A Detailed Look at Mifepristone and Misoprostol
Mifepristone is a medication that blocks the hormone progesterone, which is necessary for pregnancy. Combined with Misoprostol, it can be used to end a pregnancy. Read up on the latest controversy surrounding this drug.
About half of the people in the United States use medication as a means to end a pregnancy. Mifepristone is one of the two-drug regimen, with Misoprostol as the other half. The combination is known as the “abortion pill” or “medication abortion.
The first drug is Mifepristone, which blocks the hormone progesterone. Progesterone is necessary for a pregnancy to continue. The second drug is Misoprostol, which produces uterine contractions. These contractions cause a woman’s body to expel a fetus like a miscarriage.
These drugs are used for the first ten weeks of gestation, which is counted 70 days from the last missed period.
Both medications, taken together, are FDA approved at about a 99% effective rate. However, a woman can take Misoprostol alone for about an 80% effective rate.
I found this book about Mifepristone, and it appears to be written by a doctor: Mifepristone: Everything You Need to Know About the Abortion Pill during the Early Part of Pregnancy (affiliate link).
Why is everyone up in arms about Mifepristone?
U.S. District Judge Matthew Kacsmaryk ordered a hold on the FDA approved drug Mifepristone, which came at nearly the same time that U.S. District Judge Thomas O. Rice ordered the opposite.
In case you wanted the read the very long memorandum and opinion authored by Judge Kacsmaryk.
In case you wanted to the memorandum and opinion authored by Judge Rice, which is also long but not as long.
I’m not really going to go into minute detail about either opinion.
However, Judge Kacsmaryk gave the government a seven-day window to appeal, which it did.
The Fifth Circuit granted the application, in part, stating:
At this preliminary stage, and based on our necessarily abbreviated review, it appears that the statute of limitations bars plaintiffs’ challenges to the Food and Drug Administration’s approval of mifepristone in 2000. In the district court, however, plaintiffs brought a series of alternative arguments regarding FDA’s actions in 2016 and subsequent years.
The Fifth Circuit did not comment on the Comstock Act (below).
The Supreme Court eventually received an application for a stay, and it decided that Mifepristone will remain on the market until “pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.”
In basic terms, that means that the Fifth Circuit (which includes Texas, where Judge Kacsmaryk sits) must make a decision and the Supreme Court must make a decision, if one of the parties chooses to petition for a writ of certiorari. This is the request for records from the lower court.
The Supreme Court does not take every case. SCOTUS is a court of discretionary appeal: the justices get to decide which cases they want to take. What most people don’t understand about SCOTUS (or any discretionary court, of which each state has one) is that they have legions of law clerks to research whether a case is worthy of being addressed by the Supreme Court.
Among these things considered:
- Will it have a lasting effect on the American public?
- It is an issue of first impression?
- Does it concern a fundamental Constitutional right?
- Are there multiple jurisdictions (states or circuits) that have contrary rulings?
I’m also sure that politics plays a huge role in which cases are taken, as well.
I’ve been hearing a lot about zombies, what gives?
Judge Kacsmaryk blocked Mifepristone, in part, with the Comstock Act, which has not been enforced since the 1930s.
The Comstock Act of 1873 made it illegal to send “obscene, lewd or lascivious,” “immoral,” or “indecent” publications, materials, or information through the mail, with specifics for contraception and abortion.
The Comstock Act bars mailing “every article, instrument, substance, drug, medicine or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion or for any indecent or immoral purpose.” The law imposes five years for the first offense, and ten years for subsequent offenses.
Just so we are all aware, the Comstock Act does not define “obscene” or “lewd.”
However, in 1957, Roth v. United States created a judicial test for what was considered to be “obscene”:
(1) the perspective of evaluation was that of an ordinary, reasonable person;
(2) community standards of acceptability were to be used to measure obscenity;
(3) works whose predominant theme was questionable were the only target of obscenity law;
(4) a work, in order to be evaluated for obscenity, had to be taken in its entirety; and
(5) an obscene work was one that aimed to excited individuals’ prurient interest.
(I would think that all porn magazines, any material from a sex shop, and even women’s magazines and romance books could be termed as obscene under this definition. Just sayin’.)
In 1965 Griswold v. Connecticut, SCOTUS decreed that the state must provide compelling grounds to prohibit birth control, as there existed a fundamental right to privacy, encompassing the authority of married couples to manage their fertility.
In 1972 Eisenstadt v. Baird, SCOTUS expanded the right to birth control by invalidating a Massachusetts statute that made it a crime to provide birth control to unmarried individuals, citing equal protection.
In the wake of the Supreme Court's reversal of Roe v. Wade (in Dobbs v. Jackson Women’s Health Organization), a longstanding guarantor of abortion rights, President Biden's Justice Department issued a memorandum last year clarifying that the Comstock Act doesn't restrict the shipment of abortion pills as long as the sender has lawful intentions. The Food and Drug Administration, under Biden's administration, has permitted this practice since 2021.
Erin Hawley, the attorney for Alliance, stated:
“What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.”
Enter Judge Kacsmaryk, who agreed with Ms. Hawley.
At this point, it’s fair to point out that Judge Kacmaryk has donated to the political campaign of Missouri senator Josh Hawley, who is Ms. Hawley’s husband.
What to expect (when you're expecting)
Whatever the Fifth Circuit decides, this issue will get appealed (by either party) to the Supreme Court, who will once again decide how far to restrict abortion rights.