The future of the abortion pill in the United States was thrown into uncertainty on Saturday after two controversial rulings by federal judges, prompting a final battle at the Supreme Court.

Attack and counterattack…

After the Supreme Court’s landmark ruling in June that gave states the right to ban abortions on their own territory, the abortion pill has become a new target for anti-abortionists.

In November, they filed a lawsuit against the US Food and Drug Administration (FDA) challenging the approval to sell mifepristone (RU 486), which has been used in combination with other pills by 5.6 million women since it was approved in 2000.

Strategically, they appealed in Amarillo, Texas, where the only federal judge appointed by Donald Trump, Magistrate Matthew Kaczmarik, is known for his ultra-conservative views.

A judge satisfied them on Good Friday evening: Finding, despite the scientific consensus, that mifepristone poses a risk to women’s health, he suspended its approval for the entire United States pending a hearing on the merits.

More symbolically, he adopted their terminology, preferring the term “unborn person” to “fetus” or referring to “abortionists” when referring to institutions that perform abortions.

Anticipating his decision, a coalition of Democratic states filed a lawsuit in late February to try to save the birth control pill, which, when administered with misoprostol, now accounts for 53 percent of U.S. abortions.

An hour after Judge Kaczmarik’s decision, one of his colleagues, Barack Obama appointee Judge Thomas Rice, based in Washington state, ruled that mifepristone was “safe and effective” and barred the FDA from withdrawing its approval in 17 states that had appealed.

Break for 7 days

Judge Kaczmarik said his decision would not be enforced for seven days to give the parties time to appeal.

“For now, access to mifepristone remains legal,” said Alexis McGill Johnson, president of the powerful family planning organization Planned Parenthood.

On Saturday, April 15, when the decision could take effect, the feminist organization “Women’s March” called for “emergency mobilization” throughout the United States.

Meanwhile, big legal maneuvers will begin. “We will fight this decision,” promised Democratic President Joe Biden.

The FDA, represented by the Department of Justice, and Danco, the company that manufactures mifepristone, have already announced their intention to appeal. Their appeal will be heard by a federal appeals court in New Orleans, also known for its conservatism.

The federal government can wait for this court’s decision and approach the Supreme Court only if it upholds the suspension of mifepristone. If he wants to buy time, he can already – because there is a conflict between two federal judges – ask for the intervention of the High Court.

The final battle – who has more chances to win

Therefore, the case has a high chance of quickly reaching the temple of American law.

It will be taken to court under an emergency procedure known as a “shadow review”, which allows decisions to be made urgently without a public hearing or the obligation for judges to explain the reasons for their decision.

However, to avoid accusations of lack of transparency, he may decide to hold the hearing before the summer. Otherwise, he will rule on written arguments in the coming weeks.

Chief Justice John Roberts, a conservative conservative, is expected to vote with three of his progressive colleagues in favor of allowing mifepristone. The question is whether one or more of the five conservative justices will join them to form a majority.

“The Supreme Court has a long tradition of respecting the scientific findings of federal agencies,” said Georgetown University law professor Lawrence Gostin, who expects the ruling to favor the FDA.

“But the outcome of the battle is far from certain,” he told AFP, recalling that “the conservative supermajority has repealed the constitutional right to abortion and shown hostility to federal regulations related to Covid or climate change.”

According to this well-known health law expert, “this is a dangerous time for American women.” (Photo: Traci Hahn | Dreamstime.com)