More than half of abortions in the United States are medication abortions. Republicans are coming for them next. That’s not a hypothetical, it’s a court case that could be decided any day now that would affect not only abortion patients in states with restrictive laws, but across the entire country. The lawsuit seeks to repeal the Food and Drug Administration’s decades-old approval of the drug mifepristone as part of a two-drug medication abortion regimen. That wouldn’t fully outlaw medication abortion, which can still be done with just the second drug in the current regimen, misoprostol, but would make it less effective.
The decision is currently in the hands of Trump-appointed U.S. District Court Judge Matthew Kacsmaryk, known as an anti-abortion zealot. From him, it would go to the Fifth Circuit Court of Appeals, known as the most conservative appeals court in the country. And from there, to the Trump-packed Supreme Court, which would be likely to take the chance to restrict abortion rights nationwide.
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“It’s hard to really comprehend the full and terrible impact if what the plaintiffs have asked for in that case is actually granted,” Liz Wagner, senior federal policy counsel at the Center for Reproductive Rights, warned Health and Human Services Secretary Xavier Becerra recently. “It would be catastrophic.”
Mifepristone blocks the hormone progesterone, preventing the pregnancy from continuing to develop. Around 24 hours later, misoprostol is taken to soften the cervix and cause uterine contractions, expelling fetal tissue. This method has a 99.6% success rate. By contrast, misoprostol-only abortion has a success rate of around 80%. That means that banning mifepristone would increase the number of failed medication abortions that required medical follow-up and possibly surgical abortion. And that means more risks and more burdens for the people involved.
If the courts overturn the FDA authorization for mifepristone’s use in abortions, that would affect every single state, not just the ones that want to end abortion, and while providers could eventually adjust, some told The Washington Post that it would take time, creating backlogs and forcing more people to get surgical abortions during the transition period. That’s in addition to forcing everyone into a less-effective regimen.
Alliance Defending Freedom, the right-wing legal group that has brought this challenge to a drug authorization made by the FDA in 2000, claims that there are side effects to mifepristone that demand its removal. In reality, there is a 0.4% chance of major complications to terminating a pregnancy with mifepristone and misoprostol, and a mortality rate of less than 0.001%. Pregnancy and childbirth are far more dangerous.
The Justice Department says it’s on the case. “We are vigorously defending the FDA in unprecedented litigation that is seeking to withdraw mifepristone from the marketplace—an action that would work severe harm to all who rely on the medication,” Associate Attorney General Vanita Gupta said in January. But right now, it’s the judges who get to decide, and it’s going to a series of judges who very much want to cut off abortion rights. This is genuinely scary, no matter where you live.
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We're chatting with one of our favorite fellow election analysts on this week's episode of The Downballot, Kyle Kondik of Sabato's Crystal Ball. Kyle helped call races last year for CBS and gives us a rare window inside a TV network's election night decision desk, which literally has a big button to call control of the House—that no one got to press. Kyle also dives into his new race ratings for the 2024 Senate map, including why he thinks Joe Manchin's unlikely tight-rope act might finally come to an end.
In their Weekly Hits, co-hosts David Nir and David Beard recap big developments in two Senate contests: Rep. Adam Schiff's entry into the race to succeed Dianne Feinstein, and the GOP's unexpected show of unity in the open-seat election in Indiana. They also dissect the first poll of this year's hotly contested race for governor in Kentucky and highlight another 2023 battle that shouldn't get overlooked: the race for a vacant seat on the Pennsylvania Supreme Court.