Right now, the country is waiting for District Judge Matthew Kacsmaryk to rule on a baseless case that attempts to challenge the use of mifepristone, one of two drugs used in medication abortions. The case goes after the Food and Drug Administration’s approval of the drug—which occurred more than two decades ago and was as rigorous as the process for many other drugs—and because of that, there is a fear that if this district judge rules on the side of the plaintiffs, it could affect mifepristone’s availability nationwide. (There are arguments that it might not have to, but the situation is already absurd enough to warrant plenty of attention.)
While we wait for the ruling, I decided to actually read the 113-page complaint filed by the anti-abortion group that calls itself, unscrupulously, Alliance for Hippocratic Medicine. You don’t need to understand federal jurisprudence to grasp how preposterous the case is; it is apparent in the arguments offered by the plaintiffs themselves. Below are just a few of the egregious distortions contained in AHM’s complaint, and I’ve specifically chosen some that haven’t been reported on as much in the existing coverage of this case. I think it’s worthwhile for everyone to familiarize themselves with the way these plaintiffs are attempting to argue their way into controlling health care access for the whole country, which in fact overwhelmingly supports access to abortion care.
As some legal context to start: Every lawsuit must include a description of what’s called injury, defined as a harm suffered by those bringing the suit, due to some act or omission done by those the suit is brought against.
In the section delineating Injuries to Patients, paragraph 270 states:
As more women and girls require treatment in emergency departments, the other patients of the treating doctors are adversely affected. With the increase in women and girls suffering emergency complications from chemical abortion or seeking to reverse the effects of the chemical abortion regimen, there is a direct correlation in the decrease in time, attention, and resources that emergency department doctors have to treat their other patients.
First, note the use of the phrase “chemical abortion,” rather than “medical abortion” or “medication abortion.” “Chemical abortion” is used more than 200 times, throughout the complaint. This is purposeful and malicious, because it evokes the notions of being gassed or poisoned, which in turn evoke, paradoxically, a loss of agency and autonomy by the innocent, who are at the mercy of cold and evil monsters. Consider that most people who choose abortion are already parenting, and most people who have kids love them. The landmark Turnaway Study proved unequivocally that people who choose abortion do so after careful consideration of what’s best for their existing and future children, and themselves, not because they are heartless killers.
Back to the substantive point of this paragraph. A rigorous study found that only 0.3 percent of people using medication abortion experienced a major complication, so the assertion that the incidence of complications is high enough to widely impact the time, attention, and resources that emergency department doctors have to treat their other patients is ridiculous.
But before Roe guaranteed the national right to abortion care, the other patients of obstetricians and emergency department doctors were demonstrably affected by the incidence of women who had nearly killed themselves trying to abort a pregnancy. Nearly every big-city hospital had a septic abortion ward. Some of these women had attempted actual chemical abortions—inserting toxic fluids like drain cleaner, fertilizer, or motor oil into their uteruses, causing infection, damage to organs, and death.
In the section titled Injuries to Plaintiff Doctors, paragraph 295 states:
Doctors, including Plaintiff doctors and the members of Plaintiff medical associations, experience enormous pressure, stress, and chaos in these emergency situations that the FDA created through its approval of chemical abortion drugs and elimination of necessary safeguards.
See the foregoing for why “these emergency situations” are simply not happening at a rate that can even bear such categorization; but an ER physician’s actual, normal job is to manage the pressure and stress of dealing with people’s life-threatening situations. It does not make sense to assert as an injury to plaintiffs what is a routine and definitive aspect of their work.
296. Some of these emergency situations force pro-life doctors, including Plaintiff doctors and the members of Plaintiff medical associations, into situations in which they feel complicit in an elective chemical abortion by needing to remove a baby with a beating heart or pregnancy tissue as the only means to save the life of the woman or girl. This feeling of complicity in the act of an elective chemical abortion causes great emotional suffering, mental anguish, and spiritual distress among these doctors.
I can’t dispute the anguish an anti-abortion doctor might feel if they encountered an incomplete abortion of a baby with a beating heart; however I can dispute the idea that this could ever happen, or that if it did, it wouldn’t be an extraordinary sequence of events that would be tragic for all involved, and so exceptional as to never merit classification as a type of legal injury. I can also dispute the patriarchal, theocratic hierarchy of interests, which ranks the imputed value of the fetus above the value of the woman or girl. And I can dispute the unethical segregation of abortion from full-spectrum reproductive health care, which creates a medical establishment in which one can become an obstetrician or emergency physician without having to do some prefatory soul-searching regarding one’s potential “complicity.” One should not enter a professional field if one does not feel that one can carry out the regular duties required by that vocation; pacifists shouldn’t join the military, people who can’t handle the sight of blood shouldn’t become doctors, and doctors shouldn’t be obstetricians, gynecologists, family medicine doctors, or emergency-medicine physicians if they are philosophically opposed to abortion, because elective abortion and miscarriage-management are going to be part of those realms of medicine no matter a doctor’s personal beliefs. The FDA is not causing that reality.
I can also raise the far more frequent incidence of powerlessness that many such doctors are feeling now, in the post-Roe era, when they cannot provide medically necessary lifesaving care because of the risk of prosecution. These doctors are complicit with unjust laws, and because pregnancy is far more complicated and dangerous than medication abortion, it is far more likely that a doctor would experience the anguish and distress of being forced to deny care to a patient because of the criminalization of abortion.
301. When their patients have chemical abortions, doctors lose the opportunity to provide professional services and care for the woman and child through pregnancy, which causes harms to providers who no longer can care for their patients and bring about a successful delivery of a new life.
This one is, perhaps, the most outrageous of them all. It’s such a distortion I don’t think you could even call it a tautology. There’s no such thing as the “opportunity” to provide pregnancy care, so it’s not a thing that can be lost. The doctor is there to serve the patient. The patient does not have a duty of illness, injury, or condition, with respect to the doctor or the medical establishment. Either someone is pregnant and comes to a doctor for pregnancy care or an abortion, or someone isn’t pregnant, and thus doesn’t need pregnancy care or abortion. And I object to the manipulative invocation of “new life.” New life is great, it’s phenomenal, it’s mysterious and wonderful, and new life quickly becomes older life that can reproduce and therefore needs access to full-spectrum reproductive health care.
308. The inability or refusal of a patient to disclose why she is presenting herself in the emergency department or what drugs she has received also impedes the ability of doctors, including Plaintiff doctors and the members of Plaintiff medical associations, to practice medicine and provide proper treatment to these patients.
The inability or refusal of a patient to disclose why they are presenting themselves in the emergency department with complications due to an abortion is a direct result of an incessant campaign of shame, stigma, misinformation, and criminalization perpetrated by people who want to control the bodies of women, girls, and people who can become pregnant. It’s an injury to the people who now (reasonably) feel the need to hide their actions, not plaintiff doctors attempting to treat them.
309. The lack of accurate information on adverse events also harms the doctor-patient relationship with all medical care providers because the patients no longer trust that their health care providers are telling them the truth. This harms even doctors who do not support or practice chemical abortions, such as the members of the [American Association of Pro-Life Obstetricians and Gynecologists].
The lack of accurate information on adverse events does harm the doctor-patient relationship, but again, this is an injury to patients, not doctors—because patients are routinely provided false information about abortion in states where abortion is restricted.
312. Doctors, such as [Plaintiff doctors] Dr. Jester and Dr. Delgado, serve patients as professional health care providers. They provide care to all women and unborn children, and they give them the best professional services possible. Just like all other health care providers, a hospital or practice will bill for the costs of medical services rendered. When their patients have chemical abortions, they lose the opportunity to provide professional medical care for the woman and child through pregnancy and bring about a successful delivery of a new life.
Is this one actually claiming, with that enraging invocation of “new life” again, and even some “unborn children” thrown in, that because plaintiff doctors are, in theory, losing money when people choose not to continue a pregnancy, that is an injury at law? Because there’s some law that doctors can expect to make a certain amount of money off of pregnancy, that depends on people’s not choosing abortion? And this is an injury caused by the FDA?
In the Need for Judicial Relief section, plaintiffs state that “Defendants would suffer no harm from the relief requested, and the relief requested would serve the public interest.”
The relief requested would not serve the public interest; the relief requested could take mifepristone off the market, restricting access to abortion even more than it is already, even in states with liberal abortion laws, like California and New York. The relief requested would serve the interests of a few far-right conservatives.
Also, the FDA (defendants in this case) would suffer harm from the relief requested, because this is an unprecedented breach of the FDA’s regulatory authority. If Kacsmaryk enjoins the distribution of mifepristone, yes, people will still be able to have misoprostol-only medication abortions (for now); yes, the FDA can re-approve mifepristone or allow its use anyway; and yes, some other forum-shopped liberal judge can rule on a purposefully brought oppositional case, to force SCOTUS to intervene, even before the conservative 5th Circuit denies an appeal. But an extremely damaging precedent will have been set, one that could impact any other drug that might become a target of political interference—like hormone therapy for transgender patients.
Under Claims for Relief, the plaintiffs state that “Pregnancy is neither ‘serious’ nor ‘life-threatening,’ as those terms are understood in Subpart H.”
Say it with me: Pregnancy is 14 times more dangerous than abortion, and the maternal mortality rate in the United States is almost three times higher than that in other high-income countries; for Black women, it’s three times higher than for white women.
Moreover, this one is an especially heartbreaking and infuriating lie, because laws that restrict abortion make pregnancy even more “serious” and “life-threatening.”
Also, come on, pregnancy isn’t serious? Pregnancy is serious, whether you want to be pregnant or not, and regardless of Subpart H.
Also under Claims for Relief: “Chemical abortion does not provide a ‘meaningful therapeutic benefit to patients over existing treatments.’ ”
Over the 23 years that the mifepristone-misoprostol regimen has been legal in the U.S., we’ve seen a steady increase in the use of medication abortion over procedural abortion. Even when medication abortion used to be more expensive than procedural abortion, people often chose medication abortion because they wanted the convenience and control of having the abortion on their own time, in their own space, and/or with their own support people around them. Mifepristone has been used in almost 4 million abortions since the year 2000, and has proved safer than Tylenol or Viagra.
At this point, abortion should be legal if only because this is a democracy and the people want it to be legal. Even in very red states, most people want abortion to be legal; that extremist legislators continue to force through bills that restrict access to abortion is a clear sign they don’t actually care about what their constituents want. This challenge to mifepristone is an attempt at a backdoor nationwide ban on abortion, but it’s also, and more importantly, a flagrant challenge to the structure of our democracy.
But further, I must make the strong and righteous assertion of the reproductive justice and reproductive freedom movements, that we cannot and must not depend on government or the medical establishment to protect or enable our inherent human rights. Safe, self-managed abortion is the inalienable right of anyone who can become pregnant, regardless of what nation seeks to claim or control their body, and the ability to provide appropriate patient care is a requirement for any physician that must not be interfered with or politicized. Any attempt to use the law to constrain those rights must be diligently called out and forcefully resisted.
