Abortion is still a little more in danger in the United States. After the prohibition of the right to abortion in several states of the country, the abortion pill was suspended, this Friday, April 7, by a federal judge in Texas. Matthew Kacsmaryk, appointed by Donald Trump in 2017 to the post of lawyer in the city of Amarillo and known for his ultra-conservative positions, ordered the interruption of the circulation of mifepristone, one of the two drugs used for abortions drugs, after the complaint filed in November by a coalition of doctors and anti-abortion organizations.
In his 67-page judgment, Matthew Kacsmaryk validates most of the arguments of the conservative camp and comes out in favor of banning the prescription of the drug. And this throughout the country. Made possible by the historic Supreme Court ruling giving each US state the freedom to ban pregnancy terminations on its soil, this decision was sharply criticized by the Biden administration. The Democratic president said he was determined to “fight” it, calling it an “unprecedented attempt to deprive women of fundamental freedoms”. Placed on the market more than twenty years ago and used each year by half a million American women, mifepristone allows women to terminate their pregnancies in the place of their choice, without going through a health establishment.
The federal drug agency (FDA) immediately appealed, and the debate around the banning of the synthetic steroid could go up to the Supreme Court, the all-powerful jurisdiction of the United States. Anne Légier, lecturer in civilization of the United States at the University of Paris Cité, details the legal process of this decision and the various battles that will open.
L’Express: A Texas magistrate on Friday suspended the marketing authorization for mifepristone, one of the two pills necessary for medical abortion. What does this mean concretely?
Anne Legier: A conservative federal judge has called into question the validity of the marketing authorization for mifepristone, issued 23 years ago by the FDA, the US drug authority. Mifepristone is currently used in the United States in combination with misoprostol for medically terminating pregnancy. This protocol, considered extremely safe by the medical profession, is now used in more than half of pregnancy terminations in the country. The issue is therefore major.
Moreover, without medical abortion, the “sanctuary states”, such as Illinois, California or New York, which absorb some of the patients traveling for abortions – because they now reside in a state where abortion is prohibited or inaccessible – , will probably no longer be able to do so. There simply aren’t enough clinics and physicians to meet the nationwide demand for surgical abortions only.
Can this decision pose a risk to women’s health?
Concretely, a medical termination of pregnancy can always be performed with misoprostol alone. The WHO says it’s safe. But doctors say it’s less effective and more uncomfortable for the woman. In the immediate term, misoprostol may continue to be used, but it too is threatened by legal action. The struggles over these issues are just beginning.
The decree has the value of applying to the whole country. What role can the Supreme Court play, who will have to decide on this decision?
The situation is actually very complicated. Judge Kacsmaryk’s decision is not expected to take effect immediately, allowing the FDA to appeal. On the other hand, another federal judge from Washington State issued a decision in the opposite direction less than an hour after the Texas judge. The initiative of this federal judge had also been launched by 18 states in response to the legal process launched in Texas by an ultra-conservative association.
Moreover, can a federal judge really revoke a marketing authorization decided by a federal agency? Some experts doubt it. Will the FDA heed these decisions or carry on as if nothing had happened? At this point, it’s hard to say. The case will probably end up in the Supreme Court, but its path can be long.
Is this battle against medical abortion new in the United States?
This is not surprising since Judge Kacsmaryk’s decision in this case has been awaited for weeks. Nor is it surprising that opponents of abortion attack medical abortion. No one thought, as Judge Samuel Alito asserted in the judgment Dobbs v. Jackson Women’s Health Organization, that lifting the constitutional protection granted to abortion would calm the debate that has divided the country for decades. The debate is now on medical abortion because, yes, it is a “new” subject.
For what ?
It distinguishes the current period from the period preceding the historic stop Roe v. Wade rendered in 1973. Now, for first trimester abortions, there is a simple, discreet, relatively inexpensive method that can be managed in the private sphere. Even in the event of a total ban on a local or national scale, it seems difficult to control the clandestine distribution of abortion pills by post, for example. Right now, there are reliable, doctor-supervised networks circumventing the ban in states that don’t allow abortion at all. It is a considerable change of time.
