The battle over access to the abortion pill mifepristone got one step closer to the Supreme Court on Wednesday, as the future of the medication—which is currently still available—grows more uncertain.
The Fifth Circuit Court of Appeals ruled that mifepristone, one of the medications used to induce an abortion, had been improperly approved by the Food and Drug Administration, despite overwhelming scientific evidence that the drug is safe. The Justice Department is expected to appeal the decision to the conservative-majority Supreme Court that overturned Roe v. Wade last year.
Mifepristone’s status currently remains unchanged, because the Supreme Court in April halted lower court rulings that would have yanked the pill from the market. Mifepristone will remain nationally available until the Supreme Court hears and rules on the lawsuit.
A coalition of anti-abortion groups, represented by the extremist legal group Alliance Defending Freedom, sued to block access to mifepristone in November. They specifically brought the case in Texas, where they were likely to get Trump-appointed, ultra-conservative Judge Matthew Kacsmaryk.
Kacsmaryk ruled in April that mifepristone had been improperly approved and should be yanked from the U.S. market. The Department of Justice appealed the decision, first to the Fifth Circuit Court, which only partially stayed the ruling. The Justice Department then appealed the case to the Supreme Court, which issued a temporary stay while the lawsuit plays out.
Kacsmaryk’s initial ruling hinges on several heavily biased “studies,” one of which claims to find most people who had medication abortions reported negative effects. The sample size was 98 blog posts from an anti-abortion website. The study authors only analyzed 54 posts and then just cherry-picked quotes from the rest.
Another study, which Kacsmaryk cited as proof of “adverse effects” from the abortion pill, is now under investigation for author bias and massively misrepresented findings.
Medication abortions make up more than half of all abortions performed in the United States. These drugs can be ordered online and delivered via mail, making them a key resource for people who live in states that have cracked down on abortion access since Roe was overturned.
A bigger issue at play, in this case, is that nonelected judges who do not have medical backgrounds are now making decisions about medication. When the lawsuit first began to play out, Rachel Rebouché, the dean of Temple University’s law school, told The New Republic, “The question for appellate courts is not just about abortion but about deference to a federal agency’s expertise.”
The Texas case “undermined” the FDA’s authority, she said. “To take seriously that it ignored risks, risks unsupported by any credible evidence, suggests questions as to what federal courts might decide about other federal agencies’ decisions.”