How a Texas judge could disrupt access to medication abortion
Also: Examining some of the hot air surrounding Balloongate.
By Kelsey Rhodes
Sometime soon, we can anticipate a decision in yet another case threatening abortion access, this time in the US District Court for the Northern District of Texas.
The case is Alliance for Hippocratic Medicine v U.S. Food and Drug Administration, and it’s a challenge led by anti-abortion extremists based on an incorrect insistence that mifepristone, the first pill taken in a medication abortion, isn’t safe. In fact, there’s abundant evidence from research studies showing that medication abortion is both effective and safe for people in the first 12 weeks of pregnancy.
The outcome of the case could have implications nationwide. If the judge in the case issues an injunction, for example, mifepristone approval could be withdrawn or suspended, endangering the legality of medication abortions using mifepristone throughout the country, unless the ruling is delayed or overruled by another court.
Americans tend to live in denial until it’s too late — just look at the Dobbs decision. In the months leading up to it, there were plenty of theories across news outlets that the Supreme Court would never eviscerate Roe, or that its overturn would merely be temporary. The pollyanna thinking was that Roe was too critical a precedent and that Supreme Court justices wouldn’t want to go down in history as voting to overturn it. Now we know the truth: The Dobbs ruling was the culmination of incremental abortion restrictions that originated largely in Republicans statehouses over the past 50 years. So while some may have been shocked by the Dobbs decision, reproductive health, rights, and justice advocates were not surprised in the slightest. This was part of the anti-abortion agenda to chip away at abortion rights until there’s nothing left.
Mifepristone is safe and effective. But the case isn’t really about that.
The anti-abortion Alliance for Hippocratic Medicine argues in the Texas case that the FDA fast-tracked its approval of mifepristone, thus endangering those who use it. They argue this in spite of the fact that for the 23 years mifepristone has been approved as safe for use by the FDA and the agency has actually treated the drug with extra caution simply because the medication is so politically fraught.
The combination of the medications mifepristone and misoprostol, or a medication abortion, is used in 53 percent of all abortions currently accessed at health care facilities in the US. It has an established record as a safe way to terminate a pregnancy, and because of that, on January 3 the FDA agreed to make mifepristone more easily available in pharmacies. All of which raises the question, why would a judge ever side with anti-science, anti-evidence-based reasoning?
Well, it’s because we’re not dealing with just any judge. We’re dealing with a Trump appointee, Judge Matthew J. Kacsmaryk.
In his rather short career, 46-year-old Matthew Kacsmaryk has issued devastating blows rooted in anti-queer, anti-health care, anti-science, and anti-immigrant reasoning for communities in Texas and beyond. His confirmation to the federal bench was controversial; he was already known as being outwardly homophobic by denying, in some cases, that LGBT people even exist. He’s exactly the kind of Christofascist who shouldn’t be making decisions about our basic human rights.
So what are the potential outcomes? There’s a bad case and a worst case. The bad case would be that the FDA is ordered to restrict mifepristone to being dispensed in person at clinics, thus eliminating medication abortion care using mifepristone via telehealth. Currently, people can access medication abortions in clinics, via telehealth, or manage them on their own. Kacsmaryk could issue a decision that would contradict the FDA’s decision to begin making mifepristone more available by mail and in pharmacies after being prescribed by a physician.
The worst case would be the FDA would be forced to temporarily or permanently stop mifepristone’s distribution for the entire country. You read that correctly. In just a matter of days, we could lose total access to medication abortion using mifepristone in the United States — a method that makes up more than half of all the abortions in this country right now. Some people will be able to still access abortions with misoprostol-only protocols, but the removal of mifepristone would be an undeniably huge blow.
You might be wondering about the other 47 percent of abortions: procedural abortion. Couldn’t everyone just get procedural abortions in states where they’re still available if medication abortion is banned? Well, no. Procedural abortions have been under pointed and direct attack from anti-abortion legislators for decades, making them harder and harder to access. With illogical gestational age limits, waiting periods, state-mandated counseling, ultrasound requirements, and a long list of other restrictions that aim to make abortion harder to access, even in states that haven’t completely banned abortion since Dobbs, it’s extremely challenging to get one today.
“Making abortion unthinkable”
It’s in our collective interest to pay attention to how anti-abortion extremists continue to attack access to abortion, not just in cases that rise to the level of the Supreme Court. To be clear, there are ways a ruling from Kacsmaryk withdrawing mifepristone's approval would be challenged. The Department of Justice in its representation of the FDA almost certainly would appeal to the US Court of Appeals for the Fifth Circuit and ask Kacsmaryk or that court to stay the district court’s ruling during the appeal, a move that would allow mifepristone to be used in the interim. The Fifth Circuit, however, is the nation’s most conservative appeals court. If DOJ couldn’t get relief from the Fifth Circuit, the next step would be the same Supreme Court that just ended Roe.
This case provides more evidence that anti-abortion extremists were never interested in keeping people safe, in protecting people’s bodies, or in any value of “life.” They were always interested in coercing and controlling the options pregnant people have available to them. They were always interested in banning all abortions. As Sen. James Lankford recently put it on the Senate floor, the goal is “making abortion unthinkable.”
This is the next step in the cruel and calculated playbook of the Christian right to target, limit, and control the bodily autonomy of anyone who is not a white, cisgender, heterosexual man.
Balloongate: Fox News suckered by Twitter hoax
By Aaron Rupar
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