Access to abortion in the United States returns to the Supreme Court this Tuesday.
It will do so with a case that questions the convenience of administering mifepristone without certain restrictions, a drug that, combined with another drug called misoprotol, forms the most commonly used cocktail in pregnancy terminations in this country.
This is the same high court that inaugurated a new and chaotic era in women's reproductive freedom in June 2022, when its nine justices, six of them conservative, three of whom Donald Trump appointed, overturned the half-century precedent set. by the historic
Roe v. Wade decision.
That ruling translated into the repeal of federal protection of abortion and the return to the States of the power to regulate this matter: since then, 21 have prohibited or severely restricted that right in the middle of a map that is difficult to draw due to crossed legislation. and battles in court
.
In the 14 territories that have a total ban, this also affects mifepristone.
This Tuesday's case,
FDA Vs Alliance for Hippocratic Medicine
(AHM)
,
pits the drug agency against an anti-abortion association created in June 2022 and which launched its crusade against the drug from the Republican state of Texas.
The Supreme Court's verdict, which will not be known until the end of the judicial process, at the end of June, could increase the restrictions on its access (reducing the period and conditions under which doctors are allowed to prescribe it), which would have consequences throughout the country, also in those places where abortion is still legal.
Around 63% of pregnancy terminations are carried out in the United States using these pills, according to the latest data from the Guttmacher Institute.
In 2020, when Roe v. Wade was still in effect
,
pills were involved in 53% of cases.
“This increase indicates that access to these medications has been even more fundamental after the Supreme Court's ban than before, because the numbers confirm that the number of abortions has not decreased [since 2022], but has grown to the highest levels in more than a decade,” explains Destiny López, acting CEO of that institute, dedicated to the defense of reproductive freedom.
Patients who resort to these methods cite reasons of privacy or convenience for not going to a doctor's office.
And then there are those who live in places where the interruption of pregnancy is prohibited or severely restricted, forcing them to undertake long and expensive trips to other States, often destined for clinics that have been saturated for almost two years. the increase in requests.
Boxes of mifepristone at a health center in Alabama, in 2022. Allen G. Breed (AP)
The plaintiffs carefully sought a court (the Amarillo District Court) and a conservative judge (Matthew Kacsmaryk, with a long history of anti-abortion rulings) to achieve their goal, arguing that the FDA overlooked threats to the public health when after the pandemic it allowed mifepristone to be obtained more easily, without the need to go to the doctor in person or expanding the flexibility to buy the pills by mail.
In the legal arguments presented to the Supreme Court, the AHM speaks, without providing evidence, of “tens of thousands of complications in patients derived from the use of mifepristone.”
The truth is that when the FDA approved its use in 2000, it recognized that it could cause bleeding and imposed a series of restrictions on its distribution that it later eased over the years.
At first, its use was only allowed in the first seven weeks of gestation, a period that was extended in 2016 to the current 10.
In these two decades, a hundred scientific studies have concluded that it is a safe drug, and that it does not have more serious contraindications than other widely used medications.
Recently, a medical journal retracted two studies that argued otherwise.
According to the FDA, more than five million women have used it.
These studies also defend its high effectiveness if used in the first phase of pregnancy and combined with misoprostol.
The first medication stops the production of progesterone and interrupts pregnancy;
The second causes contractions in the patient and helps her evacuate the fetus.
Two questions
In another legal argument contributed to the Supreme Court case, a group of associations that includes the American College of Obstetricians and Gynecologists, can read: “Major adverse events (significant infection, excessive blood loss, or hospitalization) occur in less than 0. 32% of cases, according to a highly prestigious study with more than 50,000 patients.”
Given the nature of the plaintiffs, the Supreme Court faces two questions, as explained in a telephone conversation by Sabrina Talukder, a lawyer at the progressive analysis center Center for American Progress, based in Washington.
“The first is whether a conservative Christian organization in which no gynecologist or other specialist who has worked with the questioned drug participates is authorized to launch this legal attack,” she clarifies.
Another reason why they opted for Amarillo, Talukder continues, is that the appeals court that corresponds to that area is the Fifth Circuit, which is based in New Orleans and has jurisdiction over Louisiana, Texas and Mississippi, and is, in the expert's definition, “the most extremist in the United States.”
“In this case, it also works as a slide that leads directly to the Supreme Court,” she adds.
Talukder is concerned about what this indicates about how “the politicization of justice is also leading the United States to a politicization of medicine.”
The second question affects the substance of the matter.
If the judges confirm the appeals court's ruling, the regulation on mifepristone, from whose marketing Danko Laboratories, a New York-based pharmaceutical company, benefits, would travel back in time to 2011, when the drug could only be prescribed by a doctor in person, and never, like now, in a remote consultation, after which the patient can receive the pills by return of mail.
It would also return the period in which its use is allowed to seven weeks, a time in which many women cannot yet know that they are pregnant.
Restricting access to mifepristone would reduce the options for medical abortions, which could still be carried out using only misoprostol, as is the case in countries like Brazil.
This option is less effective and causes, according to doctors, greater side effects, such as cramps, diarrhea or fever.
Proponents of restricting access to mifepristone also argue that it would limit the power of government agencies, which are (from the FBI to the EPA, which protects the environment) among the main enemies of Republican politicians.
From the other side of the political spectrum, they argue that a Supreme Court decision unfavorable to their interests could set a dangerous precedent.
“It would open the door,” warns Talukder, “for any citizen to question the authority of the FDA to decide on the drugs that can be prescribed, and not following medical criteria, but political ones.”
This Tuesday will not be the only opportunity in which the high court intervenes this year on the issue of abortion, one of the issues that has done the most to deteriorate its image, more damaged than ever, before American public opinion.
In April, its nine justices will examine the case
Idaho v. United States,
in which they must decide on the legality of an anti-abortion law in the Midwestern state.
It is one of the most severe in the country.
According to its detractors, it confronts doctors and nurses with a difficult-to-solve dilemma in cases where the mother's life is in danger if she is forced to continue with the pregnancy.
If they carry out a termination of pregnancy, they risk, under Idaho law, losing their license or even ending up in jail.
If not, they would contravene another regulation, this one of federal scope, which requires hospitals that offer emergency services to intervene if the patient's health is at stake.
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