Federal Courts Battle Over the Abortion Pill

It’s not often remembered, but Republican political operatives first stoked moral outrage over abortion in the nineteen-seventies, to shore up their party’s sagging base. Back then, they joined forces with evangelical leaders, such as Jerry Falwell, who sought political allies to maintain the tax-exempt status of their all-white Christian academies. Overt segregation was hardly a winning political issue, but overheated rhetoric from the pulpit about killing “unborn babies” proved to be, and it brought to the G.O.P. a bloc of supporters who previously had not been especially concerned about abortion, and did not typically vote.

If recent polling is correct—according to one survey, only fourteen per cent of Republicans favor banning abortion outright—the current strategy of doubling down on efforts to make the procedure illegal in every state may backfire for the Party electorally. But that is of little consolation to the millions of women who now find that their access to health care hinges on two conflicting court rulings, and that the matter is seemingly headed, once more, to the Supreme Court. On April 7th, a federal district-court judge, Matthew Kacsmaryk, issued an injunction, set to take effect a week later, to halt the F.D.A.’s approval of the abortion drug mifepristone—an approval that the agency gave twenty-three years ago. The case was brought by the Alliance for Hippocratic Medicine, a Tennessee-based anti-abortion group that set up shop in Amarillo, last August, in order to file suit in the Northern District of Texas. This allowed the case to be heard by Kacsmaryk, a Trump appointee who rose to the bench from a conservative-Christian legal nonprofit called the First Liberty Institute, and whose anti-abortion sentiments are well known.

There should be no doubt that mifepristone, which blocks a hormone needed for a pregnancy to proceed, and is also used in cases of miscarriage and for other medical treatments, is safe. It has been prescribed more than four million times in the past two decades. Research has shown that it is safer than acetaminophen. Statistically, taking mifepristone, along with the drug misoprostol, which empties the uterus, is less dangerous than giving birth. More than half the abortions in this country occur using that two-drug regimen. Yet the judge accepted the plaintiff’s claim that “adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress’ on doctors during emergencies and complications.”

In an emergency motion filed on April 10th at the Fifth Circuit, lawyers for the Department of Justice, seeking to stay Kacsmaryk’s ruling pending an appeal, noted that the judge had substantiated some of his claims by citing an article sourced from anonymous blog posts. Kacsmaryk also held that complications from medication abortions are most likely to overwhelm health services in “maternity-care deserts,” but failed to acknowledge that many of those deserts have been created by restrictive rules passed by anti-abortion legislators—as in Texas, where lawmakers have cut off funds to Planned Parenthood, whose clinics provided routine women’s-health services.

The government’s lawyers took issue, too, with Kacsmaryk’s reading of the Comstock Act, a nineteenth-century relic initially intended to prohibit the mailing of contraceptives, obscene materials, and any “instrument, substance, drug, medicine, or thing” that could be used in an abortion. In 1971, Congress eliminated the prohibition on mailing birth control, but did not revoke the act itself. According to Kacsmaryk, sending mifepristone through the mail, which the F.D.A. began allowing in 2021, “violates unambiguous federal criminal law.” The Justice Department maintains that the act “never prohibited the distribution of abortion drugs for lawful uses” and that, in any event, the act “is not relevant” to the F.D.A.’s exercise of its statutory authority. Still, some legal scholars believe that, if higher courts accept Kacsmaryk’s argument on appeal, the Comstock Act could be used to block the transportation of any materials or equipment used in the course of an abortion, such as transvaginal-ultrasound machines.

Meanwhile, also on April 7th, Thomas O. Rice, a federal judge for the Eastern District of Washington State, issued a ruling in a case that had been filed defensively by attorneys general in the District of Columbia and seventeen states where abortion remains legal. They asked for, and received, a preliminary injunction requiring the F.D.A. to not change its approval of mifepristone. Then, in a ruling late Wednesday night, a three-judge panel of the Fifth Circuit agreed to temporarily stay Kacsmaryk’s ruling, while at the same time prohibiting mifepristone from being dispensed through the mail and cutting the period of time when it can be prescribed, from the tenth week of pregnancy to the seventh. On Thursday, Rice issued an order stating that the F.D.A. must preserve access to mifepristone in the seventeen states and in Washington, D.C., “irrespective” of the Fifth Circuit’s decision. The Justice Department said that it would ask the Supreme Court to immediately review the Fifth Circuit’s ruling.

When Congress passed the Food, Drug and Cosmetic Act, a 1938 law that strengthened the regulatory power of the F.D.A., the goal was for “experts qualified by scientific training and experience to evaluate the safety of drugs,” insulated from political whims. But now, the Justice Department lawyers say, Kacsmaryk’s decision to grant standing to the conservative Alliance for Hippocratic Medicine, a group whose members “neither take nor prescribe” mifepristone, could upend the regulatory apparatus for determining the safety of any drug. As Xavier Becerra, the Secretary of Health and Human Services, told CNN, “You’re not talking about just the mifepristone. You’re talking about every kind of drug. You’re talking about our vaccines, you’re talking about insulin, you’re talking about the new Alzheimer’s drugs that may come on.”

Last week, the White House press secretary, Karine Jean-Pierre, vowed that the Biden Administration is “prepared for a long legal fight.” But, depending on how quickly the issue reaches the Supreme Court, the fight may be short-lived. Last year, in the majority decision in Dobbs v. Jackson Women’s Health Organization, which overturned the right to abortion, Justice Samuel Alito wrote, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” We may soon see if the Court abides by its own principle, or if it will find a way to complete the conservative-Republican project to eliminate legal abortion in every corner of the country. ♦

Leave a Reply

Your email address will not be published. Required fields are marked *