Impending Ruling on Abortion Drug Mifepristone

And a special caution for women in South Carolina

An anti-LGBTQ hate group called Alliance Defending Freedom (founded and run by Christian nationalists who aim to eradicate the separation of church and state) brought a case to the federal court of appeals last year challenging the safety of one of the two drugs used for abortion, mifepristone. The judge hearing the case is himself hostile to women’s and LGBTQ rights, appointed by our previous misogynist-in-chief. ADF is suing the FDA for their now decades-long approval of mifepristone, claiming the drug to be unsafe in what is widely condemned to be a ridiculous lawsuit (the drug is extremely safe).

If the judge, Matthew Kacsmaryk, rules in favor of ADF, it will immediately trigger a nation-wide ban of mifepristone, even in states where abortion is legal. Medication abortions are still possible with just misoprostol, as a recent Guardian piece describes in their profile of Dutch physician Rebecca Gomperts, who founded Aid Access so that women worldwide can order the abortion pills by mail. Although misoprotol-only abortions are possible, they are not ideal, so if a nation-wide ban goes into effect, it will be an attack on women’s health and treatment, as she details:

Misoprostol-only abortions are effective 88% of the time, the study found, compared to a 98% success rate for the two-step regimen. They are also more complicated: they are more likely to result in the need for surgical interventions; they bring a risk of foetal abnormalities if the pregnancy is not terminated effectively; they result in more bleeding, cramping and pain; and they come with the potential for very expensive aftercare – which matters in a privatized system like the US.

“As a doctor, you have to give the best treatment that’s available. And we know that the best treatment possible is the two drugs combined,” she says.

If Kacsmaryk bans mifepristone, it will be an attack on women’s health, not just on abortion, Gomperts says.

Banning mifepristone nationwide means it will also become unavailable to treat miscarriages or stomach ulcers, serious fallout in the apparently tunnel-vision focus of these people to control what happens en utero at all costs.

Gomperts is urging women to stock up on abortion medication ahead of the ruling (expected very soon), but I want to add an extra caution for women in South Carolina. Although abortion is legal up to 22 weeks, South Carolina is one of only two states that explicitly criminalizes self-managed abortions. Although state Representative Heather Bauer and others have been fighting to decriminalize it, it is still a criminal offense to self-manage an abortion or to help someone else do so (SECTION 44-41-80):

(a) Any person, except as permitted by this chapter, who provides, supplies, prescribes or administers any drug, medicine, prescription or substance to any woman or uses or employs any device, instrument or other means upon any woman, with the intent to produce an abortion shall be deemed guilty of a felony and, upon conviction, shall be punished by imprisonment for a term of not less than two nor more than five years or fined not more than five thousand dollars, or both. Provided, that the provisions of this item shall not apply to any woman upon whom an abortion has been attempted or performed.

(b) Except as otherwise permitted by this chapter, any woman who solicits of any person or otherwise procures any drug, medicine, prescription or substance and administers it to herself or who submits to any operation or procedure or who uses or employs any device or instrument or other means with intent to produce an abortion, unless it is necessary to preserve her life, shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for a term of not more than two years or fined not more than one thousand dollars, or both.

This means that people who self-manage abortion in the state, or those that help them, can serve jail time. Although anti-abortion activists and legislators claim they will not prosecute women, this has not been the case nationally (even in states where abortion is legal!!), even very recently, as If/Then/How documents in this report. If our state legislators can seriously debate imposing the death penalty for having an abortion, I wouldn’t feel complacent that law enforcement wouldn’t pursue these cases. This brings even more urgency to being very careful about digital records (if you do order these pills) or reporting self-managed abortions to healthcare providers (who are usually the ones that report, in the cases investigated above). My understanding is that self-managed abortion is indistinguishable from miscarriage, if that information is helpful.

Medication abortions are still available in South Carolina if prescribed by physicians, but those medications may soon be limited if the judge rules in favor of ADF. So women have to choose between ordering the more effective, and less painful, option to have on hand (but in this state, risk criminal charges), or waiting to see what new, fucked up ways Christian nationalists can further degrade our already subpar healthcare options for women and trans folks.

For a funny takedown of how ridiculous this all is, recommend Alexandra Petri’s recent Washington Post column Don’t Listen to the FDA. Listen to a Trump-Appointed Judge Named Matt:

In another thrilling development in this best of all possible worlds, a ruling from a single Trump-appointed judge in Texas might undo the Food and Drug Administration’s approval of one of the two key drugs used in medication-based abortions and render it inaccessible nationwide. I hear you asking a question: Can a judge just do that? Just un-approve a drug? One that’s been tested and found extraordinarily safe over two whole decades?

Yes! This is a real possibility, because our legal system is working just the way it ought to work! In an ideal society, your rights and ability to access medicine and direct the course of your own life are guaranteed and unalterable — unless a Trump-appointed judge named Matt decides to say, “Nah.”

And as always, if you aren’t already, be sure to subscribe to Jessica Valenti’s Abortion, Everyday to stay up-to-date on state and national developments. If you need legal advice, the Abortion Defense Network just launched. Share widely!