Judge Matthew Kacsmaryk’s ruling against the FDA’s 23-year-old approval of one of the two drugs used in the most common form of abortion in the country will reverberate through history as a shining example of what happens when ideology fuses with power. The Friday ruling, which was stayed for seven days while the Biden administration appeals, perfectly ratifies the logic and language of the anti-abortion strategists who brought the case. Kacsmaryk promotes the false claim that medication abortion is dangerous, even though he himself can point to only two deaths last year out of hundreds of thousands of abortions. He says the 1873 Comstock Act bans the mailing of abortion pills. He calls embryos “unborn humans” and abortion providers “abortionists.” As Elie Mystal pointed out, he invented a rationale for giving legal standing to anti-abortion doctors in part by speculating that abortions are so “deeply traumatizing” that people who have them can’t bring lawsuits like this themselves.
Now a debate has erupted over how the Biden administration, blue states, and the abortion-rights movement should respond to this unprecedented decision. Senator Ron Wyden and Representative Alexandria Ocasio-Cortez have called on the Biden administration to ignore Kacsmaryk’s ideological ruling. “There is no way this decision has a basis in law,” Wyden said in a press release. “No matter what happens in seven days, I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that.” The Biden administration has already appealed the decision to the Fifth Circuit. Health and Human Services Secretary Xavier Becerra has said “every option is on the table,” although a spokesperson clarified that the administration would not “disregard” the decision.
In a call with reporters Monday, leading abortion rights groups rallied behind the Biden administration and the court-based strategy, batting away repeated questions about whether the administration should be considering alternatives in case they lose.
“All eyes and amicus briefs and more will be focused on the Fifth Circuit and, ultimately, if necessary, on the Supreme Court,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said on the call. “It is premature to be talking about the FDA’s discretion.”
Jennifer Dalven, director of the reproductive freedom project at the ACLU, agreed, saying that even if the FDA declined to enforce Kacsmaryk’s ruling, the ruling could still set a dangerous precedent. “The answer here really needs to be through the court system,” Dalven said.
The Biden administration does “tend to be cautious,” NARAL President Mini Timmaraju told Politico. “But with stakes like this, with these courts, they should be. They’re the defendant. We want them to be careful. Also, it has served them well in the past. So I feel confident the administration is doing what they need to do.”
That note rings hollow to many providers and grassroots activists in the movement.
“I don’t think the courts are the only path for justice; that comes from somebody who sued the state of Texas 11 times,” Amy Hagstrom Miller, founder of Whole Woman’s Health, told me. “We can’t be too naive to think that the only path for justice here is going to be in the courts.”
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Hagstrom Miller has specific reason to be skeptical of the US Court of Appeals for the Fifth Circuit, where the fate of Kacsmaryk’s ruling now rests. In 2014, the Fifth Circuit ruled against Hagstrom Miller, upholding a Texas law that shuttered half the state’s clinics before it was struck down by the Supreme Court. The Fifth Circuit was that conservative before Trump put six justices there.
After the Fifth Circuit, the last stop is the Supreme Court, where Federalist Society leader Leonard Leo has facilitated the placement of justices handpicked for their opposition to abortion rights. After the Supreme Court’s decision in Dobbs, many in the movement worry that there’s no guarantee they would overrule Kacsmaryk. That’s why they’re calling on the administration to look at alternative ways to keep mifepristone accessible.
Some legal experts argue that the FDA can use its enforcement discretion to allow mifepristone to remain on the market even if Kacsmaryk’s ruling stands. Existing law allows some unapproved drugs to be sold if they meet certain safety criteria, according to the FDA’s website. “It is in the FDA’s authority to use its well-recognized enforcement discretion to say: ‘Yes, we recognize the opinion from Judge Kacsmaryk. But we are not going to enforce the laws against unapproved drugs in this context,’” says David Cohen, a law professor at Drexel University.
There’s another court-based strategy that’s gotten less attention. Seventeen states and Washington, D.C., sued the Food and Drug Administration in a preemptive strike against Kacsmaryk’s ruling, asking a judge in Washington State to prevent new restrictions on mifepristone. Judge Thomas Rice granted their request on Friday just after Kacsmaryk’s ruling. This will likely trigger a circuit court split that will expedite the Texas ruling’s path to the Supreme Court. But in the meantime, Rice’s ruling protects mifepristone only in the states that brought the lawsuit. Oddly, those 17 states do not include California, New York, or Massachusetts, which have been among the most protective of abortion rights. New York’s absence is particularly concerning, because mifepristone maker Danco is based there. The Office of California Attorney General Rob Bonta declined by e-mail to comment on its noninvolvement in the Washington lawsuit, pointing instead to its efforts to back the Biden administration in appealing Judge Kacsmaryk’s ruling.
Some state officials and abortion providers are not waiting on the courts at all. Washington Governor Jay Inslee announced that the state had purchased enough mifepristone pills to supply Washington residents and people traveling to the state for four years. The University of Massachusetts–Amherst has purchased more than a year’s supply of mifepristone at the request of Governor Maura Healey. California Governor Gavin Newsom is stockpiling misoprostol, the second drug used in the medication abortion regimen, which is 88 percent effective on its own.
“I think that’s the creative stuff you need to get behind,” Rosann Mariappuram, senior policy counsel at the State Innovation Exchange told me. “If a blue state is controlling—and has already purchased—a large amount of mifepristone, even if it eventually leaves the market in some way, the state is still distributing it and could be giving it to health-care providers,” she said.
It’s a reflection of the fact that Democratic state lawmakers seem to have adapted to the post-Roe reality more quickly than congressional Democrats. Blue states have passed a record-setting number of laws to protect access to contraception and abortion—although abortion providers like Linda Prine are still waiting on states like New York to pass shield laws modeled after the one in Massachusetts to protect abortion providers who offer telemedicine in hostile states. But, as Rebecca Traister wrote for The Cut, too many Democrats, particularly on the federal level, have been slow to catch on to the fact that abortion is a winning issue, and that the public is as much as 15 percent more pro-choice than it was before Dobbs.
Hagstrom Miller of Whole Woman’s Health has been direct about what the current Democratic administration can do. “Reminder: Judge Kacsmaryk’s ruling will not have the power to ban MIFE immediately. The ball will be in the FDA’s court,” Whole Woman’s Health tweeted last month. “No matter what the Judge says, Whole Woman’s Health can still offer medication abortion care with MIFE and MISO until we hear from the FDA.”
Other providers have followed suit, saying they will continue to offer the full medication abortion protocol until the FDA orders them to stop. Meanwhile, grassroots activists across the country are continuing to help people self-manage abortion with pills. The network Aid Access has seen an uptick in orders for medication abortion through advanced provision—meaning more people are ordering the drugs before they need them in order to be prepared.
“People are helping each other self-manage their abortions today with mifepristone; they’re going to keep doing that whatever the courts say,” Kimberly Inez McGuire, executive director of the reproductive justice group URGE, told me. “The courts don’t keep us safe; we do.”
The most encouraging change since the Dobbs decision is the growth of the grassroots abortion rights movement shown in the rising number of young people voting and in the momentum around campaigns like the abortion referendum in Kansas.
“The only way to win durable and full and free access to abortion is through a mass movement for abortion justice,” McGuire said.
That’s true no matter what the courts do next.
