Anti-abortion activists have been using a deeply misleading refrain to squash access to mifepristone, a drug approved in 2000 by the US Food and Drug Administration (FDA) to safely end pregnancies.
“Pregnancy is not an illness,” declared Erik Baptist, the lead counsel for the coalition of anti-abortion groups Alliance Defending Freedom, in a hearing before Judge Matthew Kacsmaryk in a federal district court in Texas last month. “Pregnancy is not a disease.”
Last Friday night, when Kacsmaryk issued his unprecedented decision ordering mifepristone to be pulled from the market, the anti-abortion judge said the same thing: “Pregnancy is not an ‘illness,’” Kacsmaryk emphasized in his 67-page order, writing that it’s “a natural process essential to perpetuating human life.”
The argument matters because anti-abortion leaders claim the FDA illegally approved mifepristone through an accelerated drug reviewal process known as Subpart H that only applies to “new drugs for serious or life-threatening illnesses.” If pregnancy isn’t an illness, their logic goes, then mifepristone shouldn’t have been approved at all.
It’s a silly argument that reflects both an unreasonably textualist interpretation of the law, as well as a Christian view that pregnancy is holy and stopping it is sacrilege. It’s a shoddy legal interpretation because there’s a long history of the FDA using the terms illness, disease, and condition interchangeably. In an amicus brief filed in the case in February, 19 US food and drug scholars from 16 academic institutions across the United States emphasized mifepristone has always been lawfully approved.
“Although amici represent a diverse range of ideologies and do not necessarily agree on all moral and ethical questions associated with abortion, [we] uniformly agree that Plaintiffs have gravely mischaracterized U.S. federal food and drug law,” the experts wrote.
This isn’t the only time the anti-abortion movement…
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