After the Supreme Court struck down the nation’s abortion law last year after half a century, a Texas magistrate tried Friday to push American women back in time even further. Invoking a nearly forgotten 150-year-old moral law, a federal judge ruled that the food and drug watchdog, the FDA, could not allow the abortion pill Mifepristone to go on the market.
Not only has the free availability of this drug become uncertain; the case has the potential to have far-reaching consequences for all abortion services, even in US states where it is still legal.
1 What is the drug mifepristone?
It can be used, usually in combination with the antacid Misprostol, during the first trimester to safely induce a miscarriage. This can be done at home, without going to a clinic, with the so-called ‘telecare’: guidance by phone or video call. The pills have been on the market in the US for 23 years, but for a long time they remained somewhat untouched in the heated abortion debate in the United States.
The latter has changed rapidly in recent years. Even before the Supreme Court issued its landmark ruling in June 2022 Roe vs. Wade —which had championed abortion rights nationwide since 1973—conservative states made it impossible for abortion clinics to function. Partly because of this, mifepristone has increasingly offered comfort to women wanting to terminate a pregnancy. According to the Gutmacher Institute of Expertise, the drug was used for the first time in more than half (54 percent) of all abortions in the US in 2020. In 2017, it was still 39 percent.
2 What role does the pill play in the American abortion debate?
Especially after falling. Roe vs. Wade pills have become the next bone of contention. Since June, states have been allowed to decide whether to allow abortion and strict bans are now in effect in a third of the country. The supply of mifepristone has also been restricted in many conservative states.
In response, abortion rights advocates have made the pills more widely available than ever before. For example, by mailing them from a progressive state, or if necessary abroad.
This became much easier after the FDA, at the request of the Biden administration, decided in early January that the pills could now be dispensed without a doctor’s intervention. You can get them over the counter at big chain pharmacies like CVS and Walgreens, even on the web store.
He’pro lifeThe movement, as anti-abortion activists call themselves, took action against this. In Texas, among others, he filed lawsuits against the FDA’s decision. And federal Judge Kacsmaryk, a conservative lawyer who was nominated to the court in Amarillo under former Republican President Trump, took the bite Friday.
3 What exactly did this judge in Texas rule on Friday?
In a preliminary decision, Kacsmaryk agrees with the complainants’ reasoning that the FDA’s decision was made through carelessness. In addition, he considers it contrary to the Comstock Law.
This archaic law was the result of a campaign in 1873 by the highly religious Christian nationalist Anthony Comstock (1844-1915). In New York he led the puritanical activist group ‘Society for the Suppression of Sin’, with which he fought against ‘vices’ such as obscene literature, prostitution, contraception, gambling, adultery, women’s suffrage and abortion. during decades. ‘comstockery‘, still means something like ‘excessive censorship’ in American English.
The morality law that bears his name seemed a dead letter, especially after Congress legalized contraception in 1971. The anti-abortion movement has now successfully resurrected it, pointing to a provision prohibiting the transmission of “any article, device, obscene, indecent, indecent, dirty or vile object, instrument or substance”, including “any article, tool, substance, drug, medicine or object advertised or described in such a way as to induce another to use it for the purpose of causing an abortion, or any other non-virtuous or immoral purpose”.
Jurists point to case law in which judges only applied the provision in question to forbidden purposes. But according to Kacsmaryk, the law is clear, he wrote on Friday: “The Comstock Law conclusively prohibits mail-order abortion.”
4 What consequences could this statement have?
Another federal judge, from the western state of Washington, ruled otherwise the same day. To the contrary, he determined that the FDA’s decision should be upheld.
These two conflicting rulings mean the pills will remain available for now and the federal Supreme Court will likely have to decide their fate. Since President Donald Trump (2017-21) was allowed to nominate a record number of three senior justices, this nine-member Court has a stable conservative majority of six.
If the Court upholds Texas’ criticism of the FDA’s procedure, mifepristone could lose its approval. Women would only have access to Misosprostol, which is now often used to support Mifeprostone, but can also independently induce miscarriages. This drug is also in the crosshairs of the anti-abortion movement.
Also read: This report on abortion pills in Mexico
If the Supreme Court also accepts Kacsmaryk’s interpretation of the Comstock Law share, this could have far-reaching consequences. Three attorneys also warned of Friday’s rulings for progressive states where abortion is now legal. For every abortion, whether performed with a clinical procedure or with pills, they say, drugs or medical instruments will have to be transported or shipped across the country. “Without a clear delineation of the purpose of this law, in its simple explanation it could prohibit all abortion in the entire country.”