Mifepristone and the Supreme Court
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The Supreme Court will be issuing a major abortion decision in the middle of the 2024 election campaign:
The Biden administration and the manufacturer of mifepristone haveasked the justices to overturn a lower-court ruling that would make it more difficult to obtain the medication, which is part of a two-drug regimen used in more than half of all abortions in the United States. Oral arguments will likely be scheduled for the spring, with a decision by the end of June, further elevating the issue of abortion, which has proven galvanizing for Democrats, during the 2024 campaign season.
The justices will review a decision fromthe conservative U.S. Court of Appeals for the 5th Circuit that said the Food and Drug Administration did not follow proper procedures when it began loosening regulations for obtaining mifepristone, which was first approved more than 20 years ago. The changes made over the last few years included allowing the drug to be taken later in pregnancy, to be mailed directly to patients and to be prescribed by a medical professional other than a doctor.
Medications to terminate pregnancy, which can be taken at home, have increased in importance over the last 18 months, as more than a dozenstates severely limited or banned abortions following the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization.
The justices agreed to review the case as the broader issue of abortion access remains divisivepolitically and legally. A pregnant woman in Texas this week lost her legal battle for permission to end her pregnancy this week, after she had left the state to obtain an abortion. Last week, a Kentucky woman went to court asserting the state’s abortion restrictions violate her constitutional right to privacy.
My guess is that the Supreme Court will uphold 5CA and turn the clock back to the 2016 rules, making mifepristone harder but not impossible to obtain. This decision would be an indefensible act of abject partisan hackery and usurpation of the proper functions of the executive branch, and it will also be portrayed as an act of statesmanship and compromise by some reporters you should make a mental note to hold in total contempt going forward.
The larger issue here is what would happen if a Republican president is in charge of the FDA again. As Jessica Valenti observes, the monstrous policies in place in Texas are policies Republicans want nationwide, and the next Republican-controlled federal government will do whatever they can to bring this about:
Kate Cox is leaving Texas to get an abortion. The 31 year-old mother-of-two didn’t want to watch her baby have a heart attack or die of suffocation. She didn’t want to put her health at risk, or ruin her chances of having another child in the future. That’s why Cox, after being given a fatal fetal diagnosis, asked for an emergency order to get an abortion: it was her plea to the state to prevent her baby’s suffering and to stop her own.
In a just world, it would be unthinkable for a woman to have to beg the courts for such a thing. But Cox doesn’t live in a just world, she lives in Texas. And in Texas, women are expected to carry doomed pregnancies to term.
[…]
As relieved as I am that Cox will travel to a state where she can get the compassionate care she needs, there’s a question festering at the back of my mind:
What if there was no other state to go to? What if instead of being forced to travel to a neighboring state—an already-impossible hurdle for many Americans—Cox had to travel to a nearby country?
That is not some hyperbolic hypothetical: it’s exactly what life would look like under Republicans’ 15-week national ban. And we can’t let voters forget it.
Republican lawmakers and conservative activists have been pushing a 15-week national ban as a supposed ‘compromise’ on abortion: it’s the focus of their abortion talking points, and powerful anti-choice groups expect candidates to publicly declare their support for such legislation.
Republican legislators, Republican executive branch appointees, Republican judges — they’re all a major threat to abortion rights in all 50 states, with potential consequences we can all see.