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The Next Big Abortion Fight

July 19, 2023

Since the Supreme Court overturned the fundamental right to abortion last year, there has been an onslaught of state and local decisions eliminating reproductive care around the nation.

Healthcare providers across the country have closed their doors, leaving fewer and fewer options for obtaining an abortion – a result that impacts lower income, people of color, and rural communities at a disproportionate level. 

In response to the continued effort to eliminate abortion care, the Biden administration allowed mifepristone, also known as the abortion pill, to be sent through the mail. High-stakes challenges to the new policy followed across the country, making it the next big abortion fight on the horizon.

The Cases

Texas: Fifth Court of Appeals

The anti-abortion group Alliance Defending Freedom (ADF) filed a lawsuit in November 2022 arguing that the US Food and Drug Administration (FDA) flouted its authority when it approved the use of mifepristone in 2000 and expanded its availability in 2016. The lawsuit also challenges the Biden administration decision to allow the drug to be sent through the mail. The complaint alleges that these actions violate a federal law called the Administrative Procedure Act, which governs the processes and procedures federal agencies must undertake.

The lawsuit, which is unusual because of its filing nearly 23 years after the actions of the FDA, is in the ultraconservative Fifth Circuit Court of Appeals. 

The case originally began in a district court in Texas before Judge Matthew Kacsmaryk, a controversial MAGA-appointed judge. He gave a decision on April 7, 2023 that invalidated not only the latest changes to the FDA’s approval of mifepristone, but struck the entire history of the approval going back to 2000. The Fifth Circuit upheld most of that order, but then on April 21st the US Supreme Court put the entire ruling on hold until the appeal in the Fifth Circuit is completed.

The Fifth Circuit heard the argument in the appeal in June. Based on reporting from the arguments, the three-judge panel seems skeptical of the FDA and is seeming likely to side with the plaintiffs, who are challenging the FDA’s approval. 

Washington: Ninth Circuit Court of Appeals

In a separate case in Washington, 17 Democratic-leaning states filed a lawsuit to expand access to mifepristone. The judge partially agreed with them, barring any further changes to the drug. The case is on appeal to the Ninth Circuit Court of Appeals. 

If the two decisions end up with different outcomes in the appeals courts, that would make it very likely that the Supreme Court will ultimately decide the issue in the coming years. 

Now that the Supreme Court has established abortion isn’t a fundamental right by overturning Roe v. Wade, access is becoming more infrequent and the Biden administration has attempted to mitigate that with its recent changes to its FDA policy on mifepristone.

If the changes get invalidated, or if there’s an even broader reading wiping out the entire approval going back 23 years, the administration could have to start from scratch while being hampered by a Supreme Court that’s even more hostile to administrative agencies than the Justices who were on the Court in 2000.

The decision to wipe out the new policy, which allows for mifepristone to be sent by mail, would have a disproportionate effect on lower income, BIPOC, and rural communities, who are less likely to have the ability to travel long-distances for multiple health care appointments. 

A decision against the FDA could have staggering consequences, as it is unprecedented for a court to wipe out 23 years of administrative actions, especially after multiple approvals. If they get the green light to wipe out decades worth of progress, there’s no limit to where they might go. The FDA or other agencies might see their live-saving progress on any number of issues limited and in some cases erased.

Whatever happens in the Fifth Circuit, the case is very likely to reach the Supreme Court again. It may be ultimately decided next term, beginning in October. 

More: Learn about Abortion Rights in California