Dear John,
On Tuesday, the Supreme Court heard arguments in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration—a case that seeks to overturn the FDA’s approval for the drug mifepristone, one of the two medications used to complete a self-managed abortion.
In the lead-up to the Court’s hearing of the case, a Texas district court initially ruled that the FDA had acted improperly in approving the medication, and that it should be removed from the market. The Department of Justice appealed the decision to the Fifth Circuit, which ruled that while the statute of limitations had passed for challenging the original approval, subsequent FDA regulations around Mifepristone should be rescinded. Again the DOJ appealed the decision; left to stand the ruling would prohibit telemedicine and mailing of the medication, reinstate the in-person visits requirement and prohibit non-physicians from prescribing—thus impacting abortion provision nationwide even in states without bans like California and New York.
In the oral arguments, a major issue that came up was that of standing: namely, whether the plaintiffs even have the right to bring the case. “In brief, the plaintiffs need to show that they have a ‘genuine stake’ in the case outcome,” wrote Ms. contributor and legal scholar Aziza Ahmed. “These plaintiffs—physicians who claim that they might have to treat women for self-induced abortion, but never have experienced any of the harms they assert they may be faced with—are asserting a link that is even too attenuated for the Supreme Court justices to find standing.”
But regardless of whether the Court chooses to overturn the lower courts’ rulings on the basis of standing, the fact remains that the case made it to the Supreme Court. It's clear that attacks on abortion like Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration are just going to keep coming. The far-right Heritage Foundation's "Project 2025" policy agenda—written by Trump allies and advisors—urges the next Republican president to order the FDA to withdraw Mifepristone from the market, and targets laws that protect telemedicine abortion providers.
In the face of these attacks, abortion rights supporters are pointing at what could be a powerful tool to counteract them, if enshrined in the Constitution: the federal Equal Rights Amendment. In Nevada, a district court recently ruled that the state’s Equal Rights Amendment safeguards Medicaid funding for abortions. And in Pennsylvania, the state Supreme Court found that abortion providers can challenge the state’s ban on Medicaid funding for abortions on the basis of sex discrimination, and that the ban is presumptively unconstitutional under Pennsylvania's state ERA.
This week, we launched a new project, in collaboration with the ERA Project at Columbia Law, the Birnbaum Women’s Leadership Center at NYU Law, and our publisher, Feminist Majority Foundation: “The ERA is Essential to Democracy.” This curated series answers key questions: What will it take to fully and finally recognize the ERA as the 28th Amendment? How strong is public support for the ERA? (Spoiler alert: VERY.) What are modern state-level ERAs already accomplishing? And how will the ERA help turn the tide against rollbacks to abortion and reproductive freedom in our post-Dobbs society?
I invite you to explore the website, which features essays, taped conversations, and a podcast episode, here.
Onward,
