The legal status of medication abortion is in turmoil in the United States as two judges in different courts issued completely different rulings, both on April 7. The issue is clearly headed for the US Supreme Court, which has already found that there is no constitutional right to abortion. For the moment, the drug, mifepristone, is still available, pending appeal.
In Texas, federal judge Matthew Kacsmaryk declared that the Food and Drug Administration (FDA) had improperly approved mifepristone. He banned its use across the country. In the state of Washington, federal judge Thomas Rice ruled that mifepristone should be made available in 17 states and the District of Columbia.
The White House issued a fact sheet which described Judge Kacsmaryk’s decision as “dangerous” and said that the President “stands by FDA’s scientific and evidence-based judgment that mifepristone is safe and effective.”
The drug and biotech sectors were outraged. More than 400 leaders of drug and biotech companies—none of whom make mifepristone—signed a statement condemning the Texas decision. The statement said, “Judicial activism will not stop here. If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone.”
Media coverage of this dispute is a classic example of blinkered reporting on an divisive issue.
There was almost no analysis of the legal arguments and a great deal of reporting about the influences which had obviously biased Kacsmaryk’s decision. The New York Times quickly discovered that this hitherto-unknown judge had been appointed by President Trump, that he was a devout Christian, that he had expressed pro-life views, that he was a conservative, and had worked for a conservative religious foundation, First Liberty Institute. “For Texas Judge in Abortion Case, a Life Shaped by Conservative Causes” was the headline.
The text of the judge’s ruling, however, contains some surprises. While it certainly is consistent with a pro-life framework, it raises some uncomfortable questions for the abortion industry, the Biden Administration, Big Pharma, and the FDA. It begins:
Over twenty years ago, the United States Food and Drug Administration approved chemical abortion. The legality of the 2000 Approval is now before this Court. Why did it take two decades for judicial review in federal court? After all, Plaintiffs’ petitions challenging the 2000 Approval date back to the year 2002, right?
Simply put, FDA stonewalled judicial review — until now. Before Plaintiffs filed this case, FDA ignored their petitions for over sixteen years, even though the law requires an agency response within “180 days of receipt of the petition.” But FDA waited 4,971 days to adjudicate Plaintiffs’ first petition and 994 days to adjudicate the second. Had FDA responded to Plaintiffs’ petitions within the 360 total days allotted, this case would have been in federal court decades earlier. Instead, FDA postponed and procrastinated for nearly 6,000 days.
This is a key issue – and one which was barely covered in the media. For most journalists, abortion was settled long ago. It is the status quo. Which is precisely the point, contends Kacsmaryk.
Chemical abortion is only the status quo insofar as Defendants’ unlawful actions and their delay in responding to Plaintiffs’ petitions have made it so. The fact that injunctive relief could upset this “status quo” is therefore an insufficient basis to deny injunctive relief.