The future of the abortion pill in the United States was plunged into the greatest uncertainty on Saturday the day after two contradictory decisions by federal judges which augur a final battle before the Supreme Court.
Since the historic judgment of the Supreme Court which, in June, gave states the freedom to ban abortions on their soil, the abortion pill had become the new target of opponents of pregnancy terminations.
An ultra-conservative judge against millions of women
In November, these reactionary far-right activists filed a complaint against the American Medicines Agency (FDA) to contest the marketing authorization for mifepristone (RU 486) which, combined with another stamp, been used by 5.6 million women since it was approved in 2000.
Strategically, they had filed their appeal in Amarillo, Texas, where the only federal judge, magistrate Matthew Kacsmaryk, who had been appointed by Donald Trump, is known for his ultra-conservative views.
The magistrate gave them satisfaction on the evening of Good Friday. Believing, despite the scientific consensus, that mifepristone poses risks to the health of women, it suspended its authorization for the whole of the American territory, pending an examination of the merits of the case.
More symbolically, he took up their terminology, preferring the term “unborn human” to that of “fetus” or evoking “abortionists” to speak of the structures performing terminations of pregnancy.
Prohibition to prohibit
Anticipating his decision, a coalition of Democratic states had taken legal action at the end of February to try to preserve this pill which, taken in connection with misoprostol, today represents 53% of abortions in the United States.
And on Friday, an hour after Judge Kacsmaryk’s decision, one of his colleagues, Judge Thomas Rice appointed by Barack Obama and sitting in Washington State, found that mifepristone was “safe and effective” and prohibited the FDA to withdraw its approval in the 17 states at the origin of the appeal.
Judge Kacsmaryk clarified that his decision would not apply for seven days, in order to allow time for the parties to appeal.
“Let’s be clear, access to mifepristone remains legal for now,” hastened to point out Alexis McGill Johnson, president of the powerful family planning organization Planned Parenthood.
Joe Biden at the front
In this interval, the great maneuvers will begin. “We will fight against this decision,” promised Democratic President Joe Biden.
The FDA, which is represented by the Department of Justice, and the Danco laboratory which produces mifepristone, have already announced their intention to appeal. Their appeal will be heard by a federal appeals court located in New Orleans, also known for its conservatism.
The federal government therefore faces a choice. He can wait for this court to rule and turn to the Supreme Court only if it validates the suspension of mifepristone. If he wants to save time, he can – since there is a conflict between two federal judges – ask the high court to decide without delay.
If the Court of Appeal decides and finds Judge Kacsmaryk wrong, the Supreme Court will most likely be seized anyway, this time by the coalition of opponents to abortion at the origin of the complaint.
The Supreme Court will have another opportunity to roll back women’s rights
The file should therefore arrive in a few days or weeks before the temple of American law which, since its reshuffle by Donald Trump, has six conservative magistrates out of nine.
It will be sent to him according to an emergency procedure, nicknamed “the shadow register”, which makes it possible to render an accelerated decision without a public hearing, or obligation for the judges to explain the reasons for their judgment.
Faced with criticism of the lack of transparency of this procedure, the High Court has, contrary to custom, recently organized urgent hearings in very political cases that had come to it in this way.
She could choose this path and organize a hearing before the end of her session on June 30. Or decide on the basis of written arguments in the coming weeks.
The head of the Court, the conservative John Roberts, very attached to the image of the institution, should vote with his three progressive colleagues to maintain the authorization of mifepristone.
The question is whether one or more of the five conservative magistrates will join them to form a majority.