Inside a Louisiana courtroom, two arguments were weighed Wednesday with ramifications that could touch as many as half a million people. In the 5th Circuit Court of Appeals in New Orleans, the Department of Justice went to bat for the Food and Drug Administration in a case that will determine the legality of a popular abortifacient drug, mifepristone. 

The case has the potential to change not only access to the pill responsible for more than half the abortions performed in the United States today, but also a typically untouchable drug approval process and an untouchable federal agency. It is being decided by a panel of three judges, two of whom were appointed by former President Donald Trump. 

Thus, 'bated breath from every major mainstream news service for the last 36 hours. 

The left has good reason to be concerned, as not one but two sacred cows are on the chopping block. Not only may this court revoke access to mifepristone, a major blow to abortion activists’ cause, but such a curtailing would be done on grounds that provide precedent for further FDA scrutiny—a much needed development, though one unlikely to prompt more than indignation from the federal bureaucracy’s department of drug hucksters. Still, if the appellate court upholds the ruling by U.S. District Judge Matthew Kacsmaryk in Texas last month, mifepristone’s FDA approval would be revoked on the grounds of the drug’s harmful effects, which includes uterine hemorrhage and has caused the deaths of several women. 

It is an event not without significance for the right, too, and for more than the obvious reason that lives will be saved. We should give thanks, always and everywhere, for that. But the case is also strategically significant. The side whose position was favored by the overturn of Roe v. Wade last summer has been all but apologizing for it at the ballot box ever since. Here, at last, is another positive step forward. 

Indeed, it may be the most important front the pro-life movement could have chosen. The widespread use of mifepristone has only increased since the drug’s initial approval in 2000, and it now accounts for a whopping 53 percent of all abortions. The nature of a pill, unlike a surgical procedure, is that it is far harder to track; to consider the effects of this in a different context, the low-profile nature of a pill once it leaves the supplier’s hands is one reason the opioid epidemic has been so lethal. 

A pill can be sold discreetly, passed off, or taken in the wrong way, all of which may lead to harmful side effects—above and beyond the intended mortality in the case of abortifacients. This makes it several degrees more lethal than a regular abortion, insofar as it is several degrees more uncontrollable, and should serve as a reminder that where the crisis lies today is not where it lay in 1980. In order to answer the moment appropriately, the pro-life movement must recognize chemical abortions as the primary battlefield. 

The current litigation of mifepristone has delivered a small win on this front. Judge Kacsmaryk’s ruling last month did away with a coronavirus era telemedicine provision, which made these death-inducing pills available through Zoom consultation with any prescribing “medical professional,” including your psychiatrist, indefinitely. Kacsmaryk’s ruling also revoked the extended use authorization that allowed women to use the pill at up to ten weeks of pregnancy, despite the fact that the drug is only approved for use through the 49th day of pregnancy (seven weeks). 

These coronavirus-era provisions were intended to protect abortion access at a time when in person visits were barely legal (notwithstanding the fact that abortion clinics were permitted to remain open at a time when even churches were not), and no doubt they did; they also made an already deadly process inherently more risky for both parties. As it is, approximately 8 percent of women in clinical trials needed surgery after taking the drug, either due to excessive bleeding, an incomplete abortion, or other complications. 

The advertised uterine hemorrhage rate of 1 percent is another aspect of the FDA’s approval that the plaintiffs in the suit have contested in their evidence of the drug’s harmful nature. Even if we believe the numbers, however, mifepristone’s risks to a woman’s health have been shown to be severe enough that, at the time of approving mifepristone, the FDA warned women should not take the treatment unless they had easy access to emergency medical help for at least two weeks following taking the pills. 

But the words of the attorney for the Department of Justice to the court on Wednesday speak for themselves. 

“Whatever happens with drugs once they get into people’s hands has nothing to do with whether the drug is safe and effective,” said Sarah Harrington.

Subscribe Today

Get daily emails in your inbox

Email Address:

With countless Planned Parenthood centers prescribing and proffering the pill regimen, it is hard to imagine cutting out the psychiatrists and Zoom appointments will make much difference. The larger harvest is still on the table, and the laborers are three robed men. 

Revoking FDA approval is a powerful tool. Without it, drugmakers cannot legally manufacture the product nor sell it to their subscribers, meaning that a woman seeking a medication abortion would have to find and compound the chemicals herself—an unlikely scenario. Nearly as significant, too, is the psychological effect of removing the thin veneer of legitimacy which calls “healthcare” a pill that makes a graveyard of the womb. For the troubled woman contemplating taking her own child’s life, this may be enough to help her reconsider. 

The left has complained that such a ruling would undermine abortion access and ease of drug approval in America, to which the right ought to reply, “yes.” That is correct. And “yes,” again, to the question of whether we should be suspicious of the FDA’s approval process, which called “safe” and “effective” a substance that leads to a breaking down of the uterine lining so an unborn child cannot live. And again, too, to the question of seeking accountability from the branch of the administrative state designed to protect consumers, which has opted to protect pharmaceutical companies’ bottom line instead: “yes.”