In an unprecedented decision Friday night, a federal judge in Texas struck down the Food and Drug Administration’s approval of mifepristone — one of two medications used in tandem to cause an abortion — potentially jeopardizing access nationwide to the most common and least invasive form of abortion.
Should U.S. District Court Judge Matthew Kacsmaryk’s ruling stand, sale of the medication, which was approved in 2000 for use in the first 10 weeks of pregnancy, would be banned nationwide — even in states such as Vermont where abortion care remains legal.
“This federal ruling from a judge in Texas is yet another deeply concerning step backwards,” Republican Gov. Phil Scott said in a statement Saturday morning.
Friday’s decision is the latest domino to fall since the U.S. Supreme Court overturned the 1973 Roe v. Wade decision last June, thereby ending the nationwide right to an abortion. The court reasoned in its Dobbs vs. Jackson Women’s Health Organization ruling that the matter of abortion’s legality should be left to individual state governments.
But Friday night’s decision, if it stands, would impact abortion access nationwide, regardless of a state’s laws.
Lucy Leriche, the vice president of Vermont public affairs for Planned Parenthood of Northern New England, called the ruling “politically motivated” with “the potential to cause real harm.”
“This ruling is outrageous and should make clear to everyone that people opposed to abortion will not stop until abortion is banned everywhere, including here in Vermont, even though Vermonters overwhelmingly passed the Reproductive Liberty Amendment in November,” Leriche said in a statement Friday night.
In last November’s election, every Vermont city and town offered majority support to an amendment to enshrine access to abortion and other reproductive health care in the state constitution. Article 22, the so-called Reproductive Liberty Amendment, passed statewide by a 77-23% margin.
Kacsmaryk’s decision will not take effect immediately — he stayed his own order for seven days, offering the FDA time to file an appeal.
The Biden Administration’s Department of Justice immediately appealed the decision, and a federal judge in Washington state issued a ruling Friday night directly contradicting Kacsmaryk’s. With two federal rulings in contradiction, the question of whether to take mifepristone off the market will likely go to the U.S. Supreme Court.
Gov. Scott — who supported Article 22’s passage in the runup to Vermont’s 2022 election — said he hopes the Washington state ruling prevails. “In Vermont, we have worked to ensure that decisions about reproductive health remain between a woman and her health care provider, and we will continue to do our part,” he concluded.
Echoed throughout Kacsmaryk’s written ruling was rhetoric commonly used by anti-abortion activists, such as the word “unborn human” to refer to a fetus. He also described what he called the “intense psychological trauma” of patients seeing “the remains of their aborted children” after carrying out a medication abortion.
Kacsmaryk’s decision opens the door to a legal no man’s land. Before Friday, a federal judge had never attempted to overturn FDA approval of a medication.
U.S. Rep. Becca Balint, D-Vt., — who was instrumental in shepherding Article 22 through its legislative approval process as a state senator — said the Texas decision “sets a dangerous precedent.”
“Mifepristone is safe and effective and has been for more than two decades,” Balint said in a statement Saturday. “What other safe and effective drugs will be removed because of political and ideological extremism?”
“This is an assault on reproductive rights and women’s freedom,” Balint continued. “Right wing extremists will stop at nothing short of a national abortion ban.”
Unaffected by Friday’s decision is the FDA approval of misoprostol, which is the second pill prescribed in a typical two-step medication abortion, after mifepristone. It is common in some other countries to prescribe only misoprostol to carry out a medication abortion, but the two-pill regimen is typically more foolproof. According to Politico, some providers in anticipation of Friday’s ruling began moving toward prescribing misoprostol-only abortions.
Mifepristone is also prescribed to treat miscarriages.
U.S. Sen. Bernie Sanders, I-Vt. — who now chairs the Senate’s powerful Health, Education, Labor and Pensions Committee — was swift and fierce in his decrying of the Texas decision.
“No. A right-wing judge in Texas does not know more than the women who have safely used this medication for decades or the medical experts at the FDA,” Vermont’s senior senator said in a Friday night tweet. “This extreme decision should not be allowed to go into effect. Women control their bodies, not politicians or judges.”
U.S. Sen. Peter Welch, D-Vt., also weighed in on Twitter Friday night, saying the ruling is “wrong and should be reversed.”
Supporters and opponents of abortion access had anxiously awaited Kacsmaryk’s ruling for weeks, knowing the Trump-appointed judge’s decision had the potential to impact abortion access nationwide. In his decision, Kacsmaryk sided with the anti-abortion groups which challenged the FDA’s approval of mifepristone, first issued in 2000, as well as more recent FDA decisions which allowed the medication to be dispensed at retail pharmacies, sent to patients by mail and prescribed via telemedicine.
Still, the decision — issued late on Good Friday — took some stakeholders off-guard as they were traveling to celebrate the Easter holiday with family, or were amid their Passover Seder.
