The battle over abortion does not end in the United States. Less than a year after the Supreme Court’s decision revoking the constitutional right to terminate her pregnancy, a conservative judge in Texas on Friday (April 7th) ordered the Food and Drug Administration (FDA), the American agency for drugs, to withdraw the marketing authorization given in 2000 to mifepristone, the drug used for chemical abortion.
The injunction will not go into effect for another week, he conceded, to allow time for the federal government to appeal, which the Justice Department immediately announced.
A few hours later, another federal judge, seized of a counter-complaint in Washington State by 12 pro-abortion states, ordered the FDA to refrain from ” change the status quo and rights regarding access to mifepristone in these states. When it comes to two federal judges, neither decision trumps the other.
The Supreme Court – itself with a Republican majority – could therefore once again be called upon to arbitrate in this new front of the war waged by the conservatives against access to abortion.
Medical abortion, the most common procedure
Since the pandemic, chemical abortion, based on two drugs – mifepristone and misoprostol – has become the most common pregnancy termination procedure in the United States (53% of 930,000 abortions in 2020). The FDA authorized it in 2016 up to ten weeks of pregnancy and not seven, as previously. Earlier this year, after the Supreme Court’s decision, the agency approved commercialization by telemedicine or by mail in states where abortion remains legal.
Conservatives from the Alliance Defending Freedom coalition asked Texas Judge Matthew Kacsmaryk to ban it, on the grounds that the drug is not safe and that the FDA would downplay its side effects for political reasons. They demand its withdrawal, including in states where the right to abortion is guaranteed: the abortion pill, easy to access, deplores the “pro-life” camp, allows women to circumvent the restrictions on abortion decided by 13 states since the Supreme Court decision of June 24, 2022.
On the contrary, twelve Democratic states, coordinated by the Washington State Attorney, are calling for an extension of access to mifepristone, the prescription of which is currently reserved for accredited doctors, given the increase in demand. They point out that this drug has been used more than 4 million times since its marketing. The complaint had been examined on March 28 by Judge Thomas Rice, of Washington State, who did not render his decision until that of his Texan counterpart was made public.
The “pro-choice” camp expected a negative position from the Texas judge. Appointed by Donald Trump, Justice Kacsmaryk, an activist Christian, is known for his hostility to abortion. In his 67-page opinion, he asserts that the FDA suffered “significant political pressure” pour “increasing access to chemical abortion”. He claims to act in the general interest and in particular that of women affected by a ” intense psychological trauma » by the « excessive bleeding that they incur as a result of the procedure. This is the first time a court has ordered the FDA to remove a product despite opposition from the agency, the government and the manufacturer.
Vice President Kamala Harris said the suspension of the abortion pill “ threatened women’s rights “. Pro-choice activists argue that if mifepristone is banned, abortion will not stop. It will be done with misoprostol alone, a less effective agent, which may put women’s health at risk.