The Case That Could Be Another Dobbs

If this Texas lawsuit makes it to the Supreme Court, nationwide access to the abortion pill could be at risk.

February 7, 2023

If you’ve seen the headlines about a case in Texas that could make abortion pills illegal, you may have found them farfetched. How could a single judge in a single state determine the fate across the country of a medication that was approved by the FDA in 2000? 

But those headlines are not an exaggeration: This is possible. And the radical right-wing hate group Alliance Defending Freedom is determined to make it happen. As the Washington Post reports, the Alliance, representing anti-abortion groups and doctors, filed a suit in November with the district court in Amarillo, Texas, where Trump-appointed Judge Matthew Kacsmaryk presides. The suit charges that the pills are unsafe, and FDA approval should be revoked. (It’s worth noting that the ADF has long advocated against LGBTQ rights and is also responsible for many of the anti-trans bills emerging around the country. The Southern Poverty Law Center classifies them as a hate group. Oh, and one of their senior counsel is Erin Morrow Hawley, wife of Rep. Josh “Abortion…is a violent act against the defenseless” Hawley.) 

The Alliance knows that Amarillo is the place to try this—not just because Judge Kacsmaryk is presumably also anti-abortion, but because an appeal will land this case in the Trump-nominee-heavy 5th U.S. Circuit Court of Appeals. Given that court’s track record, there’s a good chance it would rule in the Alliance’s favor; another appeal after that would bring the case to the Supreme Court—the same court that overturned Roe v. Wade just last year. 

The case could have immediate implications. If Judge Kacsmaryk does rule in favor of the anti-abortion plaintiffs—in a ruling that could come as early as next week—“it may block the availability of medication abortion nationwide…even in states where abortion is legal,” wrote Talcott Camp, chief legal and strategy officer of the National Abortion Federation, in a memo this week.

But the case is also a farce. As Dahlia Lithwick and Mark Joseph Stern write at Slate, its legal logic is non-existent. A plaintiff would have to prove they have personally been harmed by mifepristone—which is impossible as the Alliance is not representing patients. The suit also tries to claim that the FDA cut corners in the approval of mifepristone back in 2000. This is untrue: Not only was there testing at the time, but now, 23 years later, nearly half of abortions are medication abortions. Lithwick and Stern quote professors David Cohen, Greer Donley, and Rachel Rebouché from a yet-to-be-released paper on the abortion pill: “After more than twenty years on the U.S. market, mifepristone has become one of the most studied drugs available—many times safer than common drugs like penicillin or Viagra.” 

In other words, a ruling in favor of the plaintiffs would be unprecedented and legally unsound, most legal critics (and the FDA) argue. That said, given the makeup of the courts at the current point in time on this here day in 2023—it’s actually possible. 

So what, then? Even if the worst happens, it does not mean that medication abortion will disappear entirely. Mifepristone is one of two drugs in the most common abortion protocol (the other being misoprostol). As Dr. Jen Lincoln notes, you can still have a medication abortion using only misoprostol, although doing so runs the risk of more side effects. And you can still get mifepristone from international pharmacies (as through @AidAccessUSA). And if you can get your hands on the right meds, you can also self-manage medication abortions. 

This case might feel small, but it is designed to be big. It clearly demonstrates the legal strategy of conservatives who are emboldened in the post-Trump era to restrict our bodily autonomy—whether we’re trans people or patients who need abortions.

The fight against that nonsense is going to be long. In the meantime, support your local abortion fund. Vote. Spread factual information. Take care of yourself and your communities.