The Daily - A Threat to Abortion Pills. Plus, the U.S. Shares Secrets

Episode Date: March 1, 2023

In 2000, the F.D.A. approved the medication abortion drug mifepristone. Now a federal judge in Texas is set to rule on a case filed by anti-abortion groups urging the agency to revoke its approval of mifepristone and the other main drug used for medication abortion in the United States. Abortion via medication has become increasingly common and now accounts for more than half of the nation’s abortions.Plus, the Biden administration has started talking publicly about its intelligence when it comes to China, breaking with a long tradition of keeping U.S. secrets close to the chest. The secretary of state, the director of the C.I.A. and even the president himself have made statements on TV expressing concern over China’s plans to help Russia in the war in Ukraine.Guest: Pam Belluck, a health and science correspondent for The New York Times.Julian E. Barnes, a national security correspondent for The Times.Background reading: Twelve states have sued the F.D.A. seeking removal of special restrictions on abortion pills. The suit argues that rules applying to mifepristone unnecessarily limit patients’ access to medication abortion.Bolder intelligence disclosures are part of a larger effort to stymie the Kremlin’s offensive in Ukraine and align support for Kyiv’s war effort in allied countries.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Sabrina Tavernisi. And I'm Michael Barbaro. This is The Daily. Today, two stories. First, my colleague Pam Bellick on why any day now a federal judge in Texas could issue an order to ban the pill used in more than half the abortions across the country. And Julian Barnes goes inside the Biden administration's plan to publicize secret intelligence to ensure that China never enters the war in Ukraine on behalf of Russia. It's Wednesday, March 1st. are suing the FDA, challenging the approval of Mifeprex, generically known as Mifepristone, part of a two-drug regimen commonly used for abortions.

The result, if you win, is that abortion access will be significantly limited. Is that the goal of this lawsuit? No, the goal of this lawsuit is to protect American women and girls from dangerous chemical abortion drugs. This is essentially a backdoor national abortion ban. And what I mean by that is this affects states like California, New York, Illinois, Minnesota, Colorado,

that have taken steps. When you allow mail-order abortion drugs, like the FDA has done, you get these dangerous chemical abortion drugs in the mail without ever seeing an abortionist even in person. No ultrasound, no protections. They're not gonna stop until abortion is completely banned in the whole country. And being in a blue state is not going to save you.

So Pam, tell me about this case. So this is a case that was filed in a federal court in Texas, and it was filed by a consortium of anti-abortion groups. And basically, it wants the FDA to be ordered to revoke the approval of the two main drugs that are used for medication abortion in the United States. And remember, medication abortion has become an increasingly common method of abortion. It's now used in more than half of abortions in the United States. And that proportion is almost certainly growing since the Supreme Court overturned Roe v. Wade. And what's their argument? So they spend a lot of time talking about the first drug that's used in this two-drug

medication abortion regimen that's called mifepristone. And mifepristone was approved for abortion in 2000, so 23 years ago. And the main argument in this case is they are claiming that it should not have ever been approved for abortion. They say that there were a bunch of procedural errors in the way that the FDA went about approving mifepristone. They claim that it was initially approved under a regulation that was only supposed to be for illness. And they claimed that pregnancy could not be considered an illness. And they're also claiming that this drug and the other drug,

misoprostol, are unsafe. They say that women who take these drugs end up in the emergency room, hemorrhaging and with infections, and that it's not safe for the women to be using these drugs. And is any of that true? I mean, as you've said, you know, these drugs have been on the market for over 20 years now. So mainstream credible medical experts would say that there really is no basis to the claims in this lawsuit. These drugs used for medication abortion are really very safe. 20 plus years of studies have shown that fewer than 1% of pregnant patients who take these drugs at the appropriate time end up with serious complications. So, you know, there can be serious complications like hemorrhaging and infection, but they are very, very rare. And many experts will point out that actually the process of going through a pregnancy has a much greater safety risk for a woman than taking these

abortion medications. So the safety arguments really have no real grounding to them. The procedural arguments also seem to be really without merit. And one of the things that's very interesting, particularly about mifepristone, is that it was actually approved by the FDA and continues to be regulated by the FDA in a very, very strict way, much more strict than most other drugs. So it's actually somewhat ironic that there are claims that the FDA has been kind of lax here or has ignored evidence about mifepristone because, in fact, it's kept a very, very tight lid on mifepristone and has carefully monitored it since it's been approved. So this is kind of unheard of, right?

What this group is asking. Like that a court would undo an FDA approval process, which is a scientific process that's taken years with many experts. Like what does a federal judge know about science and medicine? judge know about science and medicine? Yeah, you know, when this lawsuit was first filed in November, many legal experts thought that it would kind of die quickly. And it just seemed like a very fringe kind of claim that had really no legal basis. But it hasn't. You know, we're at the point where we're going to get at least an initial ruling in the case. And if the court were to rule in favor of the anti-abortion groups, it would apparently be the first time that a court has ordered the FDA to revoke a drug against the FDA's

will. FDA to revoke a drug against the FDA's will. And it would also have implications for, you know, really any other drug potentially, vaccines or contraception or morning after pills. This is the kind of thing that could set a precedent that could have very widespread implications. So how did this case get to this point? It's very interesting. This sort of umbrella group, this consortium that is suing is called the Alliance for Hippocratic Medicine. Okay. It decided to incorporate a couple months after Roe v. Wade was overturned, and they decided to incorporate in Amarillo, Texas. The groups themselves are not actually based there. In fact, the consortium has a mailing address in Tennessee. But they picked

Amarillo. And that appears to be either a remarkable coincidence or a savvy legal strategy, because only one federal judge covers the Amarillo region. And he is a very conservative Christian. He was appointed by Trump. His name is Matthew Kaczmarek. And he has in the past worked for a conservative legal group. He has also written, prior to his being appointed a judge, he has written articles that included some anti-abortion sentiments. So essentially what you're saying is that the plaintiffs find themselves either by accident or very much on purpose before a judge who's probably pretty sympathetic to their cause. Yes. The plaintiffs do say that they weren't judge shopping. They say they are located in Amarillo because some of their members live there

and they do have one doctor who is also a plaintiff who practices there. But I think a lot of legal experts watching this case feel that they were targeting this jurisdiction because they thought they would find a sympathetic judge. So given that, what's likely to happen? So let's see. It's about one o'clock Eastern time on Tuesday, and I have been repeatedly refreshing my page to try to check and see if the judge has ruled yet. He could rule any day, any minute. And this would be a preliminary ruling, which would basically order the FDA to take mifepristone, this first medication abortion drug, off the market.

And I think that could be likely just given the political background of this judge. And because it is in a federal court, this would not just apply to Amarillo, Texas or to the state of Texas. It would apply to the entire country. So basically you'd have one federal judge in one city in Texas upending 20 plus years of federal approval of a drug used for abortion. So you think that the exact thing the abortion rights activists are really worried about is actually pretty likely and could happen any minute now? Yeah, I mean, I think it's certainly quite possible that that is the way this judge will rule.

rule. But it's not at all clear that such a ruling would actually eliminate or even limit access to medication abortion, at least not anytime soon. So explain that. Why not? Well, first of all, the FDA and the Department of Justice, which is representing the FDA, they are going to throw everything that they have at this case to try to fight the could result in rulings by other federal judges that basically sort of contradict what this Texas judge might say. And so if you end up having a judge in a blue state saying, you know, you need to preserve access to mifepristone or the FDA is justified in approving mifepristone, then you're going to have sort of dueling federal judges and that will go up to the Supreme Court and it will have to be resolved there. And then finally, if it turns out that the FDA loses this case, the FDA has enforcement discretion. It can decide in many cases that it just doesn't want to enforce or it doesn't have the resources to enforce certain regulations on drugs if it considers those drugs to be safe and effective,

and it obviously considers this drug to be safe and effective. So in other words, the FDA can just ignore it? Well, I think experts expect that they would seriously explore ways to not have to enforce it. And then there are a couple other things that will also likely kick in, you know, on the ground in the abortion world. One is that, you know, I've said mifepristone is the first of two drugs that is used in medication abortion. The second one to use misoprostol only for their abortion patients. It is used on its own in many countries, usually where there's not good access to mifepristone.

World Health Organization is fine with it being used on its own. And it may be slightly less effective, but it is still effective and it is also very safe. So many of the providers I've talked to are sort of drafting protocols where this would be the only drug they prescribe. Now, the lawsuit is also seeking to go after misoprostol, but its case against misoprostol is probably even weaker than its case against mifepristone. And then the other thing is that, you know, remember we've had about half the states now since Roe was overturned, where abortion has either been banned or sharply restricted. And many patients in those states have been ordering these medications from overseas providers, in particular,

medications from overseas providers, in particular, one organization called Aid Access, which has them sent from a pharmacy in India. And so I think there's every expectation that now patients who are living in blue states increasingly turn to an organization like that. So even if the judge rules to block mifepristone, the reality for women trying to access medication abortion is that they're still going to be able to get one, right? One way or another. Because the other side, the abortion rights side, is pretty prepared for this scenario. That's right, yes. And what about the less likely scenario that the judge rules against this group and doesn't block Mifepristone. What would that say? Yeah, that would be really interesting because I guess it would be saying to

the anti-abortion groups, this is not an avenue that you can pursue. Because if this judge, a judge who is very much inclined to side with them, says, no, you can't go this route, you can't overturn the federal government's approval of a medication, then it really is kind of the end of the road for that type of strategy. So spaghetti that they threw at the wall that didn't stick. Yeah, I think they will try a different type of pasta. You know, there are creative legal minds on both sides. And the anti-abortion side might have exhausted this strategy, but they certainly will try other strategies.

And in some way, this strategy will have succeeded a little bit, at least temporarily, because it will have sown confusion and anxiety. It will just, for some people, have given the message that getting an abortion is too hard and they will be deterred. And that's why on the abortion rights side, they are working very hard to counter that idea of chaos and confusion. And basically, these post-Roe abortion wars are going to continue. Pam, thank you.

Thank you. After the break, Julian Barnes on the Biden administration's plan to publicize secret intelligence. We'll be right back. Julian, we are going to turn now to a very different topic, which is the war in Ukraine, because the Biden administration has been experimenting with a really interesting approach toward trying to keep China out of that war. And that's what we wanted to talk to you about. So walk us through that. Michael, as you know, the U.S. doesn't usually talk about its intelligence. These are secrets it tries to keep to itself.

Right. But over the last couple of weeks, we've seen a very different playbook in use. New intelligence suggests China may be warming up to the idea of sending artillery and ammunition to Russia's military. The Biden administration has started talking about some of its intelligence, specifically the intelligence it has about China and about what China's plans are to help Russia,

first in meetings with allies and then in statements on TV. The concern that we have now is based on information we have that they're considering providing lethal support. We saw the Secretary of State. And we've made very clear to them that that would cause a serious problem for us and in our relationship. The director of the CIA. Well, we're confident that the Chinese leadership is considering

the provision of lethal equipment. And then even the president himself. I had a very frank conversation with President Xi this past summer on this issue. And then even the president himself. Talking about what they knew. In these statements, the U.S. was very clear that China hadn't made this decision. They hadn't started sending any weaponry to Russia, just that they were considering it. The intelligence showed that China was contemplating a shift in their strategy. And the U.S. is trying to influence the decision to make sure China does not make the decision to send lethal aid, to send ammunition to Russia. They don't want China to get involved in this way, and they hope that they can

stop it. And Julian, what is the precise scenario that the U.S. most fears if China decides to do what the U.S. doesn't want it to do, which is to begin giving arms to Russia. Explain that. So right now, the Chinese are on the sidelines. They give diplomatic support to Russia, but they're not providing weaponry. That's in sharp difference to what the U.S. is doing on Ukraine's side, right? And U.S. officials believe if China made a shift, if China started doing that, that could really help Russia. That could change the balance of the war because this is a war of artillery. What the U.S. wants here is that Russia would run out of artillery shells and would have a sort of scarcity that would force them to stop or change their tactics. Right. The U.S. basically doesn't want Russia to have in China what the United States has given Ukraine, which is the backing of a military superpower with a ton of ammunition at its disposal. That's exactly right. And from the Russian point of view, the artillery

would be just a start, right? They want Chinese artillery, but what they really want are Chinese advanced missiles, Chinese drones, better technology. And so if they could lure China into this war providing artillery first, maybe next come the drones, next come the guided missiles, and all of a sudden both sides have a superpower at their back. Right, which could really change the very nature of this war and potentially tilt it in Russia's favor. war and potentially tilt it in Russia's favor. And that's why it's so important for the U.S. to try to influence this decision, to try to persuade China that this is not in its interest, that this is not in the world's interest, and that they should not make a deal that would send

artillery to Russia. So let's talk about the manner in which the U.S. is trying to do that through this public disclosure of intelligence. Because I think this is going to remind a lot of our listeners of what the U.S. did before the start of the war in Ukraine, when it told the world that it had learned that Russia was preparing to invade Ukraine. And the idea back then was that by publicizing this intelligence over and over and over again, the U.S. could potentially alter Russia's behavior, stop the invasion, right? But it didn't work. Russia still invaded Ukraine. this situation, using pretty much the same strategy, might be different? Why releasing intelligence about China might make it not do something when it didn't work with Russia? Well, the U.S. did hope it could influence Russia, but that was not the main reason they released this intelligence. Most intelligence officials didn't think Vladimir Putin's mind could be changed.

But what could be different, what could change was Ukraine could hear the warning. Europe could understand what was at stake and begin to make plans to respond. And all of that worked, right? That did help. That did change the world opinion. And the world reacted very quickly when Putin attacked Ukraine. But here, as you said, it's a little bit different. Here, they do believe that China is persuadable in a way that Russia was not. Well, explain that. Why would China be persuadable in a way that Russia was not. Well, explain that. Why would China be persuadable in a way that Russia

was not? China is invested in the global order. They care about their reputation worldwide. And economically, they're highly dependent on the United States. They're highly dependent on Europe. They have an economy 100% based on exports, trade. If that was threatened, if that was in jeopardy, so too would be political stability in China. And that's what they care about above all else. Got it. So what you're suggesting, Julian, is that behind this U.S. approach here to disclosing all this intelligence about what China is thinking of doing is a threat to cut off some level of trade with China if China decides that it will supply arms to Russia. Is that right? It's not an explicit threat. You have not heard U.S. officials outline exactly what

they would do if China was to provide ammunition or weaponry to Russia. But it's very clear to China what the implicit threat is. The U.S. could do to China a version of what it has done to Russia, right? It could put on sanctions against individual companies. It could put on export controls that stop the flow of crucial American technology to China that really drive a lot of crucial industries there. All of these things damaged Russia, but they would really damage China, right? Because it is such a trade-oriented economy that they do not want to risk being cut off from the U.S. or cut off from Europe, their most important trading partners. Understood. So is there any evidence that this U.S. strategy is working?

That putting forth this intelligence about where China is in this decision-making process is going to prevent them from sending arms to Russia? There is some evidence that it's working. After the U.S. has said it believed China was considering supplying weapons and ammunition to Russia. There is some evidence that it's working. After the U.S. has said it believed China was considering supplying weapons and ammunition to Russia, China has dismissed the claims, with the foreign ministry saying it was America, not China, that was, quote, endlessly shipping weapons to the battlefield.

Once the U.S. put out this intelligence, China immediately said it was not true. That they're not aimed at third countries, but they would also not be the subject, as he put it, to interference and provocations from third countries either. China said that it wasn't intending to do this. It was not a party to the war in the same way that the U.S. was a party to the war. China's top diplomat, Wang Yi, says his country has a peace plan for Ukraine. China also started pushing a peace plan for Ukraine.

On Friday, China released a position paper, a 12-point document, which among other things calls for a resumption of peace talks, with China continuing to play a constructive role. Now, that peace plan doesn't have any chance of moving forward, but that is the role that the U.S. wants China to is publicly drawing boundaries around its role in this conflict and emphasizing its neutrality, all of which is music to the ears of the United States, given this very specific fear that China might give arms to Russia. Look, no U.S. official is spiking the football right now and saying, this worked, the danger's over, we've kept China on

the sidelines. No, not at all. We don't know for sure long term what China will do. But early returns are positive, right? Because they have stayed out for now. It definitely feels, Julian, like we're witnessing pretty much the birth of a new kind of U.S. approach to intelligence, right? And that's one where we overshare in order to influence the behavior of our adversaries. First, we tried it with Russia. Now we're trying it with China. I'm curious, why haven't we done this in the past? I'm curious, why haven't we done this in the past? What has changed since this conflict in Ukraine began that makes the U.S. think that this is the right way to use our intelligence?

Michael, there's a whole flood of new information coming out there. There's commercial satellite photos. There is videos posted to social media. Just a wealth of new information flooding the zone. And it makes it very hard for adversaries to pick out where the information is coming from. So if you have a spy inside another country, or if you have a communications intercept, it is much harder for Russia or any other adversary to figure out where the leak might be, right? Because there's just so much noise. This whole flood is essentially keeping the exquisite sources, the spies, the intercepts hidden. Got it. So because the intelligence sources we most care about are shielded by all this noise,

we don't endanger them when we disclose intelligence like what we just did against China. That's right. So it strikes me that for this new approach to work, our intelligence has to be right. And it has to be reliably right, because we're putting it out there, telling the world to have confidence in it, and hoping that it's going to change the behavior of our adversaries. If it turns out that our intelligence is not correct, then we're going to be embarrassed. Our adversaries are not going to respond the way we want, and we're going to be embarrassed. Our adversaries are not going to respond the way we want, and we're going to lose credibility on the world stage. So the stakes of this new playbook

would seem to be pretty high. The stakes are high. If we rewind 20 years to the Iraq war, we'll all remember how much damage was done to the credibility of the U.S. intelligence agencies by getting that intelligence about that war wrong. Right. Weapons of mass destruction that didn't exist. They didn't exist. And so it's very important for the credibility of the United States, the credibility of its allies, that this intelligence be correct. But this explosion of commercial satellites, this explosion of open source intelligence is a bit of a check, right? It is some buttressing information that adds to the U.S. credibility. It makes it harder to get things

wrong. And that's a big reason the U.S. has become more confident in its intelligence and more willing to release it. And as a result, you will see the U.S. use this playbook of publicizing and declassifying intelligence, not just in the war in Ukraine, but in a whole variety of conflicts and crises around the world. Well, Julian, thank you very much. Thank you. We'll be right back. Here's what else you need to know today.

We were fierce competitors in these last few months, but I will be rooting and praying for our next mayor to deliver for the people of the city for years to come. On Tuesday night, Chicago Mayor Lori Lightfoot was resoundingly defeated in her bid for re-election, coming in a distant third place and failing to advance into a runoff scheduled for next month. Lightfoot was the first Black woman ever elected as mayor of Chicago, the nation's third largest city.

But in a race dominated by the issue of crime, Lightfoot struggled to make a case for a second term. During her tenure, homicide rates have soared to generational highs, and there have been spikes in robberies, muggings, and carjackings. Today's episode was produced by Alex Stern, Mary Wilson, Claire Tennesketter, and Diana Wynn. It was edited by Paige Cowan and John Ketchum, contains original music by Dan Powell and Marion Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderland.

That's it for The Daily. I'm Michael Barbaro. See you tomorrow.