Mifepristone Rulings
You know what the top story is this week: the two court rulings on abortion medication. The long-awaited decision from Texas Judge Matthew Kacsmaryk came down on Friday night—released on a holiday weekend as if that would somehow temper people’s outrage—with the exact outcome we all expected. Kacsmaryk’s ruling not only invalidated the FDA’s approval of mifepristone, but was written using extremist anti-abortion terms and rhetoric. (Not surprising coming from a man who had his toddler wear a “I survived Roe v Wade” t-shirt, but still distressing.) A Washington judge, Thomas O. Rice, issued a conflicting ruling less than an hour later instructing the FDA not to restrict access to mifepristone in any way—a decision that was no less important but got significantly less media coverage than Kacsmaryk’s.
In response, I wrote about the truly awful pit-in-your-stomach feeling that comes with having yet another misogynist piece of shit make a decision for all American women, and why abortion medication was specifically targeted:
“Our ability to end a pregnancy with just a few pills—safely, privately, at home and without shame—was too much for them to take. At least when we went to clinics they could stand outside and call us ‘sluts’. Abortion medication robbed the men who hate us of their most treasured birthright: The ability to degrade women who do things they don’t like.”
In an effort to bring some clarity to the chaos, Abortion, Every Day researcher Grace Haley spoke to two of the law professors leading the national conversation about the abortion medication lawsuits and the FDA approval process: Greer Donley and Rachel Rebouche. (MSNBC legal analyst Lisa Rubin called their conversation the “best explainer I’ve seen.”) The short version? Mifepristone is still available, this is not over, and we need to put pressure on the Biden administration and the FDA to do everything in their power to keep the drug on the market.
There’s lots out there right now about the rulings, so here are some of the experts you should listen to: Kate Shaw, law professor and host of the Strict Scrutiny podcast, has a column at The New York Times on why and how the Biden administration can fight Kacsmaryk’s ruling: “[T]he Biden administration has no higher obligation to the opinion from Judge Kacsmaryk than to the Washington State order. It can leave the status quo intact as it works to coordinate its responses to both cases.”
Mark Joseph Stern at Slate gets into just how bad (and false) Kacsmaryk’s ruling is: “The judge appears to have largely copied and pasted the briefs filed by the anti-abortion group that filed the suit, the Alliance Defending Freedom, rephrasing their arguments as his own analysis.”
And Amy Hagstrom Miller, president of Whole Woman’s Health Alliance, writes for the Los Angeles Times on why a misoprostol-only protocol isn’t sufficient, and how “abortion providers and our allies are not backing down.”
For more information on the safety of mifepristone, you can also check out this New York Times interactive that looked at all the studies on abortion medication.
Republicans’ Freakout
The other, much better, big news on abortion this week came out of Wisconsin’s record-breaking state Supreme Court election. Voters once again made their voices clear: Americans don’t want abortion bans. Pro-choice judge Janet Protasiewicz won by a huge margin, with abortion rights as a central issue in her campaign and the election.
Republicans know that they’re fucked. Month after month, more horror stories come out of anti-abortion states and more polls are released showing just how much voters support abortion rights. As a result, conservative lawmakers are getting increasingly terrified. That’s why we’re seeing the uptick in attacks on democracy; Republicans know there’s no other way for them to win. Some strategists and lawmakers are suggesting a ‘compromise’ by pushing for a 12 to 15-week blanket abortion ban, something they believe will go over better with voters. They’re wrong, and I wrote as much this week in a column about why the center on abortion rights is rapidly evaporating. (Namely, it’s about just how furious women are.)
Anti-Abortion Cruelty
It’s not hard to figure out why Americans are so enraged. The horror stories coming out of anti-choice states are wrenching and seemingly nonstop—this week was no exception with two heartbreaking cases out of Idaho and Texas. And while Republican lawmakers are working hard to soften their language and image around the consequences of abortion bans, anti-choice organizations are doing no such thing.
In Idaho, a state that is losing half of its OBGYNs over its abortion ban, Kayla Smith found out her fetus had a fatal abnormality but was still denied care. She had to travel to Washington, getting an early induction in order to be able to “say goodbye.” In response, Blaine Conzatti, president of Idaho Family Policy Center, said that the law worked as it should and that women forced to carry doomed pregnancies should “cherish that time that they have, even if it’s a short amount of time, and then begin the grieving process.”
In Texas, Samantha Casiano was denied an abortion even after her 20-week fetus was diagnosed with anencephaly—part of its brain and skull were missing. She was unable to afford to travel to another state for abortion care, so Casiano carried the pregnancy for another three months before going into labor. Her daughter lived for a just a few painful hours, and because the state that forced her into childbirth doesn’t have public funds for infant funerals, Casiano and her family had to raise thousands of dollars for a service they couldn’t afford. Once again, the response from anti-abortion groups was heartless. Amy O'Donnell from the Texas Alliance for Life said, “Texas laws are working as designed.”
And that’s the rub: This is what these laws were meant to do. In the coming months, I’ll be interested to see how much of a conflict grows between anti-choice organizations and Republican lawmakers, terrified about reelection.
Empty Promises
While some Republicans are pivoting to calling for 12- to 15-week bans, others are trying to push ‘exceptions’ or amendments to give voters the impression that they’re softening on the issue. Last week in Idaho, legislators advanced a bill they said would “clarify” the ban for doctors—a change that actually just made the law worse. OBGYN Dr. Lauren Miller said this new version would only allow for abortions in cases of “imminent death,” and pointed out that lawmakers were “trying to make it look like something happened, when in fact, this makes no meaningful change for my day-to-day life as a physician.”
And if you’re a regular reader, you know that Abortion, Every Day has been closely following Tennessee Republicans’ amendment to their abortion ban. That empty bill just passed the state Senate this week. (You can read some background on the legislation here.) Essentially, there’s been a big fight between the lawmakers who are desperate to pretend as if they give a shit about women’s health and lives, and anti-choice organizations who care less about the optics so long as they have their total bans in place. The end result was that the anti-abortion group Tennessee Right to Life managed to strip the language of the bill down so much that doctors say it actually makes their jobs even harder.
In the States
We saw quite a few major things happen this week in the states: Florida, as expected, passed Republicans’ 6-week abortion ban. The bill is heading to Gov. Ron DeSanits’ desk, where he is expected to sign the legislation. Florida Democratic Party chair Nikki Fried and Senate Minority Leader Lauren Book protested the ban’s passage and were arrested that same evening. Sen. Book said, “I know women and girls across the state of Florida will die.” And Fried said they demonstrated not just because of the abortion ban, but the increasing threats to democracy in the state: “Every single day, there's just more and more attacks on our freedoms.” Incredibly, in response to the outrage over the ban, Republican House Speaker Paul Renner told POLITICO that the 6-week ban was actually a “compromise” because other Republicans wanted a total ban.
In North Carolina, Rep. Tricia Cotham flipped parties, giving Republicans the votes they need to override a veto of their abortion ban. Cotham is someone who has spoken about her own abortion experience, yet when pressed about whether she would vote for a ban, she declined to give a straight answer. She said, “I’m going to look inside and pray on this issue,” and then mirrored the language that anti-abortion women’s groups often use: “I believe women are much more…To always be tied just to that tragic, hard topic is wrong because women are greater.”
In Idaho, the governor signed the ‘abortion trafficking’ legislation this week—which makes helping teenagers obtain abortions a crime punishable by two to five years in prison. The law also makes it illegal to drive a minor to pick up abortion medication at the post office, and may criminalize abortion funds in other states who help young people with logistics and funding. Idaho’s Attorney General was also sued this week over his broad interpretation of the state’s abortion ban, which he said prohibits doctors not just from providing abortions but giving referrals to women for out-of-state abortions.
To get a sense of how devastated the women of Idaho are, please watch Rep. Lauren Necochea talk (in the video at the top of the newsletter) about why she is urging her daughters not to live in their home state.
Quick state hits:
Texas lawmakers are advancing bills that would force district attorneys to prosecute abortion cases or risk losing their jobs.
Ohio’s ballot measure fight continues on, with the state’s ballot board responding to an anti-abortion group’s lawsuit.
In Utah, Planned Parenthood asked a judge to block enforcement of the law prohibiting abortions from being performed anywhere but a hospital.
Tennessee has lost millions in Title X funding from the federal government.
Montana Republicans are trying to pass legislation that would put an end to state Supreme Court elections.
And Washington Gov. Jay Inslee stockpiled 30,000 doses of mifepristone in anticipation of Kacsmaryk’s ruling as “an insurance policy,” which turned out to be a smart move!
Anti-Abortion Strategy
This is really important to keep an eye on: Last week, I reported that Alabama lawmakers wanted to “streamline” the adoption process in response to the state’s abortion ban. (A particularly troubling idea given the adoption industry’s many issues and the relationship that anti-abortion groups have with evangelical Christian adoption groups.) This week, legislators in Tennessee are following suit, saying they want to “make it easier, cheaper and faster to adopt.” How are they going to do that? Well, with a bill that removes hurdles to terminate parental rights. They want to make it easier to take people’s kids from them and put them up for adoption—and we know exactly who will have their kids taken from them.
I expect to see this kind of legislation in multiple states, though not everyone will be so loose-lipped about it—so I’ll definitely be on the lookout.
Anti-Abortion Lies
As threats and violence against abortion clinics and providers ramp up, anti-abortion groups are painting themselves as the real victims. This week we saw the radical anti-abortion organization Students for Life claim that they were attacked by “antifa and transgender activists” at Virginia Commonwealth University. As it turns out, a bodyguard for president Kristan Hawkins, who was speaking at the college, physically assaulted one of the protesters who attended the event. Despite video showing what actually happened, Students for Life launched a conservative media blitz over the lie, sparking at least a week of bullshit conservative outrage.
Keep an eye out later today for an email about what’s happening with Substack and Twitter and what you can do to help.
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