[These efforts will backfire on the right—but produce a lot of
suffering along the way.]
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UNDERSTANDING THE LATEST RESTRICTIONS ON MIFEPRISTONE  
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Robert Kuttner
April 14, 2023
The American Prospect
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_ These efforts will backfire on the right—but produce a lot of
suffering along the way. _

Three members of the Women’s March group protest in support of
access to abortion medication outside the federal courthouse in
Amarillo, Texas, March 15, 2023., David Erickson/AP Photo

 

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
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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
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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
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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.

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* Mifepristone; Reproductive Rights; Dobbs; Women's Health;
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