Two separate court rulings throws the future of abortion medication into uncertainty

Two conflicting rulings on Friday leave the future use of the abortion medication mifepristone uncertain, though because of one of the rulings, it could remain legal in New Mexico. There are two rulings in separate states that conflict with one another on the use of the abortion medication mifepristone and the judicial decisions both order […]

Two separate court rulings throws the future of abortion medication into uncertainty

Two conflicting rulings on Friday leave the future use of the abortion medication mifepristone uncertain, though because of one of the rulings, it could remain legal in New Mexico.

There are two rulings in separate states that conflict with one another on the use of the abortion medication mifepristone and the judicial decisions both order the U.S. Federal Drug Administration to act differently with regard to the drug. The ruling made by a Texas federal district judge could force the FDA to remove mifepristone off the market after a seven-day injunction period. But, a ruling also made by a Washington state federal district judge could mean that in 17 states, including New Mexico, the drug would continue to be legally available.

But, with two different rulings provided by two different judges that are in direct conflict with each other, there is considerable uncertainty as to the future of abortion medication, reproductive rights advocates said during a national press conference on Monday. The question of whether mifepristone should continue to be on the market and the conflict between the two cases could wind up at the U.S. Supreme Court for a decision, reproductive advocates said.

No matter what happens, Nancy Northrup, executive director of the Center for Reproductive Rights, said on Monday that the Texas judge’s ruling will likely create chaos for abortion providers and patients.

Abortion medication currently requires a two-step regimen that starts with mifepristone. The drug blocks the hormone progesterone which is necessary for a pregnancy to continue.  

The FDA approved the use of mifepristone in 2000 but also placed it under restricted-use regulations. The FDA has reviewed its safety and effectiveness over the years as part of its restricted use and found it to have a mortality rate of less than 0.001 percent with a 99.6 percent effectiveness and a 0.4 percent rate of complications. But, an anti-abortion advocacy organization sued the FDA in a Texas district court last year, saying that the FDA did not follow proper procedures 23 years ago when it approved the drug and that it has not been studied enough to prove its safety and effectiveness. But reproductive advocates said the drug has been studied more than 100 times across more than 30 countries.

 The judge who decided that case ruled late on Friday, U.S. Judge Matthew Kacsmaryk, a Trump appointee, ruled in favor of the plaintiffs.

Northrup called it a “rogue” case with “no basis in law or fact,” and likened the decision to something out of Lewis Carroll’s novel, Alice Through the Looking Glass.

“The judge is inserting his own analysis on how the FDA should weigh factors in drug approval. It’s completely outside the normal structure of how a court would review such a claim,” she said.

Jenny Ma, senior counsel for the Center for Reproductive Rights, said the judge’s opinion “parrots the language of anti-abortion activists,” and relied on false and misleading information provided by anti-abortion groups.

A second lawsuit begun in the state of Washington, which New Mexico Attorney General Raúl Torrez joined along with 16 other Attorneys General, challenges the FDA’s continued restrictions around the dispensing and prescribing of mifepristone. Although the FDA recently relaxed those rules under the  Biden Administration, some restrictions still apply.

If the Washington state federal district Judge Thomas Rice, an Obama appointee, prevails at the same time as Kacsmaryk’s ruling goes into effect after seven days, then mifepristone could remain legal in New Mexico, Washington, Oregon and the 15 other states that joined the suit, while it is outlawed in states that did not join the lawsuit.

Northrup said the situation is “dynamic” and likely to change over the next seven days. The U.S. Department of Justice has already asked the courts to clarify the tension between the two rulings. The DOJ has also already filed an appeal on the Texas ruling.

But, the appeal will go to the Texas Fifth Circuit Court of Appeals, which has tended to rule conservatively in the past.

Jennifer Dalvan, a reproductive rights attorney with the American Civil Liberties Union, said during the press conference that a side effect of the Texas case is that it could “chill innovation” on pharmaceutical company’s research into forthcoming drugs and “radically alter the process for approving drugs” by the FDA.

Mifepristone is also used at higher dosages to help with Cushing’s syndrome.

Governor Michelle Lujan Grisham issued a statement on Friday after Kacsmaryk’s decision.

“First and foremost: medication abortion remains legal and available in New Mexico. I also want to state, unequivocally, that medication abortion is an effective, safe option, and the Texas decision is an affront to the FDA approval process and the extensive scientific and medical evidence upon which it is based,” Lujan Grisham said in her statement. “I will continue to do all that I can to ensure that New Mexico remains a safe place for women to obtain necessary health care, and I was proud to sign legislation in recent weeks to protect the rights of abortion patients and providers.”  

Torrez’s office also provided a statement about the proven safety and efficacy of mifepristone and said he is “committed to holding the line and will use every tool at my disposal to fight to keep New Mexico a safe haven for those seeking reproductive care.”

The reproductive advocacy group Bold Futures told NM Political Report they wanted to “uplift Plan C,” an online resource for abortion medication. Abortion fund provider Indigenous Women Rising spokesperson Jennifer Lim said “Indigenous communities have always been impacted by any and all restrictions on abortion access; many folks cannot even access the pills now, despite the legality, but we will always have abortions and support anyone who needs or wants them.”

Ellie Rushforth, a reproductive rights attorney with ACLU-NM, said the organization “will be monitoring the litigation out of Texas and Washington as it proceeds through the courts to determine if and how New Mexico will be impacted, and to provide information as we have it.”

“If enacted, this ruling [by Kacsmaryk] will disproportionately impact those who already face the greatest barriers to accessing reproductive health care, including young people, people of color, immigrants, and our rural communities,” Rushforth said.

Northrup said the FDA is already operating under Congressional approval and Kacsmaryk’s decision “upends the authority Congress has already given” the FDA. New Mexico’s congressional leadership, all Democrats, said they opposed the Texas ruling and signed an amicus brief to the U.S. Court of Appeals for the Fifth Circuit calling on those judges to reverse Kacsmaryk’s decision.

Sen. Martin Heinrich’s office said Kacsmaryk “put politics head of science and undermined the FDA’s ability to approve safe and effective medication….”

“I’m a mechanical engineer; I trust science. And the law entrusts the FDA with making scientific evaluations to determine the efficacy of all prescription drugs. Our federal courts need to respect that, too,” Heinrich said.

Sen. Ben Ray Luján said “this ruling escapes common sense.”

“Mifepristone has been an FDA-approved drug for two decades making this plainly an extremist attack on women and trusted, science-backed federal institutions,” Luján said.

U.S. House of Rep. Gabriel “Gabe” Vasquez, who represents the second congressional district, said he “will always stand up for women’s healthcare rights and I will continue to work with my colleagues in Congress to ensure women have the right to choose.”

U.S. House of Rep. Melanie Stansbury, who represents the first congressional district, called the Texas decision “radical, extreme and dangerous.”

“Congress must pass the Women’s Health Protection Act to protect our constitutional right to bodily autonomy, which was undermined by the Dobbs decision in the the Supreme Court last year,” Stansbury said, noting she cosponsored the bill.

This story was updated to reflect that all of New Mexico’s Congressional leadership signed the amicus brief in support of Pres. Biden’s appeal to the U.S. Court of Appeals for the Fifth Circuit.

We're ad free

That means that we rely on support from readers like you. Help us keep reporting on the most important New Mexico Stories by donating today.

Related

Emily’s List endorses seven candidates for Legislature

Emily’s List endorses seven candidates for Legislature

Emily’s List, a nonprofit that supports women candidates and reproductive rights, endorsed seven incumbents facing general election opponents in New Mexico legislative elections. All…
Equality New Mexico endorses 15 legislative candidates

Equality New Mexico endorses 15 legislative candidates

A New Mexico-based LGBTQ rights organization endorsed 15 candidates for state House and Senate seats for the 2024 elections.  Marshall Martinez, executive director of…
Lujan Grisham pocket vetoes two bills

Lujan Grisham pocket vetoes two bills

Gov. Michelle Lujan Grisham pocket vetoed two bills the legislature passed this legislative session: one changing the Cybersecurity Act and the other concerning law…
BLM announces final methane waste rule

BLM announces final methane waste rule

The federal Bureau of Land Management announced its final methane waste rule on Wednesday. These new regulations clamp down on the practice of venting…
What consumers, farmers should know about the flu impacting dairy cows

What consumers, farmers should know about the flu impacting dairy cows

Migrating birds appear to have caused a virus in dairy cattle that is causing reduced milk production. So far, the disease, which initially started…
Republicans seek to limit national monument designations

Republicans seek to limit national monument designations

Republican-backed legislation in the U.S. Congress would make it harder for the government to designate new national monuments. The proposed Congressional Oversight of the…
Amid new graduation requirements, what do high schoolers want to learn?

Amid new graduation requirements, what do high schoolers want to learn?

By Margaret O’Hara, The Santa Fe New Mexican The main things that bring Brayan Chavez to school every day: Seeing, talking to and engaging with…
Special ed teachers hope lawmakers OK pay raises, admin changes

Special ed teachers hope lawmakers OK pay raises, admin changes

By Margaret O’Hara, The Santa Fe New Mexican Brittany Behenna Griffith has a laundry list of adjectives to describe the ideal special education teacher:…
Lawmakers must find consensus on competing education spending plans

Lawmakers must find consensus on competing education spending plans

By Margaret O’Hara, The Santa Fe New Mexican A challenging task awaits New Mexico lawmakers in the next 30 days: Reconciling three very different…
Health workers fear it’s profits before protection as CDC revisits airborne transmission

Health workers fear it’s profits before protection as CDC revisits airborne transmission

Amy Maxmen, KFF Health News Four years after hospitals in New York City overflowed with covid-19 patients, emergency physician Sonya Stokes remains shaken by…
Lujan Grisham, Biden admin announce $10 million in federal funds for tribes, pueblos

Lujan Grisham, Biden admin announce $10 million in federal funds for tribes, pueblos

Gov. Michelle Lujan Grisham announced Friday $10 million in funding from the federal American Rescue Plan Act was awarded to six tribal nations and…
Proposal to curb executive powers moves to House Judiciary

Proposal to curb executive powers moves to House Judiciary

The House Government, Elections and Indian Affairs Committee discussed a potential constitutional amendment that seeks to limit the governor’s executive powers. The committee approved…
Senators introduce legislation to aid abortion providers

Senators introduce legislation to aid abortion providers

Sen. Martin Heinrih and other Senate colleagues introduced abortion rights legislation into the U.S. Senate on Thursday. The Abortion Care Capacity Enhancement and Support…
U.S. Supreme Court hears case to restrict access to medication abortion

U.S. Supreme Court hears case to restrict access to medication abortion

The U.S. Supreme Court heard the case about the regulations around mifepristone, one of a two-step regime for abortion medication, on Tuesday. FDA v.…
At stake in mifepristone case: Abortion, FDA’s authority, and return to 1873 obscenity law

At stake in mifepristone case: Abortion, FDA’s authority, and return to 1873 obscenity law

Lawyers from the conservative Christian group that won the case to overturn Roe v. Wade are returning to the U.S. Supreme Court on Tuesday in pursuit…
Senators introduce legislation to aid abortion providers

Senators introduce legislation to aid abortion providers

Sen. Martin Heinrih and other Senate colleagues introduced abortion rights legislation into the U.S. Senate on Thursday. The Abortion Care Capacity Enhancement and Support…
New Mexico Medicaid to cover cost of over-the-counter oral contraception

New Mexico Medicaid to cover cost of over-the-counter oral contraception

New Mexico Medicaid announced on Wednesday that it will cover the cost of Opill, the first oral contraception approved for over-the-counter use. It is…
U.S. Supreme Court hears case to restrict access to medication abortion

U.S. Supreme Court hears case to restrict access to medication abortion

The U.S. Supreme Court heard the case about the regulations around mifepristone, one of a two-step regime for abortion medication, on Tuesday. FDA v.…
San Juan County, Navajo Nation settle redistricting case

San Juan County, Navajo Nation settle redistricting case

The Navajo Nation and San Juan County reached an agreement Monday about commission districts after the tribe alleged that its members were not adequately…
MIT ranks NM elections most well-run in the U.S.

MIT ranks NM elections most well-run in the U.S.

New Mexico’s 2022 election was ranked most well-run in the country by Massachusetts Institute of Technology’s Election Data and Science Lab’s Elections Performance Index.…
Emily’s List endorses seven candidates for Legislature

Emily’s List endorses seven candidates for Legislature

Emily’s List, a nonprofit that supports women candidates and reproductive rights, endorsed seven incumbents facing general election opponents in New Mexico legislative elections. All…
Ex-GOP candidate allegedly hired people to kill witnesses in shootings of homes of Democratix politicians

Ex-GOP candidate allegedly hired people to kill witnesses in shootings of homes of Democratix politicians

Republican failed state house candidate Solomon Peña is facing more federal charges, this time on a murder-for-hire scheme.  Peña allegedly tried to hire two…
BLM announces final methane waste rule

BLM announces final methane waste rule

The federal Bureau of Land Management announced its final methane waste rule on Wednesday. These new regulations clamp down on the practice of venting…
U.S. Supreme Court hears case to restrict access to medication abortion

U.S. Supreme Court hears case to restrict access to medication abortion

The U.S. Supreme Court heard the case about the regulations around mifepristone, one of a two-step regime for abortion medication, on Tuesday. FDA v.…

GET INVOLVED

© 2023 New Mexico Political Report