Lawsuit in Texas to ban abortion drugs nationwide sparks fear among supporters

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Abortion rights advocates issued a scathing warning to the Biden administration’s top health official at a closed-door meeting last week: It’s time to take seriously “marginal” threats that could lead to blocking access to abortion across the country.

Their concern is fueled by a lawsuit in Texas filed by conservative groups seeking to revoke a decade-long government approval of a key abortion drug.

The lawsuit was ridiculed by lawyers because it is based on baseless and refuted arguments. But in recent weeks, abortion rights advocates and some in the Biden administration have grown increasingly concerned that the case is likely to be decided exclusively by conservative judges who may want the ability to restrict access to abortion even in Democratic-led states where the procedure remains legal after the fall Rowe vs. Wade.

“It’s hard to comprehend the full and dire consequences if what plaintiffs have asked for in this case is actually granted,” Liz Wagner, senior federal policy adviser at the Center for Reproductive Rights, told Health and Human Services Secretary Xavier Becerra during the meeting. Meeting at an abortion clinic in Virginia. “That would be a disaster.”

The case was filed in Amarillo, where U.S. District Court Judge Matthew Kachsmarik, appointed by President Donald Trump and known for his conservative views on issues like same-sex marriage and abortion, could have ruled as early as this week. The appeal will land in the right-wing Fifth Circuit Court of Appeals, eventually bringing another major abortion case to the Supreme Court less than a year after its conservative majority abandoned the constitutional right to abortion.

“Obviously there are people in this court who are not in favor of the administrative state, and it is also clear that people are not in favor of abortion,” said Becerra Jenny Ma, senior adviser for the Center for Reproductive Rights. “It’s the perfect storm.”

The lawsuit seeks to revoke the US Food and Drug Administration’s 2000 approval of mifepristone, one of two drugs used in medical abortion. The regimen, which includes a dose of another drug called misoprostol, now accounts for more than 50% of abortions nationwide. Although misoprostol is widely used on its own for abortion worldwide, studies show that it is less effective than the two-stage regimen and usually causes more cramping and bleeding.

Alliance Defending Freedom, a conservative legal group that was involved in the anti-abortion lawsuit, filed a lawsuit in November on behalf of four anti-abortion medical organizations and four doctors who claim to have treated patients with the drug.

The FDA has repeatedly recognized the two-stage medical abortion protocol as a safe and effective alternative to surgical abortion. But a 113-page lawsuit by a conservative group alleges that the FDA chose politics over science when it approved “chemical abortion drugs” by deliberately ignoring what the plaintiffs claim are potentially harmful side effects.

“We think that when the court considers the law and the facts of what the FDA has done, it will agree that the FDA has failed in its task of protecting American women and girls,” said Julie Marie Blake, senior adviser at Alliance Defending. Freedom.

Wagner said in an interview that she and her colleagues struggled to get people to take the case seriously. Wagner said that at a recent Capitol Hill briefing with congressional staffers, it was difficult for some attendees to understand how access to abortion could be under threat in states like New York and California.

“We’ve been getting comments like, ‘But these states protect the right to abortion,'” Wagner said, adding that she and Ma had to repeatedly explain that the right to have an abortion is not a right to a certain method of abortion.

Last week at Whole Woman’s Health in Alexandria, Va., Becerra pointed lawyers to the Justice Department, which he said was “paying close attention” to the Texas case. His staff declined to comment further.

At the Justice Department, a task force on reproductive rights, set up in July by Attorney General Merrick Garland, has sought legal avenues to protect access to abortion pills.

In January, the department issued a legal opinion stating that the U.S. Postal Service could deliver abortion pills to people in states that have severely restricted the procedure, arguing that federal law allows pills to be mailed because the sender cannot know for sure whether whether the recipient is using them illegally.

Now, officials say, the task force is following the case in Texas.

“We vigorously defend the FDA in an unprecedented lawsuit to take mifepristone off the market — an action that will cause serious harm to all who rely on the drug,” said Assistant Attorney General Vanita Gupta, who chairs the Reproductive Health Task Force. at a public event in January.

The Department of Justice, in its legal submissions, acknowledged that the Supreme Court’s decision to set aside Caviar is the current federal law. The crux of the department’s opposition in the Texas case is that Congress authorized the FDA to approve the use of new drugs, not the states. Allowing opponents of abortion pills to refute the FDA’s decision with “superficial and unsubstantiated claims of harm” could provoke a challenge to other approved drugs and fuel public distrust in the process, Justice Department lawyers argued in filing the case.

Despite the widespread belief among abortion rights advocates that the lawsuit’s demands are unfounded, health care providers are preparing for the worst-case scenario, with many ready to implement new protocols if they can no longer distribute mifepristone.

“I don’t think it’s a stretch,” said Amy Hagstrom Miller, chief executive of Whole Woman’s Health, a chain of abortion clinics spread across several states, including Texas, before a Supreme Court ruling led to legislation banning nearly all abortions. there. “I’ve had a lot of experience with these crazy legal theories that sound radical in Texas that actually become reality.”

In a two-stage medical abortion, the patient first takes one tablet of mifepristone, which terminates the pregnancy. About 24 hours later, they usually take four tablets of misoprostol, a drug first introduced in 1973 to treat stomach ulcers, to soften the cervix and stimulate contractions that result in expulsion of the fetus.

If the Texas case results in mifepristone being withdrawn from sale, Hagstrom Miller said, her clinics will likely default to using only misoprostol for medical abortion, prescribing only misoprostol pills instead of the standard mifepristone and misoprostol combination regimen.

Although she has discussed the plan with several staff members, she says she still needs to discuss it with the clinic’s lawyers.

Many family planning clinics also have a misoprostol-only protocol ready to roll out if needed, Ma said.

“We want to provide patients with the safest and most effective regimen,” said Deborah Nukatola, chief medical officer for Planned Parenthood, which has promoted both types of medical abortion since she began practicing more than two decades ago. “It’s mifepristone and misoprostol.”

The Justice Department warned in its lawsuit that a ban on abortion pills would lead to overcrowding and delays in clinics that perform surgical abortions, putting a strain on health systems.

At his clinics, Hagström Miller fears that a mifepristone ban will cause “tremendous congestion and waiting.” Because it will likely take some time to implement a misoprostol-only regimen, many more patients will require surgery, which typically requires more time and staff resources than medical abortion, she said.

She plans to turn every possible room into a space that can be used for surgical abortions.

As long as she tries to prepare her clinics as much as possible, she can devote not much energy to this hypothetical case, according to Hagstrom Miller.

Especially after the Supreme Court’s decision in June, she said, “we already have so many things we’re trying to figure out.”