One judge suspends FDA-ok & another protects access to abortion pill

The status of a key abortion medication was cast into uncertainty Friday night when rulings from two federal judges reached contradictory conclusions, with one jurist blocking U.S. government approval of the drug while the other said the pill should remain available in a swath of states.

The dueling opinions — one from Texas and the other from Washington state — concern access to mifepristone, the medicationused in more than half of all abortions in the United States and follow the Supreme Court’s elimination of the constitutional right to the procedure last year. It appears inevitable the issue will move to the high court, and the conflicting decisions could make that sooner rather than later.

The highly anticipated and unprecedented ruling from Texas puts on hold the Food and Drug Administration’s approval of mifepristone, which was cleared for use in the United States in 2000. It was the first time a judge suspended longtime FDA approval of a medication despite opposition from the agency and the drug’s manufacturer. The ruling will not go into effect for seven days to give the government time to appeal.

“The decision to block the FDA’s approval of mifepristone, which could amount to a ban on medication abortion care as we know it across the country, would further worsen Arizona’s abortion access crisis,” said NARAL Pro-Choice America Southwest Regional Director Caroline Mello Roberson. “But we aren’t backing down: NARAL Pro-Choice Arizona and our 75,000 members will be mobilizing alongside our partners to continue this fight to restore abortion access and stop these baseless, feckless attacks on our most fundamental rights and freedoms.”

New Jersey-based progressive activist Lisa McCormick criticized Judge Matthew J. Kacsmaryk for blocking the sale of mifepristone, a medication used for terminating early-stage pregnancies, 20 years after it was approved by the FDA.

McCormick said: “Judge Kacsmaryk made his ruling against the weight of evidence, and based the decision on his personal religious beliefs” when the federal judge in Texas blocked U.S. government approval of a key abortion medication Friday, siding with abortion foes in an unprecedented lawsuit.

McCormick went on to accuse Kacsmaryk of misrepresenting the facts about mifepristone in his ruling in order to disrupt nationwide access to the pill used to terminate unwanted pregnancies.

“Judge Kacsmaryk referred to the unformed mass of cells as ‘an unborn human’ and falsely described the process by which the drug works as ‘starves the unborn human until death’ despite the fact that a mass of cells does not even form a fetus during the first eight weeks, and medical abortion takes place before the germinal, embryonic and fetal development of the pregnancy achieves anything at all like creating a human,” said McCormick.

According to McCormick, “Judge Kacsmaryk is clearly a religious zealot whose faith dictates a perspective that conflicts with fundamental scientific fact. He made a judgement based not on evidence in the matter before his court, but on fantastic puritanical interpretations of his mythical understanding.”

In contrast to Kacsmaryk’s ruling, McCormick argued that mifepristone is a safe and effective way to terminate a pregnancy in its early stages. She has previously called upon the FDA to make mifepristone available as an over-the-counter medication.

The decision by Judge Kacsmaryk to block the sale of mifepristone has been controversial, with many arguing that it is a politically motivated move that infringes on women’s reproductive rights.

McCormick’s criticism of Kacsmaryk’s ruling is just the latest in a long line of voices calling for the medication to be made more widely available but she said she was compelled to speak out on the topic.

“American freedom is being assailed by right-wing extremists who want to subject women to forced birth like the enslaved handmaids in Margaret Attwood’s dystopian Gilead,” said McCormick. “The right to privacy, the freedom of choice, and allowing individual bodily autonomy are all parts of the human liberty guaranteed by natural law and the foundational charter of the United States. Women’s rights are human rights, and this ill-reasoned ruling is a decision that will not stand.”

This ruling comes after the U.S. Supreme Court overturned Roe v. Wade in its decision in Dobbs v. Jackson Women’s Health Organization—ending the constitutional right to abortion and opening the door for extremist state lawmakers to ban abortion. The Dobbs decision, now compounded by this backdoor ban on medication abortion, is already having a devastating impact throughout the country as 18 states have eliminated or restricted access because of abortion bans.

The people hurt most by these bans and restrictions are those who already face barriers to accessing abortion care—including women; Black, Latina/x, Asian American, Native Hawaiian, Pacific Islander, and Indigenous people; those working to make ends meet; the LGBTQ+ community; immigrants; young people; those living in rural communities; people with disabilities, and other historically oppressed communities.

With this ruling, 64.5 million women of reproductive age—in addition to other people who may not identify as women, and are not captured in this Census data, but are capable of becoming pregnant and may need an abortion—in the United States could lose access to medication abortion. If mifepristone is made unavailable, it will exacerbate the abortion access crisis that continues to sweep the country since Roe v. Wade overturned.

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