The News Not Noise Letter: Abortion could be headed to the Supreme Court, again.

Federal judges issue conflicting rulings about the legality of medication abortion. The Supreme Court will likely weigh in. Plus: Tennessee State Rep Justin Jones is reinstated to the Tennessee House.

Mifepristone or “Mifeprex” is one-half of the two-pill protocol for medication abortion. A federal judge effectively ordered it removed from the US market beginning next week. It is currently used in 53% of US abortions.

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It’s surprising to me this story isn’t getting more attention. Maybe folks are unaware how far-reaching and consequential this decision is?

For the first time in US history a federal judge has overruled the FDA and is effectively ordering a halt to the use of mifepristone. Mifepristone is one half of “the abortion pill” used in 53% of US abortions. If the ruling stands, it will make the medication illegal in all fifty states. To be clear, it would end legal access to the “abortion pill” in the entire United States including states in which abortion rights are currently protected. 

Just minutes after a Texas judge issued that ruling Friday night, a court in Washington State issued the opposite ruling, ordering the FDA to continue to allow the medication. This second ruling applied to fewer than 2 dozen states. 

Calling the Texas ruling extraordinary and unprecedented, the Biden administration has filed an appeal. This matter is likely on a fast-track to the US Supreme Court, where justices could again decide the fate of reproductive rights for a generation of Americans.

What Just Happened:

• What is mifepristone? Mifepristone (brand name: Mifeprex) is a prescription medication combined with misoprostol (Cytotec) to terminate early pregnancies. It’s taken by oral tablets under a doctor’s supervision up to 70 days after a last menstrual period. It blocks the work of progesterone, a hormone that prepares the womb for pregnancy. The FDA approved it in 2000 to be used in combination with that second drug; together they’re known as “the abortion pill.” In the U.S. 53% of all abortions are medication abortions. The FDA’s website says that mifepristone is safe under doctors’ instructions. Four hundred senior executives of biotech and pharmaceutical companies signed a letter today saying mifepristone “has been proven by decades of data to be safer than Tylenol, nearly all antibiotics and insulin.”

• Who is the Texas Judge? Matthew Kacsmaryk is a 2019 Trump appointee known for his history of anti-reproductive rights politics. He formerly worked for the conservative legal group First Liberty Institute. His staunch advocacy against abortion began early. Here’s a letter to the editor he wrote as a college student calling abortion “federally sanctioned eradication of innocent human life.” In 2015, he became a trustee of Christian Homes and Family Services, an organization that aims to provide abortion alternatives. The lawsuit was filed by the Alliance for Hippocratic Medicine, an organization newly formed in Amarillo, Texas. (One reproductive rights group says the group gets its mail in Tennessee). Under normal circumstances this Alliance would have no “standing” to sue to overturn an FDA decision.  But in Amarillo,  Kacsmaryk is the only federal judge. He allowed the lawsuit to proceed. Those who filed the lawsuit are accused of “forum shopping” to get Kacsmaryk as their judge.

• Explain his ruling? Kacsmaryk argued in his decision that the FDA’s approval of mifepristone was conducted without proper time and safety. (This is contradicted by the American College of Obstetricians and Gynecologists, the FDA, and the open letter I cited above.) He uses the language of the anti-abortion rights movement, calling providers “abortionists,” fetuses “unborn humans” and patients “post abortive women and girls.” He is not a doctor nor does he cite recognized scientific evidence to uphold this position. Briefing reporters today, Jennifer Dalven, Director of the ACLU Reproductive Freedom Project, said arguments he makes have been used by the anti-reproductive rights movement to argue against not only abortion but also emergency contraception and birth control. She warns that if this decision stands, birth control and even fertility treatments could be under fire next.

• The Washington State ruling: Less than an hour after Kacsmaryk’s ruling, a federal judge in Washington State essentially ordered the opposite. Judge Thomas Rice – who was appointed by the Obama administration – barred the FDA from curbing access to mifepristone in 16 states (and DC); they were all party to a suit against the FDA for harsh regulations. Unlike the Texas case, Rice’s ruling does not apply to the entire country.

• The Biden Administration: The Department of Justice today appealed the Texas decision calling it “extraordinary and unprecedented.” DOJ lawyers asked the 5th Circuit Court of Appeals to issue an emergency order suspending Kacsmaryk’s ruling by Thursday. They wrote: “If allowed to take effect, the court’s order would thwart FDA’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity.”  The DOJ separately asked the Washington State judge to clarify how the federal government should act in the face of two conflicting rulings. This issue is likely on a fast track to the US Supreme Court.

• What are the medical options? Judge Kacsmaryk put his decision on hold for 7 days, so it’s not currently in effect. If mifepristone is banned, providers could offer medication abortion with just misoprostol, the second drug in the two-drug combo. When used together the two drugs are successful in ending pregnancy almost 100% of the time. Using misoprostol alone is about 88% effective. When it doesn’t work, patients end up with an “incomplete abortion” which can require surgery or more medication and doctors call it traumatic. (That’s an inadequate description!) The governors of  California, Washington State  and Massachusetts announced they are building emergency stockpiles of misoprostol. 

• What does this mean for the FDA? If upheld, chaos. In that open letter, senior executives of more than 400 biotech and pharmaceutical companies call for an immediate reversal of the Texas decision. They warn that if the ruling stands, “any medicine is at risk for the same outcome as mifepristone” and it will chill “medical innovation.” They say the judge’s ruling “ignores decades of scientific evidence and legal precedent” and call it “judicial activism.” The president of the Center for Reproductive Rights, Nancy Northrup, says if upheld this ruling could clear the way for activists who oppose other medications – for example vaccines – to shop for friendly judges and attempt to use the courts to ban those medications from the market as well. “This opens the door to anyone to bring a case,” Northrup says.

• The Supreme Court: I’m going beyond reporting here to share general scuttlebutt because — I know — this is what you really want to know. What could the Supreme Court do? Four of the justices are staunchly opposed to abortion rights and it’s easy to imagine them readily upholding this decision. They are: Justices Amy Coney Barrett, Clarence Thomas, Samuel Alito, Neil Gorsuch. Three liberals will seek to strike down the ruling: Justices Sonya Sotomayor, Elena Kagan, Ketanji Brown Jackson. They’re outnumbered. The big unknowns: Chief Justice John Roberts and Justice Brett Kavanaugh. Roberts is an institutionalist and the most likely of the conservatives to rule against the Texas judge, ruling to uphold the integrity of the FDA and avoid another political shockwave from the court. In this case, millions of women’s access to mifepristone could come down to the decision of one man, Justice Brett Kavanaugh.

  This could reach the court quickly. I’ll continue to follow this story.

Other Headlines:

• Tennessee 3: Today the Nashville Council voted to reappoint Representative Justin Jones to his seat in the Tennessee House of Representatives. He was expelled last week for standing with students advocating for expanded gun safety laws. When a special election is called, Jones can stand for re-election. Tonight he rejoined the state legislature. The Shelby County Board of Commissioners is expected to reappoint Rep. Justin Pearson, the third member of the Tennessee 3, on Wednesday.

• Trump Moves to Block Pence: President Trump’s legal team is suing to limit what former VP Mike Pence can testify to before the special counsel grand jury investigating January 6th. 

• USA Facts Gives Us A Fact of the Week: In 1949, 78.8% of all households included married couples. In 2022, that number has fallen to 46.8%. That means married people now make up fewer than half of US households. 

I feel like we need a palate cleanser at the end of this newsletter. Here’s my happiest social video of the day….sometimes it’s like that:

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