Accessing abortion services could be made harder across the United States, even in areas where the procedure is lawful, if a court ruling in Texas is ultimately upheld.
The Texas court on Friday suspended the long-standing authorisation of the use of the drug mifepristone as part of the process to terminate a pregnancy.
However, this has been put on hold for seven days to allow the US Government to lodge an appeal.
US attorney general Merrick Garland said the department of justice in the US would be appealing the decision of US federal judge Matthew Kacsmaryk in Texas.
But in the meantime confusion over the future use of mifepristone only deepened later on Friday.
Shortly after the judgment in Texas was delivered, another US federal judge found in a separate case, brought by a dozen Democratic attorneys general, that mifepristone should remain on the market.
The whole issue could now ultimately end up before the Supreme Court in Washington.
US vice-president Kamala Harris said on Friday night that the drug had been approved by the regulator for drugs and medicines, the FDA, 20 years ago and had been “proven to be safe” in the years since then.
“As a general matter, I’ll say that there is no question that the president and I are going to stand with the women of United States and do everything we can to ensure that women have the ability to make decisions about their healthcare, their reproductive healthcare”, she said.
The Texas case is the most significant challenge to abortion since the US supreme court overturned the federal constitutional right to abortion last summer.
Medication abortion is the method used in more than half of terminations in the United States.
The Texas case sought to target one of the most common drugs used as part of this process.
Mifepristone is the first of a two-drug regimen that is used to terminate a pregnancy of up to 10 weeks gestation.
The case in Texas was brought by a group known as the Alliance Defending Freedom on behalf of four anti-abortion medical organisations and four doctors.
They argued the US regulator for drugs and medicines, the FDA, did not adequately review the scientific evidence or follow proper protocols when it approved mifepristone in 2000 and that it has since ignored safety risks of the medication.
Critics of the Texas ruling argued that those who brought the case had engaged in “forum shopping” in that they knew it would be heard by a conservative judge.
Judge Kacsmaryk is the only federal judge covering the Amarillo, Texas division in the court’s northern district.
The pro-choice Guttmacher Institute said last month that “banning mifepristone would cause large disruptions to abortion provision in the United States and patients’ ability to get the timely care they need and deserve”.
It said that while 98 per cent of medication abortions in the United States in 2020 used a regimen of mifepristone in combination with another medication called misoprostol, this second drug can be used on its own to end a pregnancy.
“If mifepristone becomes unavailable, it is unclear whether all current providers using the two-drug regimen would offer abortion care using only misoprostol and to what extent patients would take up this method. The fact remains that revoking approval of mifepristone would go against an overwhelming body of scientific evidence that the drug is safe and effective”, the Guttmacher Institute said.
The Alliance Defending Freedom group said when it filed the case last November that the FDA had chosen politics over science when it pushed for the legalisation of the chemical abortion drugs mifepristone and misoprostol in 2000.
It argued that the only way the FDA was able to approve the drugs was by characterising pregnancy as an “illness” and maintaining that such drugs provided a “meaningful therapeutic benefit”.
It contended that the FDA had failed to abide by its legal obligations to protect the health, safety, and welfare of girls and women.
“The court does not second-guess FDA’s decision-making lightly,” Judge Kacsmaryk said in his decision. “But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.”