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WORSE THAN DOBBS? NOT AN APRIL FOOL  
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Rakim Brooks
April 1, 2024
Democracy Docket
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_ The Supreme Court mifepristone case forecasts decisions worse than
Dobbs _

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I can still feel the painful blow Justice Clarence Thomas struck in
his _Dobbs _concurrence
[[link removed]]. After
the conservative majority had already stripped away a half-century-old
right protecting bodily autonomy (with the weakest of legal arguments,
I might add), Thomas just couldn’t let the win sit. 

He called for open season on _other_ modern rights, with past
decisions like _Obergefell v. Hodges_
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marriage), _Lawrence v. Texas_
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sex among same-sex partners) and _Griswold v. Connecticut_
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contraception) explicitly in his sights. It was like being jumped,
only to have the meanest kid kick you while you’re down and say,
“We’ll be back.” 

They are in fact back. Last week, the U.S. Supreme Court considered
[[link removed]] whether the Food and Drug
Administration’s rules governing the abortion medication
mifepristone were legal. Mifepristone has been state-sanctioned,
legally prescribed and safely and effectively used for decades. As we
learned with _Roe v. Wade_ [[link removed]],
however, longevity is no shield when it comes to this Court. But more
to the point, regardless of the outcome here, this case marks the
beginning of a new assault on reproductive freedom and our fundamental
rights. 

In the years before _Dobbs_, the conservative strategy for
restricting abortion access was piecemeal: waiting periods after
appointments then hospital admitting privileges followed by hallway
size mandates (you read that correctly) then transvaginal ultrasounds
and, throughout, misleading abortion “counseling.” 

On the way to overturning _Roe_, conservatives made it both harder
for doctors to provide abortions and for patients to feasibly access
them. Never mind that these policies were shown to
drastically increase maternal mortality and infant death
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of how they hampered access to reproductive health care, especially
for people of color. Conservatives never cared and pressed on,
chipping away at access and destabilizing the legal basis of universal
abortion access_. _

That’s where we are now with contraception. Mifepristone is one
medication used along the continuum of reproductive care. Destabilize
the authorities and processes associated with its distribution and
you’ve begun to pave the path for attacks on other reproductive
medications: First, mifepristone, then Plan B, then the pill.

We need more champions of reproductive freedom shouting down these
attacks on the U.S. Constitution and the rights of pregnant people
everywhere.

If this all seems like hyperbole, remember that at every step along
the road to _Dobbs_, abortion advocates sounded the warning call: The
fall of _Roe _not only was a realistic possibility, but it would not
mark the end of the anti-abortion movement. Because the goal has never
been just to give power back to the states, but to place a woman’s
reproductive functions back under state control. 

It’s high time we heed that warning. Now that conservatives have
overturned _Roe_, they have no reason to stop — especially with the
courts on their side.  

Remember, the only reason this mifepristone case reached the Supreme
Court is because of Trump-appointed judges like Matthew Kacsmaryk
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had clear anti-abortion bona fides when they were confirmed to the
bench. Indeed, it was their anti-_Roe _credentials that made them
prime judicial candidates. So it’s no wonder that, after _Dobbs_,
those judges and their conservative allies immediately seized the
jurisprudential momentum to further restrict access to abortion. That
is what they were put there to do.

As long as someone, anywhere in the United States, can receive a legal
abortion — by procedure or medication — the campaign against
reproductive freedom will continue, with the courts serving as the
conservatives’ primary battleground. That’s the reality we have to
reckon with, particularly after hearing Justices Thomas and Samuel
Alito express willingness to resurrect the Comstock Act
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an archaic 1873 “chastity law” that prohibited the mailing of
“obscene materials,” including tools or drugs that could be used
in an abortion — during oral arguments.

For all these reasons and more, it is therefore essential that we
prioritize judges in much the same way the right has for decades. As I
said at a Reproductive Freedom for All luncheon two weeks ago
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we must tell President Joe Biden and our senators to nominate and
confirm lawyers who have fought for reproductive freedom. 

We know what a difference they could make given all they did to
preserve _Roe _against relentless assault _for nearly five
decades_! While Trump judges like Kacsmaryk, Ho and Wilson are on the
attack, imagine a set of reproductive freedom movement lawyers leading
the resistance by protecting our rights the way judges are supposed to
do.

Sadly, today, there are only two on the federal bench: Julie Rikelman
(1st U.S. Circuit Court of Appeals), who argued _Dobbs_
[[link removed]]_ _as a lawyer for the
Center for Reproductive Rights and Nicole Berner (4th U.S. Circuit
Court of Appeals), formerly general counsel
[[link removed]] for the service workers’
union SEIU, who began her career at Planned Parenthood_._ While their
voices are welcome, we need more like them nationwide. We need more
champions of reproductive freedom shouting down these attacks on the
U.S. Constitution and the rights of pregnant people everywhere.

It can get so much worse, and the consequences for all pregnancies
will only grow as was demonstrated in a recent report about pregnancy
care in Louisiana
[[link removed]].
The fact that anti-abortion policy has been less politically popular
[[link removed]] since _Dobbs_ provides
us no comfort. Conservatives will not stop. If we want to preserve
what we have left — let alone win back any ground — we have to
acknowledge the very real and present threat and demand champions who
will fight back.

_Rakim Brooks is a public interest appellate lawyer and the president
of Alliance for Justice. As a contributor to Democracy Docket, Brooks
writes about issues relating to our state and federal courts as well
as reforms to our judicial systems._

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* Dobbs v. Jackson
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* SCOTUS
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* Reproductive rights
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