A notoriously conservative federal judge in Texas has the opportunity this month to ban access to the abortion pill nationwide, potentially affecting millions of women and other people seeking abortion care. The Alliance Defending Freedom, along with other anti-abortion groups, has filed a lawsuit against the FDA, claiming that the agency accelerated the review process for the approval of the medication, mifepristone. Mifepristone, which is used in the majority of abortions in the U.S., has been approved for use for 20 years. Banning the pill now would be unprecedented and disastrous. Mifepristone is also used in miscarriage care.
Meanwhile, the major drugstore chain Walgreens has said they will stop selling mifepristone in certain states, even where it is legal, citing threats from reactionary state attorneys general. As Politico reported:
“The nation’s second-largest pharmacy chain confirmed Thursday that it will not dispense abortion pills in several states where they remain legal — acting out of an abundance of caution amid a shifting policy landscape, threats from state officials and pressure from anti-abortion activists.
Nearly two dozen Republican state attorneys general wrote to Walgreens in February, threatening legal action if the company began distributing the drugs, which have become the nation’s most popular method for ending a pregnancy.”
Mifepristone is typically taken in conjunction with misoprostol, and together they are more than 95% effective in terminating pregnancies up to 10 weeks. Misoprostol on its own can also work, but this is not the current practice in the U.S. and it is unclear how quickly providers will be able to change their approach to abortion care, if they do at all. The FDA has repeatedly approved this two-step process to be safe and effective, which begs the question, why is this lawsuit only happening now?
This newest abortion care crisis comes in the wake of the Dobbs decision, which eliminated the nationwide right to abortion. Prior to this decision, the abortion pill already accounted for more than half of abortions in the U.S. In the aftermath of the Dobbs decision, many states are restricting abortion. Because of this, access to mifepristone, which can be ordered by mail, is even more critical. Reactionaries, emboldened by the Dobbs decision, are looking to further restrict abortion access—and the abortion pill is among their current targets.
Abortion providers are predicting the effects of a ruling banning mifepristone will be widespread and impose major restrictions on abortion care, even in progressive states. Mini Timmaraju, president of NARAL Pro-Choice America, describes the impact this lawsuit may have as a “backdoor ban on abortion,” which is in the hands of just one federal judge.
‘Judge shopping on steroids’
The judge who will decide whether to ban mifepristone nationwide, Matthew Kacsmaryk, was appointed by former President Donald Trump. His previous job was as the attorney for a right-wing, anti-abortion “Christian” organization. Not only does he have a history of conservative rulings against immigrants rights and workplace protections for LGBTQ people, one prior ruling prevented free birth control for minors in Texas. In most districts in the U.S. federal judges are randomly selected from a pool that includes multiple judges; however, in the Amarillo division of the Northern District of Texas, a local order allows litigants to avoid randomly assigning judges. As a result, 95% of federal cases in the Amarillo division are assigned to Kacsmaryk. “It’s judge shopping on steroids,” said Sarah Lipton-Lubet, executive director of the progressive legal advocacy group Take Back the Court.
Not only has Kacsmaryk ruled against rights for immigrants and protections for LGBTQ people in the workplace and in healthcare, but his precedent for these conservative rulings has made him an ally to reactionary causes. The organization suing to ban the abortion pill recently incorporated in Amarillo, Texas, in order to be able to bring this case before Kacsmaryk. This undemocratic “judge shopping” allows Kacsmaryk to open his court to any reactionary cause that seeks to overturn the rights of millions.
Democratic decision-making is exactly what is at stake with this decision. Over 72% of Americans were opposed to the overturning of Roe v. Wade. The fact that one undemocratically appointed judge has the opportunity to eviscerate the rights of millions of people against their will points to the need for a new system.
The Biden administration has called on Kacsmaryk to rule in favor of the continued legal use of mifepristone, which has been long approved as safe and effective. These empty words add insult to injury when part of the reason we are facing this crisis is due to the Biden administration’s failure to legally codify the right to abortion, despite opportunities to do so.
If Kacsmaryk does overrule the FDA’s approval of mifepristone, it is highly likely that the decision will be appealed. In fact, 12 states are also filing a lawsuit against the FDA, to push for wider access to mifepristone. These states are accusing the FDA of setting up unnecessary barriers to accessing the drug. These barriers include requiring special certification to prescribe mifepristone as well as signing an agreement that a patient has decided to end their pregnancy to receive the medication, which will go into their medical record. This can often deter patients from getting abortions. Most other medications do not have such restrictions, and the ones which do are much more dangerous, like opioids and fentanyl.
Abortion rights are popular amongst the vast majority of Americans. History tells us that if we want to preserve these rights, we need to fight back. Mass struggle is the only proven pathway to protect our human rights. We need a militant women’s movement in the streets if we are to defend the right to abortion care as a human right. We won’t go back!