The battle over abortion is not over in the United States. Less than a year after the Supreme Court's ruling revoking the constitutional right to terminate a pregnancy, a conservative Texas judge on Friday (April 7th) ordered the Food and Drug Administration (FDA), the US agency for drugs, to withdraw the marketing authorization given in 2000 to mifepristone, the drug used for chemical abortion.
The injunction will not go into effect for another week, he conceded, to allow time for the federal government to appeal, which the Justice Department immediately announced.
A few hours later, another federal judge, seized of a counter-complaint in Washington State by 12 pro-abortion states, ordered the FDA to refrain from "changing the status quo and the rights relating to access to mifepristone" in those states. When it comes to two federal judges, neither decision trumps the other.
The Supreme Court – itself with a Republican majority – could therefore once again be called upon to arbitrate in this new front of the war that conservatives are waging against access to abortion.
Medical abortion, the most common procedure
Since the pandemic, chemical abortion, based on two drugs – mifepristone and misoprostol – has become the most common pregnancy termination procedure in the United States (53% of 930,000 abortions in 2020). The FDA authorized it in 2016 up to ten weeks of pregnancy and not seven, as previously. Earlier this year, after the Supreme Court ruling, the agency approved telemedicine or mail-in marketing in states where abortion remains legal.
Conservatives from the Alliance Defending Freedom coalition asked Texas Judge Matthew Kacsmaryk to ban it, on the grounds that the drug is not safe and that the FDA would downplay its side effects for political reasons. They demand its withdrawal, including in states where the right to abortion is guaranteed: the abortion pill, easy to access, deplores the "pro-life" camp, allows women to circumvent the restrictions on abortion decided by 13 states since the Supreme Court decision of June 24, 2022.
On the contrary, twelve Democratic states, coordinated by the Washington State Attorney, are calling for an extension of access to mifepristone, the prescription of which is currently reserved for accredited doctors, given the increase in demand. They point out that this drug has been used more than 4 million times since its marketing. The complaint was considered on March 28 by Washington State Judge Thomas Rice, who did not issue his decision until his Texas counterpart's decision was made public.
The "pro-choice" camp expected a negative stance from the Texas judge. Appointed by Donald Trump, Justice Kacsmaryk, an activist Christian, is known for his hostility to abortion. In his 67-page opinion, he asserts that the FDA has come under "significant political pressure" to "increase access to chemical abortion." He claims to act in the general interest and in particular that of the women struck by an "intense psychological trauma" by the "excessive bleeding" they incur as a result of the procedure. This is the first time a court has ordered the FDA to remove a product despite opposition from the agency, government and manufacturer.
Vice President Kamala Harris called the suspension of the abortion pill "a threat to women's rights." "Pro-choice" activists argue that if mifepristone is banned, abortion will not stop. It will be done with misoprostol alone, a less effective agent, which may put women's health at risk.
