The Texas abortion pill ruling threatens pharma innovation

Companies make that investment on the assumption that their products can be sold anywhere in the US for a certain number of years—that they will come out on the other side of the FDA’s rigorous review process with a product that doctors consider safe and effective enough to prescribe, patients trust enough to take, and insurance companies regard as worth paying for. They know that if an issue arises with their product, the FDA has a well-defined (albeit imperfect) process for stopping its sale. The agency’s stamp has become the gold standard for regulatory authorities around the world.

The Texas ruling removes the certainty from FDA’s imprimatur. Companies contemplating where to put R&D dollars might now reasonably ask if some areas of medicine are worth the trouble. Legal scholars say the court could have made a decision that would have limited the impact to just mifepristone. That would have been a blow to abortion access, but it would have left alone the question of FDA’s authority, and limited the potential impact on other medications. Instead, it issued a 67-page opinion that cherry picks evidence on its safety, ignoring dozens of studies and over two decades of its safe use, in order to overturn the approval, says I. Glen Cohen, faculty director at Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics.

Think about that: a single judge without medical training decided his take on drug data was more sound than FDA expertise. That should make the drug industry very nervous. The breadth of the ruling and the judge’s clear willingness to second guess the FDA’s expertise could breed similar lawsuits in jurisdictions with sympathetic judges. “It really could become a roadmap for people seeking to challenge the approval of a wide range of other drugs, vaccines and healthcare products,” says Rachel Sachs, a professor at Washington University in St. Louis who specializes in FDA and health law.

It’s not hard to imagine a list of products that could be targeted next. Emergency contraceptives, birth control, HPV vaccines and medicines to prevent HIV would all make that list given other ongoing efforts to limit access to them. Given the politicization of some drugs, the list could go on. “Anything that can get caught up in that sort of cultural war is something that could easily be relitigated now by a judge who decides that he or she has an axe to grind,” says Ameet Sarpatwari, director of the Program on Regulation, Therapeutics and Law at Brigham and Women’s Hospital. “Where does it stop? The answer is, we don’t really know,” Sarpatwari says.

Pharmaceutical companies, a powerful lobby force, are slowly starting to come off the sidelines. An open letter signed by hundreds of biotech executives and life sciences investors asked for the decision to be reversed, pointing to the ruling’s broader effects: “As an industry we count on the FDA’s autonomy and authority to bring new medicines to patients under a reliable regulatory process for drug evaluation and approval. Adding regulatory uncertainty to the already inherently risky work of discovering and developing new medicines will likely have the effect of reducing incentives for investment, endangering the innovation that characterizes our industry.” By Monday, Pfizer chief executive officer Albert Bourla had become the first big pharma chief to sign the letter, and eventually a handful of other executives from larger companies added their names.

But notably absent from the broader conversation about the mifepristone ruling? PhRMA, the industry’s powerful lobbying group. So far, the organization has only made a milquetoast, two-sentence statement to reporters noting that the FDA is the gold standard regulatory body. The biotechnology lobbying group BIO issued a press release condemning the decision as setting “dangerous precedent.”

Members should be pushing them to go further. For example, the groups could make clear their stance on the decision by filing an amicus brief in support of the government’s position. America’s Joe Biden administration has already filed an appeal, but so far neither organization has publicly discussed plans to do so.

The outcome matters for abortion access. But it also could have far-reaching consequences for pharmaceutical innovation in the US and beyond. 

Lisa Jarvis is a Bloomberg Opinion columnist covering biotech, health care and the pharmaceutical industry.