A pair of opposite rulings by federal judges have left hanging the fate of a long-used medication to induce abortion.

Judge Matthew Kacsmaryk decided Friday, April 7, in Texas that the drug mifepristone can no longer be used in the United States despite its approval by the Food and Drug Administration back in 2000.

But Judge Thomas O. Rice decided an hour later in Washington state in favor of a countersuit led by Oregon and Washington on behalf of a total of 17 states and Washington, D.C., to remove FDA restrictions on the drug and ensure its access.

Oregon’s Ellen Rosenblum and Washington’s Bob Ferguson filed the competing lawsuit on Feb. 28.

Rosenblum said this in a statement released Saturday, April 8:

“The ruling issued in Texas is a shocking overreach by an anti-abortion judge that threatens the right of women nationwide to make their own decisions about their healthcare and their ability to access medication prescribed by their doctors.

“But our win is huge and not to be overshadowed. Our coalition worked around the clock to get the issue of the unwarranted and unlawful Risk Evaluation & Mitigation Strategy restrictions on this medication before a federal judge in Washington. The judge not only recognized the irreparable harm that would occur in our states should mifepristone be removed from the market, but also that we are likely to prevail on the merits of the case when it goes to trial.

“My message to Oregonians: I will fight to the finish line to protect Oregonians’ access to abortion care, including abortion medication. Please don’t lose hope — we will not let up!”

The ruling in Washington state took effect immediately and applies to the 17 states and Washington, D.C.

The ruling in Texas could apply nationwide, but it does not take effect until Friday, April 14 — and the U.S. Department of Justice says it will appeal immediately for a stay at the 5th Circuit Court of Appeals.

Rosenblum, at an event March 12 in Southeast Portland, said the likelihood is that the disputes may end up at the U.S. Supreme Court. Last year, in Dobbs v. Jackson Women’s Health Organization, the court overturned a 49-year-old decision in Roe v. Wade and declared that abortion is no longer a right guaranteed by the U.S. Constitution and should be left to the states. But these lawsuits also involve the authority of a federal agency to regulate medications.

Of 20,000 drugs approved by the FDA, mifepristone is only one of 60 with special restrictions, even though it is commonly used in a medication abortion together with a second drug, misoprostol. Mifepristone was used in about 60% of Oregon abortions in 2021, Rosenblum said.

Ban draws reactions

Oregon Right to Life praised the earlier ruling by Kacsmaryk, who was widely expected to rule the way he did, and criticized the countersuit by Oregon and Washington in a statement Friday.

“Judge Kacsmaryk’s ruling finally holds the FDA accountable for fast-tracking the abortion drug, in violation of its own rules,” executive director Lois Anderson said. “The FDA prioritized their political agenda over the lives of women when they neglected due diligence to expand abortion.

“It’s outrageous that Oregon and Washington’s attorneys general are prioritizing the interests of the abortion industry over the health and safety of mothers and babies.”

U.S. Sen. Ron Wyden, who joined Rosenblum at the March 12 event, had urged Biden earlier to ignore a ruling by Kacsmaryk against the FDA.

The Oregon Democrat said this in a statement Friday:

“There is no way this decision has a basis in law. It is instead rooted in conservatives’ dangerous and undemocratic takeover of our country’s institutions. No matter what happens in seven days, I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that.

“The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America. If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”

Biden statement

Biden, in a statement released Friday, focused on the administration’s expected appeal of the Texas ruling:

“Today a single federal district judge in Texas ruled that a prescription medication that has been available for more than 22 years, approved by the FDA and used safely and effectively by millions of women here and around the world, should no longer be approved in the United States. The court in this case has substituted its judgment for FDA, the expert agency that approves drugs. If this ruling were to stand, then there will be virtually no prescription, approved by the FDA, that would be safe from these kinds of political, ideological attacks.

“The prescription medication in question in this case is used for medication abortion, and medication abortion accounts for over half the abortions in America. The lawsuit, and this ruling, is another unprecedented step in taking away basic freedoms from women and putting their health at risk. This does not just affect women in Texas — if it stands, it would prevent women in every state from accessing the medication, regardless of whether abortion is legal in a state. It is the next big step toward the national ban on abortion that Republican elected officials have vowed to make law in America.

“My administration will fight this ruling. The Department of Justice has already filed an appeal and will seek an immediate stay of the decision. But let’s be clear — the only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a Congress who will pass a law restoring Roe v. Wade. Vice President Harris and I will continue to lead the fight to protect a woman’s right to an abortion, and to make her own decisions about her own health. That is our commitment.”

Governor weighs in

Gov. Tina Kotek was among the 14 governors, all Democrats, who asked the major national pharmacy chains what their intentions were toward continued distribution of mifepristone.

She said in a statement Friday: “This is a shameful, dangerous ruling that will prevent patients across the country from accessing safe, effective medication. As we sort out the impact of this ruling, hear me loud and clear: abortion is still accessible and legal in Oregon. As your governor, I believe in the right to reproductive freedom and will continue to be a fierce advocate for that right. My administration will be working with the Oregon Health Authority, Oregon Department of Justice, and the Biden Administration to evaluate the ruling and fight for patients across Oregon and the United States.”

The governors’ letter went out after news reports that Walgreens blocked distribution of the drug after Republican attorneys general in 20 states warned of potential legal action, A Walgreens spokesman said later that the pharmacy chain had not “pulled” the drug from shelves in those states, but that it also was not distributing it nationally. The spokesman did not specify the drug’s status in Oregon in a statement Walgreens released in early March, more than a month before the two court rulings were issued.