Though the U.S. Supreme Court has temporarily blocked an effective ban on medication abortion, anti-abortion groups are not giving up on trying to fast-track a national abortion ban. And that means continuing to try to squash nationwide access to the most common form of abortion post-Roe, by whatever means necessary.
“Obviously, the pro life community is disappointed that there wasn’t an outright decision made concerning banning chemical abortions,” said the Rev. Patrick Mahoney, chief strategic officer for the Stanton Public Policy Center, the lobbying arm of a powerful Idaho-based network of crisis pregnancy centers which has heavily influenced Idaho’s attorney general. “But either way, for the pro life movement and Stanton Public Policy Center, this does not deter us. We have many, many avenues out there to try to ban chemical abortion.”
Legally challenging the U.S. Food and Drug Administration’s two-decades-old approval of the drug mifepristone despite its high safety and efficacy record in Alliance for Hippocratic Medicine v. FDA has been just one of the anti-abortion movement’s many strategies to further curb abortion access. As this case continues to wind its way through the courts, activists are testing other regulatory and legal avenues.
Just this week, anti-abortion activists once again petitioned the FDA to revoke the approval of mifepristone, but this time on (disputed) environmental grounds. The national anti-abortion group Students for Life of America is arguing that trace amounts of the hormone blocker mifepristone could be posing a risk to endangered or threatened species and is trying to compel the FDA to study these impacts if the agency is forced to restart the approval of mifepristone as a result of the Alliance case, according to Politico. The group has also floated state model legislation adding environmental restrictions to medication abortion, which has been introduced in West Virginia.
But this is part of SFLA’s years-long campaign to curtail access to the abortion pill. SFLA alsoopposes contraception and fertility treatments, and its board co-chair is Federalist Society co-chairman Leonard Leo.
“When I launched Students for Life more than 16 years ago, we knew we were going to need a trained army, ground troops ready to go in states and communities around the country the moment Roe versus Wade was reversed. And we began looking at this issue of chemical abortion five years ago,” SFLA president Kristan Hawkins said on a webcast in February.
Anti-abortion legal activists are also currently leaning hard on the Victorian era anti-vice Comstock Act, which plaintiffs in the Alliance lawsuit argue legally prevents abortion pills from being sent in the mail, something the federal government disputes.
Meanwhile the Alliance case is far from over. Early this month, U.S. District Judge Matthew Kacsmaryk of Texas ruled to suspend the FDA’s approval of the abortion pill. That order never went into effect; neither did the Fifth Circuit Court of Appeals’ decision to keep medication abortion on the market but revive out-of-date restrictions lifted after 2016. Public health and legal experts have been warning that letting either decision stand would have severe public health and legal implications beyond abortion.
And though abortion rights advocates around the country count today’s decision as a victory, groups like the American College of Obstetricians and Gynecologists say the case has already caused damage.
“Although the Supreme Court has kept mifepristone available to patients for the duration of this legal battle, much of the damage of this process remains in place – and we know that the attacks on abortion care will not stop, no matter how many times medical professionals declare that abortion is essential, evidence-based health care and that interference in the patient-physician relationship must stop,” said ACOG president Dr. Iffath Abbasi Hoskins and ACOG CEO Dr. Maureen G. Phipps, in a statement. “We will continue to lead the medical community in providing the clear, strong evidence about mifepristone so that the Supreme Court can make the right decision in the end. ACOG remains steadfastly in opposition to interference in the patient-physician relationship.”
And meanwhile, the uncertainty and confusion over abortion rights in the U.S. marches forward, as are multiple lawsuits related to expanding medication abortion access. A recent order in the federal case out of Washington protects medication abortion in 17 states plus the District of Columbia. More states are trying to expand as abortion haven states. Oregon just joined Massachusetts, Maryland, and Washington in their efforts to begin stockpiling mifepristone. The governors of California and New York have announced plans to begin stock-piling misoprostol, the second drug in the FDA’s two-step regimen for abortion and miscarriage care.
Providers in states not part of the Washington lawsuit have proposed pivoting to misoprostol-only protocols if mifepristone becomes unavailable. The method is said to be less effective and more painful.
Many legal experts have argued that were it not for a biased judge, this lawsuit would likely have already been dismissed for failing to meet certain legal standards. And its legal and medical arguments have been widely disputed. Kacsmaryk has been open about his anti-abortion and anti-contraceptive views but has recently come under fire for failing to disclose his part in a law-review article and radio interviews where he spouted off his anti-abortion and anti-LGBTQ ideology. In his ruling the judge adopted the same rhetoric as the anti-abortion political movement: using terms like “unborn human” to describe embryos and “abortionists” to describe health care providers.
If plaintiffs in the case ultimately prevail, public health and regulatory experts worry about the public health and regulatory fallout. During a press call earlier this week organized by abortion rights groups, Dr. Joshua Sharfstein, a vice dean and professor at Johns Hopkins Bloomberg School of Public Health and a former principal deputy commissioner of the FDA, said that suspending or changing the medication abortion protocol to before 2016 is not based on scientific evidence and sets a dangerous precedent of separating the science from the reasons to regulate drugs.
“These are the kinds of unfortunate questions you have to consider when you rip apart the evidence in public health from the legal framework, because they’re designed to go together,” Sharfstein said. “And you pull them apart, and you’re left with all these truly unique questions. Because, this is so unprecedented, like, what’s the state medical board to do? What’s the state health department to do? What’s the FDA to do under these circumstances? We rely on an alignment between evidence and the law. And when that’s broken, it’s, you know, it becomes a completely different scenario.”
Abortion access could see further decline if case is ultimately victorious
Access to abortion has already significantly diminished since Roe v. Wade was overturned, with people having to travel and endure extended waits. But providers are determined to continue providing care to as many people as possible.
Florida, a state with a challenged 15-week abortion ban (a newly signed six-week ban won’t go into effect before the 15-week ban challenge is resolved), and North Carolina, a state with a 20-week abortion ban, are critical access points in the Southeast. In the six months after the Dobbs decision, Florida saw the largest increase in clinician-provided abortions, followed by Illinois, North Carolina, Colorado and Michigan, according to a recent report released by the Society of Family Planning. Overall, there were more than 30,000 fewer abortions in the six months post Dobbs, though that figure does not include any self-managed abortions.
The increased threats to medication abortion have created heightened fear of criminalization and uncertainty among patients and providers. Abortion rights attorneys who provide free legal services and advice to abortion providers and patients as part of the newly formed Abortion Defense Network have told States Newsroom that many patients have become scared to seek needed medical care related to their pregnancies or abortions.
In the face of abortion provider shortages, travel barriers, and highly restrictive state laws, more people have begun to rely on the two-drug medication abortion regimen of mifepristone and misoprostol. According to the Guttmacher Institute, an abortion rights research organization,10 states would be especially impacted if access to medication abortion is suspended, such as Maine, where the share of counties with an abortion provider would drop from 88% to as low as 19%.
A Woman’s Choice provides abortions at clinics in Jacksonville, Florida, and three cities in North Carolina, along with taking out-of-state patients from Alabama, Georgia, Louisiana, Mississippi, and Texas, according to Amber Gavin, vice president of advocacy and operations. The organization’s leadership is looking at the possibility of providing misoprostol-only abortions if mifepristone access is restricted, Gavin said.
But Gavin noted that the fight to preserve access to abortion is far from over, regardless of the end result of this lawsuit.
“The goal of anti-abortion protesters has been to completely eliminate access to abortion care across the entire U.S.,” Gavin said, emphasizing that abortion rights opponents could also attack birth control next. “They’ll keep coming and finding ways to control our lives, our families and our futures,” she said.
Elisha Brown and Kelcie Moseley-Morris contributed to this report.