Abortion Pill Ruling in Texas Escalates the Post-Roe Fight

Pro-abortion advocates just received another potential blow as a judge in Texas blocked federal approval of the abortion drug mifepristone, which could affect every state in the Union. Although the treatment has been available for 20 years, the district court justice said the Food and Drug Administration (FDA) didn’t follow appropriate safety measures. Now the lines in the sand are drawn even deeper as Democrats urge the president to ignore the ruling and Republicans threaten to defund the FDA.

The Politics of Abortion

The conservative Christian legal group, Alliance Defending Freedom, brought the case to Texas US District Court Judge Matthew Kacsmaryk on behalf of providers opposed to abortion. The main legalities behind the suit are two-fold: that safety measures were not met by the FDA and that sending these types of prescriptions via mail is unlawful under the Comstock Act.

The Biden administration immediately filed an appeal. In a statement on April 7, the president said that the “Court in this case has substituted its judgment for FDA, the expert agency that approves drugs. If this ruling were to stand, then there will be virtually no prescription, approved by the FDA, that would be safe from these kinds of political, ideological attacks.” He added that “The lawsuit, and this ruling, is another unprecedented step in taking away basic freedoms from women and putting their health at risk.”

Mifepristone was approved by the FDA  in 2000, however, Judge Kacsmaryk said the agency did not properly follow safety measures and fast-tracked approval of the drug:

“The Court does not second-guess FDA’s decision-making lightly. But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions. There is also evidence indicating FDA faced significant political pressure to forego its proposed safety precautions to better advance the political objective of increased ‘access’ to chemical abortion — which was the ‘whole idea of mifepristone.’”

The anti-abortion rights physicians and medical associations told the court that the FDA wasn’t doing its job to protect women and girls “by rejecting or limiting the use of dangerous drugs” and “it has repeatedly failed them by removing even the most basic precautionary requirements associated with their use.”

The timing is questionable, coming right after Roe v. Wade was overturned and abortion rights were returned to individual states. Several states have already enacted partial or total bans on the procedures, so as a countermeasure, the FDA recently approved pills to be mailed out. So why wait all this time to file a lawsuit? Judge Kacsmaryk said the drug organization has not responded to many attempts to question the safety precautions. He wrote in his ruling:

“Simply put, FDA stonewalled judicial review — until now. Before Plaintiffs filed this case, FDA ignored their petitions for over sixteen years, even though the law requires an agency response within ‘180 days of receipt of the petition.’ … Had FDA responded to Plaintiffs’ petitions within the 360 total days allotted, this case would have been in federal court decades earlier. Instead, FDA postponed and procrastinated for nearly 6,000 days.”

Furthermore, the justice pointed out the Comstock Act of 1873, which prohibited mailing contraceptives, “lewd” writings, and any “instrument, substance, drug, medicine, or thing” that could be used in obtaining an abortion.

Political Posturing

Both sides of the aisle are threatening countermeasures. Sen. Ron Wyden of Oregon and Rep. Alexandria Ocasio-Cortez of New York, both Democrats, have suggested that the White House should essentially ignore the ruling, according to The Hill. Republican Rep. Tony Gonzales of Texas, however, suggested defunding the Food and Drug Administration if the Biden administration chooses not to adhere to Kacsmaryk’s ruling. On CNN’s “State of the Union”, Gonzalez said:

“It’s very dangerous when you have the administration, the Biden administration, coming out and saying they may not uphold a ruling. The House Republicans have the power of the purse. And if the administration wants to not live up to this ruling, then we’re going to have a problem… it may come to a point where House Republicans on the appropriation side have to defund FDA programs that don’t make sense.”

On the same day Kacsmaryk made his ruling, a Washington state federal judge made a contradictory decision, saying the FDA is placing burdensome regulations on the abortion drug and that states should retain access to mifepristone. With two such opposing rules, it is likely this lawsuit may end up in the Supreme Court.