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Whirlwind In The Courts: Battle Over Abortion Pills

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The legal whirlwind of the past week has left many people in a desperate scramble, trying to understand whether or not the abortion pill Mifepristone is legal and how they can get access to it. This is an enormously stressful and even dangerous situation for people. For those actively seeking abortion care right now, it’s a comfort to know that despite the tornado of court cases, organizations abroad like Aid Access and Las Libres can reliably deliver abortion pills across the U.S. This is a lifeline for many people looking to terminate pregnancies, or wanting preemptive access to the pills in the case of an unwanted pregnancy. 

However, navigating the network of online abortion pill providers can be dizzying in and of itself, with price-gouging startups cropping up left and right looking to make quick cash amidst the uncertainty. It’s far preferable for people to have access to doctors locally that they know and trust who can provide them with necessary reproductive care, and this is ultimately what we have to fight for.

While the question of where abortion pills legally stand moment-to-moment is murky, one thing is clear: the religious right is on a determined campaign to wipe the pill off the market. However, their path to victory isn’t straightforward.

What Happened This Week?

This afternoon, Supreme Court Justice Samuel Alito intervened to put a pause on the legal circus surrounding the status of Mifepristone, a first-step pill in medication abortions. This means that between now and next Wednesday, broad access to the pill will be restored. However, this does not guarantee that legal access is necessarily safe for long.

This past Wednesday, in another after-hours ruling, the 5th Circuit Court of Appeals stayed – or temporarily put a hold on – the most controversial part of ultra-right-wing Judge Kacsmaryk’s ruling last week which invalidated Mifepristone’s initial FDA approval. Mifepristone has been proven to be exceptionally safe. In fact, it has a better safety record than Viagra, demonstrating that this attack is ideological to its core.

In their decision Wednesday night, despite temporarily blocking the most egregious parts of Kacsmaryk’s ruling, the appeals court did uphold dangerous restrictions on the pill. By turning back the clock to 2016, before access to Mifepristone was expanded, this new ruling prohibits doctors from prescribing it in weeks 7-10 of a pregnancy, as well as ordering that the pill can no longer be sent through the mail. 

Kacsmaryk’s original ruling out of Amarillo and the ruling in the 5th circuit were so radical in their immediate orders that even arch-conservative Justice Alito pressed the “pause” button. So as it stands right now, for at least the next five days, broad access to the pill has been restored. 

What Happens Next?

Things will likely move quite quickly in the Supreme Court over the coming days and weeks. There will be a flurry of replies and hearings and quite possibly where we land is that this case remains unresolved until the Supreme Court’s next term. This means that for the time being, it’s possible that legal access to medication abortion, which now makes up over half of all abortion procedures in the U.S., will be protected over the summer.   

While it’s impossible to predict the outcome of Supreme Court proceedings, there’s reason to believe they may decide to reject the lower court’s restrictions on abortion pill access. This would have nothing to do with their concern for the lives of women and pregnant people; their decision to overturn Roe is clear proof that they couldn’t care less about protecting access to care. However, this particular attack on abortion pills could fail because it’s in contradiction to the interests of big pharmaceutical companies that manufacture, among all their other medical products, abortion pills. More than 600 pharmaceutical and biotech companies have signed onto a scathing letter condemning the attack on Mifepristone. For the Supreme Court to interfere with both a federal regulatory agency like the FDA and with the profits of major pharmaceutical companies may be too big a pill for even right-wing Justices to swallow. 

While the interests of Big Pharma, and the decisions of a reactionary court, could possibly in this unique instance align to benefit ordinary people, this is far from guaranteed. The existing Supreme Court is highly reactionary and determined. Even if this attack fails, more will come. 

If this attack is upheld by the Supreme Court, the FDA – under Biden’s authority – can decide not to enforce the ban, allowing the manufacturers and distributors of Mifepristone to continue to sell it. Regardless of the exact legal outcome, we need to mount tremendous pressure on Biden to order the FDA to ignore these trumped-up rulings by reactionary and Christian nationalist judges, and keep Mifepristone available to those who need it.

Truly guaranteeing legal protections for abortion pills will require pressure in the form of a movement. As young people are increasingly taking action to defend the rights of their trans peers against an onslaught of attacks, broader demands for bodily autonomy can become more and more popular. While for now there is very little in the way of an active movement to defend abortion rights in the U.S., it can develop in the context of the right’s overall war on the bodily autonomy of queer people and women.

As we prepare to make this year’s Pride a month of struggle, we need to take up the fight for free, safe, legal, and widely accessible abortion care alongside the demand for gender-affirming Medicare for All.

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