The future of the abortion pill in the United States was plunged into grave uncertainty on Saturday, the day after two conflicting decisions by federal judges heralding a final battle before the Supreme Court.
• Also read: A federal judge suspends the abortion pill in the US
The abortion pill has become the new target of abortion opponents following the historic Supreme Court ruling in June that gave states the freedom to ban abortion on their soil.
In November, they filed a lawsuit against the US Food and Drug Administration to challenge marketing approval of mifepristone (RU 486), which has been used in combination with another drug by 5.6 million women since it was approved in 2000.
Strategically, they filed their appeal in Amarillo, Texas, where the only federal judge, Magistrate Matthew Kacsmaryk, appointed by Donald Trump, is known for his ultra-conservative views.
The judge gave them satisfaction on Good Friday evening: he assessed, despite the scientific consensus, that mifepristone poses risks to women’s health and suspended its approval throughout American territory pending an end-of-file review.
Rather symbolically, he took up their terminology, preferring the term “unborn human” to “foetus” or conjuring up “abortionist” to speak of structures that practiced abortions.
Mobilizing pro-choicers
Pending his decision, a coalition of Democrats took legal action in late February to try to obtain the pill, which, combined with misoprostol, accounts for 53% of abortions in the United States today.
An hour after Judge Kacsmaryk’s decision, his colleague Thomas Rice, who was appointed by Barack Obama and is a Washington state resident, ruled that mifepristone was “safe and effective” and barred the FDA from approving it in the 17 states at the origin of the appeal to withdraw.
Judge Kacsmaryk clarified that his decision would not apply for seven days to give the parties time to appeal.
“Let’s be clear, access to mifepristone remains legal for now,” said Alexis McGill Johnson, president of powerful family planning organization Planned Parenthood.
On Saturday, April 15, the possible effective date of her sentence, the feminist organization Women’s March called for an “emergency mobilization” across the United States.
During this time, the big legal maneuvers begin. “We will fight against this decision,” promised Democratic President Joe Biden.
The FDA, represented by the Department of Justice, and the Danco lab, which makes mifepristone, have already announced their intention to appeal. Her appeal will be heard by a federal appeals court in New Orleans, also known for its conservatism.
supreme court
The federal government can await the decision of this court and only appeal to the Supreme Court if it upholds the suspension of mifepristone. If he wants to save time, he can already ask the Supreme Court to intervene now that there is a conflict between two federal judges.
So the file has a good chance of getting to the temple of American law quickly.
It is served on him under an expedited procedure, nicknamed the “shadow register,” which allows an expedited decision to be made without a public hearing or requiring judges to explain the reasons for their verdict.
However, to avoid being accused of a lack of transparency, she could decide to organize a hearing before the summer. Otherwise, it will decide on the basis of the written arguments in the coming weeks.
The head of the court, conservative John Roberts, who is very fond of the institution’s image, should vote with his three progressive colleagues to keep mifepristone’s approval. The question is whether one or more of the five Conservative magistrates will join them to form a majority.
“The Supreme Court has a long tradition of respecting the scientific opinions of federal agencies,” said Lawrence Gostin, a law professor at Georgetown University, who expects a ruling in favor of the FDA instead.
“But the outcome of the fight is by no means certain,” he told AFP, recalling that his “conservative supermajority has repealed constitutional abortion rights and has been hostile to federal regulations related to Covid or climate change.”
For this renowned health law expert, “this is a dangerous time for American women.”