Chemical abortion on trial

Bravo to the Alliance for Defending Freedom for going on offense to protect the unborn. For pro-life lawyers, most cases are about offering a defense for unborn human life—either defending long-recognized conscience rights against regulatory enforcement or protecting legislative gains after they are challenged in court. But an important case in Texas creates the possibility of gaining significant ground in court against so-called medication abortions.

When we think about abortion, our immediate mental picture is of surgical abortion—the abortionist in the clinic removing the unborn child with surgical tools (such as dilation and extraction). If that is your mental image, that actually shows the success of pro-life messaging. That is a horrible, gruesome procedure, especially when done more weeks into the pregnancy. (This Washington Post article describes the various procedures using lay terminology that is likely not appropriate for children but gives adults a good overview.)

In actuality, though, the majority of abortions now occur via pills, not surgery. It’s a pair of pills—one stops the woman’s hormone that supports fetal life and development, and the second prompts the woman’s body to eject the now lifeless fetus. One pill is often referred to as mifepristone or RU-486. It has become increasingly popular as an at-home option, trends likely accelerated by the pandemic and the closure of many physical abortion clinics. Indeed, many abortion providers will provide RU-486 without the patient ever seeing the doctor in person—attend a telemedicine consult, and the prescription will show up at your home. The FDA formally approved RU-486 for prescription delivery through the mail in December 2021. It is used in the first ten weeks of pregnancy.

This brings us back to ADF’s lawsuit. The Food and Drug Administration, the federal agency charged with regulating the safety of pharmaceuticals, first approved the version of mifepristone (called Mifeprex) for use as a medication abortion drug in 2000, right at the end of the Clinton Administration. ADF represents pro-life doctors who are challenging the FDA’s approval of the drug, alleging that it fails the FDA’s normal health and safety standards.

In truth, ADF’s lawsuit has several hurdles to overcome. First, judges are generally deferential to government agencies, especially regarding professional judgment calls about “the science.” If the FDA says a drug is safe and has its in-house scientists and studies supporting that conclusion, and ADF says a drug is not safe, with its expert witnesses, the tie will virtually always go to the government. Indeed, this has been a consistent frustration for litigators challenging governmental restrictions during COVID-19, and they never succeeded in challenging the government’s version of “the science” to justify unprecedented restrictions on liberty.

Second, ADF is asking for expedited relief, a preliminary injunction in legal terminology, to stop ongoing medical injuries to women and girls. And not only that, the ADF is asking for a nationwide order, which many judges are hesitant to give. Indeed, President Trump’s Attorneys General Jeff Sessions and Bill Barr launched concerted intellectual attacks on nationwide injunctions, giving many conservative-leaning judges great pause about issuing then now against Biden Administration policies.

All that said, ADF has good reasons to be optimistic. The judge sitting on the lawsuit, Matthew Kacsmaryk, has shown judicial courage in appropriate cases in the past, earning the ire of political progressives. And the U.S. Court of Appeals for the Fifth Circuit, which will hear any appeals, is considered the most conservative in the country. Kacsmaryk heard arguments in the case last week and promised to issue a ruling promptly.

Ultimately, ADF deserves kudos for bringing the case in the first place. In essence, ADF is putting chemical abortions on trial. Through this case, it is forcing a nationwide conversation on the health risks (side effects) of using these drugs, which the abortion industry touts as safe. And the case also highlights the political influence on the supposedly scientific decisions made by the FDA under ardently pro-abortion presidents. This case presents an excellent opportunity to protect women and to expose the dangers of these drugs.