The Patriot Post® · Abortion Pill on Collision Course for SCOTUS

Two different federal court cases have yielded opposite results, and that could have huge ramifications for abortion post-Roe v. Wade.

First, a federal judge based in the state of Washington ruled in favor of 17 Democrat attorneys general who wanted to remove federal restrictions on the use of mifepristone in State of Washington v. FDA, claiming the drug was “far safer than continuing a pregnancy.” On the other hand, a Texas federal judge delivered a decision that completely overruled the Food and Drug Administration’s 23-year-old approval of the abortion pill, claiming in his decision on Alliance for Hippocratic Medicine v. FDA that the FDA’s stated reason for approving the drug “for serious or life-threatening illnesses” ignores the fact that pregnancy isn’t an illness but a natural part of a woman’s life.

In this situation, the usual resolution is a date with the Supreme Court — but we’re getting a bit ahead of ourselves.

The group of Democrats being led by the state of Washington got their desired ruling from U.S. District Judge Thomas Rice, an appointee of Barack Obama. They’re looking to continue the FDA’s history of easing access to the abortion pill, a trend well-covered by the always astute Ben Domenech. Perhaps his most surprising revelation is that drug-induced abortions now comprise the majority of all abortions, making this debate all the more important. However, Rice’s ruling would only affect the states that sued, all with Democrat AGs.

Regardless, Democrats are hoping to put these pills on your store shelves. “The push to dramatically increase wide availability of the abortion pill — one accelerated even in recent years because of the pandemic — has come at the cost of sepsis, hemorrhage, hundreds of life-threatening situations and at least 20 deaths (well, more if you include the children),” Domenech writes. “From a responsible perspective, shouldn’t this be something we care about?”

Yes, we should care, and that may have played into the Texas ruling that got far more news coverage. Donald Trump-appointed U.S. District Judge Matthew Kacsmaryk dropped a 67-page decision revoking the initial FDA approval, which he said “exceeded its authority” by issuing an approval based on a premise that the drug was intended to treat a life-threatening disease, a definition that a normal pregnancy doesn’t fit. Mifepristone does not provide a “meaningful therapeutic benefit,” added Judge Kacsmaryk. As part of the ruling, he allowed a seven-day stay to allow the government to appeal to the Fifth Circuit Court of Appeals, and it obliged yesterday.

Praising the Kacsmaryk decision for its “straight talk,” political analyst Margot Cleveland noted: “Calling an unborn human an ‘unborn human’ immediately triggered abortion activists, but as Kacsmaryk explained in a footnote, such terminology is scientifically correct, whereas the lawyers and courts ‘often use the word "fetus” to inaccurately identify unborn humans in unscientific ways.’ The word “fetus” … refers to a specific gestational stage of development, as opposed to the zygote, blastocyst, or embryo stages.‘ And because the FDA’s approval of the abortion drugs applies at multiple 'gestational stages,’ the word ‘fetus’ would be inaccurate.“

Others, however, were not so charitable. The editorial board at The Wall Street Journal chastised both decisions, pointing out that the Supreme Court’s Dobbs decision was already intended to move the abortion question to the states, but both judges (and plaintiffs) were trying to federalize it again. They also said both decisions made several legal leaps and questionable claims.

The Texas ruling also drew out two unlikely congressional allies. Alexandria Ocasio-Cortez certainly fits the definition of a usual suspect, and she was front and center leading the condemnation of Kacsmaryk’s decision. She pontificated to all the media who would listen, "I believe the Biden administration should ignore this ruling.” (Team Biden already has plenty of practice ignoring the Rule of Law, right?)

But in a separate interview, GOP Congressman Nancy Mace told CNN’s Kaitlin Collins, “I agree with ignoring [the Texas ruling] at this point, but there are other lawsuits that are happening in other states over this issue.” She added: “This is an FDA-approved drug. I support the usage of FDA-approved drugs even if we might disagree. It’s not up to us as legislators to decide, or even as a court system.” Mace also presumed the vast majority of Americans would disagree with the court’s decision and argued that Republicans weren’t showing “compassion” toward women.

That, in a nutshell, is the fear the establishment GOP has over this upcoming fight.

Since this year’s Supreme Court term is almost completed, it’s likely this fight would be placed on next year’s docket and decided right smack in the middle of the 2024 campaign. Given the perceived effect of the Dobbs decision on the 2022 midterms, it’s no wonder that Democrats are salivating and working to politicize the court rulings as much as they can while Republicans have nightmare visions of suburban women peeling their support away from the GOP over this ruling, too. Abortion has always been more useful to the Republicans as a motivate-the-base issue more so than a campaign theme because they always had the backstop of blaming Roe v. Wade for a lack of progress. Not anymore.

Perhaps the safest place for the GOP to be at this point is to concede the FDA can maintain mifepristone access, but with the restoration of many of its original restrictions. While there is a GOP bill to ban mifepristone access, they may be better served to work on and enhance an alternative bill that would only repeal the changes to access and place doctors back into the equation. “Take two and call me in the morning” is the way this drug is dispensed more often than not — but it should at least include the “call me in the morning” part.