Last week’s unprecedented ruling by a Texas federal judge, Matthew Kacsmaryk, overturning the FDA’s two-decade-old approval of the abortion medication mifepristone has raised the ugly prospect of anti-abortion activists’ being able to curtail access to abortion even in states where it remains legal. It has also raised the specter of a legal system at war with itself: The same day that Kacsmaryk issued his ruling, in which he wrote sneeringly of “abortionists” and of traumas women faced after having taken abortion pills, Judge Thomas Rice, in Washington State, issued a ruling 180 degrees away from the Amarillo judge’s. This one explicitly protected access to mifepristone in the 17 pro-choice states that had sought an order requiring the FDA to maintain the availability of the drug.
Kacsmaryk’s ruling is an absurdity. FDA approval is a rigorous, science-based process, deliberately insulated from everyday political considerations. If the ruling stands, it throws into doubt not only access to one of the two available abortion medications but, more generally, the entire century-old regulatory process around pharmaceutical drugs. It opens the door to ideologically and religiously driven retroactive challenges to medications ranging from vaccines to Viagra, from contraceptives to prophylactic medications designed to reduce the transmission of HIV. And it will likely undermine investment in medical research and development, since drug companies will no longer have guarantees that these drugs, once they receive FDA approval, and barring major new information about health risks, those drugs will be allowed to remain on the market.
The legal decision out of Amarillo, Tex., is flimsy enough in its rationale that it should give the conservative US Court of Appeals for the Fifth Circuit—as well as the conservative Supreme Court—plenty of wiggle room to overturn it. But given their political bent, it’s also possible that the judges will somehow contort themselves into finding reasons to uphold it over the coming months. Wednesday night’s ruling by the Fifth Circuit panel, while temporarily preserving some access to misepristone as the appeals process plays itself out, also locked in place a number of restrictions, including the prohibition on distributing the pills through the mail.
Kacsmaryk’s decision, while shameful, wasn’t exactly a bolt out of the blue. Cherry-picked by abortion opponents to hear this case precisely because his rigid views were well-known, the judge telegraphed his intent to rule against mifepristone months ago, leaving California and other states seeking to protect abortion access plenty of time to strategize their next moves.
These efforts range from a full-court press to convince the Biden administration and the FDA to ignore Kacsmaryk’s ruling (many legal scholars have argued that he has no standing to unilaterally withdraw FDA approval for a drug) to the stockpiling of millions of doses of misopristol—the other abortion-inducing pill on the market—through to increased legal protections for doctors who do tele-health consultations with patients outside of California and prescribe them abortion-inducing pills.
State Senator Nancy Skinner, the powerful chair of the California Senate Budget Committee, recently authored SB 345, which provides legal protections to California doctors who prescribe mifepristone and misopristol to patients in states that have moved to outlaw abortion. The bill is sponsored by NARAL, National Black Women for Wellness, and other pro-choice groups. In addition to providing protections for doctors, it would also allow a Californian to countersue for legal costs any Texan who might be tempted to sue them under Texas’s bounty-hunting law that empowers private individuals to use the courts to seek recompense from anyone involved in helping someone procure an abortion.
“Clearly the anti-abortion people are going to try everything,” Skinner told me during a phone conversation this week. “We have to try to stay one step ahead of them. California will continue to be a safe haven for health care providers and those who need care.”
How exactly that will play out Skinner won’t say. But she does state that lawyers from the governor’s office, the state attorney general’s office, and the legislature are looking at “all options” to protect access to medication abortions. “We’re not leaving anything on the table,” she says. “The American public has shown clearly that they disagree with the court’s decision. Americans support medication abortion and a woman’s right to choose.”
Meanwhile, also out West, Idaho has galloped off in Texas’s direction when it comes to abortion. The state, which already has one of the strictest bans in the country, is now pushing travel restrictions on pregnant minors seeking to go out of state for abortions without parental consent. In a particularly Orwellian linguistic twist, legislators have framed this as an “abortion trafficking” bill; under its provisions, those who help minors secure access to out-of-state abortions or abortion pills could face up to five years in prison. In other words, if you have a teenage friend or relative in Idaho who’s pregnant, you invite her to a nearby state such as California, Washington, or Oregon, and she terminates her pregnancy while there, you could find yourself a guest in an Idaho penitentiary for the next half-decade. Washington Senator Patty Murray immediately termed it an attack on “our most basic right as Americans to travel freely within our country.”
So much for the “small government” messaging of the GOP. In reality, courtesy of today’s Republicans and their obscurantist judicial nominees, Big Brother is peering over your shoulder and into your smartphone, scouring your travel reservations, and perusing your medical records. Big Brother is second-guessing the scientists at the FDA and criminalizing doctors for simply doing their job and caring for their patients. Idaho likes to fashion itself as a redoubt of the Western individualist, a haven from what the right loves to call “big government overreach.” What on earth could be more of an overreach than locking down teenagers, barring them from travel, threatening their doctors, their friends, their relatives, and forcing them to spend nine months carrying to term a baby they did not choose to have?