A New Orleans federal appeals court has rejected ideologue Texas Federal Judge Matthew Kacsmaryk’s ruling against the Food and Drug Administration’s 2000 approval of the medication abortion drug mifepristone, the second part of the two-drug regimen that is frequently used instead of surgical abortion. The panel, however, decided to also reject science in siding with Kacsmaryk in overturning the 2016 and 2021 expansions that allowed, among other things, the drug to be mailed.
For now, nothing changes, as the Supreme Court had previously ordered the status quo remain as appeals play out. The high court should have the sense to reverse this ruling and establish definitively that the government has properly approved and regulated the life-saving mifepristone and misoprostol.
Let’s be upfront about what this legal wrangling is really about, which is certainly not any legitimate medical questions about the drug itself. Strained arguments about supposed deficiencies in the FDA’s approval process and the vanishingly rare medical complications are purely pretextual. It’s a legal challenge fundamentally about an ideological position, one that holds that abortion is immoral and it should be up to those who hold that view to impose their religious or ethical opposition onto everyone else, above doctors and patients.
It is obvious to everyone that a similar lawsuit about a drug with the exact same approval timeline, authorizations and risk factors as mifepristone, but which instead was used to treat a heart condition or clear up allergies, would not have been filed, or would have been quickly thrown out. Instead, a three-judge appeals panel is parroting bad-faith concerns over mifepristone’s safety, despite ample evidence already showing that the drug is not only safe but actually safer than a good deal of other over-the-counter drugs no one bats an eye about.
For its part, the Supreme Court finds itself once again having to be the arbiter of access to abortion, after having ended the national right with its overturn of Roe v. Wade and attempted to throw responsibility back to the states. If Justice Sam Alito and his allies really expected to have punted the issue once and for all, they clearly weren’t paying much attention. The anti-abortion groups who’d spent decades carefully organizing attacks on the right to choose were not going to let it go after that victory, which they always saw as simply the first in a series of steps to make abortion not only not a right, but fully inaccessible.
If it were to side with these groups again, the Supreme Court would be going much farther into openly ideological waters. Roe was a longtime precedent, but the original decision’s actual legal underpinnings, based as they were in a principle of privacy, were relatively brittle (which is why Congress’ failure to pass a codification of abortion rights looks like a greater failure every day).
This is different. The court would have to take direct aim at the FDA’s regulatory authority and essentially endorse fringe and disproven medical theories. Let’s hope that the justices retain enough sense of duty to reject this co-opting of the law.
