US dispatch: Texas case could limit access to abortion medication Dispatches
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US dispatch: Texas case could limit access to abortion medication

Marisa Wright is a US National Correspondent for JURIST, and a 2L at Harvard Law School.  

Anti-choicers are continuing their march toward near-total control over reproductive health in the United States. Since the overturn of Roe v. Wade last June, anti-abortion proponents have turned their attention to trying to ban medication abortion and even birth control. And now, a Trump-appointed federal district court judge in Texas is set to decide whether to grant a preliminary injunction ordering the Food and Drug Administration to withdraw approval of mifepristone, a medication used along with misoprostol to terminate pregnancies.

The lawsuit is brought by the Alliance for Hippocratic Medicine, which is represented by the same conservative Christian legal nonprofit that represented plaintiffs in Dobbs v. Jackson Women’s Health Organization (the Alliance Defending Freedom). Many of AHM’s plaintiffs are doctors who are also members of the American Association of Pro-Life Obstetricians and Gynecologists.

AHM claims that “the drug is dangerous; taking abortion pills is riskier than giving birth; and emergency rooms are overrun with medication abortion patients.” This narrative, however, is unfounded by evidence and experts.

The U.S. Department of Health and Human Services wrote in its brief that “[b]ased on extensive scientific evidence, FDA determined more than two decades ago that mifepristone is safe and effective for its approved use and that its benefits outweigh its risks.” DHS also cited the FDA’s own scientific review of mifepristone from 2016, which found that rates of serious adverse events are low—transfusions are 0-0.1 percent, sepsis is less than 0.01 percent, hospitalization related to medical abortion is 0-0.7 percent, and hemorrhage is 0.1 percent. Additionally, studies show that mifepristone is safer than both Tylenol and Viagra.

Although the case has a serious poverty of legal merit, the implications of the judge’s rule could be far-reaching. The plaintiffs are asking for a preliminary injunction on the medication, meaning the judge could “order the immediate removal of mifepristone from the marketplace and apply his decision nationwide,” Molly Meegan, chief legal officer and general counsel of the American College of Obstetricians and Gynecologists, told Bloomberg Law.

The judge in the case, Matthew J. Kacsmaryk, was appointed to the federal judiciary by Donald Trump in 2017. Kacsmaryk holds extreme conservative views, even claiming that being transgender is a “mental disorder” and calling gay people “disordered.” He also formerly worked for a law firm that mostly works on behalf of the religious right.  In 2015, he decried a “Sexual Revolution,” arguing it “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”

Kacsmaryk has previously issued extreme conservative rulings, including that Title IX does not protect against anti-LGBTQ discrimination and that DHS cannot prohibit federal family planning providers from telling parents about their child’s request for birth control and related services (a case that should not have even been heard for lack of standing).

This case seems to follow the trend of conservative lawyers engaging in judge shopping—basically, filing cases in jurisdictions where they know conservative judges will hear their case in order to increase their odds of winning the case. Ninety-five percent of all federal civil cases filed in Amarillo, Texas are automatically assigned to Kacsmaryk. Vanity Fair reports that “there is no question that the group—whose mailing address is actually in Tennessee, according to [Rolling Stone]—did so in order to get their case in front of an individual who is flagrantly against reproductive rights.”

Since the Supreme Court’s decision in Dobbs, more and more people have relied on medication to terminate their pregnancies, particularly in states that have banned abortion. Removing mifepristone would add yet another barrier to accessing abortion for many patients. It would not, however, eliminate all medication abortion. Misoprostol-alone regimens can be used to terminate a pregnancy, but the combination of  misoprostol and mifepristone is more effective.

Despite the absurd aspects of this case, its primary importance is how it will impact patients. In 2020, medication abortion made up over half of all abortions in the United States. It is often more affordable and convenient for patients, while also being very safe. As abortion is banned or restricted in more states, medication abortion will remain key to accessing abortion care for millions of Americans. People who are systematically disadvantaged—women of color, low-income families, disabled people, and LGBTQ folks—as well as people who live in rural communities or areas without a nearby abortion clinic will be disproportionately impacted by reduced availability of abortion medication.

“No one should have a safe, evidence-based abortion method restricted from them because of a politically-motivated judge,” Dr. Kristyn Brandi, an OB/GYN and abortion provider in New Jersey and Board Chair with Physicians for Reproductive Health, said in a statement to JURIST. “This case is not about making health care safer; abortion care including medication abortion care is incredibly safe. This is instead an attempt by anti-abortion extremists to cause confusion and fear for people who need abortions and people who provide abortions.”