In Arlington, Va., May 8, 2020. OLIVIER DOULIERY / AFP
The fight for abortion is not ending in the United States. Less than a year after the Supreme Court’s decision to overturn her constitutional right to have an abortion, a conservative Texas judge on Friday (7 in 2000) administered mifepristone, the chemical abortion drug.
The injunction would not come into effect for another week, he conceded, to give the federal government time to appeal, which the Justice Department promptly announced. “My administration will fight this decision,” US President Joe Biden said in a statement, calling the Texas judge’s decision an “unprecedented attempt to deprive women of their fundamental freedoms.”
A few hours later, another federal judge, facing a counterclaim from 12 pro-abortion states in Washington state, ordered the FDA not to change “the status quo and rights regarding access to mifepristone” in those states. With two federal judges, no decision trumps the other.
The Supreme Court — even with a Republican majority — could therefore be called upon again to arbitrate on this new front in the Conservatives’ war on abortion access.
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Medical abortion, the most common procedure
Since the pandemic, chemical abortion based on two drugs – mifepristone and misoprostol – has been the most common abortion procedure in the United States (53% of 930,000 abortions in 2020). The FDA approved it for up to ten weeks of pregnancy in 2016, rather than seven as before. Earlier this year, following the Supreme Court decision, the agency approved commercialization by telemedicine or by mail in states where abortion remains legal.
Conservatives in the Alliance Defending Freedom Coalition urged Texas Judge Matthew Kacsmaryk to ban it, saying the drug was unsafe and the FDA would downplay its side effects for political reasons. They are calling for their retreat, even in states where abortion rights are guaranteed: The readily available abortion pill, the pro-life camp laments, allows women to accept abortion restrictions enacted by 13 states since the Supreme Court decision deal dated June 24, 2022.
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On the contrary, 12 Democratic states, coordinated by the Washington State Attorney, are calling for expanded access to mifepristone, which currently only prescribes to accredited physicians, in light of increased demand. They point out that this drug has been used more than 4 million times since it was marketed. The complaint was reviewed March 28 by Washington State Judge Thomas Rice, who made his decision after his Texas counterpart’s was made public.
The pro-choice camp expected a negative opinion from the Texas judge. Donald Trump-appointed Judge Kacsmaryk, an activist Christian, is known for his aversion to abortion. In his 67-page statement, he claims that the FDA has come under “significant political pressure” to “improve access to chemical abortion.” He claims to be acting in the public interest, particularly of women who are being “severely psychologically traumatized” by the “excessive bleeding” they are experiencing as a result of the procedure. This is the first time a court has ordered the FDA to remove a product despite agency, government and manufacturer opposition.
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Vice President Kamala Harris said stopping the abortion pill “threatens women’s rights”. Pro-choice activists argue abortion won’t stop if mifepristone is banned. It is performed with misoprostol alone, a less potent agent that can be hazardous to women’s health.