Rosemary Westwood is a Murrow Award-winning journalist for public radio in Louisiana and the host of Banned: The Mississippi Case to Overturn Roe v. Wade.
If you support abortion access, consider this a case of gratitude for small mercies: By most accounts, a majority of justices on the U.S. Supreme Court appear ready to shut down a recent effort to restrict abortion in America. If that happens, the court’s decision will hand abortion-rights supporters what counts as a win these days.
The case began when a group of conservative Christian, anti-abortion doctors and dentists calling themselves the Alliance for Hippocratic Medicine launched a lawsuit challenging the U.S. Food and Drug Administration’s 2000 approval of mifepristone, the abortion medication used worldwide that’s 99.6-per-cent effective and as safe as ibuprofen. The group also challenged a series of more recent FDA moves that increased access to mifepristone, including the 2021 decision to allow for telemedicine abortions.
If you’re a conservative swinging for the fences, you can’t do much better than filing your case in Texas. So the Alliance for Hippocratic Medicine was incorporated in Amarillo, Tex., putting its lawsuit in the court of Judge Matthew Kacsmaryk, an appointee of former (and perhaps future) president Donald Trump, who issued a sweeping ruling overturning the FDA’s original approval of mifepristone. (Judge Kacsmaryk based his decision in part on two studies that have since been retracted for lacking “scientific rigor” and because the authors failed to note their associations with anti-abortion groups.) The case moved to the Fifth Circuit Court of Appeals – what Vox’s Ian Millhiser called the country’s “Trumpiest” court – where a three-judge panel, featuring two Trump appointees, reined in Judge Kacsmaryk’s ruling, but reinstated FDA rules from 2016, making the pills harder to get and ending telemedicine abortions. (The Supreme Court stepped in early in the case to preserve the FDA’s broad access to mifepristone pending the suit’s outcome.)
During oral arguments last week at the Supreme Court, though, justices spent little time discussing the FDA. Instead, many of them – including the same conservatives who helped overturn constitutional abortion rights – questioned whether the doctors had any right to sue at all.
To bring a lawsuit in court, a plaintiff has to prove standing: that specific harm was done to them. The Alliance for Hippocratic Medicine argued that its members were harmed by the mere chance that a patient could one day end up needing follow-up care at an emergency room where they were working after taking mifepristone, and that those doctors could then be required to give follow-up care despite expansive federal protections that allow doctors to refuse to provide treatment that goes against their beliefs.
If that “mountain of remote possibilities” is enough, note Reva Siegel and Mary Ziegler, two prominent legal minds on abortion, “anyone can bring a constitutional challenge to any drug approval or any law.” That’s a Pandora’s box that the court seems unwilling to open, at least for now.
But there are caveats to this relative victory for abortion access. First, the case appeared to cement that doctors are not only allowed to refuse to provide abortions under conscience protections, they can even refuse to help women after the fact. Second, Supreme Court Justices Samuel Alito and Clarence Thomas raised the Comstock Act during arguments, a long-dormant Victorian-era anti-obscenity law that abortion opponents hope could be used to ban them.
Mr. Trump has also raised the prospect of a 15-week abortion ban if he gets re-elected, which would only further push Republicans to the fringes in a country where a clear and growing majority support abortion access – even in red states.
Yet even if conservative Christians managed to ban mifepristone or revive the Comstock Act, they won’t, of course, end abortions. Women who want abortion pills are getting them, including in states where abortion is banned. One recent study found medication abortion use has more than tripled in states with bans, accounting for nearly 28,000 abortions in the six months post-Roe – a jump that shocked even me. And that wave is being driven by community networks providing the pills for free, including by mail from women outside the U.S. and its legal purview.
Meanwhile, the total number of abortions has actually risen in the U.S. post-Roe, driven, in part, by mifepristone’s growing popularity. Nearly two-thirds of abortions in the U.S. use medication.
Conservative Christians trying to ban abortions often talk not just about changing laws and regulations, but about changing hearts and minds – for women not just to be denied abortions, but for women to not even want them. So far, winning a 50-year-battle to end abortion rights in the U.S. has had just the opposite effect. And whatever the Supreme Court decides about mifepristone, women will keep taking it.