The Next Great War Over Abortion Has Begun

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In April 2023, Trump-appointed judge Matthew Kacsmaryk of the Northern District of Texas issued a preliminary ruling in the FDA’s case to block the agency’s approval of mifepristone. Judgment sent shockwaves beyond the world of reproductive rights, as it had a major impact on the entire pharmaceutical industry, as well as the FDA itself; the decision showed that the courts can stop the approval of a drug even after many years on the market.

The US 5th Circuit Court of Appeals reduced Kacsmaryk’s decision a week later, allowing the drug to remain on the market, but the FDA’s decisions in recent years have made mifepristone easier to prescribe and obtain. That decision limited the time it would take to cover the first seven weeks of pregnancy and put access to telemedicine, as well as access to any type of medicine, at risk.

Following the 5th Circuit’s decision, the FDA and Danco Laboratories he sought emergency care at the Supreme Court, asking the judges to reserve access until after the trial. In his official statement, Danco described the situation as “chaos”.

Scotus is released stay for a while, to maintain the status quo; The court decided to hear the case in December 2023.

While all of this was happening, pro-abortion states across the country were going through what is known as shield rules, which protects doctors who provide abortion services to pregnant patients in countries where abortion is illegal. This has allowed providers, including the former abortion advocacy group Aid Access, to send abortion pills to people who requested them in states like Louisiana and Arkansas.

Although oral arguments before the Supreme Court begin on Tuesday, it could be months before a decision is handed down. Court officials think a decision could be handed down in June. With the US presidential election this fall, the decision could be a major campaign issue, especially as access to abortion helped raise the vote in the middle of 2022.

If the Supreme Court agrees with the plaintiffs that mifepristone should be removed from the market, some in the pharmaceutical industry complain that it will interfere with the authority of the FDA, the agency that is tasked with evaluating and approving drugs according to their safety and effectiveness.

“This case did not involve mifepristone,” says Elizabeth Jeffords, CEO of Iolyx Therapeutics, which develops drugs for the treatment of immune and eye diseases. Jeffords is a signatory at an amicus brief filed in April 2023 which brought together 350 pharmaceutical companies, regulators, and investors to challenge the Texas district court’s decision.

“This case could be about minoxidil for hair loss. It could be about Mylotarg for cancer. It could be about the measles vaccine,” Jeffords says. “This is if the FDA is allowed to be against what is good and safe for patients.”

Greer Donley, an associate professor of law at the University of Pittsburgh and an expert on legal abortion, doesn’t think it’s likely that a court will overturn mifepristone’s approval. Instead, he sees two outcomes. The Supreme Court may reject the case or it may reverse the FDA’s decision in 2023 to eliminate the mandatory provision and allow telehealth abortions. “This may be a less restrictive decision than what the Fifth Circuit did, but it would still be very painful to have access to an abortion,” he says.

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