Court Gives Anti-Abortion Advocates A Temporary Loss
…and sets up our Monday feature on “Undue Burden”: the life-and-death world of post-Roe America
Events have thrown a spotlight onto the feature article for Monday called “Undue Burden”: the U.S. Supreme Court has rejected a bid by anti-abortion groups and doctors to restrict access to the abortion pill.
Undue Burden is a new bestseller by award-winner writer Shefali Luthra, an expert on health policy. It tells the horrific story of post-Roe America: the deaths, the struggles, the drop in health for all of us.
The new Supreme Court decision concerns a drug called mifepristone that was given FDA regulatory approval in 2000, and is used in more than 60 per cent of U.S. abortions. It is taken with another drug called misoprostol to perform medication abortions. The FDA has said that decades of use by millions of women around the world has proven the drug to be "extremely safe," and that "serious adverse events are exceedingly rare."
Hidden in that decision is the role of today’s Supreme Court is its stunning amassing of power in ways that undermine the Republic. More on that in a coming feature based on the book “The Shadow Docket”.
A coalition of abortion opponents had tried to persuade the supreme court to roll back a series of moves by the FDA to expand access to the drug, such as allowing abortion providers to mail mifepristone to patients.
The coalition trying to stop the drug claimed that their member doctors would be forced to violate their consciences due to "often be called upon to treat abortion-drug complications" in emergency settings as a result of what they called the FDA's unlawful actions. The Justice Department said that these claimed harms relied on an impermissibly speculative chain of events — that other doctors would provide mifepristone to women who then experience a rare emergency and end up in the medical care of these plaintiffs. Nor can the plaintiffs who chose to practise emergency medicine claim to be injured "whenever they are presented with patients in need of care," it added.
Justice Brett Kavanaugh therefore rejected that argument, ruling that the anti-abortion activists did not prove that they had the legal right, or standing, to bring the case in the first place.
“Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no direct monetary injuries from FDA’s actions relaxing regulation of mifepristone,” Kavanaugh wrote. “Nor do they suffer injuries to their property, or to the value of their property, from FDA’s actions. Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone.”
Instead, he said, the anti-abortion activists tried to push “several complicated causation theories” – none of which met the threshold for establishing standing.
Burn.
The justices, two years after ending the recognition of a constitutional right to abortion, ruled 9-0 to overturn a lower court's decision to roll back Food and Drug Administration (FDA) expansion plan.
Only Clarence Thomas, one of the most hardline conservative justices who is also one of the most corrupt Justices ever to sit on the Court, wrote an opinion that dealt primarily with the legal nuances of standing, arguing that so-called “abortionists” – his derogatory term for abortion providers – should also lack standing to sue on behalf of their patients.
Massachusetts Senator Elizabeth Warren nailed it: “This challenge to mifepristone was meritless from the start. Abortion medication is safe and effective. Make no mistake: Donald Trump and Republican politicians will not stop marching us toward a nationwide abortion ban. We must protect reproductive freedom everywhere.”
Mini Timmaraju, CEO and president of Reproductive Freedom for All, said “We’re relieved that the supreme court recognized this sham case for what it is, but this baseless push to block abortion access should never have been heard by them in the first place. We need court reform to salvage the legitimacy of our federal judiciary – and we won’t stop fighting for it until it’s a reality.”
She is right to look ahead with some fear – because the outcome of the case rested on standing, there is a chance that others may continue challenging access to mifepristone on different grounds.
The finding does hand a victory on Thursday to President Joe Biden in his campaign to reverse the Supreme Court’s earlier decision on Roe. He is looking ahead to this longer fight: “Today’s decision does not change the fact that the fight for reproductive freedom continues. It does not change the fact that the supreme court overturned Roe v Wade two years ago, and women lost a fundamental freedom. It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”
He is right, and the way this case came to trial is a condemnation in itself of the morality and tactics of the group that calls itself ‘religious’.
Plaintiffs can’t sue in federal court unless they were injured by something the defendants did, and none of the plaintiff doctors alleged that they had ever been in a situation where they were forced to provide abortion care of any sort. Nobody is ever forced to provide abortion care, since federal law protects doctors’ freedom of conscience.
In fact, the plaintiffs in this case were really bent. The Alliance for Hippocratic Medicine was invented by a far-right Christian nationalist law firm called the Alliance Defending Freedom. It was incorporated in Amarillo, Texas, because just one judge sits in the federal courthouse there: Matthew Kacsmaryk. He was an anti-abortion activist before former Donald Trump appointed him to the bench. Kacsmaryk rigged the rules to ensure that he judged the Alliance case. He gave the Alliance a total victory in 2023, and said the FDA’s approval of mifepristone was unlawful. He ordered it off the market nationwide, for everyone.
Thanks, Trump.
He ignored more than 100 scientific studies demonstrating that mifepristone is safe and effective. Instead he cited two “studies” based on anonymous blog posts compiled by anti-abortion advocates. (Both studies were later retracted.)
Mifepristone however remains unlawful to prescribe in states that criminalize abortion. And Kacsmaryk is not finished with this case. In January, he allowed three red states to intervene in the litigation. These states claimed that doctors in blue states were shipping mifepristone to their residents. Kacsmaryk will thus keep the lawsuit alive, relying on the red-state plaintiffs. He will then presumably impose yet another nationwide restriction on mifepristone, with a more finely-tuned argument.
So the current victory is only a reprieve. The anti-abortion forces are coming again – soon.
The only resolution can come with a total reversal of the Supreme Court’s egregious overturn of the Roe decision.
The environment is ripe for it.
A new poll shows that “a record share of the US electorate is pro-choice and is voting on it.
A record-high 32% of U.S. voters say they would only vote for a candidate for major office who shares their views on abortion. The importance of a candidate’s abortion stance to one’s vote is markedly higher among pro-choice voters than it was during the 2020 presidential election cycle, while pro-life voters’ intensity about voting on the abortion issue has waned.
Pro-choice candidates stand to benefit more than pro-life candidates from single-issue abortion voters. The percentage of Democrats identifying as pro-choice has increased 16 points, from 70% to 86%, while just under a quarter of Republicans and a slight majority of independents have been pro-choice.
Democrats’ views have changed the most on the morality question, with the percentage considering abortion morally acceptable rising 19 points to 83%.
All this flies in the face of the previous Supreme Court ruling. The people are angry and fed up. U.S. adults who are pro-choice are also significantly more likely now than two decades ago to say it is important that any future Supreme Court nominees share their views on abortion.
This the six anti-abortion judges do not do. Alito and crew are of the opinion that America needs to return to a place of godliness. He also believes that the Court is absolutely above mortal touch; it cannot be replaced or removed. He is totally wrong, as a coming feature will reveal, and I would like to dive into this later. Suffice it to say now that the Supreme Court issues 99% of its decisions through a “shadow docket” where rulings are handed down without signature or explanation. They can even reverse previously decided shadow docket rulings, so we can forget about any myth of infallibility in rulings.
That’s another battle. For now, we need to overturn Roe and overturn the Court.
So let me introduce the Monday feature.
“Undue Burden” has been called “Indispensable… An impeccably researched, clearheaded and frankly terrifying assessment of just how grave the situation in post-Roe America is.” It is a story of abortion providers suddenly overwhelmed with demand when Roe is overturned. Patients needing to travel to other states who cannot afford to provide a second dinner voucher for their children if they suddenly face a need to stay away another night. It is an account of inequality, a system victimizing Black and Latine women who cannot afford treatment. It is a tragedy of people forced to wait in lines for abortions, with their pregnancies getting more and more advanced and more dangerous and expensive to treat.
All for the judgement of a small portion of the population, and the power-rush of the male political leaders.
It is a story of lives in chaos and freedom denied.
The story she tells is about abortion but also about health care and so much more. For decades, restricting access to abortion has also exacerbated deep-seated inequalities in America. The best evidence available has demonstrated that when people are denied access to abortion they are more likely to fall into poverty and then stay there.
Abortion rights advocates speak often about a future America that will restore Roe’s protections, but few believe it will happen soon. In the interim, countless lives will be disrupted and endangered.
It shapes something even more foundational: people’s right to decide how and on what terms they wish to live.
I hope you enjoy the Monday column on Undue Burden.
In the meantime, we can bask in a temporary victory. It’s better than a progression of defeats.
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