NINE MONTHS after America’s Supreme Court rescinded the constitutional right to abortion and, in the words of the majority, “return[ed] the issue…to the people’s elected representatives”, an anti-abortion federal judge in Texas has grabbed the matter for himself. On April 7th Judge Matthew Kacsmaryk ruled against an abortion medication that has been used by millions of Americans with few complications. He entered a preliminary injunction nullifying the 23-year-old approval by the Federal Drug Administration (FDA) of mifepristone, one of two drugs commonly used to end pregnancies up to ten weeks after gestation.
Mr Kacsmaryk’s extraordinary ruling—the first time a justice has substituted his judgment for the FDA’s in this way—means that residents even of abortion-friendly states could face more obstacles to ending pregnancies. Yet it was not without complications. Mr Kacsmaryk delayed the implementation of his ruling by seven days to give the federal government time to lodge an appeal. For now, nothing will change for a drug used in more than half of abortions in America.
Then came a further twist. Less than an hour after Mr Kacsmaryk’s order, a judge in the state of Washington issued an antithetical ruling prohibiting the FDA from ending Americans’ access to mifepristone. The muddle introduced by the competing verdicts means that the Supreme Court will probably have to be the final arbiter.
Mr Kacsmaryk’s ruling is ostensibly concerned with the purported health risks posed by mifepristone, which blocks progesterone, a pregnancy hormone, to women and girls. He agreed with the challengers—a recently established organisation called the Alliance for Hippocratic Medicine—that the FDA’s approval of the drug in 2000 was rushed. The result, he wrote, has been “many deaths and many more severe or life-threatening adverse reactions” than would have occurred had the “FDA not acquiesced to the pressure to increase access to chemical abortion at the expense of women’s safety”. Mr Kacsmaryk brushed away studies showing that the drug is safe and effective. “Due to FDA’s lax reporting requirements”, he wrote, the number of bad results is “likely far higher than its data indicate”.
Concern for women’s health may be the stated reason for the lawsuit, but an antipathy to abortion was the primary motivation behind it. The plaintiffs filed their suit in a district where they would be sure to draw a judge known to be hostile to abortion. Before he was tapped for the court by Donald Trump in 2019 Mr Kacsmaryk worked at the First Liberty Institute, a conservative Christian legal organisation with a mission similar to that of the Alliance Defending Freedom, the group that argued the case against mifepristone in his court. The judge endorsed even the plaintiffs’ most aggressive contention: that a federal law called the Comstock Act that dates from 1873 prohibits the mailing of any “article, instrument, substance, drug, medicine or thing” that can be used to cause an abortion.
Mr Kacsmaryk’s ruling thus contains the seeds of a sweeping anti-abortion agenda that goes well beyond the Supreme Court’s overturning of Roe v Wade last June. His interpretation of the Comstock Act could inspire a prohibition of all abortion in America, including surgical terminations, because under this reading shipments to clinics or hospitals of any equipment used in abortion would be illegal. Mr Kacsmaryk also dropped another crumb for those pushing a nationwide abortion ban. His opinion contended that “unborn humans extinguished by mifepristone” are entitled to “individual justice”. This concept of “fetal personhood” would grant fetuses the full panoply of constitutional rights, starting with a right to life.
In response to the Texas ruling President Joe Biden wrote that the court had “substituted its judgment” for the FDA’s. If such second-guessing were to stand, he added, “virtually no” FDA-approved medication “would be safe from these kinds of political, ideological attacks”. The government immediately appealed, as did Danco, which manufactures Mifeprex, the brand name for mifepristone.
But the 5th Circuit Court of Appeals, which hears cases originating in Texas, is one of America’s most conservative appeals courts. Should it allow the anti-mifepristone ruling to stand, the case will almost certainly make it to the Supreme Court. Then the question will be whether the five justices who overturned Roe will leave abortion rights to the states—as they promised—or empower the judiciary to be the last word on the subject. ■