Access to Medication Abortion to Be Ruled On by Trump-Appointed Judge

Access to medication abortion in the United States is under threat due to a lawsuit brought by several anti-abortion organizations and doctors, and a ruling could come as early as the end of this week. The plaintiffs in the case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, are seeking to have the FDA’s approval of mifepristone — one of the two drugs used in medication abortion — revoked and the drug pulled from the market nationwide.

“This case is a politically motivated attack to remove mifepristone from the market, which could have far-reaching consequences for patients’ access to abortion nationwide,” said Danika Severino Wynn, a certified nurse midwife, abortion provider, and vice president of abortion access at Planned Parenthood Federation of America. “Mifepristone is safe, effective, and has been used by more than 5 million people since the FDA approved it more than 20 years ago.”

If the court rules in favor of the plaintiffs, mifepristone would no longer be available in any state, even where abortion has remained legal. “Alliance for Hippocratic Medicine v. FDA could have catastrophic implications for the future of reproductive freedom and may impact over 64 million people and their families,” said Ally Boguhn, communications director at NARAL Pro-Choice America. “To make matters worse, the case will be decided by a judge hand-picked by Donald Trump to dismantle our fundamental freedoms. If mifepristone is pulled off the market, the impact will be swift and devastating.”

The Alliance for Hippocratic Medicine is made up of anti-abortion organizations and doctors, including the American Association of Pro-Life Obstetricians and Gynecologists, and they are being represented in the lawsuit by the Alliance Defending Freedom, which has been designated a hate group by the Southern Poverty Law Center. “The fact that this lawsuit, which is being brought by a far-right hate group and heard by a Trump-appointed judge, may rescind FDA approval of mifepristone is shocking but not surprising to any of us in the fight for reproductive freedom,” said Melissa Fowler, chief program officer at the National Abortion Federation.“This lawsuit has nothing to do with the efficacy and safety of this medication and everything to do with anti-abortion extremists continuing to play politics with our lives.”

The case was filed in Amarillo, Texas, “100% deliberately” to get it heard by U.S. District Court Judge Matthew Kacsmaryk, said Kirsten Moore, director of the Expanding Medication Abortion Access Project, an advocacy organization. “This is a judge who is on record as being anti-abortion. He has a very clear set of prejudices and pre-conceptions about abortion.” Judge Kacsmaryk has issued rulings blocking teenagers from accessing birth control confidentially, without parental consent, and has a history of issuing right-wing court decisions including weakening protections for LGBTQ people.

Despite widespread outrage over this lawsuit, the future availability of mifepristone is now in the hands of this one judge. Advocates are “preparing for a bad outcome through three different lanes,” said Moore. “Legally, we fully anticipate that the Justice Department will appeal to have the decision stayed. The practical response from service providers will be to ensure that patients know that they can get still get misoprostol,” which is the second drug used in a medication abortion and “even on its own, can still be effective,” said Moore. Advocates are also “organizing to make sure that the White House is delivering a clear message and standing behind the FDA’s approval authority.”

If mifepristone is no longer available, the impact will be felt in every state. “Everyone will be impacted whether or not their state is protective or restrictive of abortion care,” said Elizabeth Nash, state policy analyst at the Guttmacher Institute. Their new report, 10 States Would Be Hit Especially Hard by a Nationwide Ban on Medication Abortion Using Mifepristone, demonstrates that there will be obstacles even in states where abortion is still legal. In these states, which include Georgia and Vermont, “there could be a particularly sharp drop in the share of women of reproductive age who live in counties with an abortion provider if medication abortion-only providers do not begin offering a regimen with misoprostol alone,” said Nash. Already abortion is banned or unavailable in 14 states, and “we expect as many as 24 states in total to ban it in the coming months. Providers are gearing up to use a misoprostol-only regimen, however, it is unclear whether all current providers will offer abortion care using only misoprostol and to what extent patients would take up this method. Looking into the future, we know that abortion opponents are seeking to ban access to any drug used for abortion, so there may be attacks on misoprostol forthcoming.”

If mifepristone is no longer available, “the consequences will fall disproportionately on people who already have less access to sexual and reproductive health care, like people who live in rural communities and people who are Black, Indigenous, Latino, and other people of color,” said Martha Spieker, associate director of federal advocacy communications at Planned Parenthood Federation of America.

Medication abortion with mifepristone “offers specific benefits that might make it a preferable option for people with few financial resources,” said Nash. “Because mifepristone can be prescribed via telehealth in many areas and safely taken in the privacy and convenience of one’s own home, this method can help reduce costs associated with transportation or child and family care, and it allows for more flexible scheduling.”

Providers are already stretched thin, and “during a moment when we should be spending our time and resources providing abortions, we’ve been spending the last few weeks meeting with attorneys, updating policies, and holding staff trainings in preparation for a bad ruling and the potential impacts on our ability to provide medication abortions,” said Zack Gingrich-Gaylord, communications director at Trust Women, an abortion provider and advocacy organization with clinics in Wichita, Kansas, and Oklahoma City, Oklahoma. Their Wichita clinic recently received 16,000 calls in one day. “Our work is constantly being forced to change, not for medical reasons, but because of the decisions of politicians or judges who simply don’t like abortions. Ultimately, creating barriers and reducing options for people to safely end their pregnancy is just continuing to eliminate abortion access at a time when clinics are already overwhelmed and unable to provide care for everyone seeking abortions.”

There is also concern that this case could generate misinformation about the safety of medication abortion. “Already there is so much confusion about what is and isn’t legal in each state, and we even get calls from folks in New York wondering if abortion is still legal there,” said Yamila Ruiz, senior director of communications and public affairs for National Latina Institute for Reproductive Justice. “Latinas (and Latinx) are especially reliant on social media for communication and information and therefore disproportionately exposed to misinformation.”

There are other potential negative ramifications of this lawsuit even beyond the possibility of mifepristone being banned. This lawsuit “really undermines the authority of the FDA and also would be cause for concern for pharmaceutical companies planning drug development,” said Dr. Daniel Grossman, director of Advancing New Standards in Reproductive Health, a research program at the University of California, San Francisco, focused on abortion and reproductive health care. “The idea that you could go through the whole approval process and get a drug approved, only to have an advocacy group that is opposed to the treatment for whatever reason go before a rogue judge who could revoke the approval — it’s ludicrous. The argument in this lawsuit, questioning the safety of mifepristone, is the same argument that has been used in some state legislation and judicial decisions that have imposed restrictions on medication abortion. These arguments were rejected by the FDA when the agency reviewed them because they are not based on science."

This lawsuit is yet another tool that anti-abortion advocates are using in their crusade to ban all forms of abortion care in every part of the United States. “For years, the anti-abortion movement has built a well-organized, well-funded machine and crafted a plan to attack abortion access at all levels of government,” said Ashley Underwood, director of Equity Forward, an accountability organization that produces investigative research focused on global human rights, gender equity, and sexual and reproductive health, rights, and justice. “They have infiltrated state houses and Congress, and the judicial branch is not immune. We saw that when SCOTUS stripped away our right to abortion with Dobbs, and we are seeing this again in this lawsuit. They will stop at nothing to advance their agenda.”

On February 14, Sen. Mazie K. Hirono, D-Hawaii, and Sen. Elizabeth Warren, D-Mass., along with 10 other senators, sent a letter to President Biden pressing for new steps to protect abortion access, including using “every legal and regulatory tool at their disposal to keep… [mifepristone] on the market.”