From Amarillo, Texas to Your Medicine Cabinet – Extremist Judges Are Paving the Way for Religious Ideology not Science to Determine Your Family’s Access to Prescription Medications

In the last three weeks, ideological judges – from Texas all the way up to the Supreme Court –have been weighing in on a consequential decision by U.S. District Court Judge Matthew Kacsmaryk in Alliance for Hippocratic Medicine v. FDA to remove an FDA-approved medication – mifepristone – from the market. Mifepristone was approved over twenty years ago, and is commonly used for treatment of miscarriage, to terminate a pregnancy, and for other medical purposes.

After a series of judicial maneuvers including a “pause” by the U.S. Supreme Court, the matter now sits before the U.S. Court of Appeals for the Fifth Circuit, with a hearing on the merits scheduled for May 17. If the lower court ruling were to stand, it would be the first time in history a federal judge was able overrule the science-based drug approval process and institute a national ban on an FDA-approved medication, setting a dangerous precedent that could affect every medication on the market. Anyone who needs access to mifepristone or who relies on an FDA-approved medication should be on alert and deeply concerned.

Alt Text: A judge’s gavel surrounded by medication tablets.

While the delay from the Supreme Court is certainly good news, let’s be clear: Judge Kacsmaryk’s ruling is just plain wrong. It is profoundly disappointing that our federal appellate courts have sidestepped a critical opportunity to overturn Judge Kacsmaryk’s baseless decision and uphold the rule of law. If the Fifth Circuit fails to overrule Judge Kacsmaryk’s decision, not only will access to abortion be even more restricted, the science and research-based FDA drug approval process would be obliterated. Extremist judges—not doctors – would be able to have the final word on whether someone gets access to the medicine that could save their life.

If Judge Kacsmaryk’s decision is allowed to stand, the gold standard drug approval process would become just another front in our nation’s slide into ever-deepening ideological division. All medications would be vulnerable to judicial challenges. For example, access to HIV/AIDS medications, vaccines to protect against deadly viruses, behavioral health drugs, hormone-based medications, and many others likely would come under attack. On and on…until eventually, the very motivation to engage in medical research and drug development would be profoundly disrupted. Who would invest millions in medications or vaccines that could be halted by the courts or cynically placed into the center of ideological political war? Every family in America would feel the consequences of this judicial overreach.

The facts about mifepristone matter. Mifepristone has over two decades of data and clinical evidence that support its safety and efficacy. It is proven to be safer than Tylenol, penicillin, and Viagra. It is an essential medication for managing miscarriage and it has been used by more than 5 million women to safely terminate a pregnancy. Judge Kacsmaryk and plaintiff’s goals are simple and straightforward – they seek to restrict women’s access to abortion, regardless of how it affects women’s lives and their ability to maintain control over their reproductive health decision-making. Without a doubt, the impact of a nationwide mifepristone ban would fall hardest on poorest and most vulnerable in our nation, including women of color, rural families, and young people. Every day the courts fail to resolve this matter in favor of data, science, and precedence is a day that scientific advancements and women’s lives are in dire jeopardy.

Judge Kascmaryk’s decision also is a direct attack on our nation’s democratic institutions and constitutional processes – processes designed to protect the public health and safety of every person in our nation. Congress placed the authority for our nation’s drug approval process with the FDA and the FDA alone. Allowing judges to make decisions about prescription drug safety not only politicizes the drug approval process and disrupts access to essential medications for millions of Americans, it also erodes the public trust in our systems of government. If we are to preserve our democratic institutions, science, evidence, and data must prevail over ideology, misinformation, and extremism.

Futhermore, Judge Kascmaryk’s ruling disregards the Supreme Court’s Majority opinion handed down just last summer in Dobbs v. Jackson Women’s Health Organization, which made clear that the foundation of their 5-4 decision overturning Roe v. Wade was that each state — not federal courts — should make decisions about abortion access.

Many of us, including myriad constitutional law scholars and prior Supreme Courts, think this Supreme Court got it wrong and that access to reproductive freedom is enshrined in the constitution. Judge Kacsmaryk’s ruling reminds us that abortion opponents won’t stop with the Dobbs victory and the Supreme Court has just placed itself into a never-ending attempt by anti-abortion activist to say anything and use any available tactic to restrict access to abortions, birth control and reproductive services, even at the expense of bringing down the FDA drug approval process.

The American people overwhelmingly believe that patients and doctors, not judges or government bureaucrats, should be in charge of an individual’s health care. Families USA wholeheartedly agrees. We urge the Fifth Circuit Court of Appeals to protect women’s health, uphold the independence of the FDA drug approval process, and preserve the institutions and governmental processes that make our democracy work by overturning Judge Kacsmaryk’s ruling on the merits.

Families USA also calls on the Biden Administration to continue to do everything they can to preserve access to all life-saving medications. States also must step up and do everything in their power to maintain access to all reproductive health services, including additional state-level funding so providers can continue to serve patients. Access to FDA-approved medications is essential health care. Abortion is essential health care. Our work is not done until every person in our nation is able to access the full range of health services they need – including abortion care and access to life-saving medications — to achieve their optimal health.

Patients who need access to mifepristone or abortion services should go to abortionfinder.org for information about the care that is available to them.

For more information about Families USA’s engagement on federal and state reproductive health policy, please contact Ben Anderson at banderson@familiesusa.org