What's Next in the Battle Over Mifepristone Abortion Pills?

The future of abortion medication, currently the most common way to terminate a pregnancy in the U.S., is hanging in the balance after two federal judges issued competing rulings over mifepristone last week.

On Friday, Texas District Attorney Judge Matthew Kacsmaryk, a Donald Trump appointee, ruled in favor of a November 2022 lawsuit filed by the anti-abortion organization Alliance for Hippocratic Medicine against the U.S. Food and Drug Administration. The group argued that the FDA "never" had the authority to approve the use of mifepristone—one of the two drugs used in abortion medication—and that its approval, given over two decades ago, should now be rescinded.

Kacsmaryk's decision on the case was widely expected to be in favor of the group, though it's rare for lone judges to go against the decision of the FDA. The judge has a previous history of backing anti-abortion policies and has written critically about laws allowing abortions.

On the same day of Kacsmaryk's preliminary injunction that could cut access to mifepristone on a national level, Washington District Attorney Thomas O. Rice, a Barack Obama appointee, issued a rival ruling ordering the FDA to keep medication abortion drugs available in 17 states and the District of Columbia.

The states are Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.

The Biden administration has appealed the Texas decision, requesting an emergency stay on Kacsmaryk's injunction.

What Happens Next?

At the moment, Americans can still access mifepristone as the nationwide ban triggered by Kacsmaryk's ruling hasn't taken effect yet. Last week, the Texas judge stayed his own decision for seven days in order to give the FDA time to appeal for a federal appeals court to weigh in on the case.

On Monday, the Department of Justice appealed the Texas ruling. It will likely be heard by the Fifth Circuit Court of Appeals sometime before noon CT on Thursday, April 13.

The DOJ argued in its motion that the Texas case's "plaintiffs lack standing to challenge FDA's approval of a drug they neither take nor prescribe; their challenge to FDA actions dating back to 2000 is manifestly untimely; and they have provided no basis for second-guessing FDA's scientific judgment." The Fifth Circuit Court of Appeals, widely considered a conservative court, is expected to judge in favor of the Texas judge's ruling.

But no matter what the court of appeals' decision would be, most experts believe that the case will likely land on the Supreme Court's desk. Los Angeles attorney Vineet Dubey, the co-founder of Custodio and Dubey LLP, told Newsweek previously that the Supreme Court will certainly be involved in the case.

"Never before has a judge overruled FDA guidance and recommendations on a drug that's been safely used in this country. For mifepristone, there [exists] 23 years of evidence which a judge, who has no scientific background, [asked] to throw out without the knowledge necessary to make an informed decision," he said.

"The split in circuits, with this quick ruling from Judge Thomas Rice, almost certainly means the Supreme Court will ultimately get involved."

In June last year, the Supreme Court voted to overrule Roe v. Wade, overturning nearly 50 years of the federal right to abortion. Five conservative justices voted to overturn the landmark legislation, including three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

While it's unclear how the Supreme Court might rule on the mifepristone case, the wider question of the current composition of the court and the conservative justices' politics and faith will likely come under scrutiny once more.

In a previous statement to Newsweek, the FDA said: "The FDA does not comment on possible, pending or ongoing litigation."

What Is at Stake?

A scenario in which the FDA is forced to remove its approval of mifepristone would lead to a nationwide ban on the drug, which for more than 20 years has been used in combination with misoprostol to end a pregnancy in the first 10 weeks of gestation and help manage miscarriages.

According to estimates, such a ban would immediately impact over 64 million women of reproductive age and likely millions more non-binary and trans people. Pro-choice and women's rights groups have expressed concern over a ban on mifepristone likely leading those seeking abortions to resort to more dangerous ways of having the procedure.

Many doctors have condemned the Texas ruling and the allegation made by the Alliance for Hippocratic Medicine and other anti-abortion groups that mifepristone is dangerous. "Mifepristone has been studied extensively for over two decades and has been proven to be safe time and time again," Jack Resneck Jr., President of the American Medical Association, said in a written statement.

"There is no evidence that people are harmed by having access to this safe and effective medication. To the contrary, there is substantial evidence that the denial of needed abortion care without justification carries a psychological, physical, and economic toll. For people who do not have access to procedural abortion or adequate medical facilities, there may be no other options to obtain critically needed care. Current data show an association between restricted access to safe and legal abortion and higher rates of maternal morbidity and mortality, with already vulnerable populations experiencing the greatest burden. Reduced access to mifepristone will almost certainly exacerbate the maternal mortality crisis in places that do not have access to this medication."

Meanwhile, the Texas ruling has been celebrated by anti-abortion groups.

"For decades the FDA has abdicated its solemn duty to protect women and girls, putting politics above health and safety," CatholicVote's president Brian Burch said in a statement to Newsweek.

"The agency's reckless decision to allow the distribution of mail-order abortion pills without any in-person medical supervision, as well as its failure to study whether this powerful hormone-blocking drug regimen could harm the development of adolescent girls, reveals that pro-abortion ideology not science is its guiding principle. Many peer-reviewed studies and major international studies have documented the grave dangers involved in taking these drugs. It is time to hold the FDA accountable for ignoring the overwhelming body of evidence, and require them to do what is in the best interest of women and girls across the country."