Abortion pill battle

Pro-abortion groups are bracing for a ruling by a federal judge that could drastically change the way abortions are performed. And they aren’t happy.

On March 15 in Amarillo, Texas, U.S. District Judge Matthew Kacsmaryk heard arguments in a lawsuit that seeks to block the abortion drug mifepristone. Attorneys representing the pro-life Alliance for Hippocratic Medicine filed the suit against the Food and Drug Administration in November.

In so-called “medication” abortions, a pill containing mifepristone blocks the hormone progesterone and prevents continuation of a pregnancy. Medication abortions account for more than half of all abortions in the United States. Alliance Defending Freedom attorneys who argued the case have asked the judge for a preliminary injunction which could block the pills from use even in states where abortion is legal while litigation continues.

“This will be all-out war” for pro-abortion activists, said Carol Tobias, president of the National Right to Life Committee.

The pro-abortion Women’s March loudly protested the lawsuit outside the Amarillo courthouse in February and March, waving signs that read “Bigger Than Roe.” Some carried babies. Kacsmaryk’s staff has reported death threats to the court, the judge, and his family, including a phone message declaring, “You will have to eat the flesh of your sons, you will have to eat the flesh of your daughters. I will kill you with a sword.”

The lawsuit says the FDA exceeded its authority in 2000 when it approved mifepristone—originally known as RU-486—for abortions. The agency had used a process meant for approving treatments of serious or life-threatening diseases like cancer. But pregnancy isn’t an illness, says the suit, which also asserts the FDA did not study the pill’s safety for abortion.

The U.S. Justice Department, which is defending the FDA, countered that pregnancy can be a serious or life-threatening condition for some women.

As far back as 2002, plaintiff organizations asked the FDA to reverse its approval in a citizens petition, which is required before bringing suit. Fourteen years later, the FDA rejected the petition, and those that followed.

A medication abortion uses a drug series of mifepristone and misoprostol to kill an unborn baby and expel its body. Failure rates range from 4.5 to 10 percent. Failure means hemorrhaging, retained baby body parts, or ruptured ectopic ­pregnancy. These complications may lead to surgery, injury, illness, or death—problems significantly underreported by the FDA, according to research compiled in the peer-reviewed journal, Issues in Law & Medicine.

Misoprostol can also be used alone to end pregnancies as an off-label use, but carries at least double the risk of failure.

Pro-life activist Abby Johnson predicted that even if Judge Kacsmaryk rules against mifepristone, abortions won’t decrease: “The abortion industry will just start providing misoprostol-­only abortions.”

The abortion-supporting American College of Obstetricians and Gynecologists confirmed this, announcing it would recommend ­doctors provide misoprostol alone, even though it’s less effective than mifepristone and an extra dose and ­follow-up might be necessary.

The Guttmacher Institute said ­providers would offer misoprostol-only abortions and continue surgical abortions. But the pro-abortion research group fears the number of women seeking abortions would plummet.

Used boxes of mifepristone pills fill a trash can at Alamo Women’s Clinic in Albuquerque, N.M. Evleyn Hockstein/Reuters/Alamy

Pro-life advocates note women ­cannot reverse an abortion after taking misoprostol, whereas women taking the mifepristone pill early in pregnancy may have a 24-48 hour window to change their minds.

Six other pro-abortion organizations, including Planned Parenthood, did not return my calls or emails. The Aid Access website encourages women to order abortion pills now, even before they are pregnant. Walgreens won’t comment on the case in Amarillo, but told me it would dispense misoprostol where legal, and will seek certification to dispense mifepristone wherever it is legal.

In response to the lawsuit, 12 states with Democratic attorney generals sued the FDA in February. They claim the FDA has burdensome mifepristone regulations they want lifted to make it easier to access abortion pills, calling them safer than Tylenol.

No matter how the Texas judge rules, an appeal is likely. That would send the case to the 5th U.S. Circuit Court of Appeals, and potentially to the U.S. Supreme Court.

Should the judge block the pill, Dr. Anthony Levatino, a former abortionist turned pro-life advocate, said pro-abortion groups will be angry.

“Their response may surpass their reaction to the Dobbs decision,” he said, referring to last year’s Supreme Court ruling overturning Roe v. Wade.

“Any restrictions on abortions makes pro-abortion groups furious—they see it as eroding abortion rights … even though banning mifepristone won’t stop abortion,” added Johnson. “We need all medication abortions to end.”