Two courts have issued conflicting rulings on the use of chemical abortion pills. The argument, initiated by IBSA ministry partner Alliance Defending Freedom (ADF), is likely to go quickly to the U.S. Supreme Court.
A federal court in Texas on April 7 halted the Food and Drug Administration’s approval of the chemical abortion drugs including mifepristone and misoprostol. At the same time that ruling was issued, a federal judge in the Eastern District of Washington ordered the federal government to keep the drug available in 17 states plus the District of Columbia, as a similar lawsuit worked its way through that court.
The drugs have been in use since for abortions since 2000. “By illegally approving dangerous chemical abortion drugs, the FDA put women and girls in harm’s way, and it’s high time the agency is held accountable for its reckless actions,” said ADF Senior Counsel Erik Baptist.
“Pregnancy is not an illness, and chemical abortion drugs don’t provide a therapeutic benefit—they can pose serious and life-threatening complications to the mother, in addition to ending a baby’s life.” Baptist argued the case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, before the U.S. District Court for the Northern District of Texas.
The Court appeared to agree with Baptist’s argument. “Before Plaintiffs filed this case, FDA ignored their petitions for over sixteen years, even though the law requires an agency response within ‘180 days of receipt of the petition…,’” the Court wrote in its 67-page decision. “Plaintiffs have credibly alleged past and future harm resulting from the removal of restrictions for chemical abortion drugs.”
In its decision the Court also cited the federal Comstock Act of 1873 as another reason for halting the distribution of chemical abortion pills by mail. The Comstock Act was originally intended to prevent the mailing of “lewd” materials, mainly pornography, and the “instrument, substance, drug, medicine, or thing for the procuring, or producing of abortion.” The scope of the law was narrowed in the 1930s and since the Roe v. Wade decision, the law was largely disregarded.
When the FDA announced in 2021 that it would allow chemical abortion drugs to be sent via U.S. mail, and Roe was overturned in June 2022, 20 attorneys general from pro-life states cited the Comstock Act as the reason for disallowing the mailing of chemical abortion drugs in their states. Today, chemical abortions make up at least half of all abortions in the U.S.
The U.S. Department of Justice (DOJ) entered the case April 11, filing an emergency motion with the U.S. Court of Appeals for the 5th Circuit requesting a halt while it appeals the Court’s ruling. The appeals court ruled April 12 keeping in place the portion of the Texas court’s order that halted the FDA’s approval of sending chemical abortion drugs through the mail. However, it left the pills available for prescription.
According to ADF, in the 5th Circuit’s ruling it changed the gestational age of the baby for which a woman may take the pills from seven weeks’ to ten weeks’ “protecting the mother from adverse complications that increase with gestational age, reinstated necessary doctor visits, and brought back the requirement that abortionists must check women for complications after their chemical abortions.”
Illinois Governor J.B. Pritzker called the Texas court’s decision dangerous. “Despite these attacks, reproductive rights are enshrined in Illinois law and will stay that way,” Pritzker said. Meanwhile, IBSA and its churches continue to seek ways to minister and share Christ’s love with women and families facing unplanned pregnancies. Alternatives to abortion are provided through the Baptist Children’s Home (BCHFS) and its ministries, GraceHaven Pregnancy Resource Clinic and Angels Cove home for pregnant women.