Activists supporting legal access to abortion protest during a demonstration in front of the US Supreme Court in Washington DC. SAUL LOEB (AFP)
The latest victory of the anti-abortion movement in the United States, the one with the greatest consequences since the Supreme Court's decision to repeal abortion protection last June, came this Friday from a federal court in Amarillo (Texas).
Judge Matthew Kacsmaryk, a Donald Trump appointee, has halted the administration of mifepristone, a drug that, combined with mifoprostol, is used in about half of all pregnancy terminations in the country.
In a 67-page opinion, Kacsmaryk has opined that the approval by the US Drug Agency (FDA) of this pill, used for two decades, violated federal regulations that allow the rapid approval of certain medicines.
The judge has granted a period of seven days before his decision begins to be applied, so that the Government of President Joe Biden can dispute it in the Court of Appeals for the Fifth Circuit.
The ruling supports a recently created anti-abortion group in Texas called the Alliance for Hippocratic Medicine, which sued the US drug agency for approving the use of that pill, commonly distributed under the trade name Mifeprex and also available as active principle, more than 23 years ago.
The complaint accused the FDA of removing "most safeguards that protect women and girls from the dangers of mifepristone."
That, the lawsuit could read, "has made chemical abortion more widely available and less medically supervised, causing more women and girls to experience complications, increasing emergency situations."
Kacsmaryk's decision cannot have surprised those who listened to the four-hour hearing in which he heard the arguments of both parties.
In it, he gave the impression of leaning towards the opinion of those who believe that the FDA has lightly approved the use of mifepristone.
Since its approval, the agency estimates that some 3.7 million patients have resorted to mifepristone, and there are no more serious adverse reactions than those of widely used drugs such as paracetamol or penicillin.
Being a federal judge, his decision applies throughout the country and restricts the right to terminate a pregnancy, not only in the 18 States that have prohibited or restricted access to abortion since the Supreme Court's decision, but also in others, like New York, California or Maryland, considered "sanctuaries" in the protection of women's right to decide.
This sentence is the Trojan horse of the anti-abortion groups in those impregnable fortresses.
Since 2000, the FDA has allowed the administration of mifepristone with a prescription during the first 70 days (10 weeks) from the moment of conception.
In 2021, the Joe Biden Administration made the possibility of receiving prescriptions by mail permanent, after rehearsing that practice during the pandemic to avoid unnecessary visits to the doctor.
On its website, it can be read that the agency "does not recommend buying mifepristone online"
The drug stops the production of progesterone and terminates the pregnancy.
Misoprostol is used to evacuate the patient's uterus.
In some Latin American countries, chemical abortions are carried out only by taking the second pill, but its effectiveness is reduced (from more than 95% if a combination of both is taken to a range between 88 and 95%, but).
Boxes of mifepristone at the West Alabama Women's Center in Tuscaloosa, Alabama, on March 16, 2022. Allen G. Breed (AP)
Kacsmaryk comes from conservative Christian activism and his election as a magistrate in the Northern District of Texas ran into opposition from major civil rights associations in 2019.
Sen. Susan Collins, a Maine Republican, protested during her confirmation that her record, which she, she said, demonstrates "alarming prejudice against LGTBI groups, as well as disregard for Supreme Court precedents."
His practice is known for the scarce elaboration of his arguments, which gives hope to the groups in the event that his decision ends up being appealed in the Supreme Court.
Critics of Kacsmaryk claim that the lawsuit was filed in his jurisdiction, where he sees 95% of the cases, seeking a profile favorable to the aspirations of the plaintiffs.
This practice in English is known as “court shopping”, or shopping in search of the desired judge.
The appeal of the sentence corresponds to the fifth circuit court, based in New Orleans, Louisiana, and decision-making power over that State, in addition to Texas and Mississippi.
The federal government would still have the option of taking the case to the Supreme Court, where a conservative supermajority awaits, six to three, unprecedented since the 1930s.
“The decision to remove [the drug] from the market is unprecedented and politically motivated with enormous consequences for abortion access nationwide,” says attorney Carrie Flaxman, Planned's director of public policy and legal litigation. Parenthood Federation of America, the largest pro-abortion organization in the United States, which manages around half of the centers that offer these services in the country.
The Joe Biden Administration said a couple of weeks ago that it is already working on a response to the worst-case scenario.
Vice President Kamala Harris promised for her part that the White House would reject a ban on the drug.
Harris, who has made sexual and reproductive health one of the fields of action of her criticized management, then met with a dozen doctors and defenders of abortion rights to discuss the best reaction.
"Political and partisan attacks abound trying to question the legitimacy of a group of scientists and doctors who have studied the importance of these pills," Harris said.
A group of Democratic attorneys general also recently joined forces to file a lawsuit in Washington against the FDA demanding that it relax the requirements for the administration of mifepristone, which they consider "burdensome" and "unnecessary."
On the one hand, they sought to anticipate the Texas sentence and gain time on the same day that the term opened for the judge to dictate it.
On the other, they hope that the prescription of this medicine does not leave a trace, as it has been up to now, in the medical history of the patients.
This is especially important for those who live in states where abortion has been criminalized as a result of this latest wave of regression.
