The Continued War Against Reproductive Rights
Abigail Eun (PPS ‘25)
When Roe v. Wade was overturned in 2022, we thought the fight for bodily autonomy couldn’t get any worse. Until it did.
On April 7th, 2023, U.S. District Judge Matthew Kacsmaryk ruled in favor of the Alliance for Hippocratic Medicine in a lawsuit against the Food and Drug Administration (FDA), invalidating the FDA’s 23-year-old approval of the abortion pill mifepristone.
In response to Kacsmaryk’s ruling, the Justice Department has appealed this decision and is currently waiting on the Fifth Circuit to respond.
If Kacsmaryk’s ruling stands in court, mifepristone will be banned or significantly limited across the nation. Not only is Kacsmaryk’s ban a threat to bodily autonomy and female reproductive rights, but it is clear that Kacsmaryk’s personal anti-abortion sentiment is superseding his judicial responsibilities.
Mifepristone is the most commonly used in the United States, having over 5 million users over the span of 22 years.
Research shows that limiting access to mifepristone will have harmful implications: Mifepristone helps women miscarriage at a higher success rate than regimens without the drug, and abortions without mifepristone can result in more severe side effects, including “nausea, diarrhea, chills, vomiting, or cramping.”
Despite the scientific evidence and expert advocacy that underscore the importance of keeping mifepristone accessible in the United States, Kacsmaryk’s ban on mifepristone operates under two main premises:
1. The distribution of mifepristone violates the 1873 Comstock Act, which bans the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” article, matter, thing, device, or substance” that produces abortions.
2. The Food and Drug Administration did not rigorously test and research the safety of mifepristone before approving the drug for sale.
Both premises, to put it shortly, are false.
Firstly, Kacsmaryk ignored the fact that many parts of the Comstock Act have already been repealed: in 1971, Congress repealed key aspects of the Comstock Act to promote public access of contraception to low-income families.
Furthermore, when Roe v. Wade was overturned, current Assistant Attorney General Christopher Schroeder wrote a slip opinion that declared the Comstock Act does not apply to the delivery and mailing of abortion pills unless they were intended for illegal use.
Secondly, the FDA was extremely rigorous when approving mifepristone, taking four years to test it. In fact, even before the drug was approved in the United States, it was being distributed in China, France, Sweden, and the United Kingdom.
The Food and Drug Administration, U.S. Department of Health and Human Services, World Health Organization, American Medical Association, and other credible organizations declare the drug to be safe and research finds that mifepristone is safer to consume than Tylenol, Viagra, and penicillin.
Given Kacsmaryk’s reputation as a conservative judge and devout Christian who has previously spoken out against abortion rights, his baseless ruling is unsurprising. What’s even more unsurprising is that the plaintiffs specifically chose to file the case in the federal district where Kacsmaryk was appointed (the formal term for this is judge shopping).
What is surprising, however, is the fact that the federal judge ignored 150+ studies that validate the safety of mifepristone and instead vouched for scientifically baseless allegations that declare mifepristone to be unsafe.
The fact that a single judge can unilaterally reject medical evidence and the FDA’s approval — which has long served as a golden standard of scientific review — should serve as a wake-up call to the nation on the dangers of obscurantism and zealotism. Legal experts question whether or not it is even within the scope of Kacsmaryk’s judicial power to nationally invalidate a drug, as no federal [AE1] judge has ever attempted to revoke the FDA’s approval.
If a lone judge can undermine the authority of the Food and Drug Administration based on one’s subjective, religionized beliefs, what’s to say the same won’t happen to PrEP, an HIV prevention drug (that Republicans are currently targeting), puberty blockers, and birth control pills?
When Roe v. Wade was overturned, the Supreme Court of the United States wrote in its judicial opinion that “the authority to regulate abortion is returned to the people and their elected representatives.”
With the potential repercussions of Kacsmaryk’s actions, that clearly isn’t the case.
As we wait on the Fifth Circuit to determine the fate of mifepristone, Kacsmaryk’s slanted discretion foreshadows the anti-abortion brawls that will have to be fought in the coming years.
The fight for bodily autonomy is not and will not be over as long as extremist values rule our seats of power.
Abigail Eun is from Los Angeles, CA and an Undergraduate at Duke University’s Sanford School of Public Policy. This piece was submitted as an op-ed in the Spring ‘23 PUBPOL 301 course. This content does not represent the official or unofficial views of the Sanford School, Polis, Duke University, or any entity or individual other than the author.
