Dr. Melissa Harris-Perry: This is The Takeaway. I'm Melissa Harris-Perry.
On Friday night, a federal judge in Texas issued a decision withdrawing the FDA's approval of mifepristone. It's one of two drugs prescribed by doctors to induce abortion. The decision could suspend the approval of the drug nationwide. Shortly after the decision out of Texas, another federal judge in Washington ordered the opposite and directed US Authorities not to restrict the drug. Medication abortion is the most common form of abortion in the US and these conflicting rulings have made its future highly uncertain. With me now is Sarah McCammon, national correspondent at NPR. Sarah, welcome back to The Takeaway.
Sarah McCammon: Thank you so much.
Dr. Melissa Harris-Perry: Walk me through the Texas ruling and the Washington ruling. What do they mean today for the production and distribution of mifepristone?
Sarah McCammon: Today, they don't mean anything because the ruling that's really getting the most attention and is probably the most significant in terms of changes to access, it was issued on Friday, and the judge put in place a seven-day delay to allow time for appeals, but by the end of the week, Melissa, we could see a lot of things happening, and we may even sooner because the Justice Department has appealed that ruling.
Now, let me tell you what it is. In Texas, on Friday, a federal judge-- and we should mention this was a judge appointed by former President Trump with a long conservative track record. He issued a nationwide injunction that, if it is allowed to take effect, would block the FDA's approval of mifepristone. This is the drug that's used in most medication abortions in this country. A majority of abortions in this country are medication abortions. That lawsuit that he ruled in response to was brought by a coalition of anti-abortion rights groups who were asking him to overturn the FDA approval of the drug. It was approved more than 20 years ago. Major medical groups say it has a long and well-established safety record.
Now, that second ruling that you mentioned out of Washington, that came just shortly after this ruling in Texas, also in federal court, it was in response to a second but related lawsuit that was filed by a group of 18 Democratic attorneys general really pushing in the opposite direction. They asked the Food and Drug Administration to protect access to mifepristone, and they asked the judge to order the FDA essentially not to disrupt access and actually to make it a little bit easier to get access to this drug.
The federal judge in Washington ruled in their favor, and that sets up two conflicting rulings. It may be that, at least for a time, people who live in states that are part of that Washington lawsuit from the Democratic attorneys general may have some protections for access, but a lot is unclear, Melissa, and a lot is probably going to be worked out in federal court.
Dr. Melissa Harris-Perry: Okay, speaking of the fact that this is all happening in court, presumably, there are legal arguments being made by the judges here about the reasons they are making these decisions. Do you have a sense of what the basis of these legal arguments is?
Sarah McCammon: The basis of the lawsuit in Texas from the anti-abortion rights groups was the idea that the FDA improperly approved mifepristone back in 2000. When that drug was first approved, it was very controversial. It was very political because of what the drug does, and it's remained so for the past 20-plus years after it went on the market. Now, again, I want to say major medical groups, including the American Medical Association, the American College of Obstetricians and Gynecologists, point to now two decades of research. They say the safety record is very well established.
That 5 million people have used this pill, and yet this pill has been-- it's in many ways become an even bigger focus for anti-abortion groups as the legal landscape around abortion has changed. I was in the courtroom in Amarillo, Texas a few weeks ago when the judge, Judge Matthew Kacsmaryk, heard oral arguments in this case. One of the things that came up was the fact that since the Supreme Court overturned Roe v. Wade, abortion pills are still accessible for many people, and people who even live in states where abortion is now illegal have sometimes been able to obtain them.
One of the arguments that the anti-abortion groups is making is that this is making it difficult for red states to enforce abortion bans fully. I would also point out a lot of people have pointed out that one of the arguments some of these groups used for overturning Roe was the idea that this should be sent back to the states, but now they're saying states are unable to prevent their residents from using abortion pills, and that is one of the factors that's coming up as an argument in this case.
Dr. Melissa Harris-Perry: This is just-- I want to be completely clear. Neither of these judges is making an argument that is medical in nature. They're not making an argument about the safety, the efficacy of these medications. These arguments are entirely procedural and political.
Sarah McCammon: I'm not sure I'd go quite that far because the judge in Texas is agreeing essentially with the plaintiffs in the case who argue that the drug is unsafe, and they say it's unsafe because it was approved improperly. It gets very technical at that point, but essentially what happened is the drug was approved in 2000. Opponents of abortion have argued that the FDA rushed that process, but that's partly because there is an expedited approval process that was used.
According to a lot of reporting by some of my colleagues at NPR and elsewhere, the reason that process was used was not primarily because of speed, but because that process is often used for drugs that treat serious conditions and it contains a mechanism by which the FDA could put extra layers of regulations around mifepristone, which is something that certainly was something abortion rights opponents were arguing for, and it was arguably politically necessary to regulate the pill in that way when it was first put on the market.
Since then, there have been adjustments to the rules, and those adjustments in this case are particularly contentious. Things like within the past couple of years, the Biden administration has eased some of the restrictions around the mifepristone. It is regulated above and beyond a typical prescription drug. In the US, you can't just go to a pharmacy and get a standard prescription for it. Not yet, anyway.
The Biden administration has changed some of the rules to try to make a path for pharmacies. Retail pharmacies like Walgreens and CVS have expressed an interest in doing that, and so that's one of the rule changes that could come into play in the future, and that was challenged in this lawsuit. Another really important rule change was during the pandemic-- basically, in response to the pandemic, the Biden administration permanently lifted a rule that had prevented mifepristone from being sent in the mail. It can now be sent by mail, at least to states where abortion is legal.
That's another piece of the regulatory process surrounding mifepristone that these abortion rights opponents want to see changed. They want to see it entirely taken off the market, and that is so far what the judge is willing to do, but there are a lot of components to what those regulations look like, and the antiabortion groups behind this lawsuit have really been challenging every step of the process since 2000, the way it's played out.
Dr. Melissa Harris-Perry: Sarah, stick with us. We're going to take a quick break, but we'll be right back with more on these continuing abortion restrictions in just a moment. We're continuing our conversation with NPR national correspondent Sarah McCammon. We're talking about the rulings over the course of late last week that are continuing to affect the access to medical abortion here in the US. All right, Sarah, I want to go to everything you've been saying here around the FDA and we heard from a member of the House out of Texas, Representative Tony Gonzalez, suggesting that perhaps the US Congress should consider defunding in part or in full the FDA. Is that just grandstanding or is that a real possibility?
Sarah McCammon: I don't think it's a real possibility right now. If Republicans were to take control of Congress and the presidency, perhaps, but I think in the present circumstances, no, but I think it does reflect some of the attitudes surrounding the FDA. In some of my reporting on this case, I've heard from anti-abortion activists who've questioned the FDA more broadly and said things like, "Well, look at the COVID vaccine as an example of the kind of action that they oppose," a sense that the FDA is political and not scientific.
Of course, the drug mifepristone and as well as the coronavirus vaccines were approved as a result of a really robust protocol and a long-established process, and when it comes to mifepristone, the other thing that medical groups continue to point out is that not only was there a process in place more than 20 years ago when the drug was first put on the market, but since then, there have been many studies. There have been, again, more than two decades of time to research the pills, see how they work. There are side effects sometimes.
The drug is designed to induce what is essentially an early miscarriage. Of course, there is bleeding and cramping and sometimes passing of tissue, and those are things that are, for some patients, challenging and upsetting, and I think it's important to be honest about that. At the same time, those are anticipated results of taking a pill like this, and no pregnancy ends without a patient bleeding in some way. Whether it's an abortion, a miscarriage, or a delivery, that's just a part of a pregnancy ending.
I think it's important to understand the whole context in which this exists. What we are seeing in this case is questioning of the science, questioning of the medical authorities. I talked to one anti-abortion group this weekend and asked about the possibility that abortion rights supporters and FDA watchers have raised which is, could this case undermine future FDA decisions? She said, "No, I think this is a unique case, this is one specific situation, but it is hard not to wonder what this means for other drugs and other medical conditions in the future that the FDA has authority over."
Dr. Melissa Harris-Perry: Before you go, I do want to step in on this question of the states and your point that part of what the Dobbs decision makes a legal argument about is returning the question of abortion rights to the states. We saw in Idaho, which has some of the strictest anti-abortion laws in the nation, the enactment of the first such law to actually restrict the capacity of interstate travel for minors who are seeking an abortion. Can you talk with me about that decision and what it may signal again for other states in the coming months and years?
Sarah McCammon: That bill was signed into law last week. It's seen as, certainly, the first post-Dobbs effort to restrict interstate travel in any way. It's my understanding that at least one other state, I believe Missouri, has a similar restriction on transporting minors out of state for abortion, but this is an issue that's received new focus and attention in its post-Dobbs era where a person lives is incredibly decisive in terms of their abortion access.
Justice Brett Kavanaugh in his concurrence in the Dobbs decision last year himself said that the Constitution likely protects interstate travel for adults, but minors are easier to regulate. We saw this bill proposed in Idaho and it's now become law that makes it illegal for an adult to transport a minor for an abortion without parental consent. Even parents would have to be able to prove that they did consent. It prohibits transporting a minor in general, but it's seen as being aimed at interstate travel because of the fact that in Idaho, multiple abortion bans are currently in effect. It's not possible for-- except in very, very narrow limited exceptions to get an abortion in Idaho, you'd have to go out of state.
Dr. Melissa Harris-Perry: Sarah McCammon is national correspondent for NPR. Sarah, thanks so much for taking the time with us.
Sarah McCammon: Thank you.
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