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A federal judge in Texas hears case that could force an abortion pill off the market

SACHA PFEIFFER, HOST:

It is now up to a federal judge appointed by Donald Trump to decide whether to take an abortion pill off the market. That drug is used in nearly all medication abortions in the United States, and anti-abortion groups are suing over whether the FDA improperly approved it. NPR's Sarah McCammon was in the Texas courtroom yesterday when both sides presented their arguments. She's with us now from Amarillo. Good morning, Sarah.

SARAH MCCAMMON, BYLINE: Good morning, Sacha.

PFEIFFER: What do you consider the highlights from yesterday's hearing?

MCCAMMON: You know, one thing I noticed is that Judge Matthew Kacsmaryk asked a lot of questions of both sides throughout the hearing, which, by the way, lasted for four hours. And a couple of times he brought up a brief filed by a group of Republican attorneys general. They argue that the availability of abortion pills undermines their states' ability to restrict abortion, which they can do, of course, after last summer's Supreme Court decision.

An attorney for the anti-abortion group that's behind this lawsuit, Erin Hawley, sort of seized on that idea in one exchange with the judge. And Hawley, who, by the way, Sacha, is married to Republican Senator Josh Hawley, said that the overturning of Roe v. Wade marks a sea change in the relationship between the states and the federal government when it comes to abortion. And she argued that access to this drug, mifepristone, is an affront to the right of states, as she put it, to protect women and children. A lawyer representing the FDA, meanwhile, said that state laws about medication abortion are beside the point. Instead, she said, the question for this case is about the safety and effectiveness of the abortion pill, which was approved, by the way, more than 20 years ago.

PFEIFFER: Sarah, did the judge seem to give any hints to which way he was leaning?

MCCAMMON: I mean, you never want to predict, you know, what a judge is going to do. But we know a lot about this judge, Kacsmaryk. Not only was he appointed by former President Trump, but he has a long track record of involvement in conservative causes and ruling in favor of conservative causes. A lot of the judge's questions focus on what is known in legal speak as remedies - so in other words, how exactly to move forward if he were to agree with the anti-abortion groups who filed this lawsuit, so what that kind of a ruling might look like in practical terms.

PFEIFFER: And what might that look like?

MCCAMMON: Yeah, one option the judge discussed with the lawyers is directly ordering the FDA to pull the drug off the market nationwide, at least temporarily, while the case plays out. That's what the plaintiffs want him to do. But short of that, he could instruct the FDA to start a withdrawal process that would take some time to implement. That's something he also talked about during the hearing. David Donatti is with the ACLU of Texas, and here's what he said.

DAVID DONATTI: The scope of that order is going to be very important. It could make the difference between whether mifepristone is ordered to be taken off the shelves immediately or whether there's an administrative process that allows for public input and comment, which would be more appropriate.

MCCAMMON: Either way, he says, there's likely to be some confusion in the short term. You know, what steps, if any, does the FDA have to take? Do doctors have to stop prescribing the drug right away? And Donatti, by the way, along with several other legal observers who flew into Amarillo, was not able to get inside the small federal courtroom here because of limited space.

PFEIFFER: Oh, a lot of interest, then - yeah, interesting.

MCCAMMON: Yeah. You may remember there was a lot of concern leading up to the hearing about public access. The judge made the details of it public only two days beforehand, and that was after some pressure from media groups. No cameras were allowed, no public livestream. So a lot of people couldn't listen who wanted to. And I'm hearing a lot of frustration from abortion rights advocates about that, given how high stakes this case is.

PFEIFFER: That's NPR's Sarah McCammon reporting from Amarillo. Sarah, thanks for your reporting on this.

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

Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.
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.

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