Dueling abort court actions
Judge may bar medication as suit aims to expand its use
An upcoming ruling by a conservative judge could lead to a ban on medication abortion in the U.S., but advocates for abortion healthcare filed their own lawsuit Friday to expand access.
U.S. District Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump, is expected to rule on a lawsuit filed last year by anti-abortion organizations. The groups seek to force the Food and Drug Administration to withdraw its decades-old approval of mifepristone, one of the two medications used for the medical termination of pregnancies.
The lawsuit was filed by the Alliance Defending Freedom (ADF) — a prominent conservative legal advocacy organization designated as an extremist hate group by the Southern Poverty Law Center due to its decades-long work against LGBTQ rights — on behalf of four organizations and four doctors who object to the FDA’s authorization.
“We ask the court to hold the FDA accountable for its reckless, unlawful behavior,” said Erik Baptist, a senior counsel with the ADF, an organization that was also involved in the Mississippi case that eventually led to the overturn of Roe v. Wade last year.
A ruling is expected any day now, and a decision in favor of the anti-abortion organizations could immediately block the sale of mifepristone.
But a group of Democratic attorneys general fought back Friday with a lawsuit of their own, seeking to make access to mifepristone easier.
“The federal government has known for years that mifepristone is safe and effective,” Washington Attorney General Bob Ferguson said. “The FDA’s excessive restrictions on this important drug have no basis in medical science.”
Mifepristone is one of only 60 drugs subject to special FDA rules about prescription and distribution. The lawsuit asks for those restrictions to be dropped, allowing mifepristone to be dispensed more like the other 20,000 drugs approved by the FDA.
On Friday, Vice President Kamala Harris, who is not involved in the Democratic lawsuit, sounded the alarm on the potential consequences of an “attack on the very foundation of our public health system,” adding that the Biden administration is committed to protecting the fundamental freedoms of pregnant people.
Reproductive rights advocates say the impact of a possible decision by the judge favoring the conservative groups could be “sweeping and horrifying.”
“Medication abortion is now used to provide more than half of all abortion care nationwide. If mifepristone were made unavailable throughout the country, it would eliminate the most commonly used method of abortion care,” according to the Washington-based rights group NARAL Pro-Choice America.
More than 40 million people across the U.S. could lose access to medication abortion, researchers said.
Without specifying how the administration would act if the drug were blocked, Harris said the White House would push back on any efforts by anti-abortion groups.
“We are here today to talk about what we will do to highlight this issue to make sure the people of America are aware of what is happening, and so we can make sure that the people of America are protected in terms of us fighting for their rights to have access to the medication that they need,” she said.
“And so we will, together, do the work that we need to do.”
Since the FDA’s approval in 2020, mifepristone has been used as a safe and effective option for ending an early pregnancy, and also for miscarriage management. Studies have shown medication abortion has a safety record of over 99%.
The Democratic attorneys general cited that safety record in their suit.
“Since its FDA approval, mifepristone has been safely used more than 5 million times in the U.S.,” the attorneys said. “The FDA itself has acknowledged that ‘serious complications have proven to be extremely rare’ with mifepristone.”