U.S. Sen. Ron Wyden criticized a decision by a federal appeals court to restrict access to mifepristone, a medication used to induce abortion, although its status will remain unchanged while the Supreme Court is likely to review the case.
The Oregon Democrat was among the first to warn of the consequences to reproductive rights of a lawsuit filed against the U.S. Food and Drug Administration, which originally approved mifepristone back in 2000. Though the 5th Circuit Court of Appeals did not overturn that approval, its decision — if the Supreme Court lets it stand — would block subsequent FDA moves that made it available by mail, let it be prescribed by telehealth without an in-person visit to a doctor, and allow women to take it later in their pregnancies.
One of the three appellate judges went further, saying that the court should have reversed the federal approval outright.
Wyden spoke at a town hall meeting Wednesday, Aug. 16, attended by more than 50 people at the Broadway Rose Theater Company in Tigard. He recalled the debate in the 1990s about mifepristone, which was in use in Europe a decade before its approval in the United States, while he was still in the U.S. House representing Oregon’s 3rd District.
“Back when I was a young congressman, I started with the first hearings that said we ought to have science govern medication for reproductive rights, not politics,” he said as he drew applause. “The 5th Circuit came out with another decision that was all about politics… Now we are going backward again.”
His response came after someone in the audience asked about reproductive rights.
Opposing sides
The decision by the appeals court in New Orleans drew predictable criticism from women’s groups and abortion rights supporters, predictable praise from opponents of abortion — and also a sharp rebuke from the American Medical Association, the nation’s largest group of physicians, which said other common medications pose more risk than mifepristone. Physicians and pharmaceutical manufacturers are concerned that the decision could lead to courts, not the FDA, deciding the safety of medications based on lawsuits.
In 2021, about 60% of abortions in Oregon relied on medication.
Wyden had spoken out about the lawsuit months earlier, even before an April 7 ruling in Texas from a federal judge who worked for a conservative religious-liberty organization before his appointment by President Donald Trump in 2017. That judge reversed FDA approval altogether, though he stayed his decision pending appeal. The appeals court was headed toward imposing its own access restrictions, though not a total ban, when the Supreme Court stepped in on April 21 to block such action. The high court’s order stands for now, so there are no restrictions on access.
A countersuit led by the attorneys general of Oregon and Washington, Ellen Rosenblum and Bob Ferguson, forced the high court to intervene after a federal judge in Washington state ruled the opposite way from the judge in Texas.
In a brief interview afterward, Wyden added: “That circuit (decision) is going to walk back fundamental freedoms for millions of Americans — and I am going to fight it all the way.”
Public opinion surveys indicate that a majority of Americans support access to abortion, though they are divided about potential limits.
Wyden is chairman of the Senate Finance Committee, which has legislative authority over three major federal health insurance programs: Medicare for people 65 and older and some with disabilities; Medicaid for low-income people, a cost shared with the states, and the Children’s Health Insurance Program. Congress barred federal funding for most abortions back in 1976, but Oregon began using state funds for abortions in 1977.
Stronger statement
A statement from his Washington office, released before the town hall, went even further in defense of mifepristone, which is normally used in combination with another drug. It said in part:
“This case was never about science. It’s about controlling women’s bodies and ripping away the fundamental right to privacy — the right for a woman to make medical decisions about her own body. The 5th Circuit made it clear again with its shameful decision today that it is willing to do the bidding of extremists and insert itself into women’s private lives.
“Thankfully, access to mifepristone remains unchanged for now as this case moves through the appeals process. The fate of women’s access to this lifesaving drug is now back in the hands of the Supreme Court — a terrifying thought for those of us who don’t trust the right-wing justices who overturned Roe and who claimed abortion is an issue to be left to the states.”
His reference was to the Supreme Court’s 6-3 decision last year in Dobbs v. Jackson Women’s Health Organization, which reversed the court’s 1973 decision in Roe v. Wade to legalize abortion nationwide.
Oregon lawmakers dropped criminal penalties against abortion four years earlier.
State lawmakers in 2017 and again this year strengthened access to abortion, though a six-week walkout by minority Republicans in the Senate resulted in a compromise that requires parental involvement for procedures for children under age 15. Exceptions can be made by two providers acting independently, or if it is determined that parental involvement is not in the best interests of a minor. According to state records, just 14 of more than 7,000 abortions in Oregon in 2021 involved minors under age 15.
