A Texas judge asked the anti-abortion group challenging a widely used abortion medication to weigh in during a high-stakes hearing this week that could potentially lead to a ban on the pill, mifepristone, across the country.
During a high stake hearing that took place over the course of four hours on Wednesday, U.S. District Judge Matthew Kacsmaryk asked Erik Baptist, a lawyer representing the group Alliance Defending Freedom, for guidance on issuing a possible order.
The lawsuit, brought on by Alliance Defending Freedom on behalf of anti-abortion medical organizations and several doctors who have treated patients with mifepristone, is challenging the safety and approval process of the drug, which has been on the market since 2000. Medication abortions, including mifepristone, account for more than half of all U.S. abortions.
The Food and Drug Administration, top health organizations and the Biden administration have strongly disagreed with the lawsuit, contesting that mifepristone was properly vetted and that the FDA approval process, which took over four years, is a testament to that claim.
Because the challenge is being brought against the federal agency, pulling mifepristone from the market would have broad impacts on many women across the country, even those in states where abortion remains legal.
Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a medication abortion, are seen at the Women’s Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022. Robyn Beck/AFP
Kacsmaryk, a former Christian activist who was appointed to the bench by former President Donald Trump, has signaled that he’d be open to the argument that Alliance Defending Freedom is making. There is currently no legal precedent for a court to order the suspension of a medication that’s been approved for more than two decades.
Asked by Kacsmayrk as to whether the group believes he could unilaterally order the FDA to withdraw its approval of mifepristone, Baptist advised him that the court could do so “on its own accord.”
The anti-abortion group has argued that the drug is “unsafe” because there were insufficient studies in the FDA’s approval process and that the agency did not adequately consider the pill’s safety when used by young girls under the age of 18.
The FDA has warned that withdrawing the pill’s approval could “dramatically harm” the public interest by forcing women to have unnecessary surgical abortions instead and further the wait times that women at abortion clinics are already waiting for the procedure.
While Kacsmayrk could rule in favor of the anti-abortion group, it is likely his decision will be appealed to the U.S. Court of Appeals for the 5th Circuit, which has a conservative reputation with more than two-thirds of its judges appointed by Republican presidents. Even if the case reaches the Supreme Court, it would have to face the 6-3 conservative majority that overturned Roe v. Wade last year.