Sarah McCammon on Reproductive Rights in the U.S.

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: And any day now, a judge in the United States is going to decide whether an abortion pill, which has been approved for years, should be completely banned in the United States. If so, critics say that 40 million women would lose access to that drug, which is mifepristone, that’s on top of the nearly 25 million women already living in states with abortion bans. Last week, Wyoming became the first U.S. state to criminalize the prescription and the sale of abortion pills with a maximum six-month prison sentence. NPR Reporter Sarah McCammon joins Hari Sreenivasan to discuss the fate of reproductive rights in America.

(BEGIN VIDEO CLIP)

HARI SREENIVASAN, CORRESPONDENT: Christiane, thanks. Sarah McCammon, thanks so much for joining us. So, explain for the audience, before we get into the legal and the political landscape is, ovary productive rights right now, the focus seems to be on the pills that prevent pregnancy from taking hold. What do these pills do?

SARAH MCCAMMON, NPR NATIONAL CORRESPONDENT: Right. And that’s for good reason. You know, medication abortion is the dominant form of abortion in this country today. So, it is a big focus. And the way that the primary mechanism that’s used in the United States in about 98 percent of medication abortions, according to the Gut Micro Institute (ph) involves a two-drug protocol. The first drug in that regiment is the one that’s the focus of a lot of attention, the focus of a federal lawsuit. It’s called mifepristone. Those — remember back to the year 2000, you’re old enough to put to that and you may remember, are you 486? The debate over that pill. It’s one and the same. And it’s a progesterone blocker. So, it blocks the female buddy from producing progesterone, which is essential for pregnancy to develop. After that drug is taken, there’s a second pill called misoprostol that help sort of being on essentially a chemically induced miscarriage. But mifepristone, using that combination is more effective than any other protocol, most doctors would say. And it’s, you know, the gold standard in the United States. So, the fight over that pill is really — it’s a larger fight. It’s about access to abortion, of course.

SREENIVASAN: Right. So, you know, so much of the attention was about where women could go to get a medical abortion whether which states were allowing that. And now, if you are saying that this is how the bulk of abortions actually happen, through these pills, it seems strategically more important to either outlaw or to protect access to that specific medication.

MCCAMMON: Right. And it’s important to understand that the protocol, the drug approved by the Food and Drug Administration requires health care provider to prescribe it, to consult either in person or now, thanks to some real changes in the last few years over Telehealth, with the patient, make sure that she understands things like, how far along she is in the pregnancy, when her menstrual cycle — where she is in her cycle. Because those are important for a safe medication abortion. But what’s also happening is that through other means, sometimes through online pharmacies or online providers, people are also getting these pills in other ways. Sometimes from overseas. The focus of the federal litigation that I’ve been covering lately is really this FDA approved protocol. And I guess one other thing that’s worth understanding is that if you are in a state that where abortion is illegal, you know, having a doctor prescribed abortion pill is also going to be illegal. But it’s often easier for people to travel, you know, maybe across the state line and pick one abortion pill and soon after go back home. It might be preferable for some patients do that than to schedule a surgical procedure. And then, also, just sort of expands the bandwidth, so to speak, of what providers can offer their patients because if they’re just limited surgical procedures, well, that requires rooms, that requires a certain number of providers and it’s just a different level of resources that’s needed.

SREENIVASAN: So, if this was already illegal in the states or banning abortions outright, why was the — why were the headlines about Wyoming last week so big?

MCCAMMON: Well, the key difference with Wyoming is that this is the first state law, to my knowledge, that specifically targets abortion pills, medication abortion. In states like Texas and many others where there’s layers of abortion restrictions, prohibiting, you know, virtually all abortions for almost any reason, medication abortion would fall under that. So, it would be included in a ban. But this Wyoming law specifically focuses on abortion pills. And so, that’s a big difference. The other limitation that has existed even before the fall of Roe v. Wade with the Dobbs decision last year is that some states will not allow abortion pills to be prescribed over Telehealth. That is an option that groups like the American Medical Association and the American College of Obstetricians and Gynecologists have pushed for and say, it can be done very safely if patients understand, again, where they are in their cycles and so forth, and doctors provide adequate information. But that limitation not allowing the prescription over Telehealth, I think, obviously makes it much hard to get these pills because then a patient still has to go in-person to a provider and meet with them, much as they would for a surgical procedure.

SREENIVASAN: You and I are talking on a Tuesday morning, and there is a chance that this story could change by the time that our audience sees this on the air. The case that you have been following, let’s talk a little bit about that. What is the sort of core challenge here that’s in front of a judge?

MCCAMMON: So, last year, late last year, a group of anti-abortion health care providers and groups, so a coalition that opposes abortion rights, came together and filed a lawsuit in Amarillo, Texas in federal court, challenging the FDA’s approval of mifepristone, which, again, goes all the way back to the year 2000. They’re challenging some of the technicalities of how that drug was approved and some of the subsequent decisions by the FDA that have followed. Things like making it easier to mail abortion pills and prescribe them remotely. OK. So, the focus is asking this judge to overturn the FDA approval. These groups want — if they — you know, a full win for them would be seeing mifepristone completely removed from the markets, through perhaps the nationwide injunction. Another thing that’s important to know about this specific case is that the judge involved, Judge Matthew Kacsmaryk is a Trump appointee. He was appointed from Former President Trump. Has a long track record of conservative activism and alliances with conservative religious groups. He worked for Christian legal firm in Texas for some time before he became a judge. And just last year, he ruled in favor of a Christian father from Texas who sued challenging essentially access to birth control for minors through the federal Title X Family Planning Program. This man said because of his Christian faith, he objected to his teenage daughters potentially having the ability to get birth control without his knowledge or consent. And Judge Kacsmaryk sided with him. So, this judge has, again, a long conservative record and a lot of people accuse the plaintiffs in this case of judge shopping and specifically choosing his court, hoping for a favorable ruling from him. It remains to be seen exactly how he will rule, but if he were to issue a nationwide injunction, that could either immediately or perhaps through a series of procedures that the FDA would have to follow lead to this pill becoming much, much more difficult to get access to for abortion, if not impossible.

SREENIVASAN: If I’m understanding this correctly, it’s not the safety of the pill. That’s not being challenged, it’s how with the FDA approved this pill. Is that right?

MCCAMMON: It’s kind of both. You know, again, I want to stress that major medical groups like the AMA, the American Medical Association, the American College of Obstetricians and Gynecologists point to years and years of studies. This drug has now been on the market in more than 20 years. It’s been used by some 5 million patients. And it has a very strong safety record according to the health experts. But the plaintiffs, the antiabortion groups who brought this case are pointing to some of the side effects that do occur. And, you know, just the sort of step back for a second, you’re talking about a drug that induces essentially a miscarriage. So, there are side effects. There are cramping and bleeding. I mean, that’s kind of the intention of the drug, right? And some women experience more severe side effects than others. Some need follow-up care from their doctors. From my reporting, I understand that sometimes that’s just reassurance. That this is normal. This is part of the process. And that might require taking, you know, some ibuprofen or using a heating pad. Other people will have complications and will require additional follow-up care, sometimes even a surgical procedure to complete the abortion. But all of that is sort of within a range of things that can happen and that health care providers, OB/GYNs are generally prepared to deal with.

SREENIVASAN: Right. But let’s talk about the politics of the case here. What’s happening in the way that the case is being played out that gives people on both sides of the aisle or of this issue great concern?

MCCAMMON: I think one of the most interesting things that happened in the federal courtroom in Amarillo last Wednesday, when I was there, is that the judge and the attorneys for the plaintiffs, for the antiabortion groups, more than once talked about the fact that a group of 22 Republican attorneys general from red states that have tried ban abortion or heavily restricted it since the fall Roe v. Wade have waited in this case. They filed a brief amicus brief, arguing essentially that the widespread access to the abortion pill makes it difficult for them to enforce their state laws as restricting or prohibiting abortion. And I think that’s significant because that is not directly related to the stated reason for this case. Again, this case about the FDA’s approval. It’s about raising questions about that process and about the safety of the drug. But that argument is really about state federal relations, enforcement of state abortion bans and to what extent the federal government should have to think about what the state laws say. And the response in that courtroom from the lawyer arguing on behalf of the federal government was essentially, that’s beside the point. You know, this — the question here is whether or not this drug is safe. It’s been established and demonstrated as safe over many years. And what states decide to do, how they decide to regulate it themselves is a separate question. So, I think that points of the real political fight over access to abortion that underlies all of this.

SREENIVASAN: Can we also talk a little bit about the kind of the normal procedure for how these cases are placed on the docket or not? I mean, you were one of the few reporters who were actually in the room.

MCCAMMON: Right. And again, you know, legal experts that I have talked to accuse the plaintiffs of selectively choosing Judge Kacsmaryk, hoping for the kind of outcome they wanted. One of the sort of wrinkles in all of this has been a fight over access to the courtroom itself that emerged in the last couple of weeks. And the weekend before the hearing, last Wednesday, the “Washington Post” reported that Judge Kacsmaryk had sort of quietly scheduled the hearing. Held a meeting, I believe, on a Friday. Scheduling the hearing for the following Wednesday. And asked the judges in the case to keep it quiet. He didn’t issue a gag order, but he said — he cited security concerns surrounding protests and that sort of thing and asked them to kind of keep it close to the vest. According to the “Post’s” report, he was not going to publicize that information, put it on the docket so that the public and the press would have knowledge of when and where the hearing would be until Tuesday night. Now, that’s for Wednesday morning hearing. Amarillo, Texas is not the big city. It’s a couple hundred thousand people. It’s, you know, the better part of the day’s drive from major cities in Texas like Dallas and Houston. We all had to fly in to get there. And so, you know, had it not been for the “Post” somehow becoming aware of this, most of the press would not have made it. As it was, only about 19 reporters were able to be in that room. There was no publicly available livestream, there was no recording, no cameras. And so, really nobody knew what it happened in that room for two days, except for those of us who sat out, you know, in the cold for three hours, waiting to get into the courtroom and reported on it. The transcript was just released late last week. We published that at “NPR.” So, that is available now. But, you know, just even just getting into the courtroom, knowing what was going on was kind of a cumbersome process.

SREENIVASAN: So, regardless of how this judge rules, what’s the likely next step? I mean, is it just going to be challenge at the higher court?

MCCAMMON: Absolutely. The lawyers have already made that clear, particularly the lawyers for the government, who are defending the FDA approval of mifepristone. One of the lawyers said in the courtroom last Wednesday, essentially asked the judge if he issued an injunction overturning the approval of this drug to please issue an immediate stay so that they’d have an opportunity to appeal. The appeal would go — and as I understand it, if the judge were to rule against the plaintiffs, I believe, they would also appeal. So, any appeal would go to the Fifth Circuit, which is known for having a pretty conservative reputation. It’s unclear what they would do you. I think, again, it depends on what the judge says and how they feel about it, to say the obvious. After the Fifth Circuit, it’s entirely possible this would end up at the Supreme Court, for a couple reasons. One, just through the normal appeals process. And second, there is another federal case out there that we haven’t even talked about, but a group of 12 Democratic attorneys general, a few weeks ago, filed their own lawsuit in federal court in Washington, essentially trying to push in the opposite direction from this lawsuit we were just talking about in Texas. They are arguing that there are too many regulations for — on mifepristone, that after these 20 years of an established safety record, the regulations — and there’s a whole regulatory scheme above and beyond normal prescription drugs for mifepristone, they’re arguing some of those should be removed. And they’re also — and this is very important, seeking — asking a judge to block the FDA from taking the drug off the market. So, exactly the opposite of what this Texas case tries to do. If they win in Washington and the antiabortion groups win in Texas, then you have a dualling federal rulings and, you know, that certainly looks something that could end up before the Supreme Court.

SREENIVASAN: Kind of backing up a few steps. When we talk about this drug, you see that this is common as something that doctors prescribe during miscarriages.

MCCAMMON: Correct.

SREENIVASAN: And that — explain kind of the scale of miscarriages that are happening through normal pregnancies. Because I don’t know with our audience is kind of well aware of how common it is and how this drug that’s kind of at the center of this debate could be prescribed as part of the care for that.

MCCAMMON: The same medical processes that bring pregnancy to an end can also help to essentially expedite a miscarriage that’s already inevitable and underway. So, sometimes when a miscarriage happens it can take a while for the pregnancy to fully pass and this can prolong, you know, the woman’s pain and suffering, emotionally and physically. And so, mifepristone helps to basically complete that miscarriage along with the help of misoprostol, the second drug that’s involved in this FDA approved protocol. You know, I’ve some reporting on this years ago, you know, in places like Canada. It’s very easy to get access to this drug for this purpose and other purposes as well. But in the U.S., the same extra layers of restrictions on mifepristone that apply for abortion also apply for miscarriage. So, a woman who’s miscarrying is treated in the same way as a woman who’s chosen abortion. And, you know, the patient I talked to a few years ago just described, you know, the real grief she was feeling. This was a wanted pregnancy. It was not — a miscarriage was not what she wanted, obviously. But taking this drug helped her to sort of get through that process a little more quickly. Sometimes avoiding surgery is the goal. And in some cases, with a miscarriage, if it doesn’t complete naturally, a doctor will have to perform essentially an abortion procedure to remove the rest of the tissue. And that’s something else that mifepristone cannot prevent and help with.

SREENIVASAN: NPR Correspondent Sarah McCammon, thanks you so much for joining us.

MCCAMMON: Thank you.