Texas Court Rules to Pull Abortion Drug, Showing the Right’s Next Move in their Anti-Choice Playbook
By Erin Delaney
On Friday, a Trump-appointed Texas District Court judge unsurprisingly ordered the U.S. Food and Drug Administration to take back its approval of mifepristone, a drug for inducing abortions, used safely in this country for 23 years. U.S. District Judge Matthew Kacsmaryk also put a weeklong stay as part of his ruling, making mifepristone still available in all states at this time, unless his ruling stands. Nonetheless, last Friday’s ruling by Judge Kacsmaryk in Amarillo is shockingly dangerous.
Not only does it abet the drive by Republican extremists to strip Americans of their reproductive rights, it sets a terrible precedent in which activist right-wing judges overrule the nation’s top health authorities for purely ideological reasons. Judge Kacsmaryk’s atrocious ruling hits a MAGA trifecta — at once undermining personal liberty, medical science, and the Constitution’s separation of powers.
Prior to his appointment to the federal bench, Judge Kacsmaryk was a fixture of the radical right known for his attacks on contraception, abortion, gay marriage and protections for LGBTQ people. Although he promised in his Senate confirmation to set aside his personal views, there’s little evidence of a judicial temperament in his mifepristone ruling.
At the same time on Friday afternoon as his decision was released, Judge Thomas Rice from the U.S. District Court of Eastern District of Washington came out with a ruling challenging the FDA’s decision to impose restrictions on mifepristone prescribing and dispensing through the Risk Evaluation and Mitigation System (REMS) and that the restrictions imposed by the FDA are unnecessary and limit access. This ruling orders the FDA to maintain access to mifepristone in 17 states and Washington, D.C. Almost immediately after Judge Kacsmaryk’s decision, the Department of Justice filed a notice of appeal to the U.S. Court of Appeals for the 5th Circuit to request a stay while this appeal is considered to maintain access to mifepristone. If this stay is not granted by the 5th Circuit, then the FDA will likely appeal to the Supreme Court to block this ruling throughout the appeals process with the 5th Circuit. Unfortunately, if both courts do not provide a stay during the appeals process, then distribution of mifepristone could be halted across the country.
The Texas ruling can only reinforce a nationwide mobilization against the Republican campaign to curtail access to abortion and reproductive health care. Last week in Wisconsin, for example, abortion was a key issue for voters as they elected Wisconsin Supreme Court Democratic candidate Janet Protasiewicz over former state Supreme Court Justice Dan Kelly. The counties that delivered this victory to Protasiewicz have historically been a Republican stronghold for decades and had not voted for a Democrat for president since Lyndon Johnson. Compounding those results with what we witnessed in the 2022 midterms and Kentucky’s referendum, this reaction from voters is now the norm, not the exception in how they are responding to the Republican attacks on access to abortion. While there was reportedly limited polling on Wisconsin voters around the time of the recent election, in a 2022 midterm exit poll, 63% of Wisconsin voters said abortion should be legal in all or most cases, while only 34% believed that it should be illegal in all or most cases. There is even a stark divide generally within the GOP on access to abortion. According to Pew, among Republicans and Republican-leaning independents, 60% of moderates say abortion should be legal in all or most cases, compared with just 27% of conservative Republicans.
The Republican Party has long planned and successfully executed their strategy to “pack the courts” with conservative judicial activists, mostly thanks to former President Donald Trump, who was recently indicted on 34 felony charges, and who appointed more than 200 federal judges, including Judge Matthew Kacsmaryk. The Republican Party is well aware of how deeply unpopular many of their policies are and fear the demographic and political shift that is happening in this country. Why subject their party to years of political opposition and minority status when they can impose their beliefs through the judicial system on all Americans, regardless of what the majority of the populace believes in order to maintain power? That would require sound policy solutions, and from what we’ve mostly witnessed, this Republican Party, ruled by a minority faction pushing baseless culture wars on a near daily basis, is purely uninterested in doing that work. That work takes a belief in truth and scientific fact, of critical thought, time, compromise, and action; it is the work required of a functioning Democracy, and in this instance, of a country that values bodily autonomy for all Americans.
Additionally, this decision denotes a belief in broader health care access. Because of the implications of this decision on the FDA’s drug approval process more broadly, it sets a dangerous precedent: What is to stop any entity from suing the FDA over a drug they deem as “unsafe” based on that entity’s ideology or for other reasons? If like-minded, conservative judges deem the COVID-19 vaccine, or other life saving vaccines “unsafe,” or otherwise, couldn’t they also mirror this act of subjecting Americans to their baseless, unscientific reasoning? Most in the Republican Party have been consistent in limiting or prohibiting access to affordable health care without presenting alternatives: from their deep, partisan opposition to the Affordable Care Act for over a decade, to the ten states with Republican majorities that refuse to expand Medicaid in states that need it the most, it’s clear that their general attitude and action on health care is not intended to improve Americans’ health.
The Alliance for Defending Freedom, a conservative legal advocacy group, filed the lawsuit on behalf of the Alliance for Hippocratic Medicine, a coalition of physicians who oppose abortion, against the FDA and the Department of Health and Human Services (HHS) in November 2022 claiming that the FDA “chose politics over science,” pointing to President Bill Clinton’s administration legalizing the drug one month before the 2000 U.S. presidential election. The case was then strategically assigned to the U.S. District Court Judge Matthew Kacsmaryk.
Mifepristone is part of a two-pill abortion and miscarriage medication regimen that is used in combination with misoprostol that has a 95% to 99% effectiveness rate. Mifepristone was first approved by the FDA in 2000 following a rigorous review process and has been on the market for 23 years. A worst-case scenario, full on ban on mifepristone will not make mifepristone illegal, or ban access to medication abortion entirely. It is entirely possible that the FDA can use its discretion and refuse to enforce this rule and allow physicians to still prescribe mifepristone. Additionally, physicians can also prescribe a misoprostol only regimen as off-label for other purposes than abortion, although any major shift in clinical care is challenging and will be a major adjustment. This potential ban will also not impact those seeking in-clinic abortion care, although restricting medication abortion will lead to less availability at clinics, which are already overwhelmed from the fallout of overturning Roe v. Wade.
A misoprostol-only abortion regimen is still effective, however, it is less effective than using both mifepristone and misoprostol, with an 88% effectiveness rate. It can also cause more intense side effects, including severe cramps and vomiting, than the combination regimen. The irony of this case calling into question the safety and efficacy of mifepristone is palpable, as a misoprostol-only regimen would be exactly that — slightly less effective and cause more severe side effects than the full two-pill regimen. Even with misoprostol being available to those seeking medication abortion, the confusion over what will remain legally available to the public regardless of where they live at the time of this ban is an intended outcome for anti-abortion activists. It is critical that the public understands that a misoprostol-only regimen will still be available to them and that clinics across the country have been preparing for this ruling and have increased their supply of misoprostol.
The FDA announced in December 2021 that it would permanently lift its restriction of dispensing abortion pills in-person. Last month, the FDA announced it would allow retail pharmacies to dispense the drug by mail or in person based on certain requirements. This federal injunction is seen as a direct response to the FDA’s expansion of medication abortion. Unfortunately, every state, regardless of its legal status of abortion, will be affected by this potential ban. More than half of all U.S. abortions are done through medications. Mifepristone has been used by nearly 5 million people in the U.S. since it came to the market and is proven to be safer than Tylenol or Viagra.
Prior to this ruling and eight months since the reversal of Roe, nearly 30 million women of reproductive age lived in a state with an abortion ban, and nearly 22 million women couldn’t access abortion care after six weeks of pregnancy. With this ruling, 40 million more could lose access to abortion care, stripping away their ability to make their own choices about their health care because of the egregiousness of one unelected, right-wing judicial activist. One in four women will have an abortion in their lifetime, and the average person who seeks abortion care is a woman of color who is already a mother and lives below the federal poverty line. The abortion battle is now a state-by-state affair and moving into a new era of civil strife that will require proponents of reproductive freedom and the Democratic Party to organize to restore what should never have been taken from them by a minority political movement determined to strip this access away forever.
Erin Delaney is the Director of Health Care Policy at the Progressive Policy Institute.