Access to the most commonly used method of abortion in the US on Friday plunged into uncertainty following conflicting court rulings over the legality of the abortion medication mifepristone that has been widely available for more than 20 years.
The drug the US Food and Drug Administration (FDA) approved in 2000 appeared to remain at least immediately available in the wake of two separate rulings that were issued in quick succession by federal judges in Texas and Washington.
US District Judge Matthew Kacsmaryk, an appointee of former US president Donald Trump, ordered a hold on federal approval of mifepristone in a decision that overruled decades of scientific approval.
Photo: Reuters
That decision came at nearly the same time that US District Judge Thomas O. Rice, an appointee of former US president Barack Obama, essentially ordered the opposite and directed US authorities not to make any changes that would restrict access to the drug in at least 17 states where Democrats sued in an effort to protect availability.
The extraordinary timing of the competing orders revealed the high stakes surrounding the drug nearly a year after the US Supreme Court overturned Roe v. Wade and curtailed access to abortion across the country.
US President Joe Biden said his administration would fight the Texas ruling.
The whiplash of the conflicting decisions is likely to put the issue on an accelerated path to the Supreme Court.
“FDA is under one order that says you can do nothing and another that says in seven days I’m going to require you to vacate the approval of mifepristone,” Harvard Law School professor Glenn Cohen said.
Abortion providers slammed the Texas ruling, including Whole Woman’s Health, which operates six clinics in five states and said it would continue to dispense mifepristone in person and by mail over the next week as they review the rulings.
The abortion drug has been widely used in the US since securing FDA approval, and there is essentially no precedent for a lone judge overruling the medical decisions of the FDA. Mifepristone is one of two drugs used for medication abortion in the US, along with misoprostol, which is also used to treat other medical conditions.
Kacsmaryk signed an injunction directing the FDA to stay mifepristone’s approval while a lawsuit challenging the safety and approval of the drug continues. His 67-page order gave the government seven days to appeal.
“The court in this case has substituted its judgement for FDA, the expert agency that approves drugs,” Biden said. “If this ruling were to stand, then there will be virtually no prescription, approved by the FDA, that would be safe from these kinds of political, ideological attacks.”
Clinics and doctors that prescribe the two-drug combination have said that if mifepristone were pulled from the market, they would switch to using only the second drug, misoprostol. That single-drug approach has a slightly lower rate of effectiveness in ending pregnancies, but it is widely used in countries where mifepristone is illegal or unavailable.
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