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“Catastrophic”: Trump-Appointed Judge in Texas May Restrict Abortion Pill Mifepristone Nationwide

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We look at today’s hearing by a federal judge in Texas who could restrict medication abortions throughout the United States and revoke the Food and Drug Administration’s two-decade-old approval of mifepristone, the abortion medication used in a majority of pregnancy terminations across the country. The Trump-appointed judge has ruled against the Biden administration in numerous cases and is widely expected to favor the anti-abortion side in the case, though an appeal of any ruling is all but certain. Amy Littlefield, The Nation's abortion access correspondent, says that while medication abortions are still possible without mifepristone, it can be less effective and more painful. “We're talking about imposing suffering on medication abortion patients across the country,” Littlefield says.

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StoryApr 20, 2023“A New Jane Crow”: Abortion Advocates Brace for Supreme Court Ruling That Could Ban Mifepristone
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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González, as we turn now to the fight to protect reproductive rights in the United States.

A decision could come as early as today from a Trump-appointed federal judge in Texas on whether to ban the abortion pill mifepristone nationwide. The hearing is taking place in Amarillo, a four-hour drive from any major city, and only became public after reporters raised alarm about the lack of transparency, after Judge Matthew Kacsmaryk tried to delay notice and hide the date. The lawsuit aims to revoke the Food and Drug Administration’s two-decade approval of the abortion pill and comes after the Supreme Court overturned the constitutional right to abortion last year, overturning Roe v. Wade.

We go right now to Amy Littlefield, abortion access correspondent at The Nation.

Amy, welcome back to Democracy Now! So, first, let’s take on this hearing today. A Trump-appointed anti-abortion judge is deciding whether this drug can be used. It’s used in more than half the abortions in the United States. So, if he decides no, even in states where abortion is totally legal, they will not have access? Is that right?

AMY LITTLEFIELD: That’s right, Amy. If the judge succeeds in revoking the FDA’s approval of mifepristone, which has been on the market in the United States for 23 years, then it would have a catastrophic impact specifically in states where abortion is legal. I mean, we’re talking about this hearing taking place in a state that’s not even going to be impacted by it, because abortion is already banned in Texas. And so, this would reverberate across states like where I’m sitting, in Massachusetts, New York, California, states where abortion is legal.

The abortion pill mifepristone is the first of two drugs used in the standard of care for medication abortion. And so, what providers across the country have been preparing to do in preparation for this ruling is to start providing misoprostol-only abortions, so medication abortion using only the second drug in the protocol. That still works, but it’s less effective. It’s about 88% effective, according to a recent study, versus up to 99% when it’s used with mifepristone. And it causes more intense suffering, more cramping, more prolonged bleeding, and a more intensive process for the person going through that medication abortion. So we’re talking about imposing suffering on medication abortion patients across the country.

And as you point out, medication abortion using mifepristone is the most popular method of abortion, used in more than half of abortions nationwide. So this could have a huge impact. Of course, it depends on exactly what the Food and Drug Administration does in response to this ruling. And there’s a growing chorus of voices saying that the FDA should simply choose to ignore this ruling and that providers should continue to offer this drug where they can. So, I think it’s unclear exactly what the impact will be, until we have a decision.

But I think this really should put to bed any pretense that this was ever about states’ rights or about returning abortion to the elected representatives in the states, which is what the Supreme Court claimed that it was doing with the Dobbs Supreme Court decision, right? In fact, what we’re seeing is an effort to ban abortion nationwide using what anti-abortion legal strategists hope is a judicial pipeline that’s going to allow them to go all the way up to the Supreme Court and have a sympathetic anti-abortion hearing.

JUAN GONZÁLEZ: And, Amy, what are the legal arguments of those who are — who have brought this case, especially given the fact that the FDA has greenlighted the use of the drug for so long?

AMY LITTLEFIELD: Exactly, Juan. I mean, what’s remarkable about this case — right? — is we wouldn’t even be talking about it if it weren’t for the judge who’s involved, because the legal arguments here amount to that the FDA did not follow the protocol that it was supposed to when it approved the drug, when in fact mifepristone has been stringently studied. There’s data from tens of thousands of patients who’ve taken it that demonstrate that serious complications happen less than a fraction of a percent of the time.

And so, the arguments in this case really add up to: We don’t like abortion, and we don’t think it should be available. It’s being brought by the right-wing legal organization Alliance Defending Freedom, which is the legal group that brought you the fall of Roe v. Wade, on behalf of a bunch of anti-abortion medical organizations. The Justice Department, which is defending the FDA’s approval of mifepristone, has called these claims in the lawsuit unfounded. They’re not new. They’re the same arguments they’ve been making since mifepristone was first approved.

But the reason that we’re even talking about this right now is because of Judge Matthew Kacsmaryk, Judge Matthew Kacsmaryk who served on the board of a Christian anti-abortion maternity home where his sister gave birth as a teenager and put the baby up for adoption, Judge Matthew Kacsmaryk who has railed against everything from homosexuality, which he considers disordered, to no-fault divorce laws and the decision to get rid of penalties for adultery, which he sees as part of an effort to undermine heterosexual marriage. In a case that could be a harbinger for this one, Judge Matthew Kacsmaryk in December upheld the right of a father who wanted to prevent his teen daughters from seeking contraception at federal clinics in Texas, because he said that if his daughters were to access contraception, it would violate his religious beliefs. And in a decision that cited Catholic catechism, Judge Matthew Kacsmaryk sided with the father in that case. And so, I think, you know, he’s — he founded a chapter of the Federalist Society, the right-wing organization that helped Trump, handpicked Trump’s Supreme Court justices. He was a staff attorney at First Liberty Institute, which is a Christian right law firm. I could go on and on about Judge Matthew Kacsmaryk’s anti-abortion credentials.

AMY GOODMAN: Well, can you talk about what he did today, Amy, having this hearing —

AMY LITTLEFIELD: Right.

AMY GOODMAN: — and trying to keep it secret?

AMY LITTLEFIELD: I mean, this is remarkable, Amy. Judge Matthew Kacsmaryk on Friday held a call with the attorneys in this case and said, “Look, we’ve been getting a lot of phone calls about this. We’ve even been getting some death threats. I don’t want a circus-like atmosphere in my courtroom, and so please don’t tell anyone about this hearing that we’re scheduling for Wednesday.” And he told the attorneys he was not going to put it on public docket until late on Tuesday.

Now, Eleanor Klibanoff, who’s been covering this case for The Texas Tribune, said, “Look, if I had to — if I found out late Tuesday about a hearing that was happening Wednesday morning,” she would have had to drive through the night on Tuesday — right? — to reach Amarillo, Texas, where this hearing is taking place, from Austin, which is eight hours away.

So, I mean, I know, because I’m seeing their posts, that there are journalists camped out on the steps of that courthouse who have been there since the crack of dawn. Apparently, they’re choosing to let in 19 journalists. But that’s only after Judge Matthew Kacsmaryk went to pretty unusual measures to try to prevent the public from knowing what was going to be going on in this hearing today, which obviously is of enormous public interest to people across the country.

JUAN GONZÁLEZ: Meanwhile, Amy, also in Texas, five women are suing after they were denied abortions even as their pregnancies posed serious risks to their health and were nonviable. You wrote a piece in The Nation recently, “'She Had a Heartbeat Too': Waiting for One Dead Woman.” Tell us about the near-death experience of Amanda Zurawski.

AMY LITTLEFIELD: Yeah. Juan, I was actually listening to Democracy Now! on Friday and listening to the clip of Amanda Zurawski that you played, where she talks about how she was losing her pregnancy, losing a very wanted pregnancy. Her water broke at about 18 weeks. The doctors in Texas told her, “We’re so sorry. Your pregnancy is not going to survive, but we cannot terminate it, because the fetus still has a heartbeat, and we are terrified of going to jail or facing civil penalties under Texas abortion law.” And so, she waited for days. And she needed to wait until either the fetus died or she became so close to the brink of death that doctors would feel justified in saving her.

And when I was listening to her story, Amy and Juan, I had this feeling, this sad and angry feeling that I’ve felt so many times before, because I know this story. Before Roe v. Wade even fell, I wrote about how women in Catholic hospitals had been subjected to a same days-long wait until they got so close to the brink of death that doctors felt that they could intervene and terminate the pregnancy, despite the Catholic ethical and religious directives that guide healthcare in one in six acute care beds nationwide in these Catholic hospitals. These stories — now that Roe v. Wade is gone, we are hearing these stories emerging with just crushing regularity. And I started to think about how, with enough almost-dead women, because that’s the threshold — you can only get an abortion if you are almost dead — we are eventually going to have someone who dies.

And I wrote this article for two reasons. One is that I wanted to really debunk the idea that these life and health exceptions in abortion bans mean anything, because what we see in Amanda Zurawski’s case and the other women in this Texas lawsuit is that when you impose prison sentences and civil penalties on doctors, they are not going to intervene until the most extreme situations possible. When you close the abortion clinics in a state, you get rid of the infrastructure for people to even contemplate an abortion.

And then, the second reason is that I wanted to issue a warning, that, you know, in Ireland, Savita Halappanavar died in 2012 in a situation very similar to Amanda Zurawski’s, because when people get sick while miscarrying, they can decline very fast. And I am afraid that we are going to see someone die in this country. And I hope, when that happens, that her death means something, the way it did in Ireland, where Savita’s death led to a transformation of Ireland’s abortion laws.

AMY GOODMAN: Amy Littlefield, we want to thank you so much for being with us. There’s so much more to talk about, but we will do this, of course, in the days to come, as well. Amy Littlefield is abortion access correspondent at The Nation, former Democracy Now! producer. We’ll link to your piece, just out, “'She Had a Heartbeat Too': Waiting for One Dead Woman.”

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