Dueling Lawsuits Over Abortion Pills Could Send Issue Back to Supreme Court

If the judge rules in favor of an anti-abortion group, the drug could effectively be banned nationwide.

AP/Allen G. Breed
Bottles of the drug misoprostol on a table at the West Alabama Women's Center at Tuscaloosa, Alabama. AP/Allen G. Breed

With a decision expected any day in a Texas lawsuit that could have dramatic nationwide effects on abortion access, a group of states has filed a countersuit against the FDA that could send the issue back to the Supreme Court.

A federal district court judge for the Northern District of Texas, Matthew Kacsmaryk, who has historically been vocal about his personal opposition to abortion, could take mifepristone, a popular abortion drug, off the market.

An anti-abortion coalition led by the conservative Alliance Defending Freedom brought the case in November, arguing that the drug was unsafe and should have its FDA approval revoked.

“When it comes to chemical abortion drugs, the FDA has completely failed its statutory duties to protect women and girls,” the senior counsel at Alliance Defending Freedom, Julie Blake, said.

If Judge Kacsmaryk rules in favor of the coalition, the drug could effectively be banned nationwide, regardless of state abortion policies.

“This isn’t about what the overwhelming majority of Americans want; it’s about a small group of people who want control over women’s freedom to choose,” the executive director of the Women’s March, Rachel Carmona, said.

On the first day that a ruling could be issued in Texas, February 24, a suit was filed by a coalition of Democratic state governments in Washington arguing, in effect, the exact opposite.

Nevada, Delaware, Arizona, Illinois, Connecticut, Colorado, Vermont, New Mexico, Michigan, and Rhode Island joined Washington in bringing the suit. 

In the lawsuit, filed in the Eastern District of Washington, Judge Thomas Rice will hear arguments from the Washington attorney general, Bob Ferguson, that the “FDA’s excessive restrictions on this important drug have no basis in medical science.”

“The federal government has known for years that mifepristone is safe and effective,” Mr. Ferguson said. “In the wake of the Supreme Court’s radical decision overturning Roe v. Wade, the FDA is now exposing doctors, pharmacists, and patients to unnecessary risk.”

Mr. Ferguson has also filed to halt enforcement of the current restrictions on the drug while the case continues, though it’s not yet clear if this will happen.
If the anti-abortion coalition wins in Texas and the coalition of states wins in Washington, it could create contradictory rulings in the district courts that could send the issue back to the Supreme Court. Justices would once again be empowered to rule on a decision that could affect abortion access for millions of Americans.


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