What are the two conflicting US court rulings on abortion drug mifepristone

While for the time being, the drug is expected to remain available, the fallout from the competing decisions is likely to put the matter on an accelerated path to the US Supreme Court.

The abortion debate, currently front and centre in US politics, has been deeply contested and polarising. After nearly a year since the landmark Roe v. Wade judgement was overturned by the conservative-leaning US Supreme Court, currently there are legal challenges to protect/remove the right to abortion across the country.

Mifepristone: what it is, how it works, why it is so popular

Mifepristone is a medication that is commonly used for medical abortion. It is a synthetic steroid compound that acts as a progesterone antagonist – it blocks the action of the hormone progesterone in the body. Progesterone is necessary for maintaining the lining of the uterus during pregnancy, so by blocking progesterone, mifepristone can effectively terminate an early pregnancy.

Mifepristone is typically used in combination with another medication called misoprostol. This is taken after mifepristone and helps to expel the pregnancy from the uterus by inducing contractions. Misoprostol also has other uses.

Both mifepristone and misoprostol are taken orally as pills and are typically used up to 10 weeks of pregnancy. Mifepristone’s popularity lies in the fact that it is a non-surgical option for abortion, considered to be the safest option for aborting early term pregnancies. Also, since it is a pill, it allows individuals to have more privacy and control over the abortion process. It can be taken in the comfort of one’s own home.

The rulings and their fallout

Access to abortion has been curtailed in various states post the striking down of Roe v. Wade. In such a context, mifepristone, which was already one of the most used methods of abortion, has become even more important.

Thus, abortion providers have slammed the unprecedented Texas ruling – never before has a lone judge overruled the medical decisions of the FDA. Kacsmaryk signed an injunction directing the FDA to stay mifepristone’s approval while a lawsuit challenging the safety and approval of the drug continues, AP reported.

Criticising the ruling, President Joe Biden said, “If this ruling were to stand, then there will be virtually no prescription, approved by the FDA, that would be safe from these kinds of political, ideological attacks.”

While historically, courts have deferred to the FDA on issues of drug safety and effectiveness, in the post-Roe environment, there are an increasing number of challenges specifically targeting abortion medication. The lawsuit in the Texas case was filed by the Alliance Defending Freedom, which argued that at the time of granting approval to the drug, the FDA did not fully review its risks. The right wing Christian group was also involved in the case that eventually led to the overturning of Roe v. Wade.

“This has never happened before in history — it’s a huge deal,” Greer Donley, a professor specialising in reproductive health care at the University of Pittsburgh Law School, told AP. “You have a federal judge who has zero scientific background second guessing every scientific decision that the FDA made.”

While this order, if upheld, will severely restrict access to mifepristone, experts believe that misoprostol will be continued to be used to affect pregnancies, albeit at a lower success rate. However, due to the competing nature of the two rulings, experts believe that there is unlikely to be an immediate impact on the availability of the drug.

On the other hand, Thomas O Rice, a Spokane-based federal judge, ordered US authorities not to make any changes that would restrict access to mifepristone in 17 Democratic-led states that sued over the issue, reported AP. While the 17 states and the District of Columbia had sued for expanded access to the pill, Rice simply blocked the FDA from making any changes to the drug’s access.

Roe v. Wade and the abortion debate in the US

Roe v. Wade is a landmark 1973 decision by the United States Supreme Court that established a woman’s legal right to have an abortion under the constitutional right to privacy.

The case was named after the pseudonym “Jane Roe,” which was used to protect the identity of the woman who brought the lawsuit, and Henry Wade, the district attorney of Dallas County, Texas, who was responsible for enforcing a state law that criminalised abortions except to save the life of the mother.

The landmark ruling was crucial in protecting women’s reproductive rights until it was overturned last year by the conservative-leaning US Supreme Court, by a 6-3 majority. According to the majority opinion, quoted by Politico, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives”.

‘Roe’s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” its reasoning was “exceptionally weak,” and the decision has had “damaging consequences”, the ruling said.

The abortion debate and its fault lines

The fault lines of the abortion debate largely fall on the lines of party and political ideologies.

Pro-life advocates, often affiliated with religious (especially Christian) or conservative groups, believe that life begins at conception and that the foetus has a right to life, making abortion morally and ethically wrong. They often argue that abortion is equivalent to taking an innocent human life and should be prohibited, except in certain cases, where the mother’s life may be at risk.

On the other hand, pro-choice advocates, often associated with liberal or progressive groups, argue that a woman has the right to make decisions about her own body, including the decision to have an abortion. They believe that restricting access to safe and legal abortion can lead to harmful consequences, such as endangering women’s health, disproportionately affecting marginalised communities, and infringing upon women’s reproductive and bodily autonomy.