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Cohen Co-authors Slate Article Regarding Effort to Outlaw Abortion Drug

Professor David S. Cohen

March 15, 2023

David S. Cohen, professor of law at Drexel University’s Kline School of Law, co-authored a Feb. 28 article in Slate about an anticipated ruling by a Texas judge on a case involving the abortion drug mifepristone.

His co-authors are Greer Donley, an associate professor at the University of Pittsburgh Law School; and Rachel Rebouche, the dean and James E. Beasley professor of law at the Temple University Beasley School of Law.

The article describes how Matthew Kacsmaryk, a federal district court judge in Amarillo, Texas, will soon decide a case involving mifepristone, the first of two drugs used in a medication abortion. Many predict that the case could ban mifepristone and take it off the market.

“Though the case makes wholly unpersuasive arguments, undermined by the facts and the evidence, plaintiffs filed in this specific court because Kacsmaryk is one of the most conservative judges on the federal bench and has an explicit and documented animus toward abortion,” the article says. “The expectation is that he will do everything in his power to end medication abortion as we know it. Because states like Texas have already banned abortion (including medication abortion), the deep fear is that his ruling could affect abortion care even in states where it remains legal.”

But Cohen and his co-authors argue that the ruling does not have to affect the entire country: “There are several basic legal principles suggesting that Judge Kacsmaryk’s power is limited and that a ruling for the plaintiffs will not necessarily change much at all with medication abortion.”

In the U.S., medication abortion typically occurs with two drugs—mifepristone followed by misoprostol. Abortion pills account for more than half of abortions in this country.

Because of the increasing importance of medication abortion in the face of the restrictions and bans following the Dobbs decision, an anti-abortion group filed this lawsuit challenging the Food and Drug Administration’s 23-year-old approval of mifepristone, the article says. Essentially, the plaintiffs argue that the FDA acted improperly when it approved the drug in 2000. The case also challenges several subsequent reviews the FDA conducted of the drug, claiming that the agency ignored evidence that mifepristone was too risky. The lawsuit asks the court to deem the FDA’s approval of the drug unlawful.

“Mifepristone is one of the most studied drugs in this country,” the authors write. “The evidence shows that it is safer than penicillin, Viagra, and thousands of other drugs the FDA has approved. There is no evidence that the FDA acted improperly in approving mifepristone; FDA law scholars and government agencies, like the Government Accountability Office, agree.”

The authors write more about abortion pills in a forthcoming article in Stanford Law Review.

Cohen also was quoted in a Feb. 24 New York Times article about 12 states suing the FDA, seeking the removal of special restrictions on mifepristone.

In their complaint, the attorneys general of a dozen Democratic-controlled states ask a judge to remove restrictions that the federal agency has long applied to the drug.

Current special requirements for mifepristone are that patients sign an agreement attesting that they have chosen to take the medication to terminate a pregnancy, and that providers and pharmacies become certified—which is not difficult but involves administrative and logistical steps.

The lawsuit points out that mifepristone is also used for the treatment of miscarriage and the FDA restrictions also apply for those patients, who must attest that they have “decided” to end their pregnancy, the article says.

According to the article, Cohen called the new lawsuit a “great strategy,” adding that “removing the needless restrictions the FDA has imposed on the drug — restrictions not backed by any science — is one of the highest priorities.”

Related Media Mentions

Cohen was quoted in a number of recent articles about legal action related to mifepristone, including the following:

  • March 13 Associated Press article about the upcoming public hearing for the lawsuit that challenges the Food and Drug Administration’s approval of the drug mifepristone. The article was picked up by numerous outlets including MSN and The Los Angeles Times.
  • March 10 Pew Stateline article about a federal court case in Texas that could limit accessibility to abortion pills, even in states that support abortion rights.
  • March 2 The 19th article about how an Austin-based federal judge temporarily blocked Texas prosecutors from pursuing legal action against organizations that help people secure abortions in states where it is legal.
  • March 3 Ms Magazine article explaining why one Texas judge is not the final decision-maker on banning the abortion pill nationwide.