After the Supreme Court last June overruled Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, ending a woman’s right to an abortion, several Republican-dominated states passed laws banning or heavily restricting the procedure.
Many women turned to an at-home procedure known as medication abortion. It requires a two-drug protocol involving the ingestion of mifepristone to end a pregnancy at up to 10 weeks, followed by misoprostol to clear the uterus. The widespread use of these two has set off what some call “the pill battles.”
Wyoming recently banned the drug completely, in a law signed by Republican Gov. Mark Gordon, and Arizona has banned access to the drug through the Postal Service.
Also closely watched is a Texas medical abortion case brought before federal district court Judge Matthew Kacsmaryk. According to the Washington Post, he is the sole judge in his Amarillo district who “has been shaped by his deep antiabortion beliefs.” Well-organized conservative groups have previously and successfully taken cases to Kacsmaryk because he rules in their favor.
The Post reports that he ended “Biden administration protections for transgender people, and […] forced thousands of asylum seekers to return to Mexico while they awaited processing.” He is also the judge in an action filed by anti-vaccine activists “led by Robert F. Kennedy Jr., accusing several media outlets … of colluding to censor their views on coronavirus vaccines.”
The plaintiffs in the medication abortion case, the Alliance for Hippocratic Medicine, consist of several antiabortion groups and four antiabortion physicians. The group asserts that the Food and Drug Administration improperly vetted and approved mifepristone 23 years ago, and should remove it from the market. They targeted Kacsmaryk as the judge they wanted to hear this case, a legal practice known as “forum shopping.”
In response, the Food and Drug Administration claims that “mifepristone is safe when used as indicated,” based “on a thorough and comprehensive review of the scientific evidence presented.”
Today, it is used in 53 percent of all abortions in the U.S., according to the Guttmacher Institute, because the FDA has made the pills readily available by prescription from a pharmacy or through the mail, the latter especially gaining favor during the COVID-19 pandemic.
Judge Kacsmaryk may place a nationwide prohibition on the drug’s use, as requested by the Alliance for Hippocratic Medicine. Should he do so, the drug would be illegal in every state. At the same time, it would upend the FDA drug approval process, “a system viewed as the global gold standard and crafted over decades to get crucial medication onto the market quickly and safely,” such as the rapid approval of COVID-19 vaccines. It is hard to believe that a single judge could overrule the judgment of medical scientists.
Judge Kacsmaryk said he will quickly rule on the case.
After the FDA approved the drug, it placed special restrictions on it in a process called Risk Evaluation and Mitigation Strategy. According to the New York Times, this means that patients must “sign an agreement attesting that they have chosen to take the medication to terminate a pregnancy. Providers and pharmacies must become certified, which is not difficult, but involves certain administrative and logistical steps.”
Meantime, some 12 state attorneys general, not yet including Massachusetts’ Andrea Joy Campbell, have joined a lawsuit in Washington State seeking to end these special restrictions.
First attorney general for Washington State Kristin Beneski was cited in the New York Times as saying that “the certification requirements and the agreement that patients must sign are burdensome, project an erroneous sense that the medication is unsafe, and have deterred many providers who would otherwise prescribe mifepristone, limiting access to medication abortion. The requirements, which generate lists of certified providers, also make providers worry about their privacy in a political environment where, she said, ‘They are really concerned about being targets of violence and harassment.’”
For many pro-choice advocates, ending medication abortion would call into question not only a woman’s right to control her body, but would also restrict a woman with a life-threatening pregnancy.
So here’s a possible outcome to these two lawsuits: The Texas court ends the use of mifepristone while the Washington court ends the FDA restrictions on the drug, a development ripe for the Supreme Court to take up, because each will be appealed.
Back in 1992, Justice Antonin Scalia claimed that too much litigation was keeping “us in the abortion-umpiring business.” Perhaps the justices thought that their decision in Dobbs last year would end that, but with the above scenario, it all could be back in front of them as early as next year.
Jack Fruchtman, who lives in Aquinnah, wrote “American Constitutional History: A Brief Introduction,” now in its second edition.