The Mifepristone Case Hinges on Whether or not Pregnancy Should be Considered an “Illness” – What Can We Learn When We Look for Medical Precedent?

Kristi Upson-Saia

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In November 2022, a group of physicians filed a lawsuit against the U.S. Federal Drug Administration (FDA) seeking to revoke their approval of mifepristone, one of the medications in the abortion regimen that accounts for more than half of abortions in the U.S.

The plaintiffs argue that the FDA was remiss in approving the drug in 2000 through its accelerated approval process. This rushed process, they assert, did not allow sufficient time to investigate the side effects of the drug, side effects that have harmed women’s health in the two decades since its approval. Moreover, the plaintiffs continue, mifepristone should never have been eligible for the accelerated process, which is reserved for drugs that treat “serious or life-threatening illnesses,” because “pregnancy is not an illness.”^[1]

This latter part of the lawsuit’s argument—whether or not pregnancy should be classified as an illness—is a linchpin of the plaintiffs’ case. As an historian of ancient Greek and Roman medicine, I’m keenly interested in the historical precedent of this question. Especially since the plaintiffs, medical professionals who call themselves the Alliance for Hippocratic Medicine, self-consciously position themselves as heirs of a long-standing medical tradition. Their name suggests that their stance aligns with medical precedent, but does it?

Is Pregnancy an Illness?

In their complaint, the mifepristone plaintiffs define “illness” as a condition that affects day-to-day functioning; a condition that, if left untreated, will progress from a less to a more serious condition; or a condition that threatens one’s survival. HIV, tuberculosis, and cancer, the plaintiffs argue, meet these criteria. Pregnancy, on the contrary, merely involves “normal physiological processes.”^[2]

The U.S. District Judge Matthew J. Kacsmaryk who heard the case in early April 2023 agreed with the plaintiffs. Although Kacsmaryk acknowledged that complications sometimes arise from pregnancy, he ultimately concluded that “pregnancy is a normal physiological state most women experience one or more times during their childbearing years — a natural process essential to perpetuating human life.”^[3]

And in the May 2023 appeals court hearing, Judge Ho—one of the three judges hearing the appeal—seemed to indicate his agreement when he asked: “We just celebrated Mother’s Day. Were we celebrating illness?”^[4] As we wait for the determination of the appellate court, it’s clear that their ruling will hinge on whether or not to categorize pregnancy as an illness.

Ancient Medicine’s Depiction of Pregnancy

When we turn to ancient Greek and Roman medicine, we find wide acknowledgment that women’s health takes a sharp turn downward when they become pregnant. The 6th-century medical writer Aëtius of Amida, for example, detailed numerous symptoms of pregnancy that affected women’s health. Beginning around forty days after conception, he explains, pregnant people experienced an upset stomach, nausea, and aversion to food that, in turn, can cause pain, vomiting, and feelings of anxiety.^[5] Moreover, dozens of Hippocratic case histories documented additional health risks. For example, one case described the experiences of a woman who hemorrhaged in the tenth month of her pregnancy and again shortly before childbirth.^[6] In another case, the sister of Harpalides experienced swelling around her ankles and feet in her fourth or fifth month of pregnancy, as well as breathing troubles that lasted for nearly two months of her pregnancy.^[7] Many ancient medical case histories document pregnancies that resulted in death. One case describes the debilitating nausea, heartburn, lack of appetite, weakness, and fever that seized the wife of Antimachus about fifty days into her pregnancy. Soon thereafter, the case reports, “She died in the middle of the night.”^[8]

Interestingly, Aëtius refers to pregnancy as an affectio, which we might translate as “condition,” rather than more common terms for “illness” or “sickness” (νόσος in Greek, morbus in Latin). That said, most ancient physicians agreed that pregnancy was an unhealthy state. The 1st/2nd c. CE physician Soranus of Ephesus says that “it is quite clear from the obvious evidence that pregnancies lead to stunted growth, lack of strength, and premature aging.” Why? Because the nutrition the pregnant woman takes in is redirected to the fetus, and this “deprivation [to the pregnant woman] is not healthy, and neither is pregnancy good for her health.”^[9]

But even in antiquity, some argued that pregnancy was “natural” and “useful” and thus must also be healthful. Soranus scoffs at this imprecise reasoning: “even if a [physiological] function is useful, it does not follow that it is also always healthy. For instance, pregnancy is useful for the creation of human beings, but not healthy for childbearing women.”^[10]

So although some ancient physicians, like the mifepristone plaintiffs, did not use the dominant terms for “illness” or “disease,” they recognized the health risks pregnancy imposed on women. Moreover, ancient medical descriptions of pregnancy fit neatly within the plaintiffs’ own definition of illness: a condition that affects day-to-day functioning; a condition that, if left untreated, will progress from a less to a more serious condition; or a condition that threatens one’s survival.

Ancient Medicine’s Mobilization of “Illness”

The mifepristone plaintiffs can’t claim medical precedent in their argument that pregnancy should not be understood as an illness. That said, the plaintiffs do engage in a rhetorical strategy that is remarkably similar to a strategy employed by ancient physicians. Like the mifepristone plaintiffs today, ancient physicians similarly mobilized the category “illness” and a stated concern for women’s health in order to meet their own societal-political agenda. Specifically, they created a category of “women’s illnesses”^[11] to serve the reproductive interests of the state and its elite men.

Ancient physicians claimed that women suffered from two main types of illnesses, both stemming from the belief that women lacked the heat to fully “cook” the food in their stomachs. Their undigested food was converted, not into the manly byproducts of urine, feces, sweat, and semen, but into a thick blood that could only pass from their bodies through the excessive effort of monthly menses. The first illness was caused by this menstrual blood backing up in the body when a woman’s vagina was not wide enough, the exit was blocked, or the uterus lacked the strength to contract and coil with sufficient force to push out the blood.^[12] Backed-up blood was thought to cause pain where it amassed (such as in the abdomen) and was most dangerous when it collected around the organs, disrupting their proper functioning. For instance, blood pressing against the lungs made it hard to breathe, while blood surrounding the heart—where the mind was thought to be located—caused mental and emotional distress.^[13]

According to ancient physicians, the second illness related to menstrual blood was called “uterine suffocation,” or what has come to be known as the “wandering womb.” As the uterus worked to evacuate thick menstrual blood, the uterus became overheated and dry.^[14] When this happened, the organ detached from its proper place, roamed around the body, and attached to neighboring body parts to soak up their moisture. Like the problems associated with backed-up blood, so too the roaming uterus was thought to cause pain and disrupt the functioning of the organs––for example, restricting respiration when attaching to the lungs, causing painful urination when crowding the bladder, or causing dizziness or loss of consciousness when moving toward the head.^[15] Moreover, because the opening of a roaming uterus became misaligned from the vaginal exit, menstrual blood could not be evacuated, triggering the myriad ailments related to backed-up blood.^[16]

To combat these illnesses, ancient medical writers prescribed sexual intercourse, pregnancy, and childbirth as the most effective treatments. Sexual intercourse and childbirth, they argued, widened the vagina making it easier for women’s blood to pass during her monthly evacuation.^[17] Semen from intercourse heated—and thus further cooked and refined—the menstrual blood in the uterus, making it easier to purge. Semen also moistened the uterus so that it didn’t need to seek moisture elsewhere in the body.^[18] And once a woman was impregnated, the fetus weighed down her uterus, anchoring it in place. Pregnancy also accustomed the woman’s body to being “full” so it wouldn’t react so strongly to backed-up blood in the future.^[19]

These ancient medical ideas about women’s illnesses—and especially the treatments prescribed to remedy such illnesses—served the reproductive interests of elite households who needed progeny to pass on their family name and wealth. They also buttressed the reproductive interests of ancient Mediterranean societies, which were constantly dealing with demographic instability and in need of bodies to fill the ranks of the army or work in agriculture. By framing pregnancy and childbirth as “remedies” to women’s “illnesses” physicians created an incentive for women to engage in behaviors that threatened their health, under the guise of a concern to protect women’s health. In other words, ancient physicians pitted the health risks of these supposed illnesses against the real risks of pregnancy and childbirth that ancient physicians knew all too well.

Echoes of Antiquity in The Mifepristone Case

Ancient physicians clearly recognized and meticulously documented the health risks of pregnancy. Yet they mobilized the category of “illness” to serve the reproductive interests of society, men, and the state, prescribing medical “treatments” that put women’s health in jeopardy.

This ancient medical precedent should cause us to pause and scrutinize how definitions of “illness” function in the mifepristone case. The mifepristone plaintiffs understand pregnancy to be “normal” and “natural,” without regard to the unhealthful symptoms that many pregnant people experience nor to the outsized maternal mortality rates in the U.S. The plaintiffs’ inattention to these health risks in their categorization of pregnancy as illness might lead us to wonder if indeed women’s health is their primary concern, or if they, like ancient physicians, are merely using women’s health as cover for other guiding interests, such as an anti-abortion agenda.

1. Alliance for Hippocratic Medicine v. Food and Drug Administration, C.A.5 (Tex.) 2023. U.S. District Court For the Northern District of Texas, Amarillo Division. Plaintiffs’ Complaint, pages 3, 95. November 18, 2022. The FDA acknowledges that they used the regulation (Subpart H) in the approval of mifepristone, but explain that they used the part of Subpart H regulation to add safety use restrictions not the part of the Subpart H regulation related to accelerated approval (at 54:08 and 1:46:55 of the oral arguments before the panel of appellate judges). ↑
2. Alliance for Hippocratic Medicine v. Food and Drug Administration, C.A.5 (Tex.) 2023. U.S. District Court For the Northern District of Texas, Amarillo Division. Plaintiffs’ Reply Brief in Support of Motion for Preliminary Injunction, page 16. February 24, 2023. ↑
3. Emphasis added. Judge Kacsmaryk arrives at this conclusion by comparing definitions of “illness” and “pregnancy” from dictionary.com, Merriam-Webster.com, and Wikipedia. Alliance for Hippocratic Medicine v. Food and Drug Administration, C.A.5 (Tex.) 2023. U.S. District Court For the Northern District of Texas, Amarillo Division. Opinion, pages 40, 43-44. April 7, 2023. ↑
4. Starting at 56:48 of the oral arguments before the panel of appellate judges. ↑
5. Aëtius of Amida, Four-Volume Compendium 16.10 (trans. Lesley Bolton, Medicine, Health, and Healing in the Ancient Mediterranean [Oakland: University of California press, 2023], 356-57). ↑
6. Hippocratic Corpus, Epidemics 5.13 (Loeb Classical Library 477:152-53). ↑
7. Hippocratic Corpus, Epidemics 5.6 (Loeb Classical Library 477:290-91). ↑
8. Hippocratic Corpus, Epidemics 5.18 (Loeb Classical Library 477:156-59). ↑
9. Soranus of Ephesus, Women’s Health 1.13 (trans. Molly Jones-Lewis, Medicine, Health, and Healing in the Ancient Mediterranean [Oakland: University of California press, 2023], 351). ↑
10. Emphasis added. Soranus of Ephesus, Women’s Health 1.13 (trans. Molly Jones-Lewis, Medicine, Health, and Healing in the Ancient Mediterranean [Oakland: University of California press, 2023], 350). ↑
11. γυναικείων νούσων in Greek ↑
12. Hippocratic corpus, Illnesses of Women 1.1-2, 1.4, 2.37 (Loeb Classical Library 538: 8-13, 24-27, 358-59); Hippocratic corpus, Nature of Women 7 (Loeb Classical Library 520: 202-3). ↑
13. Hippocratic corpus, Illnesses of Women 1.2 (Loeb Classical Library 538: 18-19); Hippocratic Corpus, On Illnesses of Young Girls (Loeb Classical Library 509: 360-61). ↑
14. Hippocratic corpus, Illnesses of Women 1.2, 1.7 (Loeb Classical Library 538: 14-15, 32-33). ↑
15. Hippocratic corpus, Illnesses of Women 2.14-21, 2.28, 2.31-32, 2.40 (Loeb Classical Library 538: 298-311, 344-45, 350-51, 360-61). ↑
16. Hippocratic corpus, Places in Human Anatomy 47 (Loeb Classical Library 482: 92-95); Hippocratic corpus, Illnesses of Women 2.24, 2.32 (Loeb Classical Library 538: 312-15, 350-51). ↑
17. Hippocratic corpus, Illnesses of Women 1.1, 1.2, 1.4 (Loeb Classical Library 538: 8-11, 14-15, 28-29); Hippocratic corpus, Nature of Women 2-3 (Loeb Classical Library 520: 194-95); Hippocratic Corpus, On Illnesses of Young Girls (Loeb Classical Library 509:358-59). ↑
18. Hippocratic corpus, Illnesses of Women 1.7 (Loeb Classical Library 538: 32-33). ↑
19. Hippocratic corpus, Illnesses of Women 1.1 (Loeb Classical Library 538: 8-11); Hippocratic Corpus, On Illnesses of Young Girls (Loeb Classical Library 509: 362-63). ↑

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Featured image caption: Marble plaque depicts a parturition or birthing scene, Ostia (Italy). Such scenes eased the fears of expectant mothers by depicting positive birthing images. Science Museum, London. (Courtesy Wellcome Collection)