Attack on Medical Abortion Drugs is 40 Years in the Making
In 1987, Ms. magazine asked me to write about RU-486, a new medication that caused the uterus to expel a fertilized egg before it could gestate. It wasn’t a contraceptive, but it wasn’t what most people considered an abortion, either. At the time, anti-abortion campaigners were brandishing ultrasound images that purported to show fetuses crying out in pain as they were being surgically removed. RU-486, which was developed in France but not yet available in the United States, threatened to stymie this tactic: there would be no fetal development to flaunt. Even the president of the National Right to Life Committee acknowledged that there was little P.R. value in images of what appeared to be menstruating women. This disarming of the pro-life movement, and the drug’s seemingly benign effect, I wrote, “may serve to decimate the ranks of abortion foes.” Étienne-Émile Baulieu, the primary developer of RU-486, which is better known as mifepristone, was even more hopeful. With this drug, he declared, abortion “should more or less disappear as a concept, as a fact, as a word in the future.”
Mifepristone, administered in conjunction with the drug misoprostol, now accounts for more than half of all abortions in the United States. The F.D.A. approved it for use within the first seven weeks of pregnancy, in 2000, and, sixteen years later, extended its use to within ten weeks. In 2021, the F.D.A. removed the requirement that the drug only be dispensed in medical settings; that way, it could be sent through the mail. In January, the agency allowed retail pharmacies to apply for a certification to sell it by prescription in their stores. But, by then, a Tennessee-based group called the Alliance for Hippocratic Medicine had sued the F.D.A. in the Northern District of Texas, claiming, among other things, that the agency erred in approving the drug twenty-three years ago. If the group prevails, there is a chance that mifepristone will no longer be available anywhere in the country, even in states where abortion is legal.
Why the Alliance for Hippocratic Medicine, an organization based in Tennessee, would file a lawsuit in Texas, a state that has already outlawed surgical and medical abortion, has everything to do with the anti-abortion views of the presiding judge, Matthew Kacsmaryk. Kacsmaryk came to the bench from First Liberty Institute, a conservative Christian legal organization, where, as counsel, he argued that pharmacists should be able to deny women emergency contraceptives and called those who fight for reproductive rights “sexual revolutionaries.” The Fifth Circuit Court of Appeals, which hears cases that emanate from Kacsmaryk’s courtroom, has long been considered the most conservative judicial body in the nation. Trump appointed six of its justices, one of whom decried “the moral tragedy of abortion” and another who wrote that same-sex marriage “imperils civic peace,” a view that Kacsmaryk has echoed in his own writing. By shopping for a sympathetic judge, the Alliance for Hippocratic Medicine has been able to present a weak case, full of spurious arguments, that has the potential to disadvantage anyone who can become pregnant, neuter the F.D.A., curtail drug development, and undermine the authority of federal agencies. To be clear, the plaintiffs are not asking for a ban on mifepristone outright. Rather, they are petitioning the court to impose an injunction to take the medicine off the market nationally.
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Almost forty years ago, for my piece in Ms., I spoke with Jacqueline Darroch Forrest, who was then the research director of the Guttmacher Institute, the nation’s premier reproductive-rights research and advocacy organization. People were “over-excited” about the prospect and promise of RU-486, she told me, because it was unlikely to be available in the United States anytime soon—if ever. Like Baulieu and me, Forrest was wrong. But maybe, after all these years, she will finally be proved right.