San Francisco Chronicle
Abortion drug could be banned
Texas judge to rule on suit from conservative groups; California would still have options
If a federal judge in Texas grants conservative groups’ demand to ban a drug used in a majority of all U.S. abortions, his ruling would not prohibit all medication abortions in states like California. But they would become more arduous, and the state’s reproductive care system would face more duress.
Opponents of abortion contend the U.S. Food and Drug Administration failed to consider the dangers of mifepristone and acted too hastily in allowing its use in 2000, four years after its makers had applied for approval.
If U.S. District Judge Matthew Kacsmaryk agrees, his ruling would apply equally to California and two dozen other states where abortion remains legal.
It would not affect surgical abortions, though it would increase the demand on doctors and clinics already faced with growing caseloads of patients from antiabortion states. And it would not end medication abortions, which can be performed with another drug.
Currently women can terminate a pregnancy on their own in the first 10 weeks by using two prescribed medications: mifepristone, which blocks a hormone that allows the pregnancy to develop, followed 24-48 hours later by misoprostol, which empties the uterus.
Taken together, they are more than 99% effective. As of February 2022, the drugs were used in 54% of all abortions in the United States, according to the Guttmacher Institute, a research organization that supports abortion access.
But misoprostol can also be used by itself. It requires additional doses, has side effects such as cramping and bleeding, and is about 85% effective in end
ing a pregnancy, said Daniel Grossman, a professor of obstetrics and gynecology at UC San Francisco.
“We will still be able to offer medication abortion” even if mifepristone is taken off the market, Grossman said. “It works in a majority of cases, and the side effects are bearable. But it’s not as good as we have today.”
Lisa Matsubara, general counsel for Planned Parenthood Affiliates of California, said misoprostol is an alternative to current two-drug abortions.
“For the antiabortion folks, they are not going to be satisfied until abortion is banned nationwide,” Matsubara said. Some congressional Republicans have proposed such legislation, but the proposals, like Democraticsponsored bills to legalize abortion nationwide, have little prospect of passage in a divided Congress.
Abortion foes have succeeded, however, in bringing their case to an apparently sympathetic judge.
Before his appointment by President Donald Trump in 2019, and confirmation on a near party-line Senate vote, Kacsmaryk had been deputy general counsel for the First Liberty Institute, a religious-rights nonprofit.
Last October, he ruled that the Biden administration lacked authority to tell employers to address transgender employees with their preferred pronouns and let them use bathrooms that correspond to their gender identity. In November, Kacsmaryk similarly rejected administration regulations that barred health care providers from discriminating based on sexual orientation or gender identity.
Those rulings, so far, apply only to Texas, and both have been appealed. In the abortion case, he has been asked to issue an injunction that would apply nationwide.
Plaintiffs virtually guaranteed that Kacsmaryk would hear their case by filing suit in Amarillo, where he is the only federal judge.
Gun advocates have used similar tactics by challenging California firearms restrictions in San Diego, where the suits are likely to be heard by U.S. District Judge Roger Benitez as cases “related” to one of his rulings that struck down a state gun law.
Liberal foes of Trump’s ban on U.S. travel from a group of mostly Muslim nations used a similar strategy by suing in states overseen by the Ninth U.S. Circuit Court of Appeals, though its rulings against the travel ban were ultimately overturned by the Supreme Court.
“We think that when the court will look at the law and the facts of what the FDA has done, that it will agree that FDA has failed in its job to protect America’s women and girls,” Julie Marie Blake, a lawyer for the conservative group Alliance Defending Freedom, told the Washington Post.
Kacsmaryk’s ruling could be appealed to the Fifth U.S. Circuit Court of Appeals in New Orleans, whose 16 judges include 12 appointed by Republican presidents. From there, an appeal would head for the same Supreme Court that voted in June to overrule Roe v. Wade, the 1973 decision that declared a constitutional right to abortion.
“The forum-shopping — filing in federal court in Amarillo where this is the only judge — is really outrageous,” said Erwin Chemerinsky, the law school dean at UC Berkeley and a supporter of abortion rights.
The American College of Obstetrics and Gynecology is among groups that have filed briefs urging Kacsmaryk to allow the continued use of mifepristone. Grossman, the UC San Francisco medical school professor, said most of the medical community agrees that the drug has been safe and effective in the 22 years since FDA approval. California Attorney General Rob Bonta and lawyers for 21 other Democratic-led states have also asked the judge to reject the lawsuit, while an equal number of Republican-led states support the challengers.
And if the judge bars its use and is upheld by higher courts, he said, “there is so much publicly available data, I would think it would be pretty quick for the FDA to go through the process of issuing a new approval.” But at that point, Grossman said, even if the agency “dotted all the i’s and crossed all the t’s,” it seems likely that “the groups would go back to the same judge.”