A lone Texas judge made medical abortion illegal across America in one fell swoop. It reflects the scary new strategy of rightwing groups—who are most aptly using a nineteenth century law to destroy a woman’s right to choose.
Researched by: Rachel John
Where we are now: a quick recap
In June 2022, the Supreme Court erased the constitutional right to abortion—and overturned a 49-year-old precedent set in the 1973 Roe v Wade ruling (explained here). What this means: each individual state is now free to make its own abortion laws. As a result, 24 out of 50 states have either banned or greatly restricted abortion—or are moving toward doing so.
The abortion map of America looks like this:
Enter, the abortion pill: Using pills to terminate a pregnancy is quite common. Abortion pills are already used in more than half of recent abortions in the US. But they have become even more critical in the wake of the Supreme Court ruling. Since going to the hospital to get an abortion is no longer an option in many states, women have turned to abortion pills (explained in greater length below):
It is one thing to shut down a clinic; it is much harder to police activities like sending or receiving pills through the mail or travelling to a state where pills are legal to have a consultation and pick them up.
A lifeline for rape survivors: Although many states make an exception for rape and incest, it very difficult to prove that you are entitled to an abortion under these exceptions. For starters, a survivor may be asked to submit proof of the assault from a police report or a doctor’s note. Also this: “Doctors and hospitals are turning away patients, saying that ambiguous laws and the threat of criminal penalties make them unwilling to test the rules.” As a result, abortion pills have become critical—as they allow a woman to terminate a pregnancy in the privacy of her home.
An India angle: Many women have turned to online pharmacies in India—”no questions asked and no prescription required.” Irony alert: these same suppliers, however, cannot mail an abortion pill to anyone in India. That’s illegal.
Wait, what’s an abortion pill?
That’s when you take pills to terminate a pregnancy—rather than a medical procedure performed in a hospital. In the US, this involves a two-drug protocol: mifepristone plus misoprostol. Mifepristone was developed in the 1980s in France as an abortion drug—and received US approval in 2000. But misoprostol was originally used to treat stomach ulcers. Feminists first used it to induce abortions in Brazil—where surgical abortions were largely banned.
The pills can be taken up until 10 weeks of gestation—which begins on the first day of the last period. Here’s how they work:
First step: The person takes mifepristone—which blocks the production of the hormone progesterone: “By blocking this hormone, the first pill helps break down the uterine lining that a woman normally sheds during her period, so that the embryo can detach from the uterine wall.”
Second step: Then the person takes misoprostol either right away or within 48 hours: “This medicine causes cramping and bleeding to empty your uterus. It’s kind of like having a really heavy, crampy period, and the process is very similar to an early miscarriage.”
Efficacy rate: It is between 91-98% effective in pregnancies that are less than 9-10 weeks. The earlier you take the medication, the more likely it is to work. And those odds can be increased by taking an extra dose. Most importantly, they are safe, as most doctors affirm:
People can safely take these pills and safely pass the pregnancy at home and not have any issues like bleeding or needing urgent medical care. It’s a very, very safe way to pass a pregnancy.
Important point to note: Mifepristone is a prescription drug—and access to it has always been strictly regulated. But misoprostol is more widely available. A person can use only misoprostol to induce an abortion. But it is far less reliable—efficacy rates range from 78% to 98%.
And which pill did this Texas judge ban?
Mifepristone. What’s critical in this case is the legal case for banning it—which has very little to do with the usual arguments about the foetus’ ‘right to life’.
The lawsuit: In November, a rightwing group filed a lawsuit arguing that the FDA had improperly approved the drug back in 2000. The agency reviewed the drug as part of its accelerated approval program—which is typically used to fast-track medicines for serious illnesses like cancer or AIDS. The plaintiff’s argument: “The plain text is clear it applies to illnesses. Mifepristone is used to end pregnancies, and pregnancy isn’t an illness.”
A nineteenth century law: Since abortion rights were overturned, online orders for abortion pills have surged—since it's legal to mail order the drugs. According to FDA rules, mifepristone is “safe enough to be offered via telehealth and mailed to a person's house without seeing a doctor in person.”
The lawsuit uses the Comstock Act of 1873—which has been dormant for decades—to challenge this rule:
The law initially outlawed the mailing of any “obscene, lewd or lascivious” writings; anything intended to prevent pregnancy; and “every article or thing designed, adapted or intended for producing abortion.” At its widest interpretation, the Comstock Act could prohibit mailing abortion-inducing medications, like mifepristone and misoprostol, but also “operating room tables and speculum and suction cannulas and every instrument used in an abortion,” said [legal expert David] Cohen.
Experts say this is a “stealth strategy” to outlaw abortions nationwide: “If it's illegal nationally to mail … anything that is related to abortion, that would make it very difficult to operate an abortion clinic or to be an abortion provider.”
The ruling: The judge reversed the FDA approval of mifepristone—making it illegal to sell the drug across the country. But he suspended the ruling for a week to allow the Justice Department to appeal the ruling. The ruling was unprecedented—no judge has ever overturned an FDA approval. But it was not surprising.
The judge Matthew Kacsmaryk is a “a former Christian legal activist whose small courthouse in Amarillo has become a go-to destination for conservatives challenging Biden administration policies.” And the language of the 67-page ruling reflect his ideological views:
Judge Kacsmaryk appeared to agree with virtually all of the claims made by the anti-abortion groups and repeatedly used the language of abortion opponents, calling medication abortion “chemical abortion” and referring to a foetus as an “unborn human” or “unborn child.”
So what happens now?
Democrat-led states were already ready for the judgement. Within minutes, a judge in Washington blocked the Texas ruling—ordering the FDA to retain access to mifepristone. But the ruling only applies to the 17 blue states. Separately, the Justice Department has appealed the ruling. But the Court of Appeals in Texas is just as dominated by conservative justices—who have “happily upheld abortion restrictions before. Given its demeanour and ideology, there’s no expectation the fifth circuit would do anything but confirm and approve the order.”
The Supreme Court, again: Most experts expect the case will end up in the Supreme Court—especially since now there are two duelling verdicts on mifepristone. The highest court will be far less likely to go along—if only because the case raises broader questions about federal vs state power:
Federal law is supposed to be supreme over state law, and the FDA regulates drugs and devices. They appropriately approved this drug and so, by that logic, this case really should have been laughed out of court. But it hasn’t been – and that means the supremacy clause in the US constitution becomes more and more important.
And they may also be influenced by the chaos the ruling creates for the pharmaceutical industry:
They noted that such a ruling could open the door to legal challenges against other drugs, such as vaccines, morning-after pills and other medications at the centre of controversial issues. The ruling could also undermine the confidence that pharmaceutical companies place in the agency and influence the companies’ decisions about which drugs to develop and market, experts said.
The timeline: The Supreme Court now has the power to step in any time it wants—and the Justice Department can directly ask it to review the case. So the time it will take to resolve the fate of mifepristone lies in its hands.
The bottomline: The Texas ruling is very badly timed for the Republicans—who are readying for a presidential election in 2024. Support for abortion rights have been increasing ever since the Court overturned the Roe judgement. As of now, 7 in 10 Americans support access to the abortion pill—and that includes 50% of Republicans. As the Washington Post notes, “It seems perhaps the clearest example to date of how the GOP is the proverbial dog who caught the car on abortion rights and isn’t quite sure what to do about it.”
Reading list
Reuters offers a comprehensive guide to the ruling. Washington Post has a good explainer on medical abortions—while Vox has everything you need to know about the two drugs used for it. Texas Tribune is best on the Comstock Act. Bloomberg News has more on how Indian pharmacies are supplying abortion pills to Americans. TIME explains how the ruling undermines the FDA. New York Times looks at what is likely to happen at the Supreme Court. We did two Big Stories—one on the reversal of abortion rights in the US and the second on abortion rights in India.
