Allen G. Breed, File/AP
- Banning mifepristone will result in more women dying in pregnancy, Democratic attorneys general argued this month.
- The argument comes as a judge in Texas is considering a ban on the abortion pill.
- A Trump appointee, the judge previously ruled that LGBTQ people are not protected by anti-discrimination laws.
A ruling expected in the next few weeks from a federal judge in Texas that could result in a ban on the abortion pill mifepristone could lead to an "unprecedented spike" in maternal mortality, Democratic attorneys general argued.
New York Attorney General Letitia James, writing on behalf of 21 states and the District of Columbia, made this argument in a February 10 filing in the case Alliance for Hippocratic Medicine v. FDA.
At issue is whether a conservative judge, appointed by former President Donald Trump, will side with anti-abortion activists and rule that federal regulators erred when they approved a medical abortion drug more than two decades ago.
Motivated by a desire to limit access to abortion, the anti-abortion activists maintain that the FDA-approved mifepristone, also known as RU-486, without properly weighing its health implications, arguing that it results in more complications than surgical abortions. Republican attorneys general who have weighed in on the case also maintain that its approval infringed on state rights.
The case, Alliance for Hippocratic Medicine v. FDA, was sparked by a legal complaint from anti-choice activists, who argue that federal regulators made a blunder when they approved the drug more than 20 years ago. Following the overturning of Roe v. Wade, the Biden administration announced that it would be expanding access to mifepristone in states where abortion remains legal, allowing retail pharmacies, such as CVS and Walgreens, to dispense it; previously it was only available from doctors and mail-order pharmacies.
First approved by the Food and Drug Administration in September 2000, mifepristone can be prescribed in the first 10 weeks of a pregnancy and works by blocking the production of the hormone progesterone, necessary for the development of a fetus. It was first approved by French regulators in 1988 and, according to the FDA, subsequent reviews have found no cause to question its safety.
In fact, as Bloomberg reported last year, mifepristone "sends fewer people to the ER than Tylenol or Viagra." A 2022 study published by the New England Journal of Medicine likewise found no evidence of increased, abortion-related complications after the drug became widely available in Canada.
James, arguing for the Democratic attorneys general, maintains that removing mifepristone from the market would actually increase risks not just for those who are pregnant but for anyone who needs reproductive health care.
In her brief, James noted that carrying a pregnancy to term poses significantly greater health risks than an early abortion. "Accordingly, impeding access to medication abortion, the method currently accounting for the majority of all abortions, would undoubtedly lead to an unprecedented spike in mortality," she wrote, pointing to research that suggests a total ban on abortion could ultimately lead to a 21% increase in pregnancy-related deaths or an additional 140 deaths annually, in the years following a ban.
Additionally, a limit on medication abortions would lead more people to pursue a surgical option, which would cause "ripple effects" across the health care system, James argued. That's because "many of the same facilities providing abortion also offer other critical health care services," such as screenings for cancer and sexually transmitted diseases. "With increased demand for abortion care produces delays in accessing other forms of care at those facilities, the result will inevitably be higher rates of unintended pregnancy and sexually transmitted infections," James wrote.
It is not certain that would be the case, however. As Slate's Christina Cautertucci notes, mifepristone is only one of the two drugs used in a typical medication abortion. The other, misoprostol, "can also terminate a pregnancy on its own" — and while it is moderately less effective because it is also used to treat stomach ulcers, "it is unlikely to be subject to a blanket, politically-motivated ban."
Trump judge shows a willingness to buck precedent
Still, abortion rights advocates are sounding the alarm, noting that the two-drug cocktail is considered the safest, most effective means of terminating a pregnancy. And while it would be highly unusual for a federal judge to overrule the FDA — the agency said last month that it would be "extraordinary " — the one presiding over this case has shown a willingness to indulge conservative arguments at the expense of legal precedent.
Appointed by former President Donald Trump, Matthew Kacsmaryk, of the US District Court for the Northern District of Texas, is the judge who in 2021 ordered the White House to reinstate Trump's "Remain in Mexico" program, demanding the Biden administration negotiate an agreement with a foreign government to host people seeking asylum in the United States. That decision was later overturned by the Supreme Court.
Last year, Kacsmaryk also ruled that a federal program that provides free contraception to all who need it violated parental rights — despite the plaintiff, the father of a teenage daughter, failing to demonstrate that he had legal standing: that he or his daughter had actually used or otherwise been affected by the program.
Ian Millhiser, a legal affairs columnist at Vox, has described Kacsmaryk as a "rogue federal judge," noting his willingness to buck precedent on behalf of the right-wing causes he fought for as a private attorney. Indeed, his record has led conservative plaintiffs to seek him out, taking advantage of the fact that "95 percent of civil cases filed in Amarillo, Texas's federal courthouse are automatically assigned to [him]," per Millhiser.
A ruling in the case could come in the next several weeks, with Kacsmaryk having set a February 24 deadline for briefs to be filed.
If Kacsmaryk sides with the anti-choice plaintiffs and bans the abortion drug, it would be a remarkable assertion of judicial power — and almost certainly end up at the Supreme Court.
Back in 2000, opponents of medical abortion, such as former Texas governor and future president George W. Bush, believed the FDA's then-recent authorization of mifepristone was a done deal that could only be overturned by an act of Congress.
"I don't think a president can even overturn it," Bush said in a presidential debate. "The FDA has made its decision."
Have a news tip? Email this reporter: cdavis@insider.com