Today, Explained - The new fight over abortion pills

Episode Date: April 11, 2023

A federal judge in Texas invalidated the FDA’s decades-old approval of the abortion drug mifepristone. Vox’s Anna North explains the battle over a drug that’s been legal since 2000. This episode was produced by Avishay Artsy and Hady Mawajdeh, edited by Matthew Collette, fact-checked by Laura Bullard and Amanda Lewellyn, engineered by Patrick Boyd, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

On Friday, a judge in Texas banned the most used abortion pill in the country. Literally minutes later, a judge in Washington state said the FDA had to maintain access to the drug. On Monday, over 400 drug executives blasted the ruling from that Texas judge, saying it was sowing chaos in the pharmaceutical industry. The stakes here are very significant. If this ruling stands, it would have a nationwide impact, even in states where abortion is legal, and that would dramatically reduce access to the most common form of abortion in this country. Chaos is probably the best word to describe abortion access in the United States right now.

From California, where lawmakers are doing everything they can to turn the state into an abortion sanctuary, to Idaho, where you can now go to prison for driving a minor to get an abortion in California. We're going to take stock of the chaos on Today Explained. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express.

Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. Anna North, senior correspondent at Vox. We're going to get into the politics of this issue in a bit. But first, tell us what is going on with abortion pills in America right now, because the Food and Drug Administration's approval of mifepristone, which is one of the most widely used abortion medications in the country. When we think of abortion, we often think of a type of surgery. But according to the CDC, more than half of all abortions rely on medication. And this ruling in Texas could dramatically change that. Okay. And then there was another case? That's right. So almost simultaneously, a judge in Washington ruled essentially that the FDA has to keep Mifepristone, that same drug, on the market in 17 states.

Minutes after the Texas judge's decision on Friday night, a federal judge in Washington state with equal authority dropping a contradictory ruling, ordering the FDA to maintain access to the drug. Okay, so just totally right out the gate confusing. Let's just start with Mifepristone. For those who are not in the know, remind us, is this a new drug, an old drug, a new controversy, an old controversy? Yeah, Mifepristone is extremely not new. It was approved for use in the U.S. in 2000. Okay. And it's been used in medication abortions basically since then. Medication abortion is very, very common in the U.S. More than half of abortions

today are medication abortions, and pretty much all of those currently use mifepristone. And perhaps most importantly here, is this drug safe? Yes. According to doctors, OBGYNs, experts, it's very safe. The rate of severe side effects is very low. The FDA argued the drug went through a four-year approval process and 99.9% of patients are treated without any adverse reaction. It's worth noting there are lots of drugs on the market today, common drugs that you might say are much more dangerous than this drug. So who is this Texas judge? And on what grounds did this judge make this ruling late last week?

So the judge's name is Matthew Kazmarek. He is a conservative judge in Texas. He's also known for his opposition to abortions. He was actually an anti-abortion movement lawyer before he was appointed to the bench. And I think what's interesting about this decision is you really see that it's steeped in really what can only be called Christian extremism. And he's also handed down some rulings that have been friendly to conservatives in a number of other recent cases. In this case, basically, the argument of the plaintiffs, the folks who wanted to get rid of this abortion drug, they argued that back in 2000, the FDA bowed to political pressure and, you know, should never have approved this drug, and it was a political decision, and so now we should reverse this and

take it off the market. And just to remind people, the FDA approved this drug like over two decades ago. Correct. This was, I believe, under the Clinton administration. But the sort of coalition of anti-abortion groups going by the name the Alliance for Hippocratic Medicine, their argument is this was always bad. It should never have happened. You know, this was a political decision. This medication is bad for people. Again, we don't have scientific evidence for this. All the scientific evidence is that this drug is quite safe. They say it's bad and that it should never be on the market. The FDA should

never have said yes to this. And Judge Kazmarek essentially agrees, essentially says, yes, okay. In the 67-page opinion filed Friday, the U.S. District Judge said the court does not second-guess FDA's decision-making lightly, but here, FDA acquiesced on its legitimate safety concerns in violation of its statutory duty based on plainly unsound reasoning and studies that did not support its conclusions. He said the FDA needs to rescind the approval for this drug, but he also stays his own ruling for seven days, sort of giving a little grace period, assuming that there's going to be an appeal,

saying, you know, folks who disagree have this amount of time to appeal it before my ruling actually goes into effect. So was it appealed immediately? Yeah. The Justice Department now appealing the case as the Biden administration promises a fight. This is not America. What you saw by that one judge in that one court in that one state, that's not America.

We're in a little bit of a weird period timing-wise. Basically, for the week after Kazmarek issues the decision, it's not really in effect. That means nothing changes. The abortion medication is still legal. You can still get it. Nothing is really different while we wait to see what happens with these appeals. And depending on how the appeals go, there could be a further stay. So it's possible that this drug will remain on the market for a long time while the courts work through this. And if the ruling is successful, what happens then? So ultimately, if what the judge ruled stands, if the ruling is successful, then Mifepristone would be off the market.

That means that it no longer has FDA approval. It means that doctors can't prescribe it. You can't get it at a pharmacy, at least for an abortion. And that's not just in Texas. That's across the entire United States. Exactly. at least for an abortion. And that's not just in Texas, that's across the entire United States? Exactly. So it basically would be taken off the market throughout the country, not just in Texas,

not just in places where abortion is banned, not just in places that are red states, but everywhere. Because what it targets is the decision by the FDA, which is a federal agency. Now that said, it wouldn't be illegal to have it. It wouldn't be illegal to take it, but a doctor wouldn't be able to say, okay, you're seeking an abortion. I'm going to write you this prescription. Got it. And meanwhile, on the same day we get a ruling out of from the market Mephepristone. The FDA

has to keep it available in these 17 states. So it doesn't apply all over the country. But the trick is that since the Texas ruling does apply all over the country, here's the conflict. Texas judge is saying this should be off the market everywhere. Washington ruling is saying this should be on the market in a number of places. So now there's a conflict. And that means basically a higher court kind of has to get involved because it's not supposed to be the case in America that like there are two different sets of laws that are fighting with each other. That's what the courts are for. By higher court, do you mean perhaps the Supreme Court that reversed Roe v. Wade with the Dobbs decision last year and said, leave it up to the states. We're not going to get involved anymore.

Right. So for abortion rights supporters, the legal options don't look super rosy. The courts that could get involved are the Fifth Circuit, which has issued a number of conservative rulings, or the Supreme Court, which has also issued a number of conservative rulings and has a conservative majority right now. So those are the choices. It's not at all clear that Mipha Pristone's approval will survive this period of legal fighting. But I also wouldn't completely count it out because there's really no precedent for a court getting involved with what the FDA does. You know, a federal judge is not really supposed to be like, take this drug off the market, take that drug off the market, you did a bad job, FDA, I'm going to tell you what to do. And if a judge does start doing that, it has a bunch of kind of concerning implications for the whole country and like for medicine. How is it that one person, one judge,

with no medical degree, no science degree, can make a decision about a drug that has been used, that has been safe and proven effective? More with Anna North in a minute on Today Explained. Thank you. The number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an aura frame as a gift, you can personalize it. You can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an aura frame for himself. So setup was super simple.

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to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Today Explained is back with Vox's Anna North. Anna, so we talked about the fight over abortion pills in America right now, especially in light of this ruling from a Texas judge on Friday. How does that fight fit into the broader fight over abortion access right now? We've seen in the nine-ish months since the Dobbs ruling that overturned Roe v. Wade last year. So after the end of Roe, what we expected to happen was that a bunch of

states across the country would either outright ban or move to heavily restrict abortion. And that's happened. Thirteen states had a trigger ban in place in which abortions became illegal automatically if and when, it turns out, Roe was overturned. Nine other states had laws passed or enacted before this Roe decision, making them all but certain to ban abortion if they have not already. And in at least four additional states, the expectation is that they will issue some sort of a ban on abortion in the weeks ahead. So states have been pretty successful at banning people from getting abortions within their states.

At the end of last month, Republicans in Kentucky passed a bill to make it harder for women to get an abortion in that state. Previously, Kentucky had had a law in the books that said you couldn't get an abortion there if your pregnancy was more than 20 weeks along. This new law passed last month rolled that back even further, said that you can no longer get an abortion in the state if your pregnancy is 15 weeks along or further. Now some are trying another tactic,

which is to actually ban their residents from getting abortions anywhere. Texas law prohibits abortion except for medical emergencies. The lawsuit claims this creates confusion among doctors who refuse care in extreme cases out of fear of prosecution. So, you know, for a lot of abortion opponents, it's not necessarily enough to say like, okay, you can't get an abortion in Texas. They would, number one, like to ban abortion nationwide. And if that can't happen, they would like to at least prevent Texans from getting abortions anywhere. There are a bunch of different tactics to try to keep residents of your state from getting abortions in other states. One that's been tried in Idaho recently is called an abortion trafficking law.

And it basically makes it illegal to get abortion pills for a minor or to help the minor leave the state for an abortion without a parent's consent. In Idaho, the governor signed a controversial new law making it a felony for non-parent adults to help a minor cross state lines for an abortion, the first law of its kind nationwide. So that person could actually face prison time. They could face two to five years in prison. They could also be sued by the minor's parent or guardian. The AP notes that parents who raped their child will not be able to sue, but all the other criminal penalties for anybody that helped that child get an abortion would still be in effect. So basically what we're looking at is

even if a minor experiences rape and becomes pregnant, anybody who helps them get an abortion could go to prison. Can states do this? Is there legal precedent for restricting what residents of one and illegal in the other. And then folks in America where it's illegal want to make it illegal in those other states, too. So this is a really difficult legal conflict, and it hasn't really been resolved. This is what's going to be sort of worked out in the courts over the next coming months and years is how much influence can lawmakers in one state have over what people go and do in a totally different place. Now, on the flip side of a state like Idaho, you've got states like California that are doing everything in their power to protect abortion rights. Exactly. So a number of states have sort of passed

reproductive health laws to try to safeguard abortion rights. Four states and the District of Columbia offer full protection without state interference throughout a woman's entire pregnancy. An additional 12 states permit abortion prior to viability or when necessary to protect the life or health of the pregnant woman. And there have been some interesting recent developments. So, for example, in Michigan.

Now, Michigan was one of the states that folks expected after Dobbs would ban abortion. But actually, in November 22, voters there approved an amendment to the Constitution to protect abortion rights. Michigan is now the first state in the nation to pass an affirmative, citizen-led, constitutional amendment to guarantee the right to an abortion. Which means it would be really hard to ban abortion in Michigan. Then in Wisconsin, there's been sort of an interesting legal fight, which is that Wisconsin has a pre-Roe abortion ban on the books. The lawsuit naming top Republican leaders as defendants

argues the 1849 law conflicts with other laws since past, including a ban on abortions after 20 weeks or viability and other laws on how doctors should perform abortions. The attorney general has said he's not going to enforce it. He's suing to get the ban struck down. Our argument is that abortion is legal in Wisconsin right now. If the court does declare that the old ban is not enforceable, then it will be clear that access to safe and legal abortion has been restored in Wisconsin. It had sort of been unclear what was going to happen, and the suit could go before the Wisconsin Supreme Court. And then, of course, in a recent Supreme Court election, liberals actually won a majority on that Wisconsin Supreme Court. So it's

possible that Wisconsin will become, you know, sort of a more abortion rights friendly state than perhaps people would have expected. I'm glad you brought up elections, Anna, because I wanted to ask you, you know, you mentioned the Wisconsin race from last week. You mentioned the midterms from last year. And there's this sense that Democrats are succeeding where they may have previously failed because of this issue, because of abortion. Do we have any hard data that says this issue is swinging elections right now and it's swinging them in the direction of Democrats? I do think there's a growing sense,

both among Democrats and among Republicans, that abortion could be a winning issue for Democrats. I am staunchly pro-life. I have a 100% pro-life voting record. I do think that it will be an issue in November if we're not moderating ourselves, that we are including exceptions for women who've been raped, for girls who are victims of incest, and certainly in every instance where the life of the mother is at stake. I sometimes hate to put it in such sort of bald terms because it's obviously,

this is like a really crucial thing for patients and their lives. But it's also a crucial thing about politics. And of course, politics affects patients and their lives. And yeah, I mean, we've seen a number of cases where abortion has seemed to tip the scales. You know, you can look, for example, at the Pennsylvania governor's race, where the Republican candidate really promised to heavily restrict abortion. And the Democrat won in Pennsylvania. And that felt like a bellwether to a lot of people that, you know, Pennsylvania doesn't want an abortion ban. And if you look at nationwide polling, you know, abortion polling is complicated.

People tend to favor restrictions in the second and third trimesters. But what's generally not popular is outright banning abortion in the second and third trimesters. But what's generally not popular is outright banning abortion in the first trimester. Most people don't want to do that. Roe v. Wade was really popular. Most people didn't want it to be overturned. So Republicans are in a difficult bind nationwide right now where they won, they got what they wanted, but what they wanted actually wasn't something that was popular with the majority of the country. On the far right, we have states that are trying to ensure that no abortion for any reason, including rape and incest victims and girls. And that's not OK with the electorate either. Republican lawmakers across this country in over 20 states are so doggedly pursuing what some would

consider draconian abortion laws and restrictions. Yeah, I mean, this is complicated. I think we're in a political climate where for a long time, there was really no penalty for Republicans to be as anti-abortion as possible. And there was also a benefit to be as anti-abortion as possible. So in a pre-Roe landscape, you could win, especially a primary election as a Republican, by just going as far to the right on abortion as you possibly could. Blake Masters has made his dangerous ideas on abortion easy to understand. I think Roe v. Wade was wrong.

I think it's always been wrong. It's a religious sacrifice to these people. I think ite v. Wade was wrong. I think it's always been wrong. It's a religious sacrifice to these people. I think it's demonic. For Blake, taking away health care freedom for Arizona women is just the beginning. I actually think we should go further. The federal government needs to step in and say no state can permit abortion. You make it illegal and you punish the doctors. We might be starting now to see that shift because now there's consequences, right? For a long time, Roe v. Wade was in effect. And so there was this natural limit on what could really happen with

your abortion policy. So you could say a lot of things and it just wasn't going to come to pass. Now these laws are actually affecting people's lives. The attorneys told the doctors that because of the fetal heartbeat bill, because that 15-week-old had a heartbeat, the doctors could not extract. The doctor told the doctors that because of the fetal heartbeat bill, because that 15-week-old had a heartbeat, the doctors could not extract. The doctor told me at that point, she's going to pass this fetus in the toilet. She's going to have to deal with that on her own. There's a 50% chance, greater than 50% chance that she's going to lose her uterus. There's a 10% chance that she will develop sepsis and herself die. That weighs on me. I voted

for that bill. We've seen a lot of stories that I think have caused a lot of bipartisan outrage, including stories of people who are having miscarriages that they can't appropriately treat because they can't get access to care that could also be used in an abortion. People with pregnancies that are non-viable an abortion. You know, people with pregnancies that are non-viable who are getting really sick, who are having their fertility impacted. You know, reproductive health activists would point out, like, these are not by any means the only stories of abortion. Plenty of people just want an abortion because they want to terminate a pregnancy. But I do think there have been these sort of cases where even pretty anti-abortion voters didn't fully anticipate what the consequences would be of ending Roe v. Wade after decades.

Even though this is something that a lot of Republicans were pushing for for a long time, I'm not sure that anyone fully knew exactly what it would look like. And now we're all finding out what it does look like. And I think there's the potential there for a real political reckoning. You know, I think for a long time, for Republican lawmakers, and then, you know, the Supreme Court also sort of made this argument

that abortion should be a state's issue. We'll leave it up to the states to decide. I think what we have seen is that it's chaos. That this has put states directly in conflict with one another. It's put courts directly in conflict with one another. And the Supreme Court may have no choice but to step in again because the country is, you know, sort of at ideological and legal war over this issue.

And it's not necessarily a tenable situation for there to be one set of laws in one place and one set of laws in another place, especially on something that is so fraught and so crucial to a lot of people. I would add, too, that, you know, it's always been sort of an argument on the right to say, let's let the states decide this, let's let the states decide this, let's let the states handle it. That's had a certain appeal, almost like if you like your health insurance,

you can keep it, sort of. Oh, well, in California, if you like your abortion rights, you can keep it. But it's also been a little bit of a red herring because, of course, for people who are very serious abortion opponents, they would like to see a nationwide ban. They want to see this banned everywhere because they view it as murder.

Similarly, you know, to be fair for people who are, you know, very strong abortion rights advocates, they don't want to see it banned in some places. That's not really acceptable. Like, for them, that does feel that people have fewer rights in one state than in another. So it's never really been something that's been very amenable to a state's rights approach. And I think we're seeing that now. And that's how you end up with a Texas judge trying to reverse an FDA decision from over 20 years ago that will affect the entire country. Exactly. You can read Anna North at Vox.com.

Our show today was produced by Avishai Artsy and Hadi Mawagdi, with help from Matthew Collette, Patrick Boyd, Laura Bullard, and Amanda Llewellyn. I'm Sean Ramos-Furham. This is Today Explained. Thank you.