Abortion, Every Day (3.25.24)

Everything you need to know about mifepristone & SCOTUS

Click to skip ahead: A refresher on SCOTUS & Abortion Medication as we gear up for arguments tomorrow. That leads us directly into The War on Contraception, which is very much next on the chopping block. In Anti-Choice Strategy, conservatives are going after telemedicine because they want the ability to harass docs in person. In Hypocrisy Alert, I’m begging publications to do some background reporting before they quote anti-abortion extremists. In the States, news out of Louisiana, Minnesota, Arizona and others. In the Nation, attacks on the FACE Act and a missed opportunity. Finally in the Care Crisis, something I’ve overlooked.

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SCOTUS & Abortion Medication

Well, it’s here. Tomorrow, the Supreme Court will hear arguments on mifepristone in a case that will determine whether serious restrictions are put on the abortion medication. Remember, the legality of abortion medication is not in question—access is.

A negative ruling would revert access to mifepristone to pre-2016 rules: the drug would only be approved through seven weeks of pregnancy, the medication would have to be prescribed and picked up in person, and mifepristone would be banned from being mailed or prescribed via tele-health.

A brief refresher: This all started with a decision by Judge Matthew Kacsmaryk that invalidated the FDA’s approval of mifepristone. After the Justice Department appealed, the 5th U.S. Circuit Court of Appeals partially blocked Kacsmaryk’s ruling, but agreed to those nearly-decade old restrictions. SCOTUS then blocked that decision, and now we’re here.

Anti-abortion groups are claiming—using very dubious, now-retracted ‘studies’—that they’re trying to protect women from mifepristone, which is safer than Tylenol. If the Supreme Court rules in their favor, the most pressing problem would be the requirement that doctors dispense mifepristone in person.

That’s because since Roe was overturned, the use of telemedicine and abortion medication has increased drastically: Medication abortion accounts for 63% of abortions, up from 53% in just 2020.

Without the ability to have pills shipped to them, patients in states with abortion bans will be stuck—unable to get the care that they need without leaving their state. In pro-choice states, doctors who are already inundated with out-of-state patients seeking procedural abortions will be even more overwhelmed; and patients will face increased and potentially dangerous delays to care.

Remember, going after our ability to mail mifepristone is one of the anti-abortion movement’s biggest strategies. If they get their way—with the Comstock Act, specifically—abortion medication would be illegal to mail, as would any kinds of tools or supplies used in abortions. And again, that wouldn’t just apply to anti-abortion states, but every state.

Learn more by re-reading Abortion, Every Day’s explainer:

The Comstock Act

What’s more, a ruling in favor of anti-abortion activists undercutting the FDA’s authority would also have a tremendous impact on medical and pharmaceutical industries. From The Guardian:

“If the agency’s decisions can be undone by a judge or it can be sued by any group who outlines theoretical harm, it opens the doors for judges to make medical decisions and for nearly anyone opposed to a drug to sue.”

That means everything from contraception and gender-affirming hormones to vaccines would be endangered.

Finally, while The Washington Post editorial board says SCOTUS should decide on the side of science, which, “unsurprisingly, is on the scientists’ side,” Reuters looks at the nitty gritty of just how bad the anti-abortion ‘research’ is on mifepristone.

AED will have more on the SCOTUS arguments tomorrow, so make sure to swing by. I’ll also be hosting an all-day live-chat tomorrow for paid subscribers—so if you’ve been holding off on upgrading, now is a good time to make the leap! I’m even running a discount through Friday:

To hear more expert voices on the case, check out this terrific interview Chris Geidner at Law Dork did with law professors Greer Donley, David Cohen, and Rachel Rebouché. (And if you haven’t subscribed to Law Dork yet, get on it!)

The War on Contraception

Whew. POLITICO has an interview with Kristen Waggoner, the CEO and president of Alliance Defending Freedom, and the headline alone should send a chill down your spine: “The Group Behind Dobbs Does Not Want to Talk About What Comes Next.”

Gee, I wonder why!

Waggoner, whose group was responsible for the demise of Roe and is now trying to ban mifepristone, takes great paints to claim ADF doesn’t want to ban contraception. She say that she’s “not aware” of any cases trying to ban birth control, and that “ADF has never advocated for limitations on access to contraception.”

That last bit is important—because as you all know by now, conservatives have long been making a legal argument that emergency contraception and IUDs aren’t actually birth control, but abortion. So when Waggoner says they’re not going after contraception, what she actually means is they’re not going after what they consider contraception.

I’ve gotta give it up to POLITICO reporter Ian Ward, because he holds Waggoner’s feet to the fire, pointing out that ADF’s past suits have called certain kinds of contraception “abortion-causing drugs.” (They’ve represented pharmacists who refuse to dispense the morning-after pill, for example.) While Waggoner tries to pivot, she isn’t very successful:

“Where I’m making the distinction is on abortion and what abortion means…the question of whether pharmacists need to dispense abortifacient drugs.”

This quote gets at two things I’ve written a lot about: 1) Conservatives’ attempts to redefine abortion and birth control; 2) How anti-abortion groups are using a chipping away approach on birth control that they think won’t raise voters’ suspicions. It’s a smart move: By making the issue about conscience clauses for pharmacists, conservatives can quietly redefine birth control while making it harder for women to get emergency contraception.

Waggoner does a similar rhetorical dance when Ward asks if she believes certain types of birth control are abortion, saying “there are so many different forms of contraception on the market—I can’t possibly answer that.”

Finally, she admits that emergency contraception “would be considered an abortifacient,” because she says it can “be used post-fertilization and pre-implantation but also sometimes even after that.”

This is really important. This is the head of the nation’s most powerful conservative legal group—the organization that overturned Roe—saying that contraception is abortion. Also, please remember what the former CEO of ADF told The New Yorker just a few months ago when asked if he thought the group was on a winning streak:

“We are on a winning trajectory. It may be that the day will come when people say the birth-control pill was a mistake.”

They are doing this all out in the open. The only question is whether or not voters will listen.

Anti-Choice Strategy: In-Person Abortions Mean In-Person Harassment

It’s incredible to look at how many different issues the mifepristone case really touches. In addition to what it means for abortion medication access and attacks on birth control, what SCOTUS decides will also determine the safety of abortion providers and clinic workers.

In a must-read interview at Slate, the inimitable Dahlia Lithwick spoke to professor Carrie N. Baker, whose book, History and Politics of Abortion Pills in the United States, is being published later this year. Baker points out that the conservative strategy on abortion medication and telemedicine is directly related to anti-choice activists’ desire to harass doctors and clinic staff:

“If the doctors can’t be identified because they don’t have a brick-and-mortar clinic, if they’re located in a location where they don’t know where they are, well then what? I mean, these telemedicine providers are entirely virtual. They don’t have brick-and-mortar clinics. All they have is a website. And you know, they might go after the website, but they can’t locate the doctors. They can’t locate the patients, they can’t scream to the patients, ‘You’re murdering your baby.’ And that fundamentally undermines their strategy.”

Essentially: in-person abortion means in-person harassment.

This is similar to the point I made last year after Matthew Kacsmaryk’s ruling; that targeting abortion pills was very much about the anti-choice movement’s desire to shame women:

“It’s not a coincidence that these truly awful men have targeted abortion medication, specifically. 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.” 

Indeed, Baker tells Lithwick that the “indignity” is very much the point. “It’s all about stigmatizing abortion and making people feel like it’s unsafe,” she says.

Hypocrisy Alert

I’m really going to need mainstream media outlets to stop quoting extremist maniacs as if they’re credible people. At the very least, do your fucking jobs and tell readers who you’re quoting. In the Wall Street Journal’s coverage of the mifepristone case heading to the Supreme Court tomorrow, for example, the publication quotes the director of research for the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG).

Donna Harrison, who claims mifepristone is dangerous for women, says, “What this case is really about is common-sense safeguards.” If Donna is so concerned about women’s health, why is her group lobbying for legislation that would force doctors to give women with life-threatening pregnancies c-sections instead of abortions?

If AAPLOG is interested in “common-sense safeguards” why do they advise OBGYNS to force women with massive placental abruptions to labor for 24 hours? Do they think it’s “common sense” to tell doctors that these women should simply be given blood transfusions and intensive care instead of an abortions so that they deliver “an intact fetal body?”

This is a group that even tells physicians that “cesarean deliveries can also be performed in cases of already-deceased fetuses.” Why in the world would we be listening to them about anything that has to do with women’s health and safety? More importantly, why would the Wall Street Journal?

In the States

In the wake of a report showing that Louisiana doctors—terrified of the state’s abortion ban—are forcing women with life-threatening pregnancies into c-sections, Democrats tried to push through a bill that would let voters decide on abortion rights in the state.

Proposed by Rep. Aimee Adatto Freeman, House Bill 245 would have put abortion rights on the ballot in Louisiana. As you can imagine, Republicans quickly killed it; they know that any time abortion rights is put directly to voters, abortion rights wins. And they simply don’t want people to have a choice.

A Minnesota Court of Appeals has ruled that a pharmacist discriminated against a woman when he refused to give her emergency contraception. And yes, this is exactly what Alliance Defending Freedom president Kristen Waggoner was talking about. In fact, ADF acted as pharmacist George Badeaux’s lawyer!

The short version is that Badeaux wouldn’t fill a woman’s prescription for emergency contraception in 2019 (before the drug was over-the-counter). After the woman traveled 100 miles to find another pharmacy that would fill the prescription, she filled a discrimination lawsuit under Minnesota’s Human Rights Act.

Last week, the appeals court ruled that Badeaux’s actions constituted sex discrimination—a ruling that may be appealed to the state Supreme Court. I’ll keep you updated on this one, especially given ADF’s special interest in the case.

I told you last week about Arizona Sen. Eva Burch, who gave a remarkable floor speech announcing that she was getting an abortion for a nonviable pregnancy. This week, Rolling Stone spoke to the lawmaker about her experience—and what it was like having to sit through the “cruel and unnecessary” anti-abortion propaganda that doctors are forced to tell patients:

“I knew what I was walking into—I was eyes wide open when I went into that clinic—but it still shocks me what these providers have to say to patients. There’s just no getting over it. You can’t just intellectually know what you’re gonna have to hear and then be comfortable with it. It’s uncomfortable and painful to have to listen to these providers going through this.”

Also in Arizona, not all abortion rights advocates are backing a pro-choice ballot measure effort in the state. OBGYN Dr. DeShawn Taylor says that the ‘viability’ limit in the proposed amendment alienates marginalized communities, those most hurt by abortion bans.

“A lot of them believe the government won’t work for them anyway, so they don’t show up. And when they see these concessions being made, it just reinforces their belief that the government doesn’t work for them.”

‘Viability’ language has been a source of contention everywhere abortion rights ballot measures are heading towards. You know how I feel about it! (For more, read this terrific guest column from Erika Christensen.)

Quick hits:

• The Texas Medical Board refused to list specific conditions that would qualify a patient for an abortion, saying, infuriatingly, “We can only do so much;”

• The Washington Post on the special election in Alabama that’s become all about abortion & IVF;

• And The Guardian looks at how an anti-abortion ruling could impact states with limited abortion access, like Hawaii;

In the Nation

Last week, I wrote about House Republicans’ under-the-radar endorsement of a national abortion ban. (And how in keeping with Republicans’ ever-shifting definition of what a ‘late’ abortion is, the 15-week ban is called the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act.”)

While the White House responded with pretty typical language about Republicans’ extremism, and how it’s been enabled by Donald Trump, one thing really irked me: Why doesn’t the Biden administration flag that this ban would force a woman to carry a doomed pregnancy to term?

We all know the national impact that Kate Cox’s story made—and how horrified Americans are by the GOP’s plan to force women to be ‘walking coffins’. So why not shout out what they’re doing from the rooftops?

Meanwhile, Susan Rinkunas has a must-read article at The New Republic. She points out that if conservatives successfully use the Comstock Act to ban abortion medication from being mailed, they could do the same with IUDs and emergency contraception. After all, anti-choice groups successfully made the case that these types of birth control are abortifacients in Hobby Lobby!

Finally, at an anti-abortion event last week, Marjorie Taylor Greene said, “We will repeal the FACE Act if we get the opportunity.” For months, I’ve been warning that anti-abortion groups are broadly targeting clinic safety—they want to make it as easy as possible for extremists to harass staff and patients.

They’ve been introducing legislation to repeal the FACE Act, for example, which makes the obstruction of abortion clinics and violence against them a federal crime. But anti-abortion activists have also been suing over state and local “buffer zone” laws under the guise of free speech. They’re basically arguing that the inability to get up in people’s faces is a violation of the First Amendment.

At the same time they’re bringing these suits, harassment and violence against abortion clinics has significantly increased.

Care Crisis

Abortion, Every Day has been tracking the post-Roe reproductive and maternal health crisis—from OBGYNs leaving anti-choice states and hospitals closing maternity wards, to growing maternal health deserts across the country. But there’s another factor that I hadn’t considered before, something highlighted by a South Carolina abortion fund staffer in this piece.

Ina Seethaler at the Palmetto State Abortion Fund notes that with the expansion of anti-abortion crisis pregnancy centers, reproductive justice organizations are having a difficult time of gaining patients’ trust. Because people don’t know what group is legitimate and what group is trying to trick them!

“That overlap is, unfortunately, really problematic,” Seethaler said. Nightmare shit.