In a word, they find the arguments of the lawsuit baseless and reflecting of “fringe” theories.
But even a temporary injunction from this judge to take effect while other courts consider the arguments might require the FDA to stop sales with immediate effect nationwide.
The Drugs and the Case
At the heart of this case are the drugs and medical procedures and not the law or the Constitutional questions about privacy provisions underwriting perceived rights to abortion, which has been the basis of previous legal challenges.
Since 2000, when the FDA okayed these medications, a patient first takes one pill of mifepristone, which terminates the pregnancy. Approximately 24 hours later, they typically take a four-pill dose of misoprostol, a drug first introduced in 1973 to treat stomach ulcers, to soften the cervix and prompt contractions that expel the fetus.
Mifepristone, which blocks a hormone necessary for pregnancy development, is authorized through 10 weeks of pregnancy, although many clinics and telemedicine providers have begun offering it up to 12 or 13 weeks into pregnancy. The second drug, misoprostol, has never been as tightly restricted as mifepristone and is used for many different medical conditions.
This suit aims to undo the approval of mifepristone. Just last month, the FDA updated its rules to allow brick-and-mortar pharmacies to dispense mifepristone — expanding access to the drug unless state law restricts it. These pills had been obtainable through the mail if health providers were certified and patients completed a consent form.
Alliance Defending Freedom, a conservative legal group that has been involved in anti-abortion litigation, filed the suit in November on behalf of four anti-abortion medical organizations and four doctors who say they have treated patients with the drug.
On its website, the Alliance outlines the case:
The FDA illegally failed to protect health, safety and welfare of girls and women because it never studied the safety of the drugs under the labeled conditions of use, ignored potential impact on developing bodies of adolescents, disregarded evidence that chemical abortion drugs cause more complications than surgical abortions and eliminated.
The FDA “chose politics over science” by characterizing pregnancy as “an illness” and arguing that these drugs provide “a meaningful therapeutic benefit,” says the lawsuit, which is called Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. “Pregnancy is not an illness, and chemical abortion drugs don’t provide a therapeutic benefit—they end a baby’s life, and they pose serious and life-threatening complications to the mother,” the website argues.
The National Implications
The suit has been ridiculed by legal experts as rooted in baseless and debunked arguments. But abortion rights advocates are concerned – and now have appealed to the Biden administration to take seriously – the prospects that the path of conservative courts could produce a verdict that will impose restrictions nationwide.
Apparently, some in Congress who favor abortion rights have had a hard time understanding that this could affect even states where abortion has been re-certified as legal. In the Justice Department, there is a reproductive rights task force to seek legal avenues to protect access to abortion pills. In January, that group re-issued rules saying that the U.S. Postal Service may deliver abortion pills to people in states that have sharply restricted the procedure. Now they are looking at this Texas case, arguing that it is the FDA and not states that decide on the use of drugs.
Presumably, if there is a strong opinion barring the use of mifepristone, or any abortion-inducing medications, the lines for surgical abortions in states where that is allowed will swell further, creating burdens for patients and health providers. Other clinics might opt to use just misoprostol pills instead of the standard regimen of mifepristone and misoprostol together.
The adoption by Republican-led state legislatures to enact total abortion bans has made this issue identifiably partisan and we have seen the backlash of abortion politics roil what had been expected to bigger Republican election victory in November.
With presidential politics for 2024 getting underway, we can be sure the abortion issue is not going away anytime soon.
