1). “Abortion, Every Day (3.25.24): Everything you need to know about mifepristone & SCOTUS”, Mar 25, 2024, Jessica Valenti, Abortion, Every Day, at < https://jessica.substack.com/
2). “The Group Behind Dobbs Does Not Want to Talk About What Comes Next: We sat down with Kristen Waggoner to talk about the anti-abortion legal group’s next targets”, Mar 25, 2024, Ian Ward, Politico, at < https://www.politico.com/news/
3). “The Anti-Abortion Movement’s Biggest Fear”, Mar 25, 2024, Dahlia Lithwick, Slate, at < https://slate.com/news-and-
4). “How the abortion pill case at the supreme court could undo the FDA: The medical industry watches with trepidation as mifepristone case could have huge consequences for drug regulation”, Mar 25, 2024, Jessica Glenza, The Guardian, at < https://www.theguardian.com/
5). “Despite six-week abortion ban in SC, local nonprofits work to help patients anyway”, March 25, 2024, Simone Garber, Medill News Service, The State, at < https://www.thestate.com/news/
6). “Marjorie Taylor Greene vows to get rid of law that protects abortion clinics”, Mar 20, 2024, Walter Einekel, Daily Kos, at < https://www.dailykos.com/
7). “Unnecessary surgeries instead of abortion: 'It’s real life. It's no longer science fiction' ”, n.d., Ali Velshi, MSNBC, duration of video 12:57, at < https://www.msn.com/en-us/
~~ recommended by dmorista ~~
Introduction by dmorista: Today (nb apology for not getting it up til a day late)the long-awaited SCOTUS hearing on the Mifepristone access case is taking place. The intrepid Jessica Valenti posted a fine discussion of the issues in Item 1)., 1). “Abortion, Every Day (3.25.24): ….” that includes many sage observations. Including mentioning that Josh Hawley's wife is the lead counsel for the so-called Alliance Defending Freedom (ADF). She also was prominent in their legal presentation at the carefully jurisdiction shopped proceedings in Amarillo in front of the Forced-birth activist U.S. District Junge Matthew Kacsmaryk. In Item 2)., “The Group Behind Dobbs ….”, Ian Ward pretty seriously interviews Kristen Waggoner, ADF’s CEO, president and general counsel, asking her a lot of hard questions that she did not particularly want to answer and wriggles out from under others. Remember that: “Alliance Defending Freedom, (is) the conservative Christian legal fund that led the successful legal campaign to overturn Roe v. Wade”.
Item 3). “The Anti-Abortion Movement’s Biggest Fear”, is an incisive article that points out that the Forced-birth movement's troops and propaganda campaigns are fired up by the experience of bullying and intimidating vulnerable women who have to physically go to an Abortion Clinic for care. The very different quiet experience of taking the Mifepristone and Misopristol pills at home, delivered in the mail, and prescribed for women (who live in Fascist Red State America) by physicians who live in and are protected by Blue State shield laws; is totally different. The Forced-birth operatives and leaders hate the fact that these women are able to avoid the vicious tactics of the Anti-abortion types.
In Item 4)., “How the abortion pill case at the supreme court ….”, the article provides a fine summary of the situation concerning abortion pills and discusses the fears of scientists and corporate officials at the pharmaceutical companies that produce medicines. While the Big Pharma regime has been pretty far from perfect, a descent into a ultra-reactionary Libertarian situation in which the Federal Government's ability to regulate and make decisions has been replaced by anarchy would be even worse.
Item 5). ,“Despite six-week abortion ban in SC, ….”, discusses the travails of providing reproductive health care in a hostile environment of the backward reactionary ruled state of South Carolina. The article notes that: “South Carolina’s maternal mortality rate is the eighth-highest in the nation, according to the South Carolina Law Review.” The state with the highest maternal mortality rate is Louisiana. In Item 6)., “Marjorie Taylor Greene vows ….”, the notorious Georgia loudmouth talks with some Forced-birth activists who have friends in jail for violating the Federal FACE act (the Freedom of Access to Clinic Entrances Act, passed in 1994). Greene ends the short interview segment promising to repeal the FACE act if she gets the chance.The video in Item 7)., “Unnecessary surgeries instead of abortion: ….”, includes a short appearance by Margaret Atwood, the author of The Handmaid's Tale who discusses how, in the pre internet days, clipped newpaper and magazine articles that featured outrageous stories about the weird sexual fixations of the American rulers and population in general. After that Velshi counterposes recent headlines of outrages against women in reproductive and abortion healthcare. Finally he interviews Georgetown Professor of Constitutional Law and Global Health Policy Michele Goodwin who discusses racial and gender outrages in the U.S. now and historically.
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Abortion, Every Day (3.25.24)
Click to skip ahead: A refresher on SCOTUS & Abortion Medication as we gear up for arguments tomorrow. That leads us directly into The War on Contraception, which is very much next on the chopping block. In Anti-Choice Strategy, conservatives are going after telemedicine because they want the ability to harass docs in person. In Hypocrisy Alert, I’m begging publications to do some background reporting before they quote anti-abortion extremists. In the States, news out of Louisiana, Minnesota, Arizona and others. In the Nation, attacks on the FACE Act and a missed opportunity. Finally in the Care Crisis, something I’ve overlooked.
SCOTUS & Abortion Medication
Well, it’s here. Tomorrow, the Supreme Court will hear arguments on mifepristone in a case that will determine whether serious restrictions are put on the abortion medication. Remember, the legality of abortion medication is not in question—access is.
A negative ruling would revert access to mifepristone to pre-2016 rules: the drug would only be approved through seven weeks of pregnancy, the medication would have to be prescribed and picked up in person, and mifepristone would be banned from being mailed or prescribed via tele-health.
A brief refresher: This all started with a decision by Judge Matthew Kacsmaryk that invalidated the FDA’s approval of mifepristone. After the Justice Department appealed, the 5th U.S. Circuit Court of Appeals partially blocked Kacsmaryk’s ruling, but agreed to those nearly-decade old restrictions. SCOTUS then blocked that decision, and now we’re here.
Anti-abortion groups are claiming—using very dubious, now-retracted ‘studies’—that they’re trying to protect women from mifepristone, which is safer than Tylenol. If the Supreme Court rules in their favor, the most pressing problem would be the requirement that doctors dispense mifepristone in person.
That’s because since Roe was overturned, the use of telemedicine and abortion medication has increased drastically: Medication abortion accounts for 63% of abortions, up from 53% in just 2020.
Without the ability to have pills shipped to them, patients in states with abortion bans will be stuck—unable to get the care that they need without leaving their state. In pro-choice states, doctors who are already inundated with out-of-state patients seeking procedural abortions will be even more overwhelmed; and patients will face increased and potentially dangerous delays to care.
Remember, going after our ability to mail mifepristone is one of the anti-abortion movement’s biggest strategies. If they get their way—with the Comstock Act, specifically—abortion medication would be illegal to mail, as would any kinds of tools or supplies used in abortions. And again, that wouldn’t just apply to anti-abortion states, but every state.
What’s more, a ruling in favor of anti-abortion activists undercutting the FDA’s authority would also have a tremendous impact on medical and pharmaceutical industries. From The Guardian:
“If the agency’s decisions can be undone by a judge or it can be sued by any group who outlines theoretical harm, it opens the doors for judges to make medical decisions and for nearly anyone opposed to a drug to sue.”
That means everything from contraception and gender-affirming hormones to vaccines would be endangered.
Finally, while The Washington Post editorial board says SCOTUS should decide on the side of science, which, “unsurprisingly, is on the scientists’ side,” Reuters looks at the nitty gritty of just how bad the anti-abortion ‘research’ is on mifepristone.
AED will have more on the SCOTUS arguments tomorrow, so make sure to swing by. I’ll also be hosting an all-day live-chat tomorrow for paid subscribers—so if you’ve been holding off on upgrading, now is a good time to make the leap! I’m even running a discount through Friday:
To hear more expert voices on the case, check out this terrific interview Chris Geidner at Law Dork did with law professors Greer Donley, David Cohen, and Rachel Rebouché. (And if you haven’t subscribed to Law Dork yet, get on it!)
The War on Contraception
Whew. POLITICO has an interview with Kristen Waggoner, the CEO and president of Alliance Defending Freedom, and the headline alone should send a chill down your spine: “The Group Behind Dobbs Does Not Want to Talk About What Comes Next.”
Waggoner, whose group was responsible for the demise of Roe and is now trying to ban mifepristone, takes great paints to claim ADF doesn’t want to ban contraception. She say that she’s “not aware” of any cases trying to ban birth control, and that “ADF has never advocated for limitations on access to contraception.”
That last bit is important—because as you all know by now, conservatives have long been making a legal argument that emergency contraception and IUDs aren’t actually birth control, but abortion. So when Waggoner says they’re not going after contraception, what she actually means is they’re not going after what they consider contraception.
I’ve gotta give it up to POLITICO reporter Ian Ward, because he holds Waggoner’s feet to the fire, pointing out that ADF’s past suits have called certain kinds of contraception “abortion-causing drugs.” (They’ve represented pharmacists who refuse to dispense the morning-after pill, for example.) While Waggoner tries to pivot, she isn’t very successful:
“Where I’m making the distinction is on abortion and what abortion means…the question of whether pharmacists need to dispense abortifacient drugs.”
This quote gets at two things I’ve written a lot about: 1) Conservatives’ attempts to redefine abortion and birth control; 2) How anti-abortion groups are using a chipping away approach on birth control that they think won’t raise voters’ suspicions. It’s a smart move: By making the issue about conscience clauses for pharmacists, conservatives can quietly redefine birth control while making it harder for women to get emergency contraception.
Waggoner does a similar rhetorical dance when Ward asks if she believes certain types of birth control are abortion, saying “there are so many different forms of contraception on the market—I can’t possibly answer that.”
Finally, she admits that emergency contraception “would be considered an abortifacient,” because she says it can “be used post-fertilization and pre-implantation but also sometimes even after that.”
This is really important. This is the head of the nation’s most powerful conservative legal group—the organization that overturned Roe—saying that contraception is abortion. Also, please remember what the former CEO of ADF told The New Yorker just a few months ago when asked if he thought the group was on a winning streak:
“We are on a winning trajectory. It may be that the day will come when people say the birth-control pill was a mistake.”
They are doing this all out in the open. The only question is whether or not voters will listen.
Anti-Choice Strategy: In-Person Abortions Mean In-Person Harassment
It’s incredible to look at how many different issues the mifepristone case really touches. In addition to what it means for abortion medication access and attacks on birth control, what SCOTUS decides will also determine the safety of abortion providers and clinic workers.
In a must-read interview at Slate, the inimitable Dahlia Lithwick spoke to professor Carrie N. Baker, whose book, History and Politics of Abortion Pills in the United States, is being published later this year. Baker points out that the conservative strategy on abortion medication and telemedicine is directly related to anti-choice activists’ desire to harass doctors and clinic staff:
“If the doctors can’t be identified because they don’t have a brick-and-mortar clinic, if they’re located in a location where they don’t know where they are, well then what? I mean, these telemedicine providers are entirely virtual. They don’t have brick-and-mortar clinics. All they have is a website. And you know, they might go after the website, but they can’t locate the doctors. They can’t locate the patients, they can’t scream to the patients, ‘You’re murdering your baby.’ And that fundamentally undermines their strategy.”
Essentially: in-person abortion means in-person harassment.
This is similar to the point I made last year after Matthew Kacsmaryk’s ruling; that targeting abortion pills was very much about the anti-choice movement’s desire to shame women:
“It’s not a coincidence that these truly awful men have targeted abortion medication, specifically. Our ability to end a pregnancy with just a few pills—safely, privately, at home and without shame—was too much for them to take. At least when we went to clinics they could stand outside and call us ‘sluts’. Abortion medication robbed the men who hate us of their most treasured birthright: The ability to degrade women who do things they don’t like.”
Indeed, Baker tells Lithwick that the “indignity” is very much the point. “It’s all about stigmatizing abortion and making people feel like it’s unsafe,” she says.
Hypocrisy Alert
I’m really going to need mainstream media outlets to stop quoting extremist maniacs as if they’re credible people. At the very least, do your fucking jobs and tell readers who you’re quoting. In the Wall Street Journal’s coverage of the mifepristone case heading to the Supreme Court tomorrow, for example, the publication quotes the director of research for the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG).
Donna Harrison, who claims mifepristone is dangerous for women, says, “What this case is really about is common-sense safeguards.” If Donna is so concerned about women’s health, why is her group lobbying for legislation that would force doctors to give women with life-threatening pregnancies c-sections instead of abortions?
If AAPLOG is interested in “common-sense safeguards” why do they advise OBGYNS to force women with massive placental abruptions to labor for 24 hours? Do they think it’s “common sense” to tell doctors that these women should simply be given blood transfusions and intensive care instead of an abortions so that they deliver “an intact fetal body?”
This is a group that even tells physicians that “cesarean deliveries can also be performed in cases of already-deceased fetuses.” Why in the world would we be listening to them about anything that has to do with women’s health and safety? More importantly, why would the Wall Street Journal?
In the States
In the wake of a report showing that Louisiana doctors—terrified of the state’s abortion ban—are forcing women with life-threatening pregnancies into c-sections, Democrats tried to push through a bill that would let voters decide on abortion rights in the state.
Proposed by Rep. Aimee Adatto Freeman, House Bill 245 would have put abortion rights on the ballot in Louisiana. As you can imagine, Republicans quickly killed it; they know that any time abortion rights is put directly to voters, abortion rights wins. And they simply don’t want people to have a choice.
A Minnesota Court of Appeals has ruled that a pharmacist discriminated against a woman when he refused to give her emergency contraception. And yes, this is exactly what Alliance Defending Freedom president Kristen Waggoner was talking about. In fact, ADF acted as pharmacist George Badeaux’s lawyer!
The short version is that Badeaux wouldn’t fill a woman’s prescription for emergency contraception in 2019 (before the drug was over-the-counter). After the woman traveled 100 miles to find another pharmacy that would fill the prescription, she filled a discrimination lawsuit under Minnesota’s Human Rights Act.
Last week, the appeals court ruled that Badeaux’s actions constituted sex discrimination—a ruling that may be appealed to the state Supreme Court. I’ll keep you updated on this one, especially given ADF’s special interest in the case.
I told you last week about Arizona Sen. Eva Burch, who gave a remarkable floor speech announcing that she was getting an abortion for a nonviable pregnancy. This week, Rolling Stone spoke to the lawmaker about her experience—and what it was like having to sit through the “cruel and unnecessary” anti-abortion propaganda that doctors are forced to tell patients:
“I knew what I was walking into—I was eyes wide open when I went into that clinic—but it still shocks me what these providers have to say to patients. There’s just no getting over it. You can’t just intellectually know what you’re gonna have to hear and then be comfortable with it. It’s uncomfortable and painful to have to listen to these providers going through this.”
Also in Arizona, not all abortion rights advocates are backing a pro-choice ballot measure effort in the state. OBGYN Dr. DeShawn Taylor says that the ‘viability’ limit in the proposed amendment alienates marginalized communities, those most hurt by abortion bans.
“A lot of them believe the government won’t work for them anyway, so they don’t show up. And when they see these concessions being made, it just reinforces their belief that the government doesn’t work for them.”
‘Viability’ language has been a source of contention everywhere abortion rights ballot measures are heading towards. You know how I feel about it! (For more, read this terrific guest column from Erika Christensen.)
Quick hits:
The Texas Medical Board refused to list specific conditions that would qualify a patient for an abortion, saying, infuriatingly, “We can only do so much;”
The Washington Post on the special election in Alabama that’s become all about abortion & IVF;
And The Guardian looks at how an anti-abortion ruling could impact states with limited abortion access, like Hawaii;
In the Nation
Last week, I wrote about House Republicans’ under-the-radar endorsement of a national abortion ban. (And how in keeping with Republicans’ ever-shifting definition of what a ‘late’ abortion is, the 15-week ban is called the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act.”)
While the White House responded with pretty typical language about Republicans’ extremism, and how it’s been enabled by Donald Trump, one thing really irked me: Why doesn’t the Biden administration flag that this ban would force a woman to carry a doomed pregnancy to term?
We all know the national impact that Kate Cox’s story made—and how horrified Americans are by the GOP’s plan to force women to be ‘walking coffins’. So why not shout out what they’re doing from the rooftops?
Meanwhile, Susan Rinkunas has a must-read article at The New Republic. She points out that if conservatives successfully use the Comstock Act to ban abortion medication from being mailed, they could do the same with IUDs and emergency contraception. After all, anti-choice groups successfully made the case that these types of birth control are abortifacients in Hobby Lobby!
Finally, at an anti-abortion event last week, Marjorie Taylor Greene said, “We will repeal the FACE Act if we get the opportunity.” For months, I’ve been warning that anti-abortion groups are broadly targeting clinic safety—they want to make it as easy as possible for extremists to harass staff and patients.
They’ve been introducing legislation to repeal the FACE Act, for example, which makes the obstruction of abortion clinics and violence against them a federal crime. But anti-abortion activists have also been suing over state and local “buffer zone” laws under the guise of free speech. They’re basically arguing that the inability to get up in people’s faces is a violation of the First Amendment.
At the same time they’re bringing these suits, harassment and violence against abortion clinics has significantly increased.
Care Crisis
Abortion, Every Day has been tracking the post-Roe reproductive and maternal health crisis—from OBGYNs leaving anti-choice states and hospitals closing maternity wards, to growing maternal health deserts across the country. But there’s another factor that I hadn’t considered before, something highlighted by a South Carolina abortion fund staffer in this piece.
Ina Seethaler at the Palmetto State Abortion Fund notes that with the expansion of anti-abortion crisis pregnancy centers, reproductive justice organizations are having a difficult time of gaining patients’ trust. Because people don’t know what group is legitimate and what group is trying to trick them!
“That overlap is, unfortunately, really problematic,” Seethaler said. Nightmare shit.
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They Took Down Roe. Now They’re Fighting Abortion Pills. How Far is Alliance Defending Freedom Willing to Go?
Ian Ward is a reporter at POLITICO.
On Tuesday, the Supreme Court will hear oral arguments in one of the most closely watched cases of its current term: a challenge to the FDA’s rules for the abortion pill mifepristone. The plaintiffs — who want to overturn FDA decisions that increased access to mifepristone by, among other things, allowing it to be prescribed online and mailed directly to patients — are represented by Alliance Defending Freedom, the conservative Christian legal fund that led the successful legal campaign to overturn Roe v. Wade.
Kristen Waggoner, ADF’s CEO, president and general counsel, has become the face of the group’s anti-abortion campaign, building a reputation within conservative legal circles as a formidable litigator and happy warrior for the anti-abortion cause. (Waggoner’s opponents, meanwhile, have compared her to the “cheerful authoritarian bureaucrat” Dolores Umbridge from the Harry Potter series.)
Earlier this month, I spoke to Waggoner about the current legal challenge to the FDA’s regulation of mifepristone, ADF’s broader approach to abortion rights in a post-Roe world and the ongoing electoral backlash to the Dobbs ruling.
She was candid about the fact that the ADF’s current lawsuit is part of a much broader legal strategy to restrict access to abortion, and she defended her belief that the 14th Amendment guarantees equal protection to all embryos from the moment of conception — a position that, if endorsed by the courts, would likely amount to a constitutional ban on all abortions. In a less cheerful tone, she chaffed at the suggestion that ADF’s positions could lead to restrictions on access to contraception — but defended ADF’s claim that emergency birth control methods like Ella are abortion-causing drugs.
The following has been edited for clarity and concision.
What would you consider to be a victory in this upcoming case?
Victory would include the United States Supreme Court ruling that the FDA violated federal law when it removed the original safety standards for abortion drugs — and putting those standards back in place.
What would re-adopting those standards mean in practice for access to mifepristone?
The first thing is in-person doctor visits. Essentially, the Biden administration put in place a scheme of abortion-by-mail where women no longer need to see a doctor when they are essentially inducing labor. Instead, they have that labor in their homes or their dorm rooms, and what we know from the data is that it has significantly increased the risk of serious complications. [One of the studies cited by ADF in support of this claim concluded that “telemedicine and a no-test protocol for medication abortion is safe and has the potential to expand access to abortion care.”]
In addition to that, there used to be a requirement that when those complications occurred, physicians would need to report them — and now there’s no means of tracking those other than anecdotal evidence [from] cases that come into emergency rooms. We would also hope that doctors would be prescribing the medication, whereas now not only do they not even see patients, but they don’t even have to prescribe the medication.
And finally, the FDA now permits the drugs to be [used] for up to 10 weeks into a pregnancy, rather than the previous standard of seven weeks. So we would hope that the Supreme Court would reinstate the 7-week standard, because we know, for example, that in 7 percent of cases where the drug is taken at 10 weeks, it actually requires surgery and the abortion is incomplete. [ According to the FDA label, 7 percent of such cases from clinical trials did end in incomplete abortions, but less than half of those — or 3.1 percent of all instances — required surgical intervention.] So for women’s safety, we would want that included as well.
The Supreme Court declined to hear a broader challenge to the FDA’s overall approval of mifepristone. Do you have plans to challenge it again?
We have to wait and see how the United States Supreme Court rules in this case, given the posture of the case. Certainly we believe that mifepristone is unsafe and that the FDA recklessly endangered women’s lives by approving the drug, but this case is not focused on that. This case is about whether the FDA’s original safety standards can be removed, even though the data suggests that it endangers women.
But you still stand by the legal reasoning that ADF presented in its other suit, which is that that initial approval of mifepristone violated the law?
Yes. We know that 1 in 25 women who take the drug will end up in an emergency room — and that’s included in the FDA’s own label. [The FDA label includes a slightly broader range, noting that between 2.9 and 4.6 percent of cases in clinical trials resulted in ER visits.] This isn’t something that we’re contending from our own studies — this is what the FDA warns women that they can expect, and they’re using emergency rooms as the backstop to provide care when these complications occur. So we believe that the drug is unsafe and that by removing the in-person doctor requirements, they have increased the risk to women.
Would a ruling that the FDA violated the law by approving mifepristone result in the drug being removed from the market entirely? Or would it just result in additional restrictions?
This case has nothing to do with removing mifepristone [from the market].
I understand that, but I’m talking about the part of your original lawsuit that the Supreme Court declined to hear, which was a challenge to the FDA’s overall approval of mifepristone. I know that’s separate from the case they’re hearing now, but hypothetically speaking, what would the consequences of that be?
I think it’s a complicated issue as to how a court would rule on it and what the results would be in that type of a case. But again, that’s not what the United States Supreme Court is considering in this case.
Looking back at the sweep of ADF’s legal challenges to abortion access over the years, it seems like you’ve adopted a sort of incremental approach: slowly undermining precedent, defending waiting periods and parental notification laws, then reversing Roe in Dobbs, and now you’re challenging medical abortions. What’s the end goal here that you’re working towards? What do you see as the long-term objective of these challenges?
We believe that human life is precious, that it deserves protection from conception until natural death, and that all women and all unborn children have the right to dignity and to respect. We’re not only about ensuring that unborn children are protected, but we’re also about ensuring that women are supported, particularly in circumstances where they may have an unplanned or an unexpected pregnancy. So I think that you will see us not only take steps in the litigation space but also in the legislative arena and in public advocacy [promoting] that whole-life philosophy and supporting policies that, yes, save unborn babies, but also support and protect their mothers.
What would that look like in practice, legally speaking? Is that a constitutional prohibition on abortion? Is it a federal abortion ban? In a more concrete sense, what is the objective of your legal strategy?
Well, the first objective that we had was to overturn Roe v. Wade. I think it’s important to go back to the reasons for that, because it wasn’t simply about abortion per se — it was about the United States Supreme Court creating a federal constitutional right that is nowhere in the Constitution or in our nation’s history. The court in the Dobbs decision didn’t decide the abortion issue, but it now allows state lawmakers and communities to adopt pro-life policies and take steps to have those conversations about what it looks like to have an entire policy system and networks that support families in need. And that’s a pretty exciting time, I think, for us to be in the space.
Is Dobbs a satisfactory resolution for you, though? Other conservative legal scholars have argued for going much further [than Dobbs]. For instance, Robert George and John Finnis have advocated for an interpretation of the 14th Amendment that recognizes fetal personhood right there in the text of the Constitution. Do you share that interpretation of the 14th Amendment?
We do share their interpretation of the 14th Amendment — very much so. We believe that the 14th Amendment protects persons and that includes unborn persons, and that the right to life is protected in the Constitution and in our founding document.
We also know as a matter of social science that mothers themselves and families also support pro-life positions. And that many women — nearly two-thirds of all women who have had abortions [according to a 2023 study] — say that they wouldn’t have chosen abortion if they felt that they had the support necessary, or that they wanted to be able to carry the child to term and to give the child life. [Other studies have found that the vast majority of women do not regret their decision to have an abortion.] So we’re equally committed to ensuring that those policies come in place, and we are looking forward to working on those issues, as we have many times in the past. We’ve had a number of different cases involving pregnancy resource centers, as an example of ways that we can support women in job training and goods and services and health care as well.
It sounds like there is a tension between what was resolved in Dobbs and the 14th Amendment argument that you’re endorsing. The Supreme Court explicitly declined to weigh in on the 14th Amendment question, but it sounds like you’re hoping that they will eventually endorse it. Is that what you’re working toward?
Let me be even more clear. I am far more excited about having a culture where abortion is unthinkable than necessarily having one where it is not legal. Unthinkable means that we have fixed the social ills that are plaguing our society and we’re creating families and helping families to flourish. I think that’s equally important.
We do believe at ADF that the Constitution protects the life of an unborn child and that that is in the 14th Amendment. We also believe that supporting women is extremely important. So we’re committed to being fully pro-life, and that means also supporting women and also saving lives.
If it were endorsed by the courts, would the 14th Amendment fetal personhood argument have implications for issues beyond abortion? I’m thinking of something like access to contraception. Would a full endorsement of the 14th Amendment fetal personhood argument entail further restrictions to women’s access to contraception?
No, I don’t think it would have implications for access to contraception. I’m not aware of any cases that involve limitations on access to contraception, and ADF has never advocated for limitations on access to contraception.
I’m looking at a suit that ADF filed in 2022 representing a nurse practitioner in Virginia who sued CVS for firing her for refusing to dispense certain types of hormonal birth control. And in your lawsuit, you called certain types of hormonal contraception “abortion-causing drugs.” If [the courts] accepted the maximalist 14th Amendment position on fetal personhood, and those forms of contraception are “abortion-causing drugs,” wouldn’t they be implicated legally?
Where I’m making the distinction is on abortion and what abortion means. We’ve filed a number of cases — and I litigated a case for 10 years — involving the question of whether pharmacists need to dispense abortifacient drugs. That’s a critical issue in terms of whether the government can force health care practitioners to participate in the taking of human life. We will always defend the right of individuals and the right of conscience not to have to participate in the taking of human life.
I understand that there’s a conscience question here, but in your judgment, are certain types of contraception forms of abortion?
There are so many different forms of contraception on the market — I can’t possibly answer that, nor is that a position that ADF would take. The position that we would take is that conscience rights need to be protected in that area, and that the government has no business coercing individuals to participate in the taking of human life. We are seeing the Biden administration in particular press that in a number of different ways, and we will defend the right of conscience.
It’s just that the recent Alabama supreme court ruling raised the possibility that all fertilized eggs should treated legally as “people,” and there are forms of contraception that can prevent the implantation of a fertilized egg in utero. Just following that logic, wouldn’t those forms of birth control be illegal under a maximalist reading in the 14th Amendment position?
I’m getting uncomfortable with the way you’re asking questions, because the mechanism of action for birth control is different depending on what that birth control is. I can only speak from my own experience in terms of the cases that I’ve litigated, and in those cases, for example, Ella would be considered an abortifacient. Mifepristone is an abortifacient. Ella, for example, can be used post-fertilization and pre-implantation but also sometimes even after that. [The National Institute of Health recognizes two mechanisms of action for Ella, depending on the timing of the drug’s administration: delaying ovulation to prevent fertilization and decreasing the thickening of the uterine lining to prevent implantation. Other studies have raised doubts about Ella’s efficacy in preventing implantation.] The mechanism of action matters in terms of whether it would qualify as an abortion, and the definition of what abortion is would matter depending on what law we’re talking about.
It’s a very complicated area, and Alliance Defending Freedom doesn’t take a position on it — we just haven’t gotten into the intricacies of that. What we are committed to doing is ensuring that health care providers are protected, that their rights of conscience aren’t violated. And in the case of mifepristone, it’s no question that it is an abortifacient.
But what’s the distinction between one “abortifacient” and another? If mifepristone and Ella are both abortifacients, and mifepristone would be unacceptable under a fetal personhood doctrine, why would Ella be acceptable? I’m just trying to understand the point of distinction there.
I think it’s in terms of the mechanism of action. This case is focused on mifepristone, and there’s no dispute in the case of mifepristone, a woman is pregnant, a baby is developing and [the drug is taking effect] post-implantation. So it’s simply not an issue in this case.
Just to recap [this point], we believe that the 14th Amendment protects persons, and the nuances of what is an abortion and what isn’t — those are arguments that will continue to be made, and because Roe was in place, in many ways, those arguments haven’t been faced by the courts yet.
[In an email sent after our conversation, Waggoner wrote: “If a hypothetical 14th Amendment argument for fetal personhood were accepted by the court in the future, that would raise additional questions about how and when personhood would attach. That question is separate from, but related to, whether persons includes unborn babies in the 14th Amendment. Even if the Court held this to be true, it would be very unlikely to impact the most common contraception methods.”]
Another reason I’m asking is that some conservative legal scholars and judges — including Clarence Thomas — had wondered whether Griswold v. Connecticut was decided correctly, given what the Supreme Court decided about the right to privacy in the Dobbs case. I wonder if you would think Griswold was correctly decided, and if you’d like to see a challenge to it, too.
What I would say is that I think Thomas wrote alone in the Dobbs case, and the decision very squarely rests on the fact that human life was at stake. So I think that trying to extrapolate the Dobbs decision into other areas isn’t supported by the Dobbs decision.
Now, if we wanted to have a more robust discussion on what the 14th Amendment means and what substantive due processes is, the right of privacy is, I’m happy to have a follow-up discussion related to that.
[In her follow-up email, Waggoner wrote: “ADF has no plans to challenge contraception. Mifepristone is used by Planned Parenthood up to 13 weeks into gestation to purposefully end the life of an unborn child. No contraceptive does that.” Planned Parenthood’s website suggests that it offers mifepristone through 10 weeks of pregnancy, after which it recommends in-clinic abortions.]
I’ll ask one final question. Americans have been showing up at the polls since Dobbs to register their support for access to abortion and abortion rights. We see this in state referendum after state referendum. That obviously has implications, I think, for their desire to maintain access to abortion drugs like mifepristone. How do you balance your conviction you’ve stated here with respect for the democratic will as it’s been expressing itself in recent months at the polls?
Well, I would completely disagree with the premise of the question. Nearly two-thirds of all women who have had abortions say that they would have chosen life and would have liked to have chosen life if they had felt that they had the support that they needed. In addition to that, nearly the same number of Americans in a poll say that they support reinstituting the original safety measures that the FDA used when it approved abortion drugs. [ Other polls have found that close to half of Americans support keeping mifepristone on the market at its current level of access, with only 12 percent saying it should be available under further restrictions and 24 percent believing it should be completely unavailable.]
In addition to that, I would say the FDA’s own label says that a substantial number of women end up having to be treated in the emergency room as a result of complications. I think many who haven’t taken abortion drugs don’t fully understand what those complications are, and that by removing the in-person doctor visits, by removing the requirement to disclose complications, by upping the permitted permissible time to 10 weeks, the complications have significantly increased — and they include inducing labor in in your own home or your dorm room. [The joint appendix in the case before the Supreme Court states that studies have found “no apparent increase in other adverse events related to mifepristone use” when dispensed by mail from clinics, aside from a slight increase in the number of ER visits.] What that causes is not only excessive pain in many instances, but also significant bleeding and other complications that are very serious in nature. So the idea that the FDA acted recklessly is not only supported by the fact that doctors treat them all the time, but by the FDA’s own admissions.
So you don’t see what’s been happening at the polls in recent months as an expression of some sort of desire for women to retain access to abortion if they choose it?
I think that the abortion industry is very, very powerful, and there’s been significant misinformation about what’s at issue. I mean, you reference the Alabama Supreme Court decision as well, and that’s a perfect example of misinformation being spread — as is much of what the media has suggested in a post-Dobbs world.
We know that the polls suggest that the public wants to be able to choose life and that women want to choose life, and yet we have been discipled in a Roe culture for 50 years. It’s going to take more than a minute to demonstrate to the American public that the support exists for women to choose life and that there are many solutions and options out there for them to do that. But they’re not well known, and in fact, the pro-abortion industry has been trying to shut down these resources. I think [it’s] extremely appalling that the abortion industry would suggest that [they’re] about choice but then try to take those choices away and try to target for example, pregnancy resource centers, as is happening in many states right now.
So there’s no tension between a ballot initiative in Ohio to enshrine a right to abortion in the state’s constitution and the principle underlying ADF’s attempts to remove medical abortion pills from the market? Is it that the democratic will that’s being expressed in that ballot initiative isn’t true? Or it’s being coerced? I’m just trying to understand what you mean.
I don’t think that it’s appropriate to conflate how a ballot initiative played out with the FDA’s reckless disregard for the safety of women. Those are two different issues. In the case involving the FDA, they were required to have the drug sponsor demonstrate the safety of those drugs, and they were required to have adequate testing that stood up to ensure that women would be safe. And they didn’t do that. They failed in their legal obligation to do that. So I think that’s a very different issue than where Americans are at right now on the issue of abortion.
What we do know is that the abortion industry supports abortion on demand for any reason, up until the moment a child is born. What we do know is most Americans reject that — they think that it’s wrong and that it shouldn’t be legal. Yet that is what the abortion industry is promoting because they make money off of those abortions, and they have a profit motive there. We also know that the majority of Americans don’t support elective abortions, in the sense of abortions for social reasons. [A 2021 poll provided by ADF shows that 51 percent of Americans support restrictions on abortion except in cases of rape, incest or threats to the life of the mother. More recent polls have found that figure to be closer to 40 percent.] That data is just as clear.
I think right now, we’re in a moment where for 50 years, Americans have been told that abortion is necessary for women to be successful. The ideas of getting resources and making those resources available to the public has been paralyzed in this Roe culture. I think that that — combined with the misinformation — is leading to what we have seen in the ballot initiatives.
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The Anti-Abortion Movement’s Biggest Fear
On Tuesday, the Supreme Court is scheduled to hear oral arguments in FDA v. Alliance for Hippocratic Medicine, a case that could determine national access to mifepristone, one of two pills used as part of medication abortion. In this week’s episode of Amicus, Dahlia Lithwick spoke with Carrie N. Baker, whose book, History and Politics of Abortion Pills in the United States, is being published by Amherst College Press this year.
Lithwick and Baker discussed the anti-abortion movement’s decadeslong efforts to target the abortion pill, how those efforts hampered FDA approval of the medication in the first place, and how having easier access to reproductive care through a pill that can be sent in the mail and taken at home fundamentally threatens the strategy of those seeking to dismantle abortion rights in this country. The following transcript has been edited for length and clarity.
To listen to the full episode of Amicus, join Slate Plus.
Dahlia Lithwick: This case has been styled, unfortunately, as just a straight-up abortion case; a kind of natural outgrowth of the reversal of Roe in Dobbs from two terms ago. But it’s actually, in very specific ways, an abortion pills case.
I would love for you to just set the table for us by helping me understand how this is different from the kind of surgical abortion fight we were having leading into Dobbs. And how this is kind of a consequence of Dobbs, but also a very different conversation.
Carrie N. Baker: Abortion pills are today 63 percent of the way that people access abortion health care in the country, and it’s probably much higher.
Just a few days ago, the Guttmacher Institute released a study showing that the number of abortions in 2023 topped 1 million, which is more than the last 10 years. The last time it was over a million was 2012, and a major reason why abortion access has increased, despite Dobbs, is because of two things: Abortion pills being more accessible and people being able to access abortion pills through telemedicine.
That happened recently. It happened in 2020 and 2021 as a result of COVID, as everybody began to access health care through telemedicine. Advocates filed a lawsuit to force the FDA to allow people to get abortion pills through telemedicine. Historically, they had not been able to do that, and so people living in rural areas, people even living in states where there are abortion bans, now are able to access abortion pills through telemedicine from doctors in states that still allow abortion health care.
Abortion pills are really the present and the future of abortion, and that’s why they’re being targeted in this case. The anti-abortion movement is very aware that abortion pills are the crux to controlling women’s access to abortion, and so they’re going after it.
The thrust of what you’ve written in your book and in some of your recent pieces in Ms. is that anybody who thinks that the mifepristone case emerges fully formed in the wake of Dobbs actually wasn’t paying attention, because there has been a decadeslong effort by pro-life advocates to churn up doubt and uncertainty about abortion pills, their efficacy, their safety, and that actually this has set the United States way behind the rest of the world, long before Dobbs—all of this “medical uncertainty,” and “the dangers,” and the sort of chumming up of the debate with fake facts and fake claims.
Just for comparison, in France, mifepristone was developed there in the 1980s. It was approved in 1988. This is not the path taken in the United States. And I think your point is, anyone who’s now looking at this debate and saying, “Huh, these are alarming studies, maybe this was an irregular process that the FDA [took],” doesn’t understand that the point was to have an irregular process at the FDA.
Mifepristone was developed in 1980 in France, and the French government approved it in 1988. American anti-abortion activists were over in France trying to interfere with that process and trying to prevent the company, Roussel-Uclaf, from bringing the medication to market. And they used many of the techniques that we’re familiar with today and for the last several decades in the United States, which is terrorizing the executives at the corporation and the medical researchers who were developing the drug. Calling them, standing outside their offices, screaming at them, calling their family members, terrorizing them at their homes—and it didn’t work. The drug was approved.
But then the U.S. anti-abortion movement turned to the U.S. and tried to block it from being approved by the FDA, and they used all these same techniques. And they also targeted the activists who were trying to get it approved and the pharmaceutical companies that might try to get it approved.
Through the anti-abortion work, they prevented Roussel-Uclaf from trying to gain approval for the pill in the United States. They also dissuaded any mainstream pharmaceutical company from taking on mifepristone and trying to get it approved. So eventually what happened is an organization called the Population Council, which was a nonprofit organization that worked on access to contraception around the world, took on the medication and took on the process of doing the clinical trials and applying to the FDA for approval. The Population Council also had to find a distributor for the medication. And so basically a group of private investors created a company called Danco and applied to the FDA to get it approved, got it approved, and then found a manufacturer. All of that process was fraught because of anti-abortion interference. So it took over 12 years after France approved it to get mifepristone approved in the U.S. And the FDA was terrified. The FDA officials were very nervous because they, too, were being targeted.
I’ve interviewed for my book a lot of the activists who were involved in the process, and it was a very irregular process, not because it was done quickly or in any sort of slipshod way. They had belts and suspenders. They were very nervous. They knew they had a target on their back, and they were being not only targeted by anti-abortion activists, but by anti-abortion members of Congress who were threatening their funding. They were under a microscope.
So they were very careful throughout the process of approving the drug. And the lawsuit filed in the Supreme Court case says, Oh, this was done too quickly. It was fast-tracked. They didn’t have adequate evidence. They had voluminous evidence at the time, and in fact, when the FDA approved the drug, they put in place very unusual and medically unnecessary restrictions on medication abortion. For instance, they required that doctors register with a drug manufacturer. They prohibited pharmacies from dispensing the drug. Normally when a drug is approved, the doctor prescribes it, and a pharmacy dispenses it. But what the FDA required in the case of mifepristone is that the doctors themselves order the drug, store the drug, label the drug, and dispense the drug in person to the patients. It’s highly irregular that kind of thing happens. It happens only with really super dangerous drugs. Mifepristone is not a super dangerous drug. It’s actually safer than Tylenol. It actually should be over the counter. We know that now.
They didn’t know that back then, but the people at the FDA wanted it to go smoothly. They didn’t want any complications. So the people at the FDA were not actually hostile to the abortion pill, but they wanted to make sure that there were no problems. And then they were like, “in a few years we’ll remove some of these restrictions.” Well, then Bush got elected in 2000, the same year mifepristone was approved, and of course, once Bush was in power, he was not going to allow the FDA to loosen the restrictions. It wasn’t until 16 years later that eventually the FDA began to loosen some of these restrictions under the Obama administration.
I just think this is such a scales-falling-from-the-eyes moment because if you come into this conversation in Judge Matthew Kacsmaryk’s courtroom, the FDA’s behavior is hard to explain. It looks wildly overregulated, with these mincing steps away from overregulation. It’s still overregulation. And what you’re saying is: You’re the FDA and you are under attack from Day 1 by a concerted—and quite menacing and financially costly—effort to make you practice defensive regulation. This is the necessary result.
This week, Marjorie Taylor Greene said at a pro-life symposium, “We will repeal the FACE Act if we get the opportunity.” And that’s a reference to the 1994 law that was intended to protect abortion providers, health care providers, and patients from the kinds of intimidation and violence they were experiencing just walking into a clinic. And I should note that Rep. Chip Roy of Texas has authored legislation that would repeal the FACE Act. He has 39 co-sponsors. The Senate’s companion bill, which is authored by Sen. Mike Lee of Utah, signed on by Josh Hawley, has five co-sponsors.
I just want to be really clear that the Justice Department’s list of pro-life activists who they worry about include people who throw Molotov cocktails and concrete bricks into clinics, who block access to clinics and harass clinics, and commit mass shootings. So this is serious protection. Lets go back to what you said at the very beginning, which is that so much of the playbook in the anti-abortion movement was about surgical abortions and clinics and terrorizing and intimidating people seeking access to a clinic for an abortion. Is the workaround here that you can’t protest someone’s mailbox yet? I think it’s so important because this was your initial point, which is that this movement that is born in terrorizing people, in shouting them down, in flooding them with monetary and physical threats, has no footing in the medication abortion context unless they are able to do the thing they’re trying to do in this case: Stop all abortion pills.
Their strategy all along has been to restrict the number of locations where people can get an abortion and then target those locations by blocking access—and that was what led to the FACE Act—or by terrorizing doctors, following doctors home, protesting in front of doctors’ houses.
If the doctors can’t be identified because they don’t have a brick-and-mortar clinic, if they’re located in a location where they don’t know where they are, well then what? I mean, these telemedicine providers are entirely virtual. They don’t have brick-and-mortar clinics. All they have is a website. And you know, they might go after the website, but they can’t locate the doctors. They can’t locate the patients, they can’t scream to the patients, “You’re murdering your baby.” And that fundamentally undermines their strategy.
By having the ability to mail abortion pills to people, their central strategy is undermined. So I think that’s why they’ve invested so much in this lawsuit and in the effort to go after abortion pills—even though it’s a real stretch. What they’re arguing, that the FDA didn’t have enough evidence or that abortion pills are dangerous, it’s completely fictional. But I think really that is their only strategy. And in a way it’s the indignity. It’s all about stigmatizing abortion and making people feel like it’s unsafe.
So, many people prefer abortion pills, but again, people need options. It needs to all be legal and it needs to all be accessible. Once the FDA allowed pharmacies to distribute the medication, it means that your average doctor can now prescribe abortion, like your general practitioner, the person you’ve been going to your whole life, your pediatrician— say you’re 16 and you get pregnant—your pediatrician can prescribe you abortion pills without having to stock them. Then you can get it through the mail or you can get it at a local pharmacy.
It means that more doctors can provide abortion. They don’t have to be abortion doctors and clinics. It can be family care providers. And there’s a whole movement trying to get family care providers to provide abortion—not just pills, but also manual vacuum aspiration—but pills in particular because it’s so easy. Not only doctors, but nurses and physicians’ assistants can also prescribe abortion pills. So it’s creating more access, and that’s what the anti-abortion movement wants to stop.
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How the abortion pill case at the supreme court could undo the FDA
The medical industry watches with trepidation as mifepristone case could have huge consequences for drug regulation
A supreme court case about one little pill – mifepristone – has the medical and pharmaceutical world on edge. The pill, at the heart of a case that will be argued on Tuesday, is part of a two-drug regimen used to treat miscarriage and end early pregnancies.
Despite a more than 20-year track record of safe real-world use, backed up by more than 100 peer-reviewed studies, a group of anti-abortion doctors is seeking to roll back US Food and Drug Administration (FDA) decisions that changed and relaxed some prescribing rules.
If the doctors succeed, despite contested and in some cases now-retracted evidence of harm, the case could reshape abortion access in the US and have enormous and unpredictable consequences for how drugs are prescribed, regulated and developed.
A ruling in favor of anti-abortion doctors could threaten everything from trust in medicine to specific drugs to the US’s position as the world’s foremost drug innovator.
“I am terrified,” said Juan Hincapie-Castillo, a drug policy researcher, licensed pharmacist and assistant professor of epidemiology at the University of North Carolina. “This case is shifting the whole paradigm of how things could go moving forward.”
Mifepristone was approved by the FDA in 2000 with stringent requirements for how it should be prescribed: only up to seven weeks’ gestation, dispensed in person with mandatory follow-up appointments, and with enhanced risk-reporting requirements for doctors. Along with misoprostol, the second drug in the regimen, it is, in effect, designed to induce the equivalent of a miscarriage at home.
After more than 20 years and scientific articles spanning 26 countries, the scientific consensus is that the “abortion pill” has a remarkable track record of safety and effectiveness that, in the media, is often compared to that of Tylenol or Viagra.
But following the fall of Roe v Wade in 2022, anti-abortion doctors initiated a lawsuit against the FDA in Amarillo, Texas, arguing that the drug’s approval should be withdrawn. The Trump-appointed judge Matthew Kacsmaryk ruled in favor of the doctors. Were his decision not appealed, it would have resulted in a de facto nationwide ban on medication abortion.
The government appealed to the fifth circuit appeals court in New Orleans, with a long history of law that deferred to expert federal agencies and the FDA. Although the fifth circuit struck down part of Kacsmaryk’s decision, which would have in effect banned the drug nationally, the appeals court ruled in favor of the doctors’ arguments against two FDA decisions in 2016 and 2021.
At both of those times, the FDA relaxed prescribing rules. The agency allowed doctors to see patients for one visit, approved the drug for up to 10 weeks’ gestation, reduced risk reporting, allowed dispensing through the mail and retail pharmacies, and even reduced the dose of mifepristone from 600 to 200mg.
It may sound like a wonky distinction – but the case is viewed with fear and trepidation by nearly the entire medical industry. And hundreds of pharmaceutical executives, doctors associations and even companies regulated by the FDA have lined up in the agency’s defense.
That’s for two reasons. First, the anti-abortion doctors don’t show a typical case of harm. They argue in briefs that a fraction of doctors might have been forced to treat women who needed follow-up care from medication abortions, even though no specific party is named.
Second, their arguments undermine the deference courts have long had for expert federal agencies, and in particular for the FDA, which is both the global gold standard for rigorous scientific review, and is directly involved in high-stakes decisions about the trade-offs of particular medicines in ways that have immediate impact on American health.
“The threat to our industry is real, the threat to patients is real, and it extends far beyond this medicine,” Dr Amanda Banks, an entrepreneur and former biotechnology executive, said in a press call. And the risk to the future of medical innovations is “not just in the US, but globally at fundamental risk”.
Most immediately, a decision that rolls back the FDA’s changes would reimpose all the prescribing restrictions once placed on mifepristone, even though they are not medically necessary. That would once again reshape abortion access in the US, including in Democratic-led states who may have thought themselves immune from such restrictions. More than half of abortions in the US are now performed with medication abortion.
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It could also dramatically alter the FDA’s authority. If the agency’s decisions can be undone by a judge or it can be sued by any group who outlines theoretical harm, it opens the doors for judges to make medical decisions and for nearly anyone opposed to a drug to sue.
“What you don’t want is for patients to have science unwound, so they end up faced – not only with fewer drugs or less innovation – but with outdated regimens and unnecessary burdens,” said Eva Temkin, an attorney who worked at the FDA for nearly a decade, and now advises pharmaceutical companies, medical device manufacturers and biotechnology companies at the law firm Paul Hastings.
Contraception, hormone blockers to treat gender dysphoria, vaccines and even some chemotherapy drugs all have detractors who could target the drugs in court, experts said. Commercial rivals may also have a new avenue to limit a drug’s availability.
A decision in favor of anti-abortion drugs would also dramatically alter the drug development landscape, which relies heavily on a stable body of law for investment. Bringing a new drug to market can cost anywhere from less than $1bn to more than $2bn, and may take 10 to 15 years.
“We have the most vibrant venture capital and investment community in the globe here, by several billions dollars – orders of magnitude as compared to any other region on the globe,” said Banks. “It’s been incredibly successful, and the reason why it’s incredibly successful is because we have a very, very data-driven FDA … That’s not the kind of judgment that can be replaced in a couple of weeks in a hearing by someone who isn’t trained.”
The FDA’s experts are not the sort of scientists who “change between administrations”, said Hincapie-Castillo.
Perhaps most alarming for the medical and pharmaceutical industries is that the FDA – whose expert, independent reviews are the envy of many countries – might be undone by what many prominent researchers consider pseudoscience.
“These decisions need to be shaped by the consensus science that we have, and not judicial decisions that are influenced by junk science,” said Ushma Upadhyay, a public health social scientist trained in demography and a professor in the department of obstetrics and gynecology at the University of California, San Francisco. Her work with a pharmacist helped lead to the retraction of two papers cited by the district court in Texas.
If the case goes against the FDA, said Hincapie-Castillo, “I’m very concerned with medications – what it’s going to look like going forward. These special interest groups have shown us their true colors, and they want to diminish the authority of government.”
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Despite six-week abortion ban in SC, local nonprofits work to help patients anyway
Between a real estate attorney’s office and a county magistrate building sits one of South Carolina’s three abortion clinics. Pink and white signs beckon patients, discreetly placed so as not to invite unwanted attention.
Since the overturning of Roe v. Wade in 2022, women and advocates in the state of South Carolina have struggled to safeguard access to reproductive health care, including abortions. Existing policies tend to penalize, rather than uplift, patients seeking care and those who help them. But the people who work on the front lines don’t want to leave. Their work is a crucial part of who they are, they say.
South Carolina’s maternal mortality rate is the eighth-highest in the nation, according to the South Carolina Law Review. Vicki Ringer, the director of public affairs at Planned Parenthood South Atlantic, said she is critical of lawmakers focusing on the wrong victims of an under-resourced health care system.
“Women have died and will continue to die,” she said. “This should require some action on behalf of our legislature – whether that’s in research, expanding Medicaid or providing more rural health care. All of those things would make sense, but the legislature does not do any of those things.”
In August 2023, the state Supreme Court upheld a ban on abortion after six weeks of pregnancy, a similar law that had been struck down just eight months before. After the court’s only female justice retired, it reversed this protection, forcing providers to turn away patients at a stage before many of them even know they are pregnant.
While abortion takes center stage as a national political talking point, so many other facets of reproductive care remain difficult to access throughout the country, including contraception, in vitro fertilization and sex education in elementary schools.
“Our reproductive health care restrictions are some of the most restrictive in the nation,” said Kelli Parker, the director of communications and marketing for the Women’s Rights and Empowerment Network (WREN). “Most South Carolinians support access to reproductive health care. But it’s continually being limited through our legislators that have very extreme ideas about what reproductive health care actually is.”
It never occurred to Parker that her 11-year-old daughter wouldn’t have the same right to bodily autonomy as she once did. Having grown up in New York, Parker’s access to health care in Charleston, S.C., over the past five years has been vastly different from the medical privacy she’s used to.
“I think people who live outside of the South really take for granted the amount of freedom you have,” she said.
Parker’s agency, based in Columbia, works to expand access to health care, education and economic opportunities for women, girls and gender-expansive people throughout the state. Since 2017, WREN has advised patients seeking reproductive services in a state that was one of the first to impose near-total abortion bans after Roe’s reversal.
Recent policing of gender-affirming care comes from male lawmakers’ need for “control,” Parker said.
“It’s important to remember that abortion bans and restrictions don’t do anything to protect anyone’s health or safety – they’re only punishment,” she said. “Why would you want to elect someone who’s out to punish you?”
Ina Seethaler is the director of college outreach at the Palmetto State Abortion Fund, a volunteer-run organization working to offset the financial barriers to reproductive justice in South Carolina. The fund subsidizes abortion procedures and logistical costs, including transportation and lodging for out-of-state appointments.
Seethaler called South Carolina a “reproductive health care desert,” as local physicians often weigh high-stakes decisions that could leave them incarcerated.
According to the S.C. Office for Healthcare Workforce, 14 out of the state’s 46 counties do not have a practicing OB-GYN. That translates to a ratio of 0.43 for every 1,000 women of reproductive age, according to a South Carolina Center for Rural and Primary Healthcare research brief.
“Folks don’t want to move here,” Seethaler said. “They don’t want to practice here. It’s becoming, frankly, kind of dangerous for them to work here. But things are just going to get worse again at the expense of the people in South Carolina.”
And it’s not just a lack of trained professionals that’s driving the reproductive health care shortage. For patients in desperate situations facing few options and little reliable information, many turn to crisis pregnancy centers (CPCs) for answers. These institutions, which reproductive justice advocates say impart misinformation to pregnant people rather than support, generated nearly $1.4 billion in revenue in the 2022 fiscal year and continue to increase in scope and size nationwide.
As a result of CPC expansion, Seethaler said, many reproductive justice organizations are finding it difficult to persuade patients of their legitimacy.
“That overlap is, unfortunately, really problematic,” she said.
The 35 CPCs in South Carolina well outnumber the abortion clinics in the state. In addition to Columbia, two other Planned Parenthood Health Centers are located in Charleston and Greenville, all at least 100 miles away from one another.
Ringer’s lobbying efforts at the Columbia State House are constantly challenged at the clinic sites, where protesters will “literally drag patients into vans” stockpiled with ultrasounds.
“All of these folks exist only to harass patients,” she said. “They don’t provide any real services. It’s just dogma they’re imposing on people that they’re trying to stop from having an abortion.”
These days, the stakes of health care suppression are extending to other reproductive issues. Last month, the Alabama Supreme Court ruled that frozen embryos would be considered “children” under state law, a mandate that could jeopardize the practice of IVF.
While Alabama has since passed a law to protect IVF treatments, legal experts note that language in other states related to so-called fetal personhood leave many open questions about liability.
“Alabama’s ruling is extremely alarming,” Elisabeth Smith, director of state policy at the Center for Reproductive Rights, wrote in a statement. “This is part of the chaos we knew would ensue if Roe v. Wade was overturned. With politicians at the helm instead of doctors, reproductive health care is in crisis.”
Navigating an increasingly polarized workplace and industry, Ringer underscored her personal motivation for continuing this line of work.
“I know that there are others still in this fight, but I can’t just throw up my hands,” she said. “Everybody deserves the right to decide if, when and how to become parents. Pregnant women, most of all, deserve their own freedom to make a decision.”
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