Abortion rights advocates are "watching and hoping that evidence-based care will prevail" in a federal court case in Texas, said one physician this week as a judge appointed by former President Donald Trump is expected to rule as soon as Friday on the Food and Drug Administration's authority to approve one of two drugs commonly used for medication abortions.
In a lawsuit filed by the right-wing Christian legal group Alliance Defending Freedom, Judge Matthew Kacsmaryk will review the final arguments on Friday, and is expected to soon rule on whether the FDA's approval of mifepristone should be reversed more than two decades after the drug was first made legal.
Less than a year after the right-wing majority of the U.S. Supreme Court overturned Roe v. Wade and cleared the way for at least 13 states to impose bans on abortion care, a ruling in favor of the plaintiffs would cause fresh "chaos" in the reproductive care landscape, according to abortion provider Dr. Kristyn Brandi. If Kacsmaryk rules in favor of the right-wing group, mifepristone would be banned even in states where abortion remains legal.
"A court case in Texas could easily turn into a nationwide ban on the most commonly prescribed medication abortion in the coming weeks through underhanded judicial tactics."
More than 3.7 million people have used mifepristone, which is taken alongside misoprostol in order to induce an abortion, since it was approved in the United States. Medication abortions now account for 53% of abortions in the U.S., and the FDA in recent years has made them more accessible by allowing patients to obtain the pills at telehealth visits and to get them through the mail and, last month, by allowing certified pharmacies to dispense the medication.
Alliance Defending Freedom and other pro-forced pregnancy groups have claimed the FDA was careless with patients' health when it approved mifepristone, even as clinical trials have shown it to be safer than penicillin, Viagra, and Tylenol.
Advocates say the reversal of the FDA's approval would endanger millions of people who need abortions, as many would be left with only the option of a surgical abortion in clinics, which have become overburdened as people travel from states that have banned or severely restricted access.
"This ruling could be devastating for abortion care," Andrea Miller, president of the National Institute for Reproductive Health, toldThe Guardian on Thursday. "Cutting off critical access to abortion medication—which is the preferred method for more than half of abortion patients in the country—would cause significant harm, especially at a time when Dobbs has made it difficult or impossible for many to get care at clinics."
Some clinics have begun mobilizing to prepare healthcare workers to provide misoprostol-only medication abortions.
"No matter the case outcome, Planned Parenthood health centers will remain committed to doing whatever possible to ensure patients can choose the method of abortion that is best for their circumstances, including medication abortion," Danika Severino Wynn, vice president of abortion access at Planned Parenthood, told Jezebel on Tuesday.
Taking only misoprostol to induce an abortion has a lower success rate than taking the combination of pills—88% compared to 98%—and misoprostol-only abortions carry a greater risk of side effects. Both factors could complicate matters for people who live in states with abortion bans and decide to travel out-of-state to receive care to avoid potential prosecution. As The 19threported on Tuesday:
Some patients will have to decide if they want to take the pills in their home state, where it is outlawed, or if they want to take them before traveling home, navigating severe cramps and even vomiting while making an hours-long drive or flight.
And because misoprostol only has a higher failure rate, patients traveling out of state could face other risks. If they return home and learn the abortion has failed, multiple experts said, patients may not know where or how to find safe care in their home states, or may need to make another expensive trip across state lines.
"It's really hard as a provider to know there's a medication that works better than other options and not be able to offer that because of politics," Brandi, who chairs the board of the advocacy group Physicians for Reproductive Health, told The 19th.
Greer Donley, an associate professor at the University of Pittsburgh Law School, noted that in addition to harming pregnant people, a ruling in favor of the plaintiffs would have "serious and broad implications" for all drugs approved by the FDA and for the agency's authority.
Rights advocates this week noted that Kacsmaryk recently ruled against a federal program that allows teenagers in Texas to access birth control without their parents' permission.
Rights groups Women's March and UltraViolet on Thursday announced plans for a rally and march on Saturday in Amarillo, Texas, where the ruling will be handed down.
"A court case in Texas could easily turn into a nationwide ban on the most commonly prescribed medication abortion in the coming weeks through underhanded judicial tactics," said Rachel Carmona, executive director of Women's March. "This isn't about what the overwhelming majority of Americans want; it's about a small group of people who want control over women’s freedom to choose, and will seek any means to achieve it."
"This fight is bigger than Roe," she added. "This is about freedom, democracy, and fundamental human rights.”