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Access to a key abortion drug is in jeopardy nationwide after court decisions in two states

SCOTT SIMON, HOST:

Dueling decisions from the federal bench last night sows confusion about access to a widely used abortion pill A federal judge in Texas has blocked FDA approval of mifepristone, while in Washington state, another judge has said essentially the opposite. The decisions came within hours of each other. The Biden administration says it is appealing the Texas case. NPR's Sarah McCammon joins us now.

Sarah, thanks so much for being with us.

SARAH MCCAMMON, BYLINE: Yeah. Good morning.

SIMON: Tell us about these two cases.

MCCAMMON: Well, they center around the Food and Drug Administration's approval of the abortion pill, mifepristone, way back in 2000. Now, it's always been at the center of political debate because it is primarily used to induce abortion in the first trimester. And in the first case in Texas, a federal judge issued a nationwide injunction putting the FDA approval of mifepristone on hold. And that came in response to a lawsuit that was filed by anti-abortion rights groups. That judge was appointed by former President Trump and had been widely expected to side with those groups.

Now, the second decision involves a case filed in federal court in Washington state. There, Democratic attorneys general from 17 states and the District of Columbia asked another judge to essentially do the opposite. And that judge sided with them and issued a ruling that would allow continued access to this drug.

SIMON: There's a one-week waiting period to allow for an appeal. If that time goes by without an appeals court weighing in, which of these two decisions apply?

MCCAMMON: Well, some groups who oppose abortion rights are already arguing that because of the way these decisions are written, the nationwide injunction from the Texas judge blocking access to mifepristone would prevail. But I spoke with Washington's Democratic attorney general, Bob Ferguson, one of the leaders of that group of states that's been working to preserve access. He thinks it would come down to what state you live in.

BOB FERGUSON: If you live in Washington state or one of the 17 states that joined Washington in our lawsuit here in Washington state, then the judge's ruling in our case preserves the status quo on ensuring that access to mifepristone remains available. If, however, you're one of the other 32 states, the Texas judge's ruling seriously has the potential to eliminate that access for mifepristone here in the coming days.

MCCAMMON: And I should point out, Scott, many of those other states, including Texas, already have banned abortion. But for the rest, this could mean doctors could no longer prescribe what has become the dominant method of abortion in the U.S.

SIMON: So the appeals process, what comes next?

MCCAMMON: The White House is vowing to fight this Texas judge's decision. Attorney General Merrick Garland filed an appeal with the Fifth Circuit last night. That circuit has a reputation, by the way, for being very conservative. Lawyers on both sides of this case say it is likely to move fast, and it may not end at the Fifth Circuit. Here's Katie Glenn Daniel with Susan B. Anthony Pro-Life America.

KATIE GLENN DANIEL: Everyone's eyes are now kind of pointed back towards D.C. We anticipate that eventually, whether it is the merits of this case or these injunctions - now dueling injunctions - that the Supreme Court will have to weigh in in some way.

SIMON: Sarah, you mentioned that mifepristone is so widely used. What other options might be available if the nationwide injunction ultimately prevails?

MCCAMMON: Abortion providers have been preparing for this, stocking up on a second drug called misoprostol. It's used alongside mifepristone. And it can be used alone to induce abortion, but it is not the preferred protocol in the U.S. It's also possible to get abortion pills online through suppliers outside the U.S. But a lot of patients worry about potential legal risks with that.

SIMON: NPR's Sarah McCammon, thanks so much.

MCCAMMON: Thank you. Transcript provided by NPR, Copyright NPR.

Scott Simon is one of America's most admired writers and broadcasters. He is the host of Weekend Edition Saturday and is one of the hosts of NPR's morning news podcast Up First. He has reported from all fifty states, five continents, and ten wars, from El Salvador to Sarajevo to Afghanistan and Iraq. His books have chronicled character and characters, in war and peace, sports and art, tragedy and comedy.
Sarah McCammon
Sarah McCammon is a National Correspondent covering the Mid-Atlantic and Southeast for NPR. Her work focuses on political, social and cultural divides in America, including abortion and reproductive rights, and the intersections of politics and religion. She's also a frequent guest host for NPR news magazines, podcasts and special coverage.