Mifepristone's Future As Abortion Pill Rests in the Hands of Trump's Judges

Access to abortion medication in the U.S. is in limbo after two rival rulings—in Texas and Washington—risk escalating the legal battle around mifepristone, one of the two drugs used in medical abortion, to the country's Supreme Court.

The abortion pill, the most common method to terminate a pregnancy currently used in the U.S., has been the target of a lawsuit filed last November against the U.S. Food and Drug Administration (FDA) by the anti-abortion organization Alliance for Hippocratic Medicine. The group asked for the FDA to rescind its approval of mifepristone, given over two decades ago, on the basis that the agency never had the authority to give the green light to the medication.

On Friday, Texas District Judge Matthew Kacsmaryk, a Trump appointee, voted in favor of the anti-abortion group, ordering a hold on federal approval of mifepristone which could trigger a nationwide ban on the medication. The decision, which overruled decades of scientific approval, was made at the same time as the Obama-appointed Washington District Judge Thomas O. Rice, who ordered the FDA to keep medication abortion drugs available in at least 12 liberal states.

As the access to mifepristone currently appears stuck in a stand-off between the two competing rulings, Los Angeles attorney Vineet Dubey, co-founder of Custodio and Dubey LLP, told Newsweek in a statement that the Supreme Court will certainly be involved in the case.

"Judges aren't intended to be subject matter experts outside of interpreting the law," he said, criticizing the Texas ruling.

"Whim and caprice aren't the same as facts and evidence and are not an objective foundation for good law. Could a judge simply sweep aside the measles vaccine as unsafe, based on thin evidence from an anti-vax interest group, despite decades of evidence and monitoring by the FDA?" he asked.

He added: "Never before has a judge overruled FDA guidance and recommendations on a drug that's been safely used in this country. For mifepristone, there [exists] 23 years of evidence which a judge, who has no scientific background, [asked] to throw out without the knowledge necessary to make an informed decision."

Dubey expects that "the split in circuits, with this quick ruling from Judge Thomas Rice, almost certainly means the Supreme Court will ultimately get involved."

In June last year, the Supreme Court—currently with a majority of Republican justices, three of whom were appointed by Donald Trump—voted to overturn Roe v. Wade in a landmark verdict ending abortion rights in the U.S. after nearly 50 years. Trump's appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—were among the five justices, including Samuel Alito and Clarence Thomas, who voted to overturn Roe.

If the case around mifepristone reaches the Supreme Court, the wider question of the justices' politics and faith will likely once more come under scrutiny if they weigh in on the issue.

President Joe Biden has vowed to fight Kacsmaryk's Friday ruling. But less than a year after the Supreme Court's vote overruling Roe, the battle for abortion rights in the U.S. seems to have higher stakes than ever.

Senior counsel Erik Baptist of the Alliance Defending Freedom, a conservative legal advocacy group, called the Texas ruling "a victory." In a statement to Newsweek, he said: "By illegally approving dangerous chemical abortion drugs, the FDA put women and girls in harm's way, and it's high time the agency is held accountable for its reckless actions.

"Pregnancy is not an illness, and chemical abortion drugs don't provide a therapeutic benefit—they can pose serious and life-threatening complications to the mother, in addition to ending a baby's life. The FDA never had the authority to approve these hazardous drugs and remove important safeguards. This is a significant victory for the doctors and medical associations we represent and more importantly, the health and safety of women and girls."