Abort the Court: The Attack on Mifepristone and Reproductive Rights

Abortion, reproductive health, and general sex education have been highly politicized issues in the United States for years, and there have been ongoing attacks on reproductive health services, providers, and policies. These attacks can take many forms, including attempts to restrict access to contraception, abortion, and other reproductive health services. I was in disbelief when on June 24, 2022, through the decision to Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overturned Roe v Wade ending a constitutional right to abortion and effectively eliminating decades of access to safe, legal abortion.

The June 24 attack on reproductive healthcare had serious consequences for women and some trans men’s health and well-being. It will make women seek unsafe and illegal abortions, which can lead to complications and even death while also forcing other women (and some trans men) to have a child. Women and some trans men can no longer make informed decisions about their own bodies and reproductive health.

Now, once again we are under attack. When we thought we had lost almost everything, the lawsuit Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration has been initiated. Through this lawsuit, there is a challenge to the FDA approval of the abortion medication mifepristone—one of two safe, well-studied drugs used in a medication abortion. In a horrible set of circumstances, the judge, Matthew Kacsmaryk, was appointed during the Trump presidency and has a long history of ruling against abortion, LGBTQAI+, and gender identity rights. He also has upheld attacks on these issues based on religious grounds. Last week, at a hearing, Kacsmaryk implied his willingness to undo the FDA approval of mifepristone. As of now his ruling is still pending.

Although the suit is making it seem that mifepristone is dangerous and has major health concerns when it comes down to facts, mifepristone has been studied and used for more than 20 years and it is known to be safe. It is seen as even safer than Tylenol and Viagra which can be purchased at a store without a prescription. Ultimately, what the plaintiffs in this suit are trying to do is dismantle abortion even further. They want to continue to chip away at our rights and make it impossible to get an abortion. Mifepristone, in states where abortion is still legal, is used in more than half of abortions, particularly home abortions. The focus of this lawsuit is to trigger a nationwide ban on mifepristone.

However, in encouraging news, legal experts say that Kacsmaryk does not the power or ability to make mifepristone illegal. According to an article in Slate, we should temper our fears a bit by reading three reasons the judge does not have the power many believe. Those are:

1. “First….Congress crafted procedures by statute for the FDA to use to withdraw approval of a drug. Judge Kacsmaryk cannot force the FDA to adopt another process to do the same…At best, he should only be able to order the agency to start the congressionally mandated process, which involves public hearings and new agency deliberations. This could take months or years, with no guarantee of the result.
2. Second, even if Judge Kacsmaryk forgoes this process and rules that the FDA’s approval was unlawful and that mifepristone is now deemed a drug without approval, he cannot force the FDA to enforce the decision…even if Judge Kacsmaryk rules against the FDA, the manufacturers and distributors of mifepristone could, if the FDA chooses not to enforce its restrictions, continue to sell their product and would not have to remove it from the market. 
3. Third, Judge Kacsmaryk’s order, no matter what it says, will only apply to the parties in the case. The FDA is one of the parties that would be bound by the order. The other is Danco, the brand-name manufacturer of mifepristone, which intervened in the case and is now also a party. But no other person or entity would be bound by what he orders, even if Judge Kacsmaryk tries something extreme, like ordering all distributors of mifepristone to cease distribution and all medical care providers to stop prescribing for patients.”[I]

With many possible outcomes, mifepristone has a long way before it is completely gone and outlawed. However, we must not get too comfortable. “After Roe v. Wade was overturned last year, medication abortion became more critical than ever, offering one of the few options left to people living in states where abortion care is nearly impossible to access. Comprehensive sexual and reproductive healthcare including abortion has been under attack and unavailable to many Americans for many years, long before the overturning of Roe. But recent coordinated attacks on mifepristone have made things worse.”[ii] 

A major thing to note with this latest lawsuit is how all these attacks on our reproductive rights have disproportionately affected marginalized communities. Make no mistake, all will be affected but it is people of color (BIPOC), LGBTQI+, immigrants, those with low incomes, people with disabilities, young people, and those at multiple intersections of these identities will be the ones who will bear the most weight and take on the maximum damage. The U.S. is creating a vacuum in which a monumental systematic failure is upon us. According to Ms. Magazine, “More than half of U.S. states outright failed rePROs Fight Back’s recent report card on reproductive health and rights.”[iii] rePROs Fight Back indicates, “This year with the U.S. Supreme Court overturning Roe v. Wade, which protected the right to abortion, it is more apparent than ever that there is a tale of two Americas: one in which people can exercise their reproductive rights, and another in which they cannot. In the eleven years of the report card, the U.S. overall grade has dropped from a C- to an F, and the number of failing states has grown dramatically – from nine the first year to 26 this year…The report card’s dismally low grades reflect a human rights crisis unfolding in this country…People in large regions of the county are prevented from accessing abortion care. Many must either travel great distances to get it, or if they aren’t able to travel, they may be forced to carry unwanted pregnancies. And there is no indication that anti-rights advocates will stop at abortion. We have already seen clear signs that they intend to attack trans peoples’ access to healthcare and other LGBTQ+ rights, medication abortion, contraception, and much more… For the fourth year in a row, the U.S. as a whole received an “F”.”[iv] The U.S. is not faring well in many different ways and reproductive healthcare is just one of the many issues.

As of now, more than 18 million women, across 14 states are dealing with abortion bans and restrictions with transgender and nonbinary people, who must travel out of state and sometimes across multiple states to access abortion care. With the Dobbs decision, it is estimated that a total of 24+ states will or have already banned abortion soon. What makes this so troubling is that many states don’t have directives to have sex education in schools. When abstinence-only teachings, things are only going to get worse. Youth should always have access to ACCURATE sex ed, even more so now that abortion is under attack. We should all know how to protect ourselves against pregnancy along with many other things such as STDs and STIs.

As I said before we must not get comfortable and remain immobilized by fear, anxiety, or bullying. This attack on reproductive rights is just the beginning. Clarence Thomas himself offered a grim foreshadowing of what could come. In the Dobbs decision’s opinions, Thomas stated, “For this reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” The cases are summarized below.

• Griswold v. Connecticut: “In 1965 the Supreme Court ruled on a case concerning a Connecticut law that criminalized the use of birth control. The Supreme Court’s ruling in Griswold v. Connecticut marked the beginning of an era of change for sexual and reproductive rights in the United States. Ruling that the states had no right to ban contraception for married couples, the landmark decision in the Griswold v. Connecticut case established — for the first time — a constitutional right to privacy regarding reproductive decisions that paved the way for the legalization of birth control for unmarried couples, and ultimately, Roe v. Wade and safe and legal abortion.”[v]
• Lawrence v. Texas: “On June 26, 2003 the U.S. Supreme Court ruled 6-3 in Lawrence v. Texas that the constitutional right to privacy protects consensual, adult sexual intimacy in the home. In declaring the Texas “homosexual conduct” law unconstitutional, the court overturned the 1986 Supreme Court decision in Bowers v. Hardwick, which upheld state laws making homosexual sex a criminal offense.”[vi]
• Obergefell v. Hodges: “On December 23, 2013, Judge Black held that Ohio’s refusal to recognize same-sex marriages performed in other states violates the substantive due process and equal protection rights of the parties to those marriages. Judge Black also declared the ban on recognizing same-sex marriages legally performed outside Ohio to be unconstitutional and prohibited the State from enforcing the ban on the plaintiffs.”[vii]

With these cases in the line of fire, we must all be on guard and ready to take action. The assault on evidence-based sex education, family planning, gender-affirming care, and LGBTQIA+ rights has been relentless, and the attackers have no intention of slowing down. The recent loss of abortion rights will only embolden them in their fight. Birth control, gender-affirming care, and LGBTQIA+ rights are next. Those who live in states where abortion is protected and feel confident that their access to care won’t change should think again.”[viii]

Things are changing and we cannot continue to doubt that reproductive care is the last stop on the conservative agenda. We are currently seeing attacks on LBGTQAI+ youth and families, drag queens, among many others. Organizations like Alliance Defending Freedom (ADF), who say they are “the world’s largest legal organization committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family,”[ix] have seemingly unlimited money and power. We must be stronger and more powerful than organizations like ADF. Unlike them, we have community, passion, drive, and the truth that we are all entitled to basic human rights as we see them. Our voice is strong, mighty, and millions deep. Use your voice and fight for what you believe in.

If you are in need of a reproductive health kit we have some in our offices. Contact our Care Coordination staff at info@ywcaaustin.org or 512-326-1222. You can also contact the Care Coordination manager, Heather Nicoll at heather@YWCAaustin.org.

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[i] Cohen, David S. et all. Actually, One Texas Judge is Not the Final Decision-Maker on Medicated Abortion, Slate, https://slate.com/news-and-politics/2023/02/texas-judge-abortion-case-actually-limited-mifepristone.html.

[ii] Wetter, Jennie. The Wider Impact of the Mifepristone Case on Reproductive Rights, Ms. Magazine, https://msmagazine.com/2023/03/20/mifepristone-case-reproductive-justice/.

[iii] Wetter, Jennie. The Wider Impact of the Mifepristone Case on Reproductive Rights, Ms. Magazine, https://msmagazine.com/2023/03/20/mifepristone-case-reproductive-justice/.

[iv] rePROS Fight Back. Reproductive Health and Rights: A Tale of Two Americas, rePROS Fight Back, https://www.reprosfightback.com/reportcard.

[v] Planned Parenthood Action Fund. Griswold v. Connecticut, Planned Parenthood Action Fund, https://www.plannedparenthoodaction.org/issues/birth-control/griswold-v-connecticut#:~:text=The%20Supreme%20Court’s%20ruling%20in,decision%20in%20the%20Griswold%20v..

[vi] Human Rights Watch. Lawrence. Texas: Constitutional Right to Privacy of Gays and Lesbians in the United States, Human Rights Watch, https://www.hrw.org/news/2003/07/01/lawrence-v-texas?gclid=CjwKCAjwzuqgBhAcEiwAdj5dRonPHM055DHY44ewOGdRDDDiAY5P66wIBOUcbS_LdUAOVKbrsxenixoC7DoQAvD_BwE.

[vii] ACLU Ohio. Obergefell v. Hodges, ACLU Ohio, https://www.acluohio.org/en/cases/obergefell-v-hodges.

[viii] Wetter, Jennie. The Wider Impact of the Mifepristone Case on Reproductive Rights, Ms. Magazine, https://msmagazine.com/2023/03/20/mifepristone-case-reproductive-justice/.

[ix] Alliance Defending Freedom. Who We Are, Alliance defending Freedom About Us, https://adflegal.org/about-us/who-we-are?utm_source=google&utm_medium=ppc.  **Disclaimer: YWCA Greater Austin does not support ADF in any way and does not endorse their views. This was used for reference to see what conservative organizations are doing.**