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**APRIL 14, 2023**

Kuttner on TAP

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**** Understanding the Latest Restrictions on
Mifepristone

These efforts will backfire on the right-but produce a lot of
suffering along the way.

It is beginning to dawn on Republican strategists looking to contain the
political damage of anti-abortion excess that the right-to-life movement
has created a perverse perpetual motion machine. This struggle has long
ceased to be just about abortion rights. It's a fight about women's
health and the ethical duties of doctors-one that the right can't
win.

With contradictory rulings from federal district and appeals courts, the
immediate conflict over the availability of mifepristone soon moves to
the Supreme Court. On Wednesday, a three-judge panel of the Court of
Appeals for the Fifth Circuit partly reversed the ruling by Judge
Matthew Kacsmaryk
<[link removed]>
holding that the FDA's approval of mifepristone in 2000 was invalid.
The appeals panel rejected that finding as unwarranted, but upheld the
prohibition of sending mifepristone through the mail, and restricted the
drug in other ways.

Meanwhile, on Thursday afternoon, another federal district judge, Thomas
Rice of Washington state, in a suit brought by 18 Democratic state
attorneys general, reaffirmed that mifepristone could not be restricted
in those states
<[link removed]>,
despite the Fifth Circuit ruling. You might think that the Supreme
Court, with a 6-3 majority of right-wing justices, will go at least as
far as the Fifth Circuit in making it difficult to get the drug without
upending the FDA's entire regulatory regime, as Kacsmaryk's ruling
would do. But that's far from clear.

In the 2022 **Dobbs** decision
<[link removed]>, Chief
Justice John Roberts tried and failed to find some middle ground. He
wrote that he was reluctant to deny a woman a "reasonable opportunity to
choose" whether to end a pregnancy. He added that his colleagues
"display a relentless freedom from doubt on the legal issue that I
cannot share."And in the closing days of the Trump administration,
Roberts refused to overturn a lower-court decision limiting the FDA's
order to make mifepristone broadly available.

If anything, Justice Brett Kavanaugh went further in his concurring
opinion in

**Dobbs**. "After today's decision, the nine Members of this Court
will no longer decide the basic legality of pre-viability abortion for
all 330 million Americans," Kavanaugh wrote. "That issue will be
resolved by the people and their representatives in the democratic
process in the States or Congress."

Well, no. The issue of sly restrictions that affect women who live in
firmly pro-choice states is now squarely back before the high court.
They are tantamount to a national ban on abortion, something that the
Supreme Court explicitly declined to order. And if Roberts and Kavanaugh
are at all consistent, or if they detect the danger to their party, they
will refuse the efforts by lower courts to ban mifepristone.

That, of course, would bounce this question back to the political arena,
where it keeps being a sure loser for Republicans. These court
decisions, combined with state efforts to require doctors to be agents
of state surveillance against women, have not only alienated growing
numbers of pro-choice voters, especially among the young, who grew up
not thinking much about abortion rights because of the security of

**Roe v. Wade**. The far-right courts have also outraged Big Pharma and
the medical profession.

And last night, with exquisite timing, Florida Gov. Ron DeSantis signed
a bill that he sought, limiting abortion in Florida to six gestational
weeks, effectively banning it. The law will not take effect until
reviewed by the Supreme Court.

So the civil war over reproductive rights and women's health
continues. These latest ploys may be winners inside the anti-abortion
movement, but they are sure losers in the broader court of public
opinion and for the Republican Party. In the meantime, needless
suffering coexists with the redoubling of political struggle.

~ ROBERT KUTTNER

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The Feinstein Affair: Senate Gerontocracy Reaches Absurd Heights
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Old senators, old rules, and old traditions all are cutting against what
should be a simple task of confirming judges. BY DAVID DAYEN

Ripping Off the Invisible Straitjacket
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We need better economic models, but we also need Congress to free itself
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process. BY LINDSAY OWENS

The Taxman Cometh
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A new plan from the IRS lays out how the agency intends to revamp
itself. BY JAROD FACUNDO

Rising Debt and Sickly Growth
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The World Bank and IMF are asking developing countries to do more with
less. BY LEE HARRIS

 

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