One of the most common and safe abortion drugs could be banned nationwide as soon as Friday, thanks to a lawsuit that could impact every state in the country—regardless of that state’s abortion restrictions.
Abortion rights supporters and foes alike are bracing for a ruling in a lawsuit, filed late last year, that accused the Food and Drug Administration of overstepping its authority when it approved the use of the drug mifepristone for abortions. Although the lawsuit was initially regarded as something of a longshot legal oddity among abortion rights activists, that attitude quickly changed once people realized that the suit was sure to be overseen by Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump and is widely known for his conservative views on abortion.
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“It’s not a good claim, and yet it will probably be accepted,” Joanna Grossman, a visiting professor at Stanford Law School, told VICE News earlier this month.
“People are increasingly worried not because the legal theory started to make more sense when they thought about it. They got increasingly worried because they realized it was going to a judge who was probably going to rule in a way that was purely ideological and not related to the law,” said Grossman, who described Kacsmaryk as “loose cannon.”
In early February, Kacsmaryk asked for more briefing from parties in the case on or before February 24, setting up the possibility that he will implement a nationwide injunction on mifepristone as soon as this Friday.
If he decides to yank mifepristone off the market, the ruling would mark the first time that a court has overruled the FDA’s new drug approval process “unilaterally and over the FDA’s objection,” according to a draft of an article released earlier this month by law professors David S. Cohen, Greer Donley, and Rachel Rebouché. Nevertheless, 22 Republican attorneys general have filed a brief affirming their support for the lawsuit.
First approved in 2000, mifepristone has become one of the most-studied drugs on the market, the law professors said. Typically used in the United States along with the drug misoprostol to induce medication abortions, as well as to manage miscarriages, it’s 18 times safer than childbirth.
If mifepristone is banned, several abortion providers have said that they plan to change to performing misoprostol-only abortions. In a press call earlier this month, Ashley Brink, director of the Wichita, Kansas-based abortion clinic Trust Women, told reporters that Trust Women would be making the switch.
“However, not every clinic may be able to pivot as quickly to a miso-only protocol,” Brink said on a press call. “This will impact their capacity if they are only able to provide abortion care via procedure,” or surgical abortions.
While a nationwide wide ban on mifepristone will certainly cut off legal sources of the drug, it will not necessarily touch efforts to ship mifepristone for use in self-managed abortions. In the months after the Supreme Court’s overturning of Roe v. Wade last June, the number of Americans asking for help ending their pregnancies at home nearly tripled, according to a November study of Aid Access, an organization that mails abortion-inducing pills to Americans—including those in states where abortion is banned.
Although the lawsuit primarily focuses on the FDA and its approval of mifepristone, it also argues that the Comstock Act, a 19th-century anti-obscenity law that has long lain dormant, should be used to ban the mailing of all abortion-related materials—including pills. Anti-abortion activists across the country have increasingly started to point to the Comstock Act in their efforts to block access to abortion pills. After Walgreens and CVS said they would dispense mifepristone to people with prescriptions, 20 Republican attorney generals sent the pharmacy chains a letter suggesting that they would go after them with the Comstock Act.
Kacsmaryk doesn’t need to rule on the Comstock Act to ban abortion pills nationwide, but if he does touch that argument, the U.S. Postal Service may struggle to enforce it. A 2018 report from the Postal Service’s Office of the Inspector General revealed that the Postal Service has long been drug dealers’ mail service of choice: In 104 “drug product sites” surveyed by the office, 92 percent said that they used the Postal Service. Of those, 41 percent were apparently so confident that their illegal wares would remain undetected by the Postal Service that they “offered free, partial, or full reshipment if the package did not arrive to the buyer’s address because it was confiscated, stolen, or lost,” according to the report.
“A cocaine trafficker claimed to have used the Postal Service to successfully distribute nearly 4,000 shipments, stating that they had a 100 percent delivery success rate,” the report added.
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