A common abortion medication could very shortly be banned nationally, including in Oregon, after a decision released late Friday by a federal judge based in Texas.
A conservative group sued to overrule the U.S. Food and Drug Administration’s approval of mifepristone, a medication used to end a pregnancy. The drug was approved in 2000 and has proven a safe and effective way to end pregnancy when used with another medication, misoprostol.
Because the ruling overturns a federal drug approval, the medication may lack approval everywhere, regardless of a given state’s abortion laws.
However, the ruling will not go into effect for seven days, giving lawyers representing the FDA time to file an appeal.
And in a handful of states including Oregon and Washington, a second federal case may have bearing on whether or not mifepristone continues to be available.
In February, Oregon Attorney General Ellen Rosenblum and Washington Attorney General Bob Ferguson filed their own lawsuit against the FDA, alleging the agency had singled out mifepristone for excessive regulation. More than a dozen states with Democratic attorneys general have signed on to that suit, which is being heard in U.S. District Court for the Eastern District of Washington.
According to the Oregon AG’s office, the judge in that case, Thomas Rice, on Friday granted a motion that enjoins the FDA from “altering the status quo and rights as it relates to the availability of Mifepristone” in the states that have filed that lawsuit.
The AG’s office said it is working on a legal analysis of how the two rulings, which happened nearly simultaneously, should be interpreted.
“The federal judge in the eastern district of Washington JUST granted our request to preserve access to Mifepristone pending the outcome of our case. My team is carefully reviewing both orders right now, and we will have more to say soon,” Rosenblum said on Twitter.
Oregon’s governor, Tina Kotek, said she was evaluating the ruling out of Texas and promised to continue to fight for reproductive freedom.
“This is a shameful, dangerous ruling that will prevent patients across the country from accessing safe, effective medication. As we sort out the impact of this ruling, hear me loud and clear: abortion is still accessible and legal in Oregon,” she said.
Jack Resneck, President of the American Medical Association, also condemned the Texas decision. In a written statement, Resneck said mifepristone has been studied extensively and used by millions of people for over two decades and is proven to be safe.
“Substituting the opinions of individual judges and courts in place of extensive, evidence-based, scientific review of efficacy and safety through well-established FDA processes is reckless and dangerous,” Resneck said.
The Oregon Health Authority issued a statement Friday evening saying it was also “reviewing the federal court decisions” with the state justice department and the governor’s office. State health officials said they are “committed to ensuring a full range of essential reproductive health services, including abortion.”
“OHA wants to reassure patients and providers that mifepristone and abortion remain safe, legal and available in Oregon,” the health authority’s statement concluded.
Texas Judge Matthew Kacsmaryek, who ruled in favor of the conservative group, has been called a “life-long right-wing activist” by Oregon Sen. Ron Wyden, a Democrat. In an unprecedented move for the usually mild-mannered lawmaker, Wyden said on Feb. 16 that if Kacsmaryek banned mifepristone, “President Biden and the FDA must ignore it.”
Wyden said the harm that would be caused by banning access to mifepristone would be irreparable.
“The FDA should go on just as it has for the last 23 years since it first approved mifepristone,” Wyden said. “The FDA needs to keep this medication on the market without interruption regardless of what the ruling says. Doctors and pharmacies should go about their jobs like nothing has changed.”
Currently, more than half of abortions in the United States are medication abortions that typically employ both mifepristone and misoprostol. The great majority of those occur before 10 weeks of pregnancy.
Mifepristone is not medically necessary to end a pregnancy with medication. Most early pregnancies can be ended with a higher dose of misoprostol alone, but it is less effective at ending a pregnancy without the need for surgery when used alone.
Access to abortion medication and other forms of abortion care became severely limited in some states in the wake of the U.S. Supreme Court decision in Dobbs v. Jackson, which handed the responsibility for creating and enforcing abortion access laws to the states.
Fourteen states, including Idaho, are considered very or most restrictive by the Guttmacher Institute, a research and policy organization focused on expanding reproductive rights. Twelve more states are considered restrictive.
Currently, Oregon is considered the state most protective of abortion rights by Guttmacher.
Democrats in Washington have also vowed to fight the ruling from Texas.
In a press conference Saturday, Sen. Patty Murray said she’d opposed Kacsmaryek’s Senate confirmation in 2019 over concerns about potential rulings on abortion access. She said Senate Democrats would fight the ruling in court and continue to push legislation to protect abortion access.
“Yesterday’s ruling didn’t happen by accident,” Murray said. “Far-right extremists are determined to deny women access to medication abortion,” began Senator Murray. “So they went out, came up with a challenge to a decades-old FDA approval, and then asked one district judge in Texas to overrule the agency’s experts and scientists to pull a drug that is safer than Tylenol — and the most common way women in this country get an abortion today — off the shelves.”
In anticipation of the ruling, Gov. Jay Inslee announced April 4 that he had ordered the Washington Department of Corrections to use its pharmacy license to buy 30,000 doses of mifepristone for patients in the state. That’s an estimated three-year supply.
The judge rules as he sees fit -- but who enforces the ruling? What if two judges of the same rank disagree?
This business seems like a deep dive into "legislating from the bench" and overstapping the functions of Congress. And even if that is permissible, the Executive Branch would seem to need to be on board to provide enforcement.