Abortion Pill To Stay On Market (FOR NOW) With Entirely Nonsensical Restrictions

An appeals court stayed the ban on mifepristone, just not entirely.

Late last night, three-judge panel for the Fifth Circuit stayed  (partially) the decision last week from Judge Matthew J. Kacsmaryk, which ruled that mifepristone — a drug that has been used safely and with sparingly few negative side effects over the years — should be pulled from the market entirely because some anti-abortion activists sued the FDA for approving the drug 20 years ago.

The Fifth Circuit court panel, consisting of two Trump appointees and a George W. Bush appointee, determined that mifepristone can stay on the market pending appeal. Any window to challenge approval of the drug itself would have closed in 2016 — perhaps .

However, they also determined that the anti-abortion activists can still challenge the FDA's actions loosening restrictions on the pill from 2016 onwards — and those parts of the decision by Judge Kacsmaryk have not been stayed by the Fifth Circuit. So now some absolutely nonsensical restrictions are the law of the land. Instead of being approved for use up to 10 weeks into a pregnancy, mifepristone will only be approved up until seven, only doctors will be able to prescribe it, and it will not be legal to send it through the mail.

The specific reason cited for why Judge Kacsmaryk put these restrictions in place was because the patient agreement form that patients must sign before taking the pill notes that in two to seven percent of cases, the pregnancy will not be terminated, and that emergency room doctors among the plaintiffs testified that they had to treat people for whom the pill didn't work.

The plaintiff emergency room doctors have a concrete, particularized injury since they have provided — and with certainty will continue to provide — the "emergency care" that applicants specified in the "Patient Agreement Form." Mifepristone users who present themselves to the plaintiffs have required blood transfusions, overnight hospitalization, intensive care, and even surgical abortions.

However, the complaint they had was that it could "overwhelm" the emergency care system, which is highly unlikely since it had yet to happen in the 20 years the pill has been approved, or even in the seven since restrictions were loosened. For one of these doctors, the highest number of patients they had treated was three. There are certainly more things (like people refusing to get vaccines, or states giving guns to anyone who wants them) that put the emergency medical system in far more danger of being "overwhelmed." The fact is, it is far more likely that a pregnancy will go wrong than it is that someone will have a serious side effect from one of these pills — especially in the United States, which has incredibly high infant and maternal mortality rates. 

The plaintiffs also noted the national shortage in obstetrics care as one reason that the pill should be taken off the market, but again, it is not as though patients who take the pill are more likely to need that care than they would be if they went through with the pregnancy.

The stay really only makes any sense at all if one is willing to suspend one's disbelief enough to pretend that a bunch of random anti-abortion activists armed with a few completely discredited studies (some not even conducted by actual doctors) and an obvious agenda that has nothing to do with the actual safety of the pill are just as much of an authority on whether or not that pill is safe to use and send in the mail as the actual FDA. Which, you know, they're not .

The FDA is actually extremely cautious when it comes to approving medications and ingredients. There has, in fact, been an ongoing debate for years over whether or not the FDA is too cautious when it comes to approving new drugs that could help people. On the positive side, this caution meant that they refused to approve Thalidomide — which made the United States a notable exception when babies around the world were being born with severe birth defects. They also, to my personal great annoyance, have been dragging their feet on new sunscreen ingredients for decades (though if you are as paranoid as I am you can import sunscreens that actually work).

Indeed, the issue of the FDA being    overcautious  became an issue during the pandemic when it took forever to get the rapid tests approved.

Public confidence in the FDA is pretty important, given that they are in charge of us not getting poisoned, and as big a deal as it is that access to mifepristone will be limited, allowing that confidence to be undermined because some people have a personal moral objection to abortion has even more far-reaching consequences than that.

The most common reason people go to the emergency room is for headaches. Surely, if we were really concerned about not overwhelming the emergency medical services in this country, we would have a universal healthcare system that allowed people access to non-emergency medical care instead of basically forcing people without health insurance to go to the ER for things that are not actual medical emergencies. Taking away a person's right to terminate their pregnancy because doctors don't want to treat them if something goes wrong seems like the worst possible way of dealing with this sort of problem.

[ Law Dork / ruling ]

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