Abortion pill lawsuit Texas 2023
The Texas lawsuit before U.S. District Judge Matthew Kacsmaryk was filed by the anti-abortion group Alliance for Hippocratic Medicine.
A federal judge will hear arguments today on a Texas lawsuit that seeks to ban mifepristone — one of two drugs commonly used in medication abortion. While this case has generated intense interest and its national implications are broad, it is unclear what impact it would have in Wisconsin, says Dr. Jessica Dalby, a UW Health physician.
“Medication abortion is really not well accessible to people in Wisconsin right now anyway without traveling or sourcing medications online,” says Dalby, who is on the steering committee of Pregnancy Options Wisconsin: Education, Resources & Support Inc. POWERS is a volunteer group of doctors, doulas, midwives and other health care professionals that provides referral and support services to pregnant people.
The constitutional right to an abortion established in 1973’s Roe v. Wade was overturned by the U.S. Supreme Court in June in Dobbs v. Jackson Women’s Health Organization. Since then women in Wisconsin have had to travel to Illinois or other states where abortion remains legal to obtain either a surgical or medication abortion. Medication abortions can be safely used for the first 70 days of the pregnancy, according to the FDA.
Wisconsin women have also continued to use online sources to order and receive pills for self-medication through Aid Access, a Europe-based nonprofit that provides medication abortion via mail to those who cannot locally access abortion care.
Wisconsin Sen. Kelda Roys (D-Madison) says that Aid Access will continue to ship medication abortion pills, including advanced prescriptions, to anyone who needs it. “I urge everyone to order a medication abortion now to have in your medicine cabinet [or] to have in your pajama drawer in case you need it,” Roys says.
There could be more immediate implications for women who will experience a miscarriage. “[Mifepristone] is also now the standard of care for miscarriage management,” Dalby says. “I think that that's an important part of this conversation too. It affects a wide swath of people.”
The Texas lawsuit was filed in Amarillo, Texas, in November by the anti-abortion group Alliance for Hippocratic Medicine. The group is arguing that the Food and Drug Administration did not follow protocol in 2000 when they approved the use of medication abortion and instead “chose politics over science.”
The federal judge in the lawsuit is U.S. District Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump in 2019. Before his rise to the federal judiciary, Kacsmaryk worked at the conservative nonprofit First Liberty Institute, argued against the legal right to abortion, and volunteered on Republican campaigns for U.S. Sen. Ted Cruz and Texas Gov. Greg Abbott.
The decision to file in Amarillo is likely strategic, as Kacsmaryk is the only judge in the Amarillo division of the Northern Division of Texas. Thus, the plaintiffs could be almost completely sure the suit would fall into Kacsmaryk’s hands, according to the Washington Post.
But even if Kacsmaryk rules in favor of the Alliance for Hippocratic Medicine, this would not lead to an immediate ban. Instead, the FDA would then have to follow the congressionally ordered process to withdraw approval of a drug, which could take months or years. Further, Kacsmaryk cannot force the FDA to enforce his decision.
This rule goes back to a 1985 Supreme Court decision, which awarded the FDA broad enforcement discretion. The FDA would be able to decide whether or not it would enforce the decision. The FDA’s risk-based approach, coupled with the safety of mifepristone, may lead the FDA to disregard the ruling altogether.
Roys says the uncertainty around accessing medication abortion demands a commitment to more widespread education regarding abortion access in Wisconsin and reproductive health more generally.
"There are a lot of reasons why people don't know about medication abortion and just reproductive health generally,” says Roys. “And, in a world where abortion is unavailable and there are attempts to criminalize it, I think it's more important than ever that journalists and political leaders speak out and use our platforms to try to educate people about their options so that they can be safe and take control of their health and their lives."
Twelve medical organizations, including the American Medical Association, have vouched for the safety of medication abortion. Nationally, medication abortion accounts for over half of U.S abortions, according to the Guttmacher Institute.
The standard protocol for medication abortion is a two-drug procedure, with mifepristone taken first; the drug blocks the hormone progesterone, which is essential to the development of a pregnancy. Misoprostol, taken 24 to 48 hours later, empties the uterus by causing cramping and bleeding. Misoprostol-only abortions are almost equally as effective, though this method can be less comfortable than when combined with mifepristone.
Physicians administered a misoprostol-only management for miscarriage before studies found that the addition of mifepristone increased the successful rate of management, says Dalby. She says she expects newer, revised protocols from national organizations about managing miscarriage, as well as abortion, with misoprostol alone.
As access to abortion grew more restricted in recent years, women in Wisconsin and elsewhere have been self-managing their abortions with medication ordered online. When the Dobbs decision was issued, Wisconsin's 1849 criminal abortion statute, which was never repealed, went back into effect. The law penalizes medical professionals who provide abortions, but not women who get abortions.
Even before Dobbs, Wisconsin prohibited telemedicine abortion. So for people in Wisconsin to legally access abortion pills from an online provider, the pills had to be sent to an address where telemedicine abortion is legal, like Illinois or Minnesota. But Aid Access sends pills directly to Wisconsin residents.
Founded in 2018, Aid Access is run by Dutch doctor Rebecca Gomperts and ships pills from a pharmacy in India. Customers can visit the Aid Access website and follow a relatively straightforward process to order the pills — answering questions on an online form about pregnancy and other health conditions. The pills cost around $105, but Aid Access is flexible in its pricing.
Aid Access is cheaper than almost any other way of accessing medication abortion, but it comes with uncertainty because the pills are shipped from India. This means a several week wait can cause anxiety for pregnant people who are unsure how far along they will be by the time the pills arrive.
Dalby says there are resources for people who find themselves pregnant and are trying to assess their options, including POWERS, which offers options for both those seeking pregnancy continuation and pregnancy release.
Other resources include Mayday Health, an education nonprofit created to share information about abortion pills and how to access them. Mayday launched a national campaign the first week in March to spread the word where abortion access is banned or restricted.
Nationally, access to abortion pills may not be in immediate danger. But pressure from anti-abortion groups and lawmakers is mounting. In January the FDA expanded the ability of certified retail pharmacies to distribute abortion pills. But Walgreens recently said it would not dispense mifepristone in 21 conservative-led states where officials warned Walgreens and CVS that they could face legal ramifications for selling abortion pills in those states. Wisconsin was not one of the states to sign the letter.
Before the FDA expansion, access to abortion pills in Wisconsin was available through clinics, but not pharmacies. Under Wisconsin law, and despite the FDA’s new rules, it is illegal to provide mifepristone for abortion, but legal to provide it for other uses, including miscarriage, according to a statement from the Pharmacy Society of Wisconsin to Wisconsin Public Radio.
In response to Walgreens’ announcement, California Gov. Gavin Newsom said that California would not renew a multimillion dollar contract with Walgreens. “California is on track to be the fourth largest economy in the world and we will leverage our market power to defend the right to choose,” Gov. Newsom said in a statement.
In a press release, the National Mobilization for Reproductive Justice said these actions have the potential to affect more than just medication abortion prescriptions. “By demonstrating at the access point between pharmacist and patient, anti-abortionists contribute to an already broken U.S. healthcare system,” the press release said.
Sen. Roys says this push to ban abortion pills is purely political.
“If safety and science were the only things that mattered, it would be available over the counter,” Roys says. “It's very dangerous because in a time when abortion is criminalized or unavailable, we know that vulnerable women are going to be harmed the most and medication abortion is a really important way to prevent us from having to go back to the days pre-Roe of unsafe illegal abortions.”
