Going national: the right-wing strategy to ban abortion

Challenge to mifepristone pill would impact all 50 states.

Mountain View, California. “Hands off the abortion pill!” protest on April 15. PHOTO: Jim Colton / ProBonoPhoto
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When the U.S. Supreme Court overturned the federal right to an abortion in the Dobbs decision, the SCOTUS majority stated it should be a decision for individual states. Many activists were skeptical that anti-abortionists would tolerate any states providing full reproductive health care. They were right.

On April 7, U.S. District Judge Matthew Kacsmaryk issued a preliminary injunction, in a Texas case that has yet to be heard, stating that access to the abortion pill mifepristone was unsafe and should be severely limited. Twenty-three years after the drug went on the market, Kacsmaryk ruled that the FDA had somehow rushed the approval process. The injunction would have banned the use of mifepristone across the country until after the case was actually decided.

Seeing the writing on the wall, a group of attorneys general in 17 states and the District of Columbia brought a suit arguing that the FDA could not be forced to alter the status quo regarding the safety and effectiveness of mifepristone. Less than an hour after Kascmaryk’s ruling, U.S. District Judge Thomas Owen Rice of the Eastern District of Washington state ordered the federal government to keep the drug available.

Providers and pharmacists were caught between two contradictory rulings that affect all the states.

It took two weeks for SCOTUS to finally block Kacsmaryk’s injunction. The Supremes then kicked the inevitable appeal to the Fifth Circuit Court of Appeals. A hearing on the injunction will be heard on May 17, with the date of a decision unknown.

Why is this case important? Due to decades of attacks on abortion rights, there are few doctors to perform them. In addition, issues of privacy, access and cost have resulted in half the abortions that occur in the U.S. being done with medication. A combination of mifepristone and misoprostol works best, with 95% or better effectiveness. If mifepristone is unavailable, misoprostol alone can be used, but that is only 80% to 85% effective.

Mifepristone also helps eliminate much of the cramping associated with medical abortions. Removing mifepristone from the process will force women and people who are pregnant to have unneeded pain and risk of complications.

It is no accident that this case landed in Kacsmaryk’s courtroom. He was handpicked by the fetus fanatics bringing the lawsuit because his anti-abortion views are well documented. Manipulation of the courts is another clear and present danger that this case presents to the public at large.

For now, the world awaits what the Fifth Circuit Court of Appeals, widely considered the country’s most conservative venue, has to say about the injunction. Whatever decision it issues will inevitably go to the Supreme Court — again. Which may, or may not, rule on it — again. And this is all before the case is actually heard in court. This battle could drag on for years.

Specious legal action against abortion drugs sows chaos. And that is clearly the point. Just as “states’ rights” was a smokescreen for racists in the civil rights era, “states’ rights” on reproductive policy is really about patriarchal control of women and people who can get pregnant.

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