Doctors and reproductive rights advocates are bracing for a hearing on Wednesday in a court case that, if successful, could end legal access to one of two abortion pills nationwide.
Abortion pills have become one of the next major fronts in the fight over reproductive health care in the wake of the Supreme Court’s decision overturning Roe v. Wade.
Advocacy groups and legal experts said the case is unprecedented, and are preparing for a range of outcomes.
At issue is access to mifepristone, a drug that blocks hormones necessary for pregnancy. Mifepristone has been approved by the Food and Drug Administration (FDA) since 2000 to induce an abortion up to 10 weeks into a pregnancy.
Mifepristone has been used by more than 3 million women in the United States since receiving FDA approval, and top medical groups maintain it is safe and effective.
“I don’t know of any other case where a party has gone to court seeking to order the FDA to withdraw a drug, no less one that was approved over 20 years ago and has been used safely since that time by millions of people,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project.
The ACLU and other abortion rights advocates have argued that a ruling blocking mifepristone could open the door to other politically-challenged lawsuits against birth control and drugs like Plan B, the morning-after pill.
“We have entrusted the FDA to make determinations about the safety of drugs. We don’t have people come back to court 20 years later,” Dalven said.
The lawsuit was filed in November by the Alliance Defending Freedom (ADF), a powerhouse conservative legal group that has helped author states’ anti-abortion laws and defended Mississippi in the case that led the Supreme Court to overturn the abortion protections granted in Roe v. Wade.
The lawsuit claims FDA acted illegally in approving mifepristone because it ignored harmful side effects, and asks the court to issue an injunction to retroactively set aside that approval. The case is being presided over by Matthew Kacsmaryk, a nominee of former President Donald Trump.
But because it’s so unprecedented, one of the questions Kacsmaryk said he wants answered during the hearing is what kind of remedy would be appropriate if he rules for the plaintiffs.
Many states with strict abortion bans also limit the availability of mifepristone. But a far-reaching decision in the case would also impact states without abortion restrictions, effectively imposing a nationwide ban.
Meanwhile, advocacy groups are scrambling at the last minute to organize protests outside the federal courthouse in Amarillo after Kacsmaryk waited until Monday to formally announce the hearing.
The announcement only came after The Washington Post reported on Saturday that Kacsmaryk told attorneys in the case he wanted to keep the hearing a secret for as long as possible due to concerns about threats and disruptions.
Kacsmaryk’s initial plan was to keep the hearing notice off the docket until the day before, a highly unusual move that would likely prevent members of the public, including protestors and media, from traveling to the courthouse.
After news of the call became public and an outcry ensued, Kacsmaryk ultimately published the hearing notice late Monday. According to a transcript of a conference call with attorneys first reported by Talking Points Memo, Kacsmaryk said he was concerned about death threats.
“To minimize some of the unnecessary death threats and voicemails and harassment that this division has received from the start of the case, we’re going to post that later in the day,” he said.
According to the transcript, Kacsmaryk on Wednesday will hear from lawyers for the Justice Department; the drug manufacturer; and Alliance Defending Freedom. Each side will have two hours to argue their case.
Legal observers say Kacsmaryk will likely wait until after the hearing to issue a written ruling about whether to grant a request for a preliminary injunction.
The Women’s March said it will hold two protests on Wednesday. In the morning, protestors will hold a “kangaroo court” dressed in kangaroo and judge costumes. The goal is to “expose the case’s lack of merit and Judge Kacsmaryk’s loyalties to religious extremist politicians,” the group said in a statement.
In the evening the group will hold a street protest with activists dressed in clown costumes.
Rachel Carmona, the executive director of the Women’s March, acknowledged attendance likely won’t be as high as the group would like given the short notice. Carmona lives in Amarillo, which she credits for even being able to organize anything at all.
“If that were not the case, we like all the other groups would be having a very difficult time doing anything right now,” Carmona said.
But “whether it’s one person or 10 people or 100 people, we’re going to be out there and we’re going to be, you know, landing our message around the illegitimacy of this process and also just the complete lack of basis for this lawsuit in general,” Carmona said.
