Abortion RightsAnalysis

Abortion pill: Far-right judge bans access, other ruling lifts restrictions — is medication abortion headed to Supreme Court?

In a ruling that has been described as a “backdoor ban on abortion,” far-right Texas judge Matthew Kacsmaryk banned access to mifepristone, more commonly known as the abortion pill, nationwide. This decision has the potential to eviscerate the rights of millions of women and other people seeking abortion care. Mifepristone, also used in miscarriage care, is used in more than half of abortions in the U.S. The Justice Department is appealing the ruling and on April 10 filed a motion to ask the U.S. Court of Appeals for the Fifth Circuit to stay Kacsmaryk’s ruling until the department’s appeal of the case could be heard. 

The decision came as the result of a lawsuit filed by anti-abortion groups against the FDA, claiming that the review process for mifepristone was wrongfully accelerated, although mifepristone has been approved for use for over 20 years. Abortion providers have been predicting that the effects of banning mifepristone will be widespread and impose major restrictions on abortion care, even in progressive states. 

One hour after Kacsmaryk issued his ruling, Judge Thomas Rice in Washington state issued a conflicting decision that would lift “unnecessary and burdensome” restrictions on mifepristone imposed by the FDA in January. This case, brought by Attorneys General from Washington and Oregon, aimed to lift these barriers including requiring special certification to prescribe mifepristone as well as signing an agreement that a patient had decided to end their pregnancy to receive the medication, which will go into the patient’s medical record. This requirment can often deter a patient from getting an abortion. Most other medications do not have such restrictions, and the ones which do are much more dangerous, like opioids and fentanyl.

Conflicting decisions

With conflicting federal rulings, the issue could be appealed to the Supreme Court. 

Democratic decision-making is at stake with this decision. Over 72% of Americans were opposed to the overturning of Roe v. Wade, which did not stop the Supreme Court in the recent Dobbs decision. The fact that nine undemocratically appointed judges have the opportunity to eviscerate the rights of millions of people against their will points to the need for a new system. 

The Biden administration has claimed that it will “fight this ruling” in a statement and that “the only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a Congress who will pass a law restoring Roe versus Wade.” These empty words add insult to injury when part of the reason we are facing this crisis is due to the Democratic Party’s failure to legally codify the right to abortion, despite having had plenty of opportunities to do so over the years. 

Abortion rights are popular amongst the vast majority of people in the U.S. History tells us that if we want to preserve these rights, we need to fight back. Mass struggle is the only proven pathway to protect our human rights. We need a militant women’s movement in the streets if we are to defend the right to abortion care as a human right. We won’t go back!

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