The Week in Abortion

(4.10.23 - 4.14.23)

Abortion Medication

Obviously, the biggest abortion news of the week was everything happening with mifepristone. Over the course of just a few days we had multiple court rulings with different impacts in different states—which resulted in the kind of chaotic uncertainty that Republicans love. After all, if there’s confusion around whether or not mifepristone is legal, doctors and pharmacists will be less likely to dispense it to patients, and women will be less inclined to seek it out online or elsewhere. That fear and overwhelm helps conservatives bypass laws altogether.

So let’s get a handle on what happened, with the caveat that this is just an overview. (For a more detailed examination, follow the links!)

The Legal Bit

We saw two opposing rulings with equal power come down on mifepristone: One from Judge Matthew Kacsmaryk in Texas, with a decision to invalidate the FDA’s approval of the drug, and another from Judge Thomas Rice of Washington, who ruled the FDA must maintain access to mifepristone.

Pro-choice legal experts advised the Biden administration and the FDA to use its ‘enforcement discretion’—which would mean that even if mifepristone’s approval was revoked, the FDA could decide not to pursue action over it. The administration responded by saying it would “set a dangerous precedent for the Administration to disregard a binding decision.”

But here’s the thing: Enforcement discretion isn’t “disregarding” Kacsmaryk’s ruling—it’s the FDA exercising one of their lawful powers. It also isn’t without precedent. Law professor David Cohen points out that the Biden administration actually utilized enforcement discretion two years ago—for mifepristone! (The FDA used it to allow health care providers to forgo the requirement that they dispense the pill in-person.)

Still, the administration decided to solely move forward by having the Department of Justice appeal Kacsmaryk’s ruling. In response to that filing, the 5th Circuit Court of Appeals ruled that mifepristone could stay on the market, but with onerous restrictions attached: the medication would only be available before 7 weeks of pregnancy, for example, and would banned from being dispensed via telehealth. Slate writer Mark Joseph Stern told us that the ruling “embraced many of the most extreme and indefensible aspects of Kacsmaryk's lawless decision while striking a false pose of moderation.”

But wait, we’re not done yet! The Biden administration hit back at 5th Circuit by filing an emergency application to the Supreme Court—as did Danco Laboratories, a company that makes mifepristone. And hours later, Supreme Court Justice Samuel Alito issued a temporary stay until Weds, April 19th. That isn’t a final ruling on the merits, just an administrative stay that gives the Court more time to make a decision (while mifepristone remains available). That’s where we are now.

Responses from Pro-Choice States

The rulings on mifepristone effect the entire country, not just states with abortion bans. But different states have different levels of protection at the moment: the Washington ruling from Judge Rice gives legal cover to the 17 states (and Washington, DC) that sued the FDA for greater mifepristone access. They don’t have to adhere to any mifepristone restrictions: that’s why we’ve seen Washington and Oregona stockpiling the drug, and states like Arizona making clear to doctors in the state that they can continue to prescribe it.

Pro-choice states that didn’t sign onto that suit, however, don’t have the same legal cover—which is why places like New York and California are stockpiling misoprostol instead. (A move that is more political posturing than helpful.) That said, we have seen leaders in places like Massachusetts take bold action. Even though the state isn’t protected by Judge Rice’s ruling, Massachusetts is stockpiling mifepristone anyway. Gov. Maura Healey says the state “will continue to use every power available to us to ensure that radical judges elsewhere in the country cannot limit access to safe, effective abortion care here in Massachusetts.” Love to see it.

Potential Fall-Out

Medication abortion accounts for over 50% of abortions—so any kind of restriction or change to mifepristone’s access would have a tremendous impact. Take the strain on doctors, for example: physicians and OBGYNs in pro-choice states are already overwhelmed because of the influx of out-of-state patients, even with their ability to prescribe abortion medication. Without mifepristone, more women will have surgical abortion. (Doctors in pro-choice states could still prescribe just misoprostol to end a pregnancy, but it’s much more uncomfortable and less women will opt for it.) That increase in surgical abortions will cause even more of a reproductive health backup in pro-choice states—not just around abortion, but miscarriage care, pap smears, etc.

If you are seeking an abortion and have questions about the law in your state, check out If/When/How’s legal helpline.

State Nightmares

Unfortunately, suffering through a national clusterfuck didn’t make us any more immune to the state-level nightmares. Florida Gov. Ron DeSantis signed Republicans’ 6-week abortion ban (in the dead of night like a coward), a law that will effectively end legal abortion in the state. The law won’t go into effect until the state Supreme Court comes down with a decision on Florida’s existing 15-week ban, but we have no reason to think the conservative justices will do anything other than uphold the restriction. New research this week showed that Florida was the state with the biggest increase in its abortion rate post-Roe, largely because of out-of-state patients. So this ban will decimate access in the South.

Nebraska advanced a 6-week abortion ban that I wrote about in detail here. One of the most telling things about the legislation was its language on IVF: The bill defines abortion as not including “the termination or loss of the life of an unborn child who is not being carried inside a woman's body,” a clear admission that this legislation is just about controlling women.

And in North Dakota—where a new law requires sex education classes to show ultrasound videos and a “computer-generated rendering or animation” of fetal development—Abortion, Every Day broke the news that the state will be using a video from the extremist anti-abortion group, Live Action. This is a group primarily know for producing deceptive videos—in fact, a former leader at the organization lost a $2 million judgement after releasing heavily-edited videos targeting Planned Parenthood. That’s who will be teaching children in North Dakota.

Other state news to watch:

• Louisiana’s governor wants to add a rape and incest exception to the state’s abortion ban (something I’m sure has nothing to do with the fact that more than half of the voters there want abortion rights protected in the state constitution);

• In Idaho, the Attorney General is coming under fire for broadly interpreting the state’s abortion ban and ‘trafficking’ law;

• And in Iowa, we saw Republican Attorney General Brenna Bird ending funding for emergency contraception for rape victims—even though most of those served by the program are children who have been assaulted.

Stats & Studies

We saw some really important data come out this week, from public opinion about abortion medication to where abortion rates are increasing and decreasing.

A new Pew survey found that 53% of Americans want abortion medication to be legal, and that only 22% believe it should be illegal. Especially notable: This survey was taken before the two mifepristone rulings came out, which means the numbers would likely skew more pro-choice if taken again now. (That’s what we saw happen post-Roe.)

New research from #WeCount found that over 66,000 people were unable to receive a legal abortion in their home state between April and December 2022. The states that saw the biggest reduction in abortions were Texas, Georgia, Tennessee, Ohio, Arizona, and Louisiana; the states with the biggest increases in abortions were Florida, Illinois, North Carolina, Colorado and Michigan. (Much of the increase is due to patients traveling from neighboring anti-choice states.)

Another study published this week showed an increase in women experiencing barriers to getting reproductive health care: In 2017, the percent of women facing at least one barrier to care was 35%—by 2021, it increased to 45%. Women who reported at least three barriers to obtaining care was 16% in 2017; in 2021, it was 19%.

Meanwhile, telehealth abortion providers are seeing a huge increase in patients and website visits since Kacsmaryk’s ruling. The Guardian reports that Carafem has seen a 38% increase in people booking virtual appointments, Hey Jane has had a 30% increase in patients in the last week; and Plan C has seen almost double their normal website traffic.

Finally, a new study from Advancing New Standards in Reproductive Health (ANSIRH) shows that those who need to travel for abortions are likely to experience stress, anxiety, and shame as a result. Some patients had to disclose their abortion to those they wouldn’t otherwise have wanted to tell (like their employers); other patients were afraid of being in a new place without their support network; and there was a lot of shame reported over being unable to get abortions in their home state (as if they were doing something wrong or dangerous). The study is worth a read in its entirety—it’s a good reminder that abortion bans cause more than just physical harm.

Republican’s 2024 Freakout

My favorite topic ever! One of the biggest political themes this week was Republican politicians being absolutely scared shitless over abortion rights. That’s why so many of them were silent when the abortion medication rulings came down. (Hilariously, a representative from Susan B. Anthony Pro-Life America claimed it was because “everyone was at church on Friday night when the decision came out.”)

This is going to be an especially big problem for Republican presidential candidates, who are already starting to tweak their messaging around abortion. This week, for example, Nikki Haley told an audience of Iowa women that abortion “is a personal issue for women” and that “I don't want unelected judges deciding something this personal.” After absolutely fumbling several times on questions over abortion South Carolina Republican Sen. Tim Scott (who just announced a 2024 exploratory committee) says he’d support a federal abortion ban after 20 weeks of pregnancy. And Donald Trump is telling advisers that Republicans are “getting killed on abortion.”

Let’s not even get into Gov. Ron DeSantis, who is going to have an awful difficult time running away from this 6-week ban when talking to a national audience.

The short version: They’re fucked and they know it. Our job now is to make sure that other Americans don’t buy whatever bullshit messaging they put forward.

Abortion, Every Day in the Media

I was on The Brian Lehrer Show on Friday talking about what’s happening right now with abortion rights and taking caller questions. It was a really nice, substantive conversation if you’d like to give it a listen.