Why the State of Abortion Medication Is Such a Confusing Mess Right Now
Different judges, different rulings.
The state of abortion rights has been in flux since the U.S. Supreme Court overturned the Roe v. Wade ruling. But one of the biggest ongoing battles has been over abortion medication.
Abortion medication accounts for half of all abortions in the US; it involves a two-step regimen of mifepristone and misoprostol, with mifepristone stopping the progesterone hormone from continuing the development of the pregnancy and misoprostol inducing cramping and bleeding to clear the uterus out, up to about 11 weeks into pregnancy. The pills have allowed women to carry out healthcare decisions from the comfort and security of their own homes. Mifepristone prescriptions could even be mailed over state lines—which, of course, is means anti-choice protestors are trying to get the pill banned.
Despite the FDA approving mifepristone, Texas judge Matthew Kacsmaryk declared that approval void for absurd reasons. Kacsmaryk used a law from the literal 1870s, known as the Comstock Act, to invalidate the FDA’s ruling. This law is so old that it’s 60 years older than the FDA itself. Though, ironically (or not so ironically) the law was initially used in the 1870s for the exact purpose of preventing the spread of information about abortion and contraceptives, as well as pornography and other “obscene” and “offensive” materials.
Meanwhile, in Washington, Judge Thomas Rice issued a conflicting ruling on a similar case, ruling that the FDA was not doing enough to make the medication available to those who need it—but only included 16 states and D.C. that were involved in the lawsuit. Mifepristone is a highly regulated medication and can be difficult to get because of the regulations at issue in that case, and even the Department of Justice seems confused over exactly what the Washington ruling means. That’s part of the reason that Walgreens’ decision not to stock and distribute Mifepristone is so concerning for the state of reproductive rights and healthcare access in the U.S.
The Texas ruling was initially delayed from implementation for a week to allow the Department of Justice to fight it, and they’ve already asked for it to be delayed indefinitely while they appeal. But if the fight goes to the Supreme Court, it won’t end well for pro-choice advocates, who would need two of the conservative justices to change their stance.
Until then, some medical professionals won’t be able to prescribe and distribute the medication because they can’t be sure about the legality. It doesn’t help that some states must follow both conflicting rulings from Washington ruling and Texas; while the Washington state ruling only applied to certain states, the Texas ruling could have a much wider reach.
The medical side
Céline Gounder and Howard Forman made similar points in a Twitter thread going into all of the inaccuracies touted by the Texas lawsuit.
The problem is that anti-abortion rulings like this don’t care about medical facts.
They don’t care that pre-natal doctors and OBGYNs are leaving conservative states or that rural hospitals are closing their maternity wards because of these rulings. They don’t care that rural families or families of color will be the ones most affected by these losses in access. They only care about getting their way.
So what can the federal government do to prevent abortion rights from being obstructed?
One unconventional solution was argued by AOC: just ignore the judges’ rulings.
Representative Ocasio-Cortez argued that the GOP was able to ignore federal judges’ rulings to reinstate DACA. Now, she argues that Democrats should fight fire with fire (or apathy with apathy) and just ignore the GOP judges’ rulings.
This is delightfully petty and it may be a genuinely good solution.
However, it’s one the White House seems to have already shut down, stating: “We stand by FDA’s approval of mifepristone, and we are prepared for a long legal fight, if needed… The focus of the administration is on ensuring that we prevail in the courts. There is a process in place for appealing this decision and we will pursue that process vigorously and do everything we can to prevail in the courts.”
White House press secretary Karine Jean-Pierre stated that “we are going to always follow the law … [that] Doesn’t mean that we’re not going to fight.”
There are other groups that are using different means of getting around the potential rulings. Massachusets has been stockpiling misoprostol, a medication used to treat stomach ulcers that has been taken with mifepristone to induce abortions.
I won’t lie: Things look grim, but I don’t want to tell you things are hopeless.
According to the Center for Reproductive Rights, abortion access/rights have either been expanded or protected in 22 states recently. Planned Parenthood and AbortionFinder.org continue to help those in need during some of their most difficult times.
Even some GOP representatives are now worried about their broken base, trying to appease the anti-choice radicals while also not losing their more moderate voters—to which I say: You reap what you sow.
People are still fighting for reproductive rights. The moment we stop fighting for choice is the moment it’s gone forever.
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