Abortion Pills Could Be Banned Everywhere Within Days. Here’s What You Need to Know.

A common, effective abortion-inducing drug could be banned nationwide within a matter of days, thanks to a “loose cannon” of a judge appointed by former President Donald Trump.

In late 2022 four doctors and anti-abortion groups sued the Food and Drug Administration, accusing the agency of overstepping when it approved the use of the drug mifepristone in abortions in 2000. These abortion foes want to erase that approval—a move that would yank mifepristone off the market across the United States, regardless of whether a state protected access to abortion after the fall of Roe v. Wade last year. 

Mifepristone is one of the most well-studied drugs on the market, experts say. Not only has it been proven safer than drugs like penicillin and Viagra, but it’s 18 times safer than childbirth. 

“This case could effectively ban medication abortion nationwide. That means people in every state—including states like New York, Illinois, and California—will not be able to get abortion pills,” Jenny Ma, senior counsel for the Center for Reproductive Rights, told VICE News in a statement. “Medication abortion is incredibly safe and has been used in the U.S. for more than 20 years. More than half of abortions in the U.S. are done using medication abortion. The science and evidence is indisputable.” 

But that science and evidence might not matter, according to abortion rights supporters, because this lawsuit was filed in federal court in Amarillo, Texas. Filing a lawsuit that could reshape abortion access nationwide in a remote northwestern Texas town (with a population of 201,000) might seem random, but it’s actually a cunning tactic. That’s because that court is overseen by Judge Matthew Kacsmaryk, a 2019 Trump appointee famous for his conservative views on abortion and LGTBQ rights—and his willingness to take a hammer to national policy. 

In other words, for anti-abortion activists looking for a friendly ear, Kacsmaryk may just be perfect. And if Kacsmaryk backs the anti-abortion activists’ new lawsuit, his ruling could be appealed to the U.S. Court of Appeals for the Fifth Circuit, which is famously conservative-leaning, then to the Supreme Court, with its 6-3 conservative majority.

“People are increasingly worried not because the legal theory started to make more sense when they thought about it. They got increasingly worried because they realized it was going to a judge who was probably going to rule in a way that was purely ideological and not related to the law,” said Joanna Grossman, a visiting professor at Stanford Law School, who called Kacsmaryk a “loose cannon.” She added, “It’s not a good claim, and yet it will probably be accepted.”

Formerly an attorney at a law firm devoted to handling religious liberty cases, Kacsmaryk has previously called being transgender “a delusion.” In 2015, he wrote an article that condemned “the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.” 

Then, in 2022, Kacsmaryk took aim at Title X, the nation’s largest family planning program and a key source of contraception for poor people and minors. Kacsmaryk claimed that the program was unlawful, because it didn’t require that minors get parental consent before they get help through Title X. His ruling was the first major legal attack on birth control since the overturning of Roe. 

In the wake of Roe’s overturning last year, abortion pills have become an increasingly important frontier in the U.S. abortion wars. While the Biden administration has repeatedly moved to make them easier to access, including by allowing normal pharmacies to dispense the pills to anyone with a prescription, abortion foes have struck back by suggesting that pharmacies who end up carrying the pills may face dire legal consequences. At the National Pro-Life Summit in Washington, D.C., last month, activists suggested that allowing pharmacists to dispense abortion pills would turn every CVS and Walgreens into an abortion clinic.  

The anti-abortion doctors and group behind the Texas lawsuit are being represented by the Alliance Defending Freedom, a powerhouse legal advocacy group that has architected much of the religious right’s assault on abortion and LGBTQ rights. The organization was even behind the Mississippi abortion ban that was at the heart of the Supreme Court case overturning Roe.

At the Summit, Alliance Defending Freedom senior counsel Denise Harle told a roomful of excited young anti-abortion activists about the Texas lawsuit. “Really, primarily, this is about protecting women and girls,” she told them. (One of the doctors who brought the lawsuit, Dr. George Delgado, became famous after he championed an unproven protocol to “reverse” people’s abortions. A study on that protocol ended early after three of the women involved ended up hemorrhaging so much they had to go to the ER.) 

Law professors David S. Cohen, Greer Donley and Rachel Rebouché pushed back against Harle’s kind of rhetoric in a recent draft of a law article that comprehensively reviewed the state of play around abortion pills. The authors pointed out that the Government Accountability Office audited the FDA’s approval of mifepristone back in 2008, and concluded that nothing was wrong with the agency’s approval process. If the lawsuit succeeds, it would mark the first time that a court has overruled the FDA’s new drug approval process “unilaterally and over the FDA’s objection.”

If mifepristone gets taken off the market, telehealth groups that offer remote medication’ abortions will likely have to shut down or pivot to using an off-label use of another drug, misoprostol, to induce abortions. At least seven abortion providers told Jezebel Tuesday that they are prepared to start using a misoprostol-based protocol. That protocol is generally less effective than using both mifepristone and misoprostol, as is the standard in the United States, but is still widely regarded as safe. The World Health Organization has a recommended protocol for using it.

Still, brick-and-mortar abortion clinics, which are already struggling to handle the flood of patients since the overturning of Roe v. Wade last year, may have to squeeze more patients in for surgical abortions—or, at least, try.