The safety of mifepristone is comparable to ibuprofen, penicillin, and Viagra. If a Texas lawsuit prevails, mifepristone will no longer be available anywhere in the nation, even in states where abortion is legal.
The Alliance is also claiming that, because pregnancy is not an illness, the F.D.A. exceeded its authority when it approved the drug. But a group of nineteen F.D.A. legal scholars point out, in a separate amicus brief, that the purview of the F.D.A. also extends to “conditions” such as pregnancy, and to claim that it does not is inaccurate and ahistorical.
The most ludicrous assertion by the Alliance may be that medical abortions would lead to emergency-room resources being drained by women in need of medical care for the complications caused by the two-drug regimen.
During Kacsmaryk’s confirmation hearings, in 2017, he said that he would “not advocate for particular policies” based on his religious beliefs. There is a chance that he may end up being a man of his word and see this case as the ideological overreach that it is.
And then there is the F.D.A. itself. In their amicus brief, the nineteen F.D.A. legal scholars warn that, if Kacsmaryk sides with the Alliance, he will be undermining the authority of a federal agency assigned to determine if a drug is safe or not. This, they write, “could extend far beyond mifepristone.” Drug manufacturers would not only have to determine whether a drug is needed and safe but also if the political and judicial will exists to bring it to market. As the F.D.A.
In what may be a harbinger of things to come, Walgreens, the nation’s second-largest pharmacy chain, has alreadythat it would not carry the medicine in the states where abortion has been outlawed or severely restricted. But, under threat of litigation, they are also declining to sell in four states where abortion remains legal. No matter how the case is resolved in the courts, such moves will likely have far-reaching consequences.
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