How a longtime Idaho anti-abortion activist pushed the boundaries of Idaho’s ban

A fast-food restaurant was the last place she expected to have an abortion.

A month had gone by since the 26-year-old had found out she was about seven weeks pregnant. She’d gone to her closest Planned Parenthood, near Boise, last August — the same week that abortion became a criminal act in her state. The woman, who asked not to be identified to protect her privacy, told States Newsroom that Planned Parenthood staff explained she could go across the border into Oregon for a legal telehealth medication abortion.

She says the Idaho Planned Parenthood helped her set up the telehealth appointment with a provider in Oregon, where she would pick up the abortifacient mifepristone, which blocks progesterone from sustaining the pregnancy. She would need to take the mifepristone in Oregon before driving back home. And in one to two days, she would need to return to Oregon to take the misoprostol, which would cause her uterus to expel the pregnancy. For a surgical procedure, the nearest provider was at least 300 miles away.

“It was really crazy,” she says of all the legal and logistical questions she was trying to navigate, all the while feeling pressured by her boyfriend to have an abortion she wasn’t sure she wanted.

Four weeks later she took the mifepristone pill and immediately felt regret. But, the next day, after confiding in a relative who told her about an ad that the procedure could be reversed, she found hope at Stanton Healthcare, an international network of anti-abortion pregnancy centers headquartered in Meridian, Idaho, right by Planned Parenthood. In addition to counseling against abortion and limited health services, Stanton offers a controversial and unregulated treatment which has been denounced by the American Medical Association for its limited data and unproven claims.

To Stanton Healthcare founder and CEO Brandi Swindell, this woman’s story sounded like a potential legal case for the organization’s influential policy arm that is at the forefront of an emerging legal anti-abortion strategy: to push states with abortion bans to criminalize abortion-related assistance and information as a way to prevent patients from accessing abortion in abortion-rights states. Their strategy is a window into how the anti-abortion pregnancy center movement has gotten into the game of trying to find the magic legal key to banning abortion nationwide in the absence of a federal ban.

Organizations like Stanton present a public mission of trying to save the unborn and offer resources. But Stanton has been the driving force to test the boundaries of Idaho’s strict abortion ban. Months after lobbying, gathering intel on Planned Parenthood and abortion-rights activist groups in Idaho, and sharing their client’s story, Stanton recently convinced their state’s most powerful prosecutor to adopt their extreme interpretation of what is already one of the nation’s strictest abortion laws.

The Idaho attorney general has since rescinded his initial letter outlining his legal analysis, but it has added to chaos and uncertainty among Idahoans who need abortions and don’t know where to turn, reproductive rights advocates told the States Newsroom.

“Laws like the one in Idaho, you know, laws that ban abortion, have a chilling effect, not only on lawful conduct related to obtaining abortion care, but also other kinds of essential health care for pregnant people, like miscarriage management,” said Stephanie Toti, a reproductive rights lawyer who has argued major anti-abortion cases before the U.S. Supreme Court and whose organization the Lawyering Project is part of a new coalition of abortion-rights legal groups that offer mostly pro bono services to providers and patients.

“It’s a terrible consequence of the Supreme Court’s decision to withdraw constitutional protection from abortion, and something that I think we’re going to see continue to play out in the courts in the coming months and years,” Toti said.

Idaho Attorney General abortion opinion letter adds to confusion

Stanton says they exist to help women experiencing crisis pregnancies, but they don’t want those same women to go to places that offer help accessing legal abortion care in other states. Shortly after Idaho’s abortion ban took effect, the organization started building its case, telling reporters that giving women information on how to access abortion in other states was “potentially criminal,” even though that is not explicitly stated in Idaho abortion law.

“They were coaching her in essence to skirt the law,” Swindell told States Newsroom. “[T]here are entities that think that they can be above the law and are engaging in potentially criminal activity. And the reality is there is precedent for a lawsuit in this situation.”

In early March, Swindell, who dates Idaho Congressman Russ Fulcher, said her organization’s national lobbying arm, Stanton Public Policy Center, asked Idaho state Rep. Brent Crane, R-Nampa, to seek an opinion from state Attorney General Raúl Labrador on whether Idaho’s anti-abortion laws precludes the type of help Planned Parenthood gave to Stanton’s new client — whether that’s what the statute means, when it talks about “assist[ing] in performing or attempting to perform an abortion in violation of this subsection.”

Stanton — which has been campaigning against abortion drugs for years and has tried to unmask the secret headquarters of mifepristone distributor Danco Laboratories — also asked whether Idaho law specifically bans the provision and promotion of abortion drugs. She included in her letter to Crane pictures and video of a mobile billboard with instructions on accessing abortion pills produced by the abortion-rights group Mayday Health as it roamed Boise.

The attorney general quietly clarified Stanton’s legal questions in a letter to Crane, which echoes Stanton’s belief that abortion assistance and referrals and information on medication abortion violate the law. Stanton published the attorney general’s letter in a press release warning abortion rights advocates and providers in the state not to talk to patients about where to go for a legal abortion.

Planned Parenthood and the American Civil Liberties Union quickly sued the attorney general’s office, saying the opinion blatantly violates federal free speech and commerce laws.

Ruling expected soon in Planned Parenthood abortion lawsuit against Idaho AG

“The Attorney General’s interpretation also demonstrates that he is taking the position that at least some abortions in other states are banned by Idaho criminal law — a truly novel, shocking and blatantly unconstitutional interpretation of Idaho’s Total Ban that risks further isolating Idaho patients by cutting them off from critical health care in other states that is legal in those states,” reads the complaint.

Labrador tried to backtrack, at least publicly. He wrote Crane a new letter, 11 days after the first, chastising the lawmaker for allowing the letter to become public and telling him to consider his letter “withdrawn” and his analysis “void.”

But the new letter did not explicitly take back the opinion that health providers in Idaho could lose their medical license for referring women to a provider in another state or calling in an abortion-drug prescription.

The attorney general’s office did not respond to a request for clarification on his opinion of Idaho’s abortion laws.

Mack Smith, the communications director for Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky, said Planned Parenthood will keep fighting what she called “an extremely extreme legal opinion” in court until the attorney general further clarifies.

For now, Planned Parenthood is declining people’s questions about where to access abortions legally. Smith noted that Labrador’s office has said they are not currently investigating Planned Parenthood, but his previous letter represents a real threat to providers.

“[The Idaho attorney general] has not been explicit in what revoking the letter means for our providers on the ground, and obviously, we won’t be risking their licenses and safety,” Smith said. “So at this point, we’re not providing referrals until the judge returns.”

And Stanton is once again seeking clarification from the attorney general, and has asked for a meeting.

“While it is profoundly disappointing and confusing that Idaho’s Attorney General Labrador has publicly rescinded his letter regarding important and valid legal analysis on chemical abortions in Idaho, Stanton Public Policy Center believes the information he provided in a letter to a state representative is still accurate and affirms the law,” Swindell told States Newsroom. “So while Attorney General Labrador has rescinded his letter, he has not ‘rescinded’ the facts and criminal sanctions detailed in the letter and those who violate them will face criminal violations.”

The quagmire over Idaho’s abortion laws coincides with legal uncertainty over the legality of the abortion pill nationwide and has intensified a political climate that threatens maternal health care throughout the state.

“The people who bear the brunt of that are the patients in Idaho,” Smith said. “They’re the people who now don’t have an understanding of the medical options available to them, because their providers aren’t able to give them all of the medical options provided to them. And that simply cannot happen in any state in the country.”

Labrador’s reading of his state’s abortion ban is further indication of his anti-abortion pursuit. Idaho has become an incubator for extreme anti-abortions laws, and recently became the first state in the nation to ban abortion travel for minors without parental permission. He has argued in an ongoing federal lawsuit against Idaho’s law that emergency room doctors do not need to be explicitly protected from prosecution, and he is among several state attorneys general interjecting in a Washington lawsuit trying to lift restrictions of medication abortion.

Labrador is among several attorneys general who have received campaign funding from major conservative legal influencer Leonard Leo, who co-chairs the conservative legal group the Federalist Society, which heavily backed judges and prosecutors with a history of anti-abortion views, including Texas Judge Matthew Kacsmaryk, who recently issued the controversial ruling to temporarily halt the approval of mifepristone. Leo donated approximately $2,000 to Labrador’s primary campaign in February 2022, according to a campaign funding report shared with States Newsroom by liberal watchdog group Accountable.US. During his campaign, Labrador vowed to be a more aggressive attorney general unafraid to sue the federal government.

‘Abortion reversal’ as prosecutorial tool

Swindell founded the Stanton Health network almost two decades ago with a bold but yet-to-be-realized mission to replace Planned Parenthood with a network of clinics that offers reproductive health services except for abortion and birth control. Stanton’s flagship clinic in Meridian, Idaho, is accredited by a national organization — the Accreditation Association for Ambulatory Health Care — unlike the typical anti-abortion pregnancy center.

But like more traditional centers, Stanton leases buildings next to abortion clinics and advertises alternatives to abortion including reversal. They’ve even launched a new mobile clinic to follow a new Planned Parenthood clinic in Ontario, Oregon, and clinics with limited health services in California, Michigan, Ireland, and Scotland.

Swindell says her mother regretted an abortion, and that inspired her to promote and offer an unregulated and disputed medical treatment called “abortion pill reversal.” Over the years her clinics have seen a handful of women like the 26-year-old who wanted to try the treatment after regretting their decision to have a medication abortion, sometimes because of outside pressure.

Though people can experience regret for any medical decision, the mainstream scientific consensus is that women overwhelmingly do not regret their abortions. There is data, however, showing that risk factors for “negative emotions” following an abortion (at least initially, but not necessarily over time) include community and personal attitudes about abortion, something that is denounced as murder by many religious groups and lawmakers in the U.S.

Stanton’s client told States Newsroom that she “grew up Christian, of course,” and that her mom, whom she’s very close to, never believed in abortion. She hadn’t planned on getting pregnant just yet, but it was her boyfriend who was adamant it was the wrong time to have a baby.

“I just felt not confident in my decision if I wanted to keep it because he was putting a lot of fear in my head,’’ she said. “He was thinking that if I [had the baby], it would ruin our lives. And so I just decided to make somebody else happy.”

But after a sleepless night, she was eager to try the treatment, whose ultimate champion is also a plaintiff in the high-profile lawsuit asking the U.S. Food and Drug Administration to revoke its approval of mifepristone and the two-drug medication abortion regimen.

California family doctor George Delgado’s protocol involves a woman interrupting that FDA-approved regimen he’s trying to outlaw. After she takes mifepristone, she must forgo the second drug, misoprostol. Then a provider — usually referred at anti-abortion pregnancy centers — floods her body with progesterone for a couple weeks.

The anti-abortion movement — and several state governments, including Kansas — have been promoting this medical intervention in the absence of any evidence that it works or robust data on potential health consequences of not completing the abortion. Their websites advertise that abortion is reversible, which the American College of Obstetricians and Gynecologists says sends the problematic and unfounded message that an abortion decision can wait till midway through a medication regimen. An OB-GYN who tried to scientifically test the abortion pill reversal protocol canceled the study after three of the subjects experienced excessive and abnormal bleeding.

Stanton’s client acknowledges that maybe it wasn’t because of progesterone capsules she took for two weeks that “reversed” her abortion. She had found out she was farther along — around 12 weeks pregnant — when medication abortion generally becomes less effective. But in another way, she believes those capsules made her a brand-new mom. Stanton says their client gave birth to a healthy baby earlier this month.

“I thought of that progesterone just entering life back into him,” she said. “I felt like life was kind of going back into my baby again. I don’t know if it was like a placebo thing maybe, or like a spirit thing.”

And for Stanton, their client’s story helped them learn exactly how Planned Parenthood was helping women access legal abortion elsewhere, as they consider legal avenues.

Though more and more states are floating proposals to prosecute women who have abortions, Stanton is among many anti-abortion groups that oppose criminalizing women for obtaining abortions, including self-managed abortions. Swindell said they have seen two patients who self-managed since Roe v. Wade was overturned. But they do believe in criminalizing advocacy and volunteer-based organizations that help women access abortions.

“Our approach is dealing with the organizations and the entities that we feel are being predatorial and preying on these women,” Swindell said. “We are very pro-woman, very life-affirming in our approach, and we would never consider reporting a woman for a self-abortion. And in fact, we have not.”

Activists in other states are playing the same strategy Stanton is: going after organizations that offer assistance as a way to enforce and expand state abortion restrictions. Activists in Texas found their plaintiff — an ex-husband suing his wife’s friends for giving her information about how to access abortion pills.

And these types of challenges are likely to spread, with the help of national groups that float model legislation, like the National Right to Life Committee’s model bill, which recommends that states permit civil actions against people or entities that allegedly violate abortion laws.

These lawsuits and threats of lawsuits for helping women have abortions add to the general growing fear of criminal prosecution and can deter people from seeking care, or help from support systems, said Toti, the reproductive rights attorney.

“I can’t speak to what the attorney general of Idaho will or won’t do, but I know that there are politicians across the country who have made false threats for the purpose of scaring and intimidating people who want to obtain abortion care or provide abortion care or help others obtain abortion here,” Toti said.

And that is Stanton’s ultimate goal: to end support and access for abortion care beyond Idaho’s borders.

“We believe in the humanity and human rights of the preborn child,” Swindell said. “And so we’re continuing to work with the AG here in Idaho, and encouraging people to do that in states across the nation,” Swindell said.

Stanton’s client said she wants people to know they could try abortion pill reversal if they regret abortion, but was reluctant to talk about the politics around abortion in her state and across the U.S.

“I’m not talking about anyone else’s experience but mine,” she said, and declined to say whether she would get involved in any related legal action.

At which point, Swindell, who organized the interview with States Newsroom, interjected, “Maybe another interview down the road.”

Idaho Capital Sun is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Idaho Capital Sun maintains editorial independence. Contact Editor Christina Lords for questions: Follow Idaho Capital Sun on Facebook and Twitter.

Disappointed foes vow to keep attacking abortion pill after SCOTUS ruling

Though the U.S. Supreme Court has temporarily blocked an effective ban on medication abortion, anti-abortion groups are not giving up on trying to fast-track a national abortion ban. And that means continuing to try to squash nationwide access to the most common form of abortion post-Roe, by whatever means necessary.

“Obviously, the pro life community is disappointed that there wasn’t an outright decision made concerning banning chemical abortions,” said the Rev. Patrick Mahoney, chief strategic officer for the Stanton Public Policy Center, the lobbying arm of a powerful Idaho-based network of crisis pregnancy centers which has heavily influenced Idaho’s attorney general. “But either way, for the pro life movement and Stanton Public Policy Center, this does not deter us. We have many, many avenues out there to try to ban chemical abortion.”

Legally challenging the U.S. Food and Drug Administration’s two-decades-old approval of the drug mifepristone despite its high safety and efficacy record in Alliance for Hippocratic Medicine v. FDA has been just one of the anti-abortion movement’s many strategies to further curb abortion access. As this case continues to wind its way through the courts, activists are testing other regulatory and legal avenues.

Just this week, anti-abortion activists once again petitioned the FDA to revoke the approval of mifepristone, but this time on (disputed) environmental grounds. The national anti-abortion group Students for Life of America is arguing that trace amounts of the hormone blocker mifepristone could be posing a risk to endangered or threatened species and is trying to compel the FDA to study these impacts if the agency is forced to restart the approval of mifepristone as a result of the Alliance case, according to Politico. The group has also floated state model legislation adding environmental restrictions to medication abortion, which has been introduced in West Virginia.

But this is part of SFLA’s years-long campaign to curtail access to the abortion pill. SFLA also opposes contraception and fertility treatments, and its board co-chair is Federalist Society co-chairman Leonard Leo.

“When I launched Students for Life more than 16 years ago, we knew we were going to need a trained army, ground troops ready to go in states and communities around the country the moment Roe versus Wade was reversed. And we began looking at this issue of chemical abortion five years ago,” SFLA president Kristan Hawkins said on a webcast in February.

Anti-abortion legal activists are also currently leaning hard on the Victorian era anti-vice Comstock Act, which plaintiffs in the Alliance lawsuit argue legally prevents abortion pills from being sent in the mail, something the federal government disputes.

Meanwhile the Alliance case is far from over. Early this month, U.S. District Judge Matthew Kacsmaryk of Texas ruled to suspend the FDA’s approval of the abortion pill. That order never went into effect; neither did the Fifth Circuit Court of Appeals’ decision to keep medication abortion on the market but revive out-of-date restrictions lifted after 2016. Public health and legal experts have been warning that letting either decision stand would have severe public health and legal implications beyond abortion.

And though abortion rights advocates around the country count today’s decision as a victory, groups like the American College of Obstetricians and Gynecologists say the case has already caused damage.

“Although the Supreme Court has kept mifepristone available to patients for the duration of this legal battle, much of the damage of this process remains in place – and we know that the attacks on abortion care will not stop, no matter how many times medical professionals declare that abortion is essential, evidence-based health care and that interference in the patient-physician relationship must stop,” said ACOG president Dr. Iffath Abbasi Hoskins and ACOG CEO Dr. Maureen G. Phipps, in a statement. “We will continue to lead the medical community in providing the clear, strong evidence about mifepristone so that the Supreme Court can make the right decision in the end. ACOG remains steadfastly in opposition to interference in the patient-physician relationship.”

And meanwhile, the uncertainty and confusion over abortion rights in the U.S. marches forward, as are multiple lawsuits related to expanding medication abortion access. A recent order in the federal case out of Washington protects medication abortion in 17 states plus the District of Columbia. More states are trying to expand as abortion haven states. Oregon just joined Massachusetts, Maryland, and Washington in their efforts to begin stockpiling mifepristone. The governors of California and New York have announced plans to begin stock-piling misoprostol, the second drug in the FDA’s two-step regimen for abortion and miscarriage care.

Providers in states not part of the Washington lawsuit have proposed pivoting to misoprostol-only protocols if mifepristone becomes unavailable. The method is said to be less effective and more painful.

Many legal experts have argued that were it not for a biased judge, this lawsuit would likely have already been dismissed for failing to meet certain legal standards. And its legal and medical arguments have been widely disputed. Kacsmaryk has been open about his anti-abortion and anti-contraceptive views but has recently come under fire for failing to disclose his part in a law-review article and radio interviews where he spouted off his anti-abortion and anti-LGBTQ ideology. In his ruling the judge adopted the same rhetoric as the anti-abortion political movement: using terms like “unborn human” to describe embryos and “abortionists” to describe health care providers.

If plaintiffs in the case ultimately prevail, public health and regulatory experts worry about the public health and regulatory fallout. During a press call earlier this week organized by abortion rights groups, Dr. Joshua Sharfstein, a vice dean and professor at Johns Hopkins Bloomberg School of Public Health and a former principal deputy commissioner of the FDA, said that suspending or changing the medication abortion protocol to before 2016 is not based on scientific evidence and sets a dangerous precedent of separating the science from the reasons to regulate drugs.

“These are the kinds of unfortunate questions you have to consider when you rip apart the evidence in public health from the legal framework, because they’re designed to go together,” Sharfstein said. “And you pull them apart, and you’re left with all these truly unique questions. Because, this is so unprecedented, like, what’s the state medical board to do? What’s the state health department to do? What’s the FDA to do under these circumstances? We rely on an alignment between evidence and the law. And when that’s broken, it’s, you know, it becomes a completely different scenario.”

Abortion access could see further decline if case is ultimately victorious

Access to abortion has already significantly diminished since Roe v. Wade was overturned, with people having to travel and endure extended waits. But providers are determined to continue providing care to as many people as possible.

Florida, a state with a challenged 15-week abortion ban (a newly signed six-week ban won’t go into effect before the 15-week ban challenge is resolved), and North Carolina, a state with a 20-week abortion ban, are critical access points in the Southeast. In the six months after the Dobbs decision, Florida saw the largest increase in clinician-provided abortions, followed by Illinois, North Carolina, Colorado and Michigan, according to a recent report released by the Society of Family Planning. Overall, there were more than 30,000 fewer abortions in the six months post Dobbs, though that figure does not include any self-managed abortions.

The increased threats to medication abortion have created heightened fear of criminalization and uncertainty among patients and providers. Abortion rights attorneys who provide free legal services and advice to abortion providers and patients as part of the newly formed Abortion Defense Network have told States Newsroom that many patients have become scared to seek needed medical care related to their pregnancies or abortions.

In the face of abortion provider shortages, travel barriers, and highly restrictive state laws, more people have begun to rely on the two-drug medication abortion regimen of mifepristone and misoprostol. According to the Guttmacher Institute, an abortion rights research organization,10 states would be especially impacted if access to medication abortion is suspended, such as Maine, where the share of counties with an abortion provider would drop from 88% to as low as 19%.

A Woman’s Choice provides abortions at clinics in Jacksonville, Florida, and three cities in North Carolina, along with taking out-of-state patients from Alabama, Georgia, Louisiana, Mississippi, and Texas, according to Amber Gavin, vice president of advocacy and operations. The organization’s leadership is looking at the possibility of providing misoprostol-only abortions if mifepristone access is restricted, Gavin said.

But Gavin noted that the fight to preserve access to abortion is far from over, regardless of the end result of this lawsuit.

“The goal of anti-abortion protesters has been to completely eliminate access to abortion care across the entire U.S.,” Gavin said, emphasizing that abortion rights opponents could also attack birth control next. “They’ll keep coming and finding ways to control our lives, our families and our futures,” she said.

Elisha Brown and Kelcie Moseley-Morris contributed to this report.

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What plaintiffs targeting abortion pill want might not even be possible

At the center of the federal anti-abortion lawsuit against the U.S. Food and Drug Administration is the abortion drug mifepristone and the regimen that reportedly accounts for the majority of abortions in post-Roe America. That’s why the whole country is bracing itself for a ruling from a notoriously anti-abortion judge in Amarillo, Texas.

The attention and confusion around this case might end up being the most impactful aspects about it, as many legal scholars doubt the judge has the legal authority to do what plaintiffs are asking for, which boils down to forcing the FDA to essentially recall a drug that for two decades has maintained a record of efficacy and safety. But regardless of the lawsuit’s outcome, legal experts still think a ruling that even briefly or partially favors plaintiffs will likely have lasting consequences on U.S. abortion access and affect medication policy beyond abortion.

“What this case is doing is only increasing the politicization of mifepristone and abortion, as well as the entire FDA approval process, and [it’s] calling into question the impartiality and the legitimacy of our court system, as well as our FDA approval process,” Georgia State University law professor Allison M. Whelan told States Newsroom.

Last month Whelan along with 18 other FDA legal scholars co-signed a “friend of the court” brief on behalf of the FDA, arguing that U.S. District Judge Matthew Kacsmaryk doesn’t have the authority to force the FDA to immediately withdraw approval of mifepristone, which plaintiffs have asked him to do via preliminary injunction while the rest of the lawsuit unfolds.

Theoretically, the judge could decline to order the total withdrawal of the drug but could grant some of plaintiffs’ other demands, which include ordering the FDA to reinstate regulations that were lifted within the last several years. In 2000 the FDA approved a medication abortion regimen involving the hormone blocker mifepristone followed by misoprostol to expel the pregnancy. Later the FDA extended the gestational age that this protocol could be used from seven weeks to 10, eliminated the in-person dispensing requirement, and most recently has allowed pharmacies to dispense the drug directly to patients under certain restrictions – though that policy is still being rolled out.

The FDA scholars and other legal experts say the process to withdraw drug approval (or to undo decisions made around a drug) can take years, requires public input, and discretion ultimately falls to the FDA. And in the meantime, the agency could choose whether or how to enforce any order that the drug is unapproved, said Whelan, whose scholarship and teaching focus includes FDA law and reproductive justice.

“[T]he FDA would issue this policy statement that signals for manufacturers that from the FDA’s perspective, the FDA is not going to bring any sort of a civil or criminal action against the company for continuing to sell their drug,” Whelan told States Newsroom. “The FDA has issued enforcement discretion policies many times, including recently with the infant formula crisis.”

Even Kacsmaryk questioned his own powers during last Wednesday’s injunction hearing.

“[I]s it that you expect this Court to order the FDA to begin a suspension or withdrawal, almost like a writ-type scenario, or that the Court itself can withdraw or suspend on its own accord?” Kacsmaryk asked, according to the court transcript.

“The latter,” replied Erik Baptist, senior counsel for Alliance Defending Freedom, the conservative Christian legal shop representing plaintiffs. “We take the position that the Court, on its own accord, can order the FDA to withdraw or suspend the approval of the drug.”

“And explain to me your argument on why this Court has that sweeping authority,” Kacsmaryk replied.

Baptist replied vaguely that the court has the power to “enjoin and take whatever action to prevent harm.”

Despite plaintiffs’ claims that medication abortion is dangerous, there is ample evidence of its efficacy and safety. In more than two decades, there have been 28 reported deaths associated with mifepristone and a generally low rate of adverse events, according to the FDA.

The issue of drug approval is just one among several reasons defendants (and legal analysts) argue the case should be thrown out. Others include that the statute of limitations on plaintiffs’ complaints has expired and that plaintiffs did not exhaust administrative remedies to challenge FDA’s approval of mifepristone.

Attorneys for the government have argued that plaintiffs do not have standing to bring their claims and have not shown how they would be directly harmed by keeping mifepristone on the market. Plaintiffs have largely argued that doctors represented in the lawsuit might see an increase in workload in their emergency rooms if more medication abortion patients experience complications and seek medical treatment. Even if that were a viable argument, plaintiffs have not provided evidence that medication abortion is causing a large amount of adverse effects and problems – beyond speculation and minimal anecdotes.

Plaintiffs have also asked the court to weigh in on a dormant federal law from the 1800s known as the Comstock Act, which anti-abortion advocates have been trying to argue legally prevents abortion pills from being sent in the mail, but the Biden administration contests this. Defendants have argued that whether a drug can be legally mailed has no bearing on this case about drug approvals.

A Trump appointee, Kacsmaryk previously served as deputy counsel for a Christian conservative legal group called First Liberty Institute, where he worked on cases fighting access to reproductive health care. “As a federal judge, Kacsmaryk has struck down protections for LGBTQ workers and trans youth and ruled that a federal family planning program’s policy of offering confidential birth control to teens violates federal law and Texas state law, potentially making it harder for Texas teens to access contraception (the ruling has been appealed).

But given all of the legal problems with the abortion pill case, legal journalist Chris Geidner suggests there are a lot of reasons why this case could fail, despite Kacsmaryk’s ideology and sympathies to some of the plaintiffs’ arguments.

“Anything could happen — and much has been made of Kacsmaryk’s background and rulings thus far on the bench — but DOJ and Danco’s lawyers made as strong a case as possible that Kacsmaryk would be going far afield of the law by doing anything about the 2000 approval of mifepristone, especially with these plaintiffs on these facts.”

This case is ongoing (as are several federal lawsuits about medication abortion), and Kacsmaryk’s preliminary injunction is likely to be appealed. Additionally, the ruling itself would only apply to the FDA and Danco Laboratories, one of the manufacturers of the abortion pill. Still, a decision that favors the coalition of national conservative Christian medical associations known as the Alliance for Hippocratic Medicine, and the four plaintiff doctors is sure to have far-reaching legal consequences, and could add more distress and confusion for manufacturers, pharmacists, and health care providers. Beyond abortion, Whelan said a favorable decision could open the door to lawsuits against politically controversial vaccines and hormone replacement therapies.

A favorable decision could also embolden more states to try to ban mifepristone using the argument – if Kacsmaryk buys it – that the medication abortion regimen was not lawfully approved or properly vetted, which many legal and policy analysts say is patently false. A ruling that limits medication abortion in some way – even if it’s not enforceable – will add yet another confusing legal layer to the panoply of state anti-abortion laws that have led to pregnant women frantically traveling for abortion care outside their states, even for medical emergencies.

“It’s like there is no light at the end of the tunnel as to when this is going to end, and it’s just so problematic from a patient and provider perspective because of the uncertainty,” Whelan said. “I cannot imagine being a healthcare provider who does reproductive health care going to work every day thinking, ‘Can I do this today? I was allowed to do it yesterday. Can I do it today? Will I be able to do it tomorrow?’”

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