A federal judge revived a lawsuit challenging access to the abortion drug mifepristone just days before the 52nd anniversary of the landmark Roe v. Wade decision.
After the Supreme Court overturned Roe in 2022, anti-abortion advocates launched a barrage of litigation, including a federal suit in Texas aimed at mifepristone, one drug in a two-drug regimen used in medication abortions.
Months after the Supreme Court threw out a challenge to mifepristone’s FDA approval, a federal judge in Texas on Thursday allowed a 2022 lawsuit to be revived, potentially opening the floodgates for restricted access. The widely-used drug was approved by the Food and Drug Administration 25 years ago. However, the FDA has eased restrictions on the drug.
U.S. District Judge Matthew Kacsmaryk, who was appointed by President Donald Trump during his first term, ruled last Thursday that three states — Missouri, Kansas, and Idaho — can resurrect the case. The states had requested to amend the complaint in October. They argue that eased restrictions on the drug impact abortion restrictions in their states.
The defendants — the FDA and mifepristone distributor Danco Laboratories — had argued that the case should be dismissed because the plaintiffs lacked venue in the Northern District of Texas.
Kacsmaryk wrote in his order: “Venue remains disputed here and should be properly dealt with at a phase where each party may fully argue the issue.”
The move comes six months after the Supreme Court unanimously ruled that the original plaintiffs, the Alliance for Hippocratic Medicine and other anti-abortion groups, lacked standing months after Kacsmaryk suspended the approval of mifepristone.
Although the groups “have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” those objections aren’t enough to “establish a justiciable case or controversy in federal court,” Justice Brett Kavanaugh wrote in the decision. The groups voluntarily dismissed their claims in November.
This revived lawsuit accuses the FDA of making “capricious, arbitrary” and “unlawful” changes in 2016 when the federal agency approved the drug to be used to terminate a pregnancy up to 70 days of gestation.
The plaintiffs also took issue with the federal agency’s 2021 decision to lift the in-person dispensing requirement in light of the Covid-19 pandemic, allowing for the drug to be prescribed by telehealth providers. Citing the Comstock Act, an 1873 anti-obscenity law that prohibits substances “intended for producing abortion” from being mailed, the suit accused this FDA rule of violating federal law.
This decision also seeks to “enable the violation of state laws restricting abortion,” the plaintiff argued. All three states have some abortion restrictions in place.
If the three states successfully argue their case, that access could be even more restricted across every state for not only abortion patients but also for those suffering from miscarriages, which the pill is also prescribed to treat.
Without access to medication abortions, patients would likely have to undergo surgical abortions, advocates have said. Not only are in-clinic abortions more expensive but they are also not available in every state, meaning patients would be forced to travel, adding more financial expenses and other complications to the already-burdensome procedure.
Kacsmaryk’s ruling comes less than a week before the 52nd anniversary of Roe on Wednesday.
It also comes days before Trump took office for the second time. Mere hours into his second presidency, reproductiverights.gov, the government’s website containing information about reproductive health care, was removed.
For years, Trump has bragged about “killing Roe v. Wade.” Since the Supreme Court’s 2022 ruling to end federal abortion protections, the reproductive health landscape has become a dire patchwork of care. Roughly 25 million women are living under abortion bans, according to Planned Parenthood Action Fund.
Despite the proliferation of state abortion bans, the number of terminations has increased since Roe was overturned, according to Guttmacher Institute. Some women have suffered severe injury or have died due to confusion over how to treat patients due to these restrictive laws.
