Analysis: Abortion access suits have implications for LGBTQs

  • by Lisa Keen
  • Monday April 24, 2023
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The U.S. Supreme Court has stayed a Texas federal judge's decision to strike down the Food and Drug Administration's approval of abortion drug mifepristone. Photo: Courtesy ABC News
The U.S. Supreme Court has stayed a Texas federal judge's decision to strike down the Food and Drug Administration's approval of abortion drug mifepristone. Photo: Courtesy ABC News

The escalating clash over the availability of a federal Food and Drug Administration-approved medication to terminate an early-stage pregnancy has significant implications for many LGBTQ people. Over the years, various entities have tried to block the use of hormones for gender transition and medications for HIV prevention. Now, the court battles raging over the abortion drug mifepristone (RU-486) could determine whether any federal judge has the power to pull any controversial medication off the market.

So, there was guarded appreciation April 21 when the U.S. Supreme Court announced that it would grant a stay against a lower court decision in Texas that sought to pull mifepristone off the market. (Two justices — Clarence Thomas and Samuel Alito — dissented from the stay.)

"While today's ruling to keep this safe, effective drug available for the time being is a sense of relief," stated lesbian U.S. Senator Tammy Baldwin (D-Wisconsin), "our fight to preserve a woman's right to control when and if to have a family continues."

The Supreme Court's procedural action came in a consolidation of two appeals: Alliance for Hippocratic Medicine v. Food and Drug Administration and Danco Pharmaceuticals v. Alliance for Hippocratic Medicine. Both appeals asked the Supreme Court to stay an order issued by a U.S. district court judge in Texas until the merits of the case could be appealed. The alliance is a conservative group.

Alliance v. FDA began when an anti-abortion coalition asked Texas federal Judge Matthew Kacsmaryk, who was appointed by then-President Donald Trump, to strike down the FDA's long-standing approval of mifepristone. The judge did so on April 7. That same day, another federal judge, Thomas Rice (appointed by then-President Barack Obama), in Spokane, Washington, issued a ruling to ensure that mifepristone would remain available in 18 states that joined a lawsuit by Danco, the company that distributes mifepristone.

The Texas decision moved quickly to the 5th U.S. Circuit Court of Appeals, which issued a stay against only part of the district court's ruling taking effect until the appeals court could rule on the merits of the decision. The FDA quickly appealed to the U.S. Supreme Court and, on April 21, the Supreme Court stayed the district court's entire order.

"LGBT people should care about this case," said Jennifer Pizer, chief legal officer for Lambda Legal Defense and Education Fund. In fact, she said, LGBTQ people should be "profoundly alarmed" by Kacsmaryk's "utterly lawless ruling" and "only slightly less" alarmed by the 5th Circuit's willingness to let part of the judge's ruling take effect.

"First, many LBTQ people need ready access to emergency contraception for a range of medical reasons, including the decision not to continue a pregnancy for one's own reasons," explained Pizer. "...The trial court's approach just as easily (or perhaps more easily) could be aimed at HIV-related medications and puberty blockers and hormone treatments, as well as medications for many other health conditions that are specially relevant for our communities."

Lambda Legal and other LGBTQ groups have long warned that any damage done to the right to choose an abortion could have deep implications for the right to have intimate relations, including marriage, for LGBTQ people. Abortion, said Pizer, "is an LGBTQ+ issue for personal medical reasons, liberty, and autonomy doctrinal reasons, and [for] broad, movement partnership reasons."

Last year, the Supreme Court overturned Roe v. Wade, which guaranteed the right to abortion, throwing the issue to the states.

Briefs urge access

Lambda Legal and San Francisco-based National Center for Lesbian Rights were among the more than 200 civil rights, health, and justice organizations that submitted a brief> to urge the Supreme Court to block the Texas judge's ban from going into effect. Twelve out of 13 of Congress' openly LGBTQ members signed onto a similar brief from 253 members of Congress.

The congressional brief against allowing Kacsmaryk's ruling to take effect said the ruling and the 5th Circuit's upholding of part of it had "perilous consequences (that) reach far beyond mifepristone."

"Providers and patients rely on the availability of thousands of FDA-approved drugs to treat or manage a range of medical conditions, including asthma, HIV, infertility, heart disease, diabetes, and more," said the brief. "Moreover, the prospect of courts second-guessing FDA's rigorous drug safety and effectiveness determinations will disrupt industry expectations and could chill pharmaceutical research and development."

The District of Columbia and 23 states also submitted a brief to the Supreme Court, asking it to stop Kacsmaryk's ruling from going into effect. Those states, including California, Illinois, Massachusetts, Michigan, and Oregon, said that taking mifepristone off the market would increase the need for surgical abortions, thus increasing the stress on many clinical facilities and causing delays that affect all patients.

"Delays resulting from increased demand for [surgical] abortion procedures will obstruct access to other forms of care at those facilities, inevitably resulting in higher rates of unintended pregnancy and sexually transmitted infections, barriers to early detection and treatment for breast, ovarian, and testicular cancers, and worsened health outcomes for patients' overall sexual and reproductive health and beyond," said the states' brief. "Those harms will disproportionately impact groups already underserved by the health care system, including women of color, low-income women, people with disabilities, and LGBTQ individuals."

The Texas case will now go back to the federal appeals court to rule on the merits of the litigation and then, almost certainly, will be appealed again to the U.S. Supreme Court.

"If the [5th Circuit] appeals courts were to accept the trial court's brazen disregard of the decades of evidence that mifepristone is safe, that pregnancy and childbirth are riskier, and that many, many other medications are far riskier," said Pizer, "we all will be living in a much more dangerous society."

Democratic governors in three states also took action. Just three days after the Texas judge issued his decision, Massachusetts' recently inaugurated lesbian governor, Maura Healey, directed her state to stockpile mifepristone to ensure that women who need the drug can get it.

"Here in Massachusetts, we are not going to let one extremist judge in Texas turn back the clock on this proven medication and restrict access to care in our state," said Healey.

California Governor Gavin Newsom made a similar announcement the same day (April 10). Oregon's new lesbian governor, Tina Kotek, announced April 20 that her state would stockpile mifepristone, saying the Texas judge's decision "set an alarming precedent of putting politics above established science, medical evidence, and a patient's health, life, and well-being — with potential implications beyond this one medication."

Kotek said the Alliance's lawsuit is "part of a larger campaign to ban abortion in every state, including those with legal protections for abortion access."

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