The future of the abortion pill in the United States was plunged into the greatest uncertainty on Saturday the day after two contradictory decisions by federal judges which augur a final battle before the Supreme Court.
Attack and counter-attack
After the historic judgment of the Supreme Court which, in June, gave states the freedom to ban abortions on their soil, the abortion pill has become the new target of opponents of pregnancy terminations.
In November, they filed a lawsuit against the US Drug Administration (FDA) to challenge the marketing authorization of mifepristone (RU 486) which, combined with another stamp, was used by 5.6 million of women since its accreditation in 2000.
Strategically, they filed their appeal in Amarillo, Texas, where the only federal judge, magistrate Matthew Kacsmaryk, appointed by Donald Trump, is known for his ultraconservative views.
The magistrate gave them satisfaction on the evening of Good Friday: estimating, despite the scientific consensus, that mifepristone presents risks for the health of women, he suspended its authorization for the whole of American territory, pending a review by the bottom of the file.
More symbolically, he took up their terminology, preferring the term “unborn human” to that of “fetus” or evoking “abortionists” to speak of the structures practicing terminations of pregnancy.
Anticipating his decision, a coalition of Democratic states took legal action at the end of February to try to preserve this pill which, taken in conjunction with misoprostol, now represents 53% of abortions in the United States.
One hour after Judge Kacsmaryk’s decision, one of his colleagues, Judge Thomas Rice, appointed by Barack Obama and sitting in the State of Washington, considered that mifepristone was “safe and effective” and prohibited the FDA from withdraw its authorization in the 17 States at the origin of the appeal.
Break
Judge Kacsmaryk clarified that his decision would not apply for seven days, in order to allow time for the parties to appeal.
“Let’s be clear, access to mifepristone remains legal for now,” hastened to point out Alexis McGill Johnson, president of the powerful family planning organization Planned Parenthood.
On Saturday April 15, the possible date of entry into force of its judgment, the feminist organization Women’s March called for “an emergency mobilization” throughout the United States.
In this interval, the major legal maneuvers will begin. “We will fight against this decision,” promised Democratic President Joe Biden.
The FDA, which is represented by the Department of Justice, and the Danco laboratory which produces mifepristone, have already announced their intention to appeal. Their appeal will be heard by a federal appeals court located in New Orleans, also known for its conservatism.
The federal government can wait for this court to decide and turn to the Supreme Court only if it validates the suspension of mifepristone. If he wants to save time, he can already – since there is a conflict between two federal judges – ask the high court to intervene.
supreme battle
The file therefore has a good chance of arriving quickly before the temple of American law.
It will be sent to him according to an emergency procedure, nicknamed “the shadow register”, which makes it possible to render an accelerated decision without a public hearing, or obligation for the judges to explain the reasons for their judgment.
To avoid being accused of a lack of transparency, she could however decide to organize a hearing before the summer. Otherwise, it will decide on the basis of the written arguments in the coming weeks.
The head of the Court, the conservative John Roberts, very attached to the image of the institution, should vote with his three progressive colleagues to maintain the authorization of mifepristone. The question is whether one or more of the five conservative magistrates will join them to form a majority.
“The Supreme Court has a long tradition of respect for the scientific opinions of federal agencies,” said Lawrence Gostin, law professor at Georgetown University, who expects a decision in favor of the FDA instead.
“But the outcome of the battle is by no means certain,” he explained to Agence France-Presse, recalling that his “conservative supermajority canceled the constitutional right to abortion and showed itself hostile to federal regulations related to COVID-19 or climate change”.
For this renowned health law expert, “this is a perilous time for American women”.