A federal judge appointed by former President Donald Trump could upend decades of policy on abortion medication, reversing the loosening of restrictions made in the past year and potentially outlawing the drug altogether.
Federal District Court Judge Matthew Kacsmaryk, who is based in Texas, will soon decide on a lawsuit brought forward by the far right legal organization Alliance Defending Freedom (ADF), which alleges that the Food and Drug Administration’s (FDA) approval of mifepristone in 2000 was illegal and that the drug was not tested thoroughly enough. The ADF — which seeks to have the drug made illegal — claims in its lawsuit, filed in November, that the federal agency “failed America’s women and girls” by approving the drug too quickly.
Legal experts and medical professionals largely agree that this is incorrect. Greer Donley, an associate professor at the University of Pittsburgh who is an expert in FDA-related law, has noted that the abortion medication was “rigorously” reviewed before it was approved.
“In fact, many argue the FDA has actually been largely overprotective and restrictive when it comes to mifepristone, so it’s a bit ironic that these onerous regulations around the drug are being used as evidence of leniency,” Donley told The Guardian regarding the legal merits of the case.
Observers believe it’s unlikely that Kacsmaryk will leave in place Biden’s executive orders and the FDA’s recent actions loosening restrictions on abortion medication — and many fear he may go further, granting the ADF’s request to undo the FDA’s approval of mifepristone from decades ago.
Kacsmaryk, who was nominated by Trump in 2017, is a member of the far right Federalist Society, and has worked for First Liberty Institute, a far right group that promotes a conservative Christian agenda through legal actions. He has twice ruled that the Biden administration must keep in place the anti-immigrant “Remain in Mexico” policy that Trump implemented as president.
“At some point, Kacsmaryk will issue an order concerning the legality of a very common abortion drug,” wrote Vox senior correspondent Ian Millhiser. “And, if Kacsmaryk behaves as he has in past cases, the scope of that order will be limited only by his own desires and ambitions.”
The Biden administration has pledged to appeal any decision that further restricts abortion medication. But since the case is in the jurisdiction of the Fifth Circuit Court of Appeals (deemed the most conservative in the country), it’s unlikely an appeal could be won in that arena, or that an injunction would be placed on Kacsmaryk’s eventual ruling. After the Fifth Circuit decides on the case, it can only be appealed to the Supreme Court, where conservative justices have handed down numerous anti-abortion rulings, most notably in the Dobbs v. Jackson Women’s Health case last summer, which upended federal abortion protections that had been in place since 1973.
Abortion rights advocates have expressed concern about the case. At least two groups that help Americans obtain abortion medication from other countries — Aid Access and Plan C — have encouraged people in the U.S. to stockpile abortion medication before they become pregnant, in case they need it in the future.
Andrea Miller, president of the National Institute for Reproductive Health, has said that a ruling from Kacsmaryk could be “devastating for abortion care.”
“Cutting off critical access to abortion medication — which is the preferred method for more than half of abortion patients in the country — would cause significant harm, especially at a time when Dobbs has made it difficult or impossible for many to get care at clinics,” Miller said.
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