1). “SCOTUS Ruling: Mifepristone Access Remains the Same, For Now: Everything you need to know about the ruling and what happens next”, Jun 13, 2024, Jessica Valenti, Abortion, Every Day, at < https://jessica.substack.com/
2). “The Supreme Court’s Abortion Pill Ruling Should Satisfy Nobody”, Jun 13, 2024, Dahlia Lithwick & Mark Joseph Stern, Slate, at < https://slate.com/news-and-
3). “Brett Kavanaugh Slipped a Big Poison Pill Into His Mifepristone Opinion”, Jun 13, 2024, Dahlia Lithwick & Mark Joseph Stern, Slate, at < https://slate.com/news-and-
4). “Opinion: The abortion pill ruling was a gift to Trump”, Jun 13, 2024, Mary Ziegler, CNN, at < https://www.cnn.com/2024/06/
5). “Medication Abortion Accounted for 63% of All US Abortions in 2023—An Increase from 53% in 2020”, Mar 2024. Rachel K. Jones & Amy Friedrich-Karnik, Guttmacher Institute, at < https://www.guttmacher.org/
6). “Trump walks fine line on abortion, but allies and activists have big plans for a second term”, June 14, 2024, Andrew Seger & Phil Mattingly, CNN, at < https://www.cnn.com/2024/06/
7). “Trump warns Republicans to talk about abortion 'correctly' ”, Jun 13, 2024, Andrew Solender, Axios, at < https://www.axios.com/2024/06/
8). “Anti-abortion groups to Trump: Don’t water down GOP platform by removing support for federal ban”, Jun 12, 2024, Steve Contorno & Alayna Treene, CNN, at < https://www.cnn.com/2024/06/
Introduction by dmorista: This past week's U.S. Supreme Court ruling on access to Mifepristone provides a few months grace for access to those who use the two drugs, Mifepristone and Misoprostol, but nothing more. The Court merely ruled that the crackpot ultra-reactionary physicians and dentists in the “FDA v. Alliance for Hippocratic Medicine” case did not have the “standing” to bring the case in the first place. This aspect of the case is discussed in different ways in Item 1)., “SCOTUS Ruling: Mifepristone ….”, Item 2)., “The Supreme Court’s Abortion ….”, Item 3)., “Brett Kavanaugh Slipped ….”, and Item 4)., “Opinion: The abortion pill ruling ….”.
In Item 2 Lithwick and Stern point out just how flimsy the case was in which the so-called Alliance Defending Freedom (in which Missouri Senator Josh Hawley's wife is a lead counsel) represented the Alliance for Hippocratic Medicine. They point out that the Alliance for Hippocratic Medicine was actually chartered by operatives from the Alliance Defending Freedom; and they founded it in Amarillo, Texas so they could go in front of far-right forced-birth / forced-pregnancy operative Federal Judge Matthew Kacsmaryk; as they wrote:
“.... Kacsmaryk ignored more than 100 scientific studies demonstrating that mifepristone is safe and effective, citing instead two “studies” based on anonymous blog posts compiled by anti-abortion advocates. (Both studies were later retracted.) But there was always an even more foundational problem with Kacsmaryk’s ruling: He held that the Alliance for Hippocratic Medicine had standing to sue even though it could not demonstrate any remotely plausible injury to its members.” (Emphasis added) (See, “U.S. publisher retracts studies cited by Texas judge in suspending abortion pill's approval”, Feb 6, 2024, Brendan Pierson, Reuters, at < https://www.reuters.com/world/
In Item 3 Lithwick and Stern note that:
“During both arguments, Prelogar promised that federal law does not “override an individual doctor’s conscience objections.” And Kavanaugh quoted her on that. And he added that even in a “healthcare desert,” where there’s no other physician who can step in, a doctor may refuse to treat a patient who had an abortion. Even if she’s bleeding out on the table, even if she is likely to die without care. That’s how broadly he reads these conscience laws. ….
“So Kavanaugh effectively grafted those failed amendments into the law by simply declaring, as a statement of fact, that conscience protections are so strong that doctors never have to assist in emergency abortions. It’s a clever move: In this so-called victory for medication abortion, Kavanaugh slipped in a wildly expansive reading of the conscience clause that was, up until now, very much in dispute. He turned this case into an opportunity to expand conscience protections for anti-abortion providers. (Emphasis added)
“Right. As Sepper wrote, this reading 'creates a legal safe harbor to refuse emergency abortion care nationwide. Catholic hospitals and (where they exist) objecting providers will feel authorized by this court to deny care as pregnant people suffer serious jeopardy to their lives and health.' ….
“And what, really, did the decision give to pro-choice advocates? The status quo remains, and that’s it. Abortion pills are still illegal in states that criminalize abortion. They’re still a banned 'controlled substance' in Louisiana. If you live in a red state that prohibits reproductive health care, this decision”does not affect you at all. You still have no right to bodily autonomy. If you live in a blue state, you just maintain the rights you had yesterday. Unelected federal judges didn’t take those rights away from you. At least, not yet.” (Emphasis added) (For an in-depth look at the issues around the extremely flimsy and basically absurd lawsuit and the Standing of the plaintiffs see, “Mifepristone and the rule of law, part II: The district court's decision is wrong. It must be reversed”, Apr 10, 2023, Adam Unikowsky, Adam's Legal Newsletter, at < https://adamunikowsky.
In Item 4 U.C. Davis Law Professor and abortion expert, Mary Ziegler, discusses the same issues as in Items 1 – 3. Then she goes on to discuss the Comstock Law and the ways that a Trump Regime could attack abortion rights if he “wins” another term. The article notes that:
“Conservatives close to former President Donald Trump are proposing plans to enforce the Comstock Act as a de facto ban on abortions nationwide. The Comstock Act has not been interpreted by the courts as a no-exceptions ban on abortion since the 1930s. Conservatives, however, argue the Comstock Act is a ban on mailing any abortion-related items. Because virtually every abortion involves an item put in the mail, including not just pills but medical equipment, conservatives argue that the Comstock Act amounts to a national ban they could never convince voters to support.
“The Supreme Court in FDA v. Alliance for Hippocratic Medicine avoided discussing the Comstock Act. The politics of that move make sense. ….
“Trump has avoided having to answer questions about what he would do about the Comstock Act, promising to issue statements on the topic and never delivering. Had Alito and Thomas identified the Comstock Act as an abortion ban, the press — and the Biden campaign — would likely have pressed Trump to clarify his position.
“The court, in this way, let Trump off the hook. Voters who already know little about the Comstock Act may not hear much more about the law and its potential enforcement before the election. …..
“Leaving the status quo on mifepristone for the time being may help Trump, too. It reinforces his narrative that abortion is a states’ rights issue now and that the federal courts will not have as much to say on the matter — a stance that makes him seem less extreme, and more palatable to voters ahead of the 2024 election.”
Medication Abortion, discussed in Item 5)., “Medication Abortion Accounted ….”, has become the most important method of abortion for women, now accounting for 63% of all abortions in the formal U.S. Healthcare system, and a few percent more when the, less well-known informal health care system is considered. The forced-birth / forced-pregnancy forces intensely dislike medication abortion since it allows women to make their own decisions away from the prying eyes of fanatical religious zealots and the like. Medication abortion in the U.S. began in 2001 (several years after Mifepristone began to be used in Europe) and then accounted for 6% of all formal Healthcare System abortions. Now it has reached 63%.
Item 6)., “Trump walks fine line on abortion, ….”, Item 7)., “Trump warns Republicans ….”, and Item 8)., “Anti-abortion groups to Trump: ….” all discuss various aspects of how Trump and Republican Party leadership are struggling with the fact that the draconian forced-birth / forced-pregnancy policies they unleashed on the country with Trump's 3 ultra-right Supreme Court Justices.
In Item 6 Seger & Mattingly wrote that:
“Trump has yet to address how his administration would interpret the Comstock Act, an 1873 anti-vice law that many in the anti-abortion movement see as a way to potentially ban the procedure in all 50 states. (Emphasis added) ….
“The Comstock Act is just one in an arsenal of tools the anti-abortion movement would like to see a second Trump administration employ to restrict, if not totally ban, abortion nationwide, without going through Congress.
“Roger Severino, a former top Trump Health and Human Services official who drafted the chapter on the department for the Project 2025 policy book, told CNN that a second Trump administration would set out to rescind all of Biden’s abortion access actions and restore and expand all of Trump’s first-term policies. (Emphasis added)
“The Project 2025 plan details steps Trump could take immediately to limit access to abortion within the first days of being back in office through executive action and by personnel changes in key agencies such as HHS, the Food and Drug Administration and the DOJ. ….
“Having loaded the federal courts with more than 200 conservative judges and three Supreme Court justices, there would be fewer — and lower — roadblocks for Trump to get abortion restrictions on the books. ….
“With Roe v. Wade’s protections erased, anti-abortion activists would like a second Trump administration to push harder than it did before – especially in restricting access to mifepristone. ….
“The biggest concern is not that he’ll repeat anything he did the first time,” Drexel University law professor David S. Cohen told CNN. “But it’s that he will put people in place this time who will have a very strict interpretation of the Comstock Act.”
“The law held no weight in the 50 years that Roe held sway, but now it’s up to the White House and the Justice Department to decide whether to enforce it, and to what extent. An anti-abortion administration could choose to prosecute anyone who sends or receives mifepristone by mail, or they could go so far as to restrict the mailing of any of the supplies used in surgical abortions – an effective total ban on the procedure, even in states that have enacted protections.
“ 'A few years ago, most people would not have believed the threat of the Comstock Act was at all legitimate,' said Skye Perryman, the president of Democracy Forward, which brought many challenges to anti-abortion policies during Trump’s first term. 'But the threat of politicization of the Department of Justice and lack of regard for people’s rights and the law is real and we must be prepared to confront it.' ….
“But if Trump’s position on a national abortion ban is any indication, it’s unlikely he will come down firmly on the side of anti-abortion advocates during the presidential campaign. As he said in his video announcement in April, one thing matters above all else.
“ 'We must win,' Trump said. 'We have to win.' ” (Emphasis added)
Trump and his close advisors have taken to heart the fact that the hard-line policies on Forced-Birth / Forced-Pregnancy have cost them significant support in elections since the Dobbs decision was handed down.
In Item 6 the authors wrote: “Trump urged the GOP lawmakers not to run away from the abortion debate, a posture that he said cost Republicans as many as 40 seats in the midterm elections, one source in the room told CNN.” And Item 8 included this: “Trump has publicly and privately criticized how his party has navigated post-Dobbs politics, blaming abortion for the GOP’s underwhelming midterm performance in 2022. His attempts to recalibrate his position have come as President Joe Biden and Democrats have made clear they intend to hammer Trump over his monumental role in helping overturn Roe, allowing states like Texas and Florida to pass near-total bans on the procedure. (Emphasis added)
In Item 7 Andrew Solender points out that: “Abortion has emerged as Democrats' most potent political weapon in the two years since Roe v. Wade was overturned, a reality the former president acknowledged during a closed-door Capitol Hill meeting. …. In addition to asserting that GOP lawmakers and candidates need to talk about abortion 'correctly,' Trump argued the issue should be left to the states and stressed support for exceptions, according to multiple members in attendance.
“The former president told his congressional allies that abortion has 'cost' the GOP politically, but that it is 'too important to ignore.'
“He argued that Democrats are the 'radicals' on the issue and 'support abortion so far along that nobody supports that,' calling Republicans the 'party of common sense.' ”
Of course, the argument that “Democrats are the 'radicals' on the issue and 'support abortion so far along that nobody supports that,' ”; uses totally false claims that various blue states have passed laws allowing babies born alive during abortion to be killed afterwards. The Republican Trumpista base believes this tripe, but nobody with any brains should. Nobody should forget that the Discredited Far-Right Political Hack U.S. Supreme Court also just ruled in favor of bump-stocks thus keeping "machine guns" legal and in the hands of the American Far-Right.
TUS Ruling: Mifepristone Access Remains the Same, For Now
Some good news from the Supreme Court this morning. We’ve been waiting on a ruling in FDA v. Alliance for Hippocratic Medicine, the suit challenging access to mifepristone, the first medication in a two-drug regimen to end a pregnancy. The justices ruled unanimously that the plaintiffs—a group of anti-abortion doctors and organizations—lacked standing to challenge the FDA’s regulations on the abortion medication.
That means access to mifepristone remains the same.
What’s important to know is that this is a temporary win. There are other similar cases making their way through the courts, and the ruling itself gives some hints as to what’s coming next. So while we celebrate—which we absolutely should do!—let’s also keep an eye towards the future.
For right now, there’s no overstating how important this decision is for Americans seeking abortion care. Since Roe was overturned, the use of abortion medication has increased drastically: the pills account for 63% of abortions, up from 53% in 2020. And access to the medication, along with telehealth, have prevented the post-Roe care crisis from being even more devastating than it already is. Studies show at least 8,000 people a month in states with bans are having the medication shipped to them from pro-choice states.
That’s why anti-abortion groups are so intent on restricting access to the medication; they know that the pills have been a saving grace for those in anti-abortion states. The medication also undercuts their claims that abortion is harmful; it’s much harder to rail against the supposed danger of abortion when women are able to end their pregnancies safely in their homes.
That didn’t stop them from trying, though.
The Anti-Abortion Argument
While anti-abortion groups want to eradicate access to abortion medication entirely, this case specifically challenged FDA regulations that made mifepristone more accessible—like telehealth options, rules broadening who can prescribe the pill, and allowing the medication to be used up until 10 weeks of pregnancy.
A negative ruling would have meant 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 telehealth.
Rolling back access in that way would have been devastating. Without the ability to have pills shipped to them, patients in states with abortion bans would 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 would have been even more overwhelmed; and patients across the country would face increased and potentially dangerous delays to care.
Again, that’s why the immediate impact of this ruling is so incredibly important; access to abortion medical remains unchanged.
The groups behind the legal challenge—including the American Association of Pro-Life OBGYNs (AAPLOG), whose president I profiled last week—claimed that mifepristone is dangerous to patients. They used dubious studies, including some that were retracted by their publisher, to support that claim.
The truth? Mifepristone is effective and extremely safe. In fact, it’s safer than Tylenol.
That said, it wasn’t anti-abortion activists’ awful science that ended up losing them the case, but their legal standing to bring the challenge to begin with. Anti-abortion doctors argued that they had legal grounds to bring a suit because they themselves were harmed by seeing the way patients were supposedly hurt by mifepristone.
During oral arguments, though, Solicitor General Elizabeth Prelogar noted that the doctors didn’t come “within 100 miles of the kinds of circumstances” needed to show harm. And Jessica Ellsworth, an attorney for mifepristone manufacturer Danco, pointed out that the doctors “do not use this product, do not prescribe this product, and have a conscience right not to treat anyone who has taken this product.”
Essentially, these activists wanted to stop all American women from having access to a safe and effective drug simply because they disagree with it.
The Ruling
Today’s ruling is the result most experts predicted. The justices’ questions during arguments indicated they didn’t necessarily buy that these anti-abortion doctors/activists suffered moral injury as a result of mifepristone.
Indeed, in today’s SCOTUS decision, Justice Brett Kavanaugh wrote that “a plaintiff ’s desire to make a drug less available for others does not establish standing to sue,” and that “an organization may not establish standing simply based on the ‘intensity of the litigant’s interest’ or because of strong opposition to the government’s conduct.”
That’s terrific—and I’m not trying to downplay what a huge win this is for the folks who will still be able to get abortion medication—but there are a few important things to note about the ruling.
Just because SCOTUS ruled that these groups and doctors don’t have standing doesn’t mean that other anti-abortion activists can’t bring the same case.
Judge Matthew Kacsmaryk, the judge who set this case in motion to begin with, has already allowed Missouri, Kansas and Idaho to intervene in the mifepristone challenge. That means despite today’s ruling, these states could continue the litigation.
In fact, Erin Hawley, the Alliance Defending Freedom attorney who led the mifepristone challenge, said today that those states will continue their suits. The Republican leaders in those three states argue they have standing because states have an interest in ‘protecting’ their residents.
Hawley also said that her group is hopeful because the ruling was “based on a legal technicality,” and that SCOTUS “did not address the merits.”
Now that the SCOTUS ruling is out, anti-abortion activists also have a better sense of what the justices are looking for. As law professor Mary Ziegler wrote today, “One could read parts of this opinion as creating a roadmap to future plaintiffs who *do* want to establish standing.”
Today’s ruling also hinted at a future decision in a different abortion-related case in front of SCOTUS—the lawsuit on EMTALA. From today’s decision:
“Further, the Emergency Medical Treatment and Labor Act (or EMTALA) neither overrides federal conscience laws nor requires individual emergency room doctors to participate in emergency abortions.”
Remember, this is the case in which SCOTUS will decide whether states can ban life-saving abortions. (KFF has a comprehensive explainer here.) There is good reason to be very, very worried about that ruling and what the impact will be.
What’s Next
We already know that Alliance Defending Freedom is going to move forward with their mifepristone challenges for Missouri, Kansas and Idaho. It’s also safe to say that they have other potential plaintiffs in the works with different levels of standing that they hope SCOTUS will accept as legally sufficient. (Rachel Rebouché, dean of Temple University’s law school, predicted as much earlier this year.)
And as POLITICO’s Alice Miranda Ollstein pointed out back in March, conservatives have been preparing for this Supreme Court loss. They didn’t put all of their eggs in one basket. Anti-abortion groups will continue chipping away at everything they can on various fronts—from the bullshit claim that abortion medication poisons the environment and harassment campaigns against pharmacies, to state legislation that ramps up ultrasound requirements, waiting periods and more.
What they’re really banking on, though, is another Donald Trump presidency. If Trump is elected in November, anti-abortion groups can decimate access to abortion medication. Namely, they’ll replace the head of the FDA and use the power of that agency to limit or repeal the drug.
Another Trump administration would also bring with it perhaps the biggest danger to abortion access: the Comstock Act. Under Trump, the Department of Justice could use Comstock to criminalize mailing abortion medication or any tools or supplies used in abortions. This wouldn’t just apply to anti-abortion states, but every state. In effect, it would be a backdoor national ban.1
Abortion rights advocates have been screaming from the rooftops about Comstock since Roe was overturned, urging Congress to repeal the law. (Not-so-fun fact: Clarence Thomas and Sam Alito both brought up Comstock during arguments for today’s mifepristone case.)
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The Supreme Court’s Abortion Pill Ruling Should Satisfy Nobody
This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
On Thursday, the Supreme Court did the bare minimum necessary to operate like an actual court of law, unanimously throwing out an absurd and dangerous lawsuit against medication abortion. The justices do not deserve extra credit for refusing to embrace this deeply unserious litigation, and they should earn no gold stars for maintaining the legal status quo on abortion pills. They merely acted as minimally responsible adults in a room of sugared-up preschoolers, shutting down the lower courts’ lawless rampage over all known rules of standing in desperate pursuit of an anti-abortion agenda. It is chilling to the bone that activist lawyers and judges were able to wreak as much havoc as they did before SCOTUS put them in timeout. And this bad joke of a case isn’t even over: A lower court has already teed up a do-over that could once again jeopardize access to reproductive care in all 50 states. Don’t call this decision a victory. It is at best a reprieve—an election-year performance of Supreme Court unanimity and sobriety that masks the damage the conservative supermajority has already inflicted, as well as the threats to reproductive freedom that lie ahead.
The ruling, FDA v. Alliance for Hippocratic Medicine, grew out of arguably the most obscene case of judge shopping in recent memory. A far-right Christian nationalist law firm called the Alliance Defending Freedom brought together a group of anti-abortion doctors and dentists in 2022 to serve as plaintiffs in a lawsuit against mifepristone. (The Food and Drug Administration approved mifepristone, which is the first medication in a two-part regimen that ends a pregnancy, in 2000.) The plaintiffs argued, falsely, that the drug is extraordinarily dangerous to “women and girls,” sends countless patients to the hospital with life-threatening conditions, and should never have been approved. The ADF called the phony association the Alliance for Hippocratic Medicine and incorporated it in Amarillo, Texas. Why Amarillo? Because just one judge sits in the federal courthouse there: Matthew Kacsmaryk, who worked as an anti-abortion activist before former President Donald Trump appointed him to the bench. Kacsmaryk and his colleagues have rigged the rules to ensure that any case filed in Amarillo gets sent to him, a departure from the standard procedure of random assignment.
Predictably, Kacsmaryk gave the plaintiffs a total victory in 2023, declaring the FDA’s approval of mifepristone unlawful and ordering it off the market nationwide, for everyone. There are far too many problems with his decision on the merits to enumerate here. Most egregiously, Kacsmaryk ignored more than 100 scientific studies demonstrating that mifepristone is safe and effective, citing instead two “studies” based on anonymous blog posts compiled by anti-abortion advocates. (Both studies were later retracted.) But there was always an even more foundational problem with Kacsmaryk’s ruling: He held that the Alliance for Hippocratic Medicine had standing to sue even though it could not demonstrate any remotely plausible injury to its members. Nevertheless, the increasingly rogue U.S. Court of Appeals for the 5th Circuit agreed with his analysis, first in April 2023 and again, four months later, even after SCOTUS prodded it to reconsider. It didn’t go as far as Kacsmaryk had, but the 5th Circuit did impose draconian nationwide restrictions on mifepristone, making it difficult if not impossible to access for many throughout the country.
Now the Supreme Court has unanimously shot down the 5th Circuit and Kacsmaryk, an embarrassing rejoinder to these lower courts’ law-free militancy. Justice Brett Kavanaugh’s unanimous majority opinion methodically dismantles the plaintiffs’ theory of standing, dismissing it as “complicated,” “speculative,” “unprecedented,” and “limitless.” Standing requires a direct link between the plaintiffs’ alleged injury and the action they are challenging. As Kavanaugh points out, the plaintiffs cannot establish any such link. These doctors (and dentists!) have no obligation, of course, to prescribe mifepristone. Rather, they lay out a series of hypotheticals: 1) A different doctor prescribes mifepristone to their patient, 2) that patient will suffer complications, 3) she will find her way to the plaintiffs’ practice, and 4) the plaintiff will have to treat her, potentially assisting in an abortion or post-abortion care, treatment that violates their conscience.
This link, though, “is simply too speculative or too attenuated” to support standing, Kavanaugh concludes. One big reason why: Solicitor General Elizabeth Prelogar avowed in her briefing and again at oral argument that federal conscience protections guarantee all doctors an absolute right to refuse the provision of any treatment they morally oppose. So, Kavanaugh wrote, the plaintiffs “have not shown that they could be forced to participate in an abortion or provide abortion-related medical treatment over their conscience objections” because existing law “definitively protects” their right to refusal. That’s true even in a “healthcare desert, where other doctors are not readily available.” A doctor who opposes abortion, the court affirmed, may stand by and watch a patient bleed out rather than treat her in contravention of his conscience. Ironically, then, an anti-abortion statute that protects anti-abortion doctors played a key role in defeating the plaintiffs’ claim. Their own lavish safeguards against terminating a pregnancy—or even just treating a patient who already terminated a pregnancy—helped defeat their attempt to pull mifepristone off the market.
The threats to the medication, however, are far from over. First, and most obviously, it remains unlawful to prescribe in states that criminalize abortion; it has even been deemed a “controlled substance” in Louisiana. Second, Kacsmaryk is not finished with this case. In January, seeing the writing on the wall at SCOTUS, the judge allowed three red states to intervene in the litigation. These states claimed that doctors in blue states were shipping mifepristone to their residents. Kacsmaryk is all but guaranteed to keep the lawsuit alive, relying on the red-state plaintiffs to reestablish standing. He will then presumably impose yet another nationwide restriction on mifepristone, which the 5th Circuit will likely uphold, giving SCOTUS a Groundhog Day redo of this frivolous case.
Third, the Supreme Court conspicuously declined to address an argument at the heart of the plaintiffs’ theory: that the Comstock Act of 1873 imposes a nationwide ban on medication abortion. Conservative lawyers and judges are foaming at the mouth to revive this zombie anti-vice law, which puritanical male legislators enacted during a fit of moral panic about women’s equality. Jonathan Mitchell, one of Trump’s top lawyers, has already said he believes that the former president can and will wield it as a total abortion ban if he secures a second term. Trump, whose views on abortion regulation continue to be incomprehensible, nevertheless appears to be in tacit agreement with anti-abortion advocates that he will weaponize this law should he gain office. Although Justices Samuel Alito and Clarence Thomas brought up Comstock at oral argument in this case, SCOTUS has ducked the matter for now, possibly in an effort to stop it from becoming a campaign issue. Should Trump prevail, Comstock will roar back with a vengeance.
If you blink, you might just miss the fact that today’s decision is not a win for reproductive freedom, not an end to attacks on abortion, and not even the end of the road for this particular litigation. It is a status quo decision that allows the FDA to continue to regulate safe drugs and that precludes objectors from running into courts with nothing more than feelings. But a good thing to bear in mind is that although SCOTUS dodged a bullet, the threat to abortion care looms larger than ever. Whether it’s new systemic attacks on in vitro fertilization, overt plans to use Comstock to end abortion rights by way of executive action, state court attacks on reproductive freedom, or a second, less publicized abortion case still pending at the Supreme Court, Thursday wasn’t a triumph for abortion rights; it was a push.
It is heartening to hear Kavanaugh offer up a full-throated defense of standing, even in a case in which he might favor the plaintiffs’ goals, accompanied by a renunciation of manufactured disputes and litigation by feelings. But this case was the direct result of a string of huge legal victories for those seeking to restrict access to basic reproductive care, who are exploiting a Supreme Court profoundly sympathetic to their aims. If there is a “winner” in this outrageous case, it is merely the principle that there is possibly, at least in a presidential election year, still such a thing as “too far” for a court that has shown scant inclination to police that line.
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Brett Kavanaugh Slipped a Big Poison Pill Into His Mifepristone Opinion
This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
The Supreme Court on Thursday threw out a legal assault against the most common method of abortion, unanimously holding that the plaintiffs lacked standing to sue in the first place. Justice Brett Kavanaugh’s opinion for the court maintains access to mifepristone, the first drug in a medication abortion, which the Food and Drug Administration approved in 2000. The plaintiffs, a group of anti-abortion doctors and dentists, argued that federal courts must ban or roll back the public’s access to mifepristone in all 50 states, presenting objectively false claims about its alleged dangers. These activists, however, will not prescribe the drug or treat patients who’ve used it—and so, the court held, they have no right to challenge its approval in court.
Yet the decision was not a total defeat for anti-abortion activists. Among other things, Kavanaugh slipped language into his opinion that could expand protections for physicians who refuse to provide emergency abortions, potentially imperiling the lives of patients. On a bonus Slate Plus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed Kavanaugh’s concession to the anti-abortion movement. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: Let’s talk about the skunk in the elevator, which is conscience protections. What saved the FDA’s approval of mifepristone, in part, was Justice Brett Kavanaugh saying: Look, we already have conscience protections for health care providers. Doctors are not going to be forced to do anything they don’t want to, including terminating a pregnancy. But our friend Elizabeth Sepper, a professor at University of Texas at Austin School of Law, quickly pointed out that this is not a net neutral on conscience rights. In fact, she posits, Kavanaugh’s opinion significantly broadens conscience protections from what they were before.
Mark Joseph Stern: So there were two ways the Supreme Court could’ve written this opinion. The first way—and the way I think it should have—was to say that adverse outcomes from mifepristone are very low. Very few people go to the hospital with life-threatening conditions after taking the drug. So the odds that a woman will take mifepristone, go to the hospital, and wind up getting treated by one of these doctors is essentially nil. And the Supreme Court said, in a 2009 case called Summers v. Earth Island Institute, that a plaintiff can’t establish standing based on the statistical probability that some government action will implicate their rights in the future. You can’t base standing on a statistical guess, which is what the 5th Circuit did. It’s not allowed.
But that wasn’t the Supreme Court’s basis for reversing the 5th Circuit, right?
Right. Instead, Kavanaugh said that we have in this nation extremely robust protections for conscience rights for doctors and other health care providers. There’s a federal statute that provides ironclad protections against forcing a doctor to perform an abortion against their will or assist with any kind of abortion care. And Kavanaugh cites Solicitor General Elizabeth Prelogar, who talked about this issue during arguments in both this case and the case about EMTALA, which asks when doctors must provide emergency abortions.
During both arguments, Prelogar promised that federal law does not “override an individual doctor’s conscience objections.” And Kavanaugh quoted her on that. And he added that even in a “healthcare desert,” where there’s no other physician who can step in, a doctor may refuse to treat a patient who had an abortion. Even if she’s bleeding out on the table, even if she is likely to die without care. That’s how broadly he reads these conscience laws.
Is that right? That sounds like an extraordinarily sweeping interpretation of the conscience statutes. It could put patients’ lives at risk.
That is actually a hotly contested claim! The solicitor general embraced it to prevail in these cases, and I don’t fault her for it—she has to do what she needs to to win. But as Sepper pointed out, this was actually a big fight during the passage of the Affordable Care Act. Republicans and the Conference of Catholic Bishops were pressing Congress to add new, stronger conscience protections to guarantee that doctors would never have to provide emergency abortions. But Congress did not do that!
So Kavanaugh effectively grafted those failed amendments into the law by simply declaring, as a statement of fact, that conscience protections are so strong that doctors never have to assist in emergency abortions. It’s a clever move: In this so-called victory for medication abortion, Kavanaugh slipped in a wildly expansive reading of the conscience clause that was, up until now, very much in dispute. He turned this case into an opportunity to expand conscience protections for anti-abortion providers.
Right. As Sepper wrote, this reading “creates a legal safe harbor to refuse emergency abortion care nationwide. Catholic hospitals and (where they exist) objecting providers will feel authorized by this court to deny care as pregnant people suffer serious jeopardy to their lives and health.”
I should note that anti-abortion advocates are celebrating this aspect of the ruling, calling it a huge win for conscience objectors.
I’m a little surprised that the three liberal justices didn’t take it upon themselves to point out the more straightforward approach here, rooted in Summers and a rejection of the “statistical probability” theory of standing, instead of Kavanaugh’s more tendentious reasoning. I guess the liberals decided they would take this as a win, and I certainly respect their tactical choices. But it included a handout to the anti-abortion movement.
And what, really, did the decision give to pro-choice advocates? The status quo remains, and that’s it. Abortion pills are still illegal in states that criminalize abortion. They’re still a banned “controlled substance” in Louisiana. If you live in a red state that prohibits reproductive health care, this decision does not affect you at all. You still have no right to bodily autonomy. If you live in a blue state, you just maintain the rights you had yesterday. Unelected federal judges didn’t take those rights away from you. At least, not yet.
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Medication Abortion Accounted for 63% of All US Abortions in 2023—An Increase from 53% in 2020
New Guttmacher Institute research from the Monthly Abortion Provision Study shows that there were approximately 642,700 medication abortions in the United States in 2023, accounting for 63% of all abortions in the formal health care system. This is an increase from 2020, when medication abortions accounted for 53% of all abortions.
Medication abortion using mifepristone was first approved for use in the United States by the U.S. Food and Drug Administration (FDA) in 2000, and reliance on medication abortion has increased steadily as it has become more accessible over time. The two-drug combination of mifepristone and misoprostol is the most common medication abortion regimen offered by US providers, and decades of research have established that medication abortion using mifepristone is highly safe and effective. Increased access to and use of medication abortion is likely one reason why the overall number of abortions in the formal health care system increased 10% nationally between 2020 and 2023.
The medication abortion counts for 2023 do not include self-managed medication abortions that take place outside of the formal health care system or abortion medication mailed to people in states with total abortion bans. While there are no comprehensive data on the number of self-managed medication abortions in the United States, evidence suggests they have been increasing in the past several years. Therefore, the total count of medication abortions nationally is higher than our count of those offered within the formal health care system.
Unfortunately, gains in access to and use of medication abortion are at risk. The US Supreme Court will hear a case on March 26—Alliance for Hippocratic Medicine v. FDA—that uses low-quality science to challenge access to medication abortion using mifepristone. The Court could restrict the ability to mail mifepristone directly to patients and reinstate the requirement for the drug to be provided in person. If outdated and medically unnecessary restrictions are placed on the provision of mifepristone—in contrast with the FDA’s evidence-based protocol—access to abortion across the country would be greatly impacted.
Medication Abortion Has Become More Widely Available
For many people, medication abortion is more accessible than a procedural abortion. In 2021 (the most recent year with available data), 40% of facilities known to provide abortion care offered only medication abortion. And, starting in 2021, the FDA lifted medically unnecessary restrictions that had required in-person provision of mifepristone. That regulation change, which the FDA finalized in January 2023, meant that health care providers and online pharmacies could mail abortion medication to patients, including those who live far from a provider or are otherwise unable to make an in-person visit. In addition, brick-and-mortar pharmacies can now become certified to dispense and fill mifepristone prescriptions, so access is expected to continue growing.
The number of US providers offering a telemedicine consultation—by video, phone call, text or online platform—and mailing abortion pills increased from 7% of all providers known to offer medication abortion in 2020 to 31% in 2022. Online-only clinics, after first appearing as a new type of abortion provider in 2021, accounted for 8% of all abortions provided within the formal health care system in the first six months of 2023.
Medication abortion provided via telemedicine is as safe and effective as provision in a health care facility. Offering options besides in-person care can reduce, or even remove, some of the secondary costs related to seeking an abortion, such as transportation, child care and missed wages from taking time off work. Like with other types of health care, having the option to access abortion care via telemedicine allows for more flexibility and can expand person-centered care by meeting patients where they want to be served.
Not All People Prefer Medication Abortion Over Procedural Abortion
While broader access to medication abortion has likely contributed to its increased use, it does not necessarily indicate that all people are getting their preferred method.
Since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in June 2022 ended a right to abortion nationally, there has been an increase in patients at clinics in states where abortion continues to be available. Sixteen percent of abortion patients traveled out of state for an abortion in 2023, and there has been increased demand on providers in states that border one of the 14 states where abortion is totally banned. At the same time, abortion has also increased among residents in almost all of these bordering states. In some places, these developments have led to wait times of two weeks or longer for abortion care.
Some individuals may opt to access care through telehealth options to avoid long wait times for appointments, even if they would have preferred in-clinic care. Even at brick-and-mortar clinics, wait times may be shorter for medication abortion than procedural abortion since the pills can be offered by methods such as “quick pick-up.” Finally, for some patients, the closest abortion provider may only offer medication abortion, limiting their access to a procedural abortion unless they can travel to a clinic where it is offered.
When procedural abortion is harder to access relative to medication abortion, the impact of those restricted options falls hardest on groups of people historically marginalized within the health care system. For example, research suggests that Black individuals, people who have had a prior abortion and those with incomes below the federal poverty level are less likely than other groups to prefer, and to have, a medication abortion (vs. a procedural abortion).
State Restrictions on Use of Medication Abortion
Anti-abortion policymakers have been working to restrict access to abortion care on many fronts. Besides the 14 states that are enforcing a total ban on abortion, five states where abortion remains legal until at least six weeks’ gestation have laws that restrict access to medication abortion via telemedicine. Arizona, Nebraska, North Carolina, South Carolina and Wisconsin require that a patient being prescribed medication abortion have an in-person visit with a physician, and Arizona and North Carolina also ban mailing medication abortion pills to a patient. Furthermore, 15 states require medication abortion to be provided by a physician, despite evidence that advanced practice clinicians can provide it safely, as they do in other states.
It Is Critical to Ensure Full Access to Medication Abortion
Medication abortion has proven to be a game changer in expanding abortion care in the United States. Unfortunately, legal attacks and restrictive policies continue to challenge access. When the Supreme Court rules on the case challenging access to mifepristone this spring, it will have to decide whether to ignore the FDA and reimpose unnecessary barriers to access or to respect the scientific evidence that mifepristone is safe and effective.
Any return to restrictions on medication abortion provision via telemedicine would be detrimental for people who either prefer or only have access to abortion using telemedicine. While the current court case only affects use of mifepristone—and a misoprostol-only regimen is also a safe and effective method of medication abortion—everyone seeking an abortion should have access to the full range of safe, effective options.
Methodology
Data on medication abortion for 2023 are from Guttmacher’s Monthly Abortion Provision Study, which produces national and state estimates of the number of abortions provided within the formal health care system in the United States based on data collected from samples of abortion providers. Questions about medication abortion were included in versions of the survey distributed to providers in August and September 2023 and in February 2024 (with the latter asking providers for annual medication abortion figures for 2023). Estimates include abortions provided at brick-and-mortar facilities (including those that use telehealth) and online-only providers. These estimates do not include abortions obtained outside of the formal health care sector or any abortions—whether self-managed or provided by out-of-state clinicians—involving medication mailed to states with total abortion bans.
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Trump walks fine line on abortion, but allies and activists have big plans for a second term | CNN Politics
Few issues epitomize the astonishing nature of Donald Trump’s political success as much as abortion.
Over the past two decades, his public statements on one of the most divisive American cultural issues have swung like a pendulum.
Trump has compared his shift on abortion to that of Republican icon and former President Ronald Reagan. It was an evolution that by Election Day 2016 had driven Trump into making unprecedented promises to anti-abortion advocates and allies.
And then he won.
And he delivered.
A New York businessman and reality television star who was once an unabashed supporter of abortion rights became, in Trump’s own words, “the most pro-life president in American history.” It’s the rare statement from the former president that draws vigorous agreement from supporters and vehement critics alike.
Trump’s three Supreme Court appointments are the reason Roe v. Wade is no longer in place. Since the high court’s 2022 Dobbs decision, hundreds of lower-court Trump nominees are helping shape the legal landscape in an intensifying battle that has already had significant electoral effect: State-level ballot initiatives have almost uniformly resulted in positive outcomes for abortion rights supporters and, by extension, Democrats.
For Trump, who has carefully tended to the anti-abortion Christian conservatives who form a cornerstone of his most dedicated supporters, the political realities have forced the appearance of a recalibration to mitigate any political risk.
After months of public intrigue and internal campaign deliberations on whether to support a nationwide abortion ban, Trump settled on an official position that carried with it echoes of his vacillation in years prior.
“The states will determine by vote or legislation or perhaps both, and whatever they decide must be the law of the land,” Trump said in an April recording posted to his Truth Social platform.
The position, which Trump has reaffirmed relentlessly since, marked a departure from his past support for a nationwide prohibition at 20 weeks and a rejection of anti-abortion groups pushing for a more restrictive ban.
It was in large part driven by a recognition of the electoral danger a hard-line approach to abortion poses, three people who spoke to Trump about the issue told CNN.
“This motivates Democrats like nothing else,” one of them said. “He sees it and isn’t going to fall into that trap.”
The delicate political balance Trump is trying to strike was on full display throughout this week. Speaking to a Christian group that has vowed to “eradicate” abortion, Trump expressed his support but delivered only brief, pre-taped remarks that did not include the word “abortion.”
A few days later, he was explicit in his warnings about the political risks in closed-door remarks with Republicans on Capitol Hill, which came the same day the Supreme Court rejected an effort by anti-abortion groups to restrict access to the abortion drug mifepristone .
Trump urged the GOP lawmakers not to run away from the abortion debate, a posture that he said cost Republicans as many as 40 seats in the midterm elections, one source in the room told CNN.
“Republicans are so afraid of the issue,” Trump said, according to the source.
He emphasized the importance of supporting exceptions for rape, incest and the health of the mother – a call to neutralize Democratic attacks that have framed his party as “extreme” on reproductive rights.
Yet Trump’s position is hardly as clear-cut as he’s presented it. While championing the right of states to pass their own regulations, he has assailed blue states that have enacted abortion protections and criticized restrictions on the procedure in Republican-led states such as Florida and Arizona that he said went too far.
It’s just another example of a rhetorical strategy Trump deploys with great skill on complex or politically inflammatory issues, giving himself space to change or backtrack if politically necessary.
When it comes to abortion, however, it’s a strategy that presents complications.
Trump, after four years in office, has a record.
Delivering on his promises
Supporters of a national abortion ban acknowledge that even if Trump backed such a ban, the prospects of it getting through Congress would be remote. After all, Trump – again, the “most pro-life president in American history” – didn’t have much in the way of anti-abortion legislative wins during his first term.
Instead, what he had were senior officials at key agencies with funding, legal and policy authority, who were unapologetically anti-abortion and sought ways to drive the administration in that direction.
Trump, former officials told CNN, was committed to delivering on his campaign promises to a critical block of voters, and like-minded administration officials were given wide latitude to push policy changes.
Those same supporters, while expressing disappointment in his decision not to back a nationwide ban, have made clear they will continue to aggressively push for Trump to deliver on their policy priorities.
Key anti-abortion leaders, all critical to Trump’s base of Republican support, have warned against any changes this summer to the party’s platform that calls on Congress to prohibit abortions after 20 weeks and for an amendment to the US Constitution giving the unborn the same rights as a person.
Trump may chafe at the political risks of a hard-line abortion stance now, but a win in November could change the calculus. The circle of former officials who would be likely to join a second Trump administration and run point on the agencies responsible for federal policy on the issue share near universal anti-abortion views.
Even if Trump moved only to rescind President Joe Biden’s wave of executive actions on abortion access and reimplement his own first-term actions, the effect would likely be far greater in the absence of federal protections for the procedure.
Among Trump allies, there’s no expectation he’d follow a different path from the one trod during his first four years.
“He’s a pro-life president,” former Trump adviser Kellyanne Conway told Fox News days after Trump released his statement on Truth Social. “I believe he’ll be a pro-life president in the future also.”
Many senior Trump administration alumni and allies are now mapping out and drafting policy options for a second Trump term.
Most are not affiliated with the campaign, which has sharply pushed back against the constellation of powerful outside groups created to develop policy and personnel options for a second term.
But those groups are expected to hold significant influence should Trump win in November.
One of them, Project 2025, which is housed in the conservative Heritage Foundation, has drafted a nearly 1,000-page policy book for the next Republican administration.
The view on abortion policy is clear: “The Dobbs decision is just the beginning.”
That statement, which is echoed by powerful and well-funded anti-abortion advocacy groups, cuts to just how much Trump’s current stance leaves unanswered.
Trump has yet to address how his administration would interpret the Comstock Act, an 1873 anti-vice law that many in the anti-abortion movement see as a way to potentially ban the procedure in all 50 states.
Biden’s Justice Department issued a 2022 legal memo stating that the law did not bar mail delivery of abortion medication unless sent with intent for illegal use.
“There’s a huge difference between saying ‘This is a states’ rights issue’ and ‘This 1873 law is a backdoor ban on illegal abortion-related items that can be enforced in blue states against doctors, drug companies and patients on Day One,’” said Mary Ziegler, a law professor at the University of California, Davis, who supports abortion rights and closely tracks the legal and policy history of the issue. “That’s a night-and-day difference in terms of what he thinks policy should be.”
The Comstock Act is just one in an arsenal of tools the anti-abortion movement would like to see a second Trump administration employ to restrict, if not totally ban, abortion nationwide, without going through Congress.
Initial actions
Roger Severino, a former top Trump Health and Human Services official who drafted the chapter on the department for the Project 2025 policy book, told CNN that a second Trump administration would set out to rescind all of Biden’s abortion access actions and restore and expand all of Trump’s first-term policies.
The Project 2025 plan details steps Trump could take immediately to limit access to abortion within the first days of being back in office through executive action and by personnel changes in key agencies such as HHS, the Food and Drug Administration and the DOJ.
Among the abortion actions that Trump has vowed to reimplement and reenforce is reviving the so-called Mexico City policy. The Reagan-era rule restricts foreign nongovernmental organizations that receive assistance from the US from providing abortion services or information. Under an expansion of the policy under Trump, groups were barred from providing any abortion care, even with non-US funds, lest they risk losing American support altogether.
It was one of several key anti-abortion actions the Trump administration executed on the global stage.
Biden rescinded the policy in his first days in office.
A second Trump term would also put back in place and expand restrictions on Title X grants – federal funds for public and nonprofit groups that provide family planning.
While that funding is already barred from being used to pay for abortion clinics, the Trump administration’s restrictions sharply curtailed the number of providers who utilized the program – by more than 25%, per some estimates provided by abortion rights groups. “His first term was disastrous for reproductive rights and freedoms — including devastating changes to Title X which left far too many people without access to essential sexual and reproductive health care,” Julie Lewis, the director of public policy at Planned Parenthood Votes, told CNN. “A second term would be catastrophic for freedom and liberty.”
The Trump administration also took several actions to undermine the Affordable Care Act, which provides coverage for preventative services and birth control for millions of women, and it slashed hundreds of millions of dollars from the Teen Pregnancy Prevention Program at the HHS.
Resurrecting these actions in a second Trump would almost entirely be up to the discretion of whomever he appoints to lead the relevant federal agencies.
Pushing harder than before
Having loaded the federal courts with more than 200 conservative judges and three Supreme Court justices, there would be fewer — and lower — roadblocks for Trump to get abortion restrictions on the books.
“The courts would be unlikely to obstruct, or less likely to obstruct anti-abortion policy coming out of the Trump administration,” said Ziegler of UC Davis.
With Roe v. Wade’s protections erased, anti-abortion activists would like a second Trump administration to push harder than it did before – especially in restricting access to mifepristone. The medication is used in roughly two-thirds of abortions nationwide and was at the center of the Texas case the Supreme Court decided this week. Even though the Court rejected a lawsuit challenging the Food and Drug Administration’s approach to regulating the abortion pill, the decision left the door open for a future Trump administration to limit access unilaterally.
Trump could direct the FDA to reverse its approval of the drug, and he could revive his administration’s mandate that women seeking an abortion receive the pill from providers directly, not through the mail. But the single greatest threat to mifepristone would come not from new policies Trump could enact but from the 19th-century law his administration could choose to enforce.
“The biggest concern is not that he’ll repeat anything he did the first time,” Drexel University law professor David S. Cohen told CNN. “But it’s that he will put people in place this time who will have a very strict interpretation of the Comstock Act.”
The law held no weight in the 50 years that Roe held sway, but now it’s up to the White House and the Justice Department to decide whether to enforce it, and to what extent. An anti-abortion administration could choose to prosecute anyone who sends or receives mifepristone by mail, or they could go so far as to restrict the mailing of any of the supplies used in surgical abortions – an effective total ban on the procedure, even in states that have enacted protections.
“A few years ago, most people would not have believed the threat of the Comstock Act was at all legitimate,” said Skye Perryman, the president of Democracy Forward, which brought many challenges to anti-abortion policies during Trump’s first term. “But the threat of politicization of the Department of Justice and lack of regard for people’s rights and the law is real and we must be prepared to confront it.”
Mark Lee Dickson is the founder of the Sanctuary Cities for the Unborn initiative, which has lobbied local governments to effectively outlaw all forms of abortion through enforcing the Comstock Act. He told CNN the law represented the best path for anti-abortion activists to totally end abortion in America and he would like to see its enforcement at a federal level.
“Perhaps President Donald J. Trump will be the president that brings an end to abortion in America as we know it,” Dickson said. “He’s already made much more progress than any president in the United States on this issue so far.”
Dickson has worked closely with former Texas Solicitor General Jonathan Mitchell to draft and defend his local ordinances.
Mitchell is best known as the legal mind behind SB 8 – the restrictive abortion ban in Texas he helped enact before Roe v. Wade was even overturned.
More recently, the conservative lawyer and anti-abortion activist has taken on a new client: Trump.
Mitchell was Trump’s principal attorney in his battle to stay on the primary ballot in Colorado, defending the former president before the Supreme Court this past February. Abortion rights advocates worry he could play an outsize role shaping abortion restrictions in a potential second Trump administration.
When pressed in April on whether a future Trump administration would seek to regulate mifepristone, Trump told Time magazine he had “pretty strong views” on the issue and would be making an announcement “probably over the next week.” That announcement hasn’t come as yet.
People familiar with the matter say that there was never any intention of releasing a statement and that Trump was simply going back to his oft-used way of avoiding a question.
But if Trump’s position on a national abortion ban is any indication, it’s unlikely he will come down firmly on the side of anti-abortion advocates during the presidential campaign. As he said in his video announcement in April, one thing matters above all else.
“We must win,” Trump said. “We have to win.”
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Trump warns Republicans to talk about abortion “correctly” ahead of 2024 election
Former President Trump urged House Republicans on Thursday to adopt a measured tone on abortion on the 2024 campaign trail and to embrace exceptions to restrictions on the procedure, Axios has learned.
Why it matters: Abortion has emerged as Democrats' most potent political weapon in the two years since Roe v. Wade was overturned, a reality the former president acknowledged during a closed-door Capitol Hill meeting.
What we're hearing: In addition to asserting that GOP lawmakers and candidates need to talk about abortion "correctly," Trump argued the issue should be left to the states and stressed support for exceptions, according to multiple members in attendance.
- The former president told his congressional allies that abortion has "cost" the GOP politically, but that it is "too important to ignore."
- He argued that Democrats are the "radicals" on the issue and "support abortion so far along that nobody supports that," calling Republicans the "party of common sense."
Between the lines: Trump's position is largely in-line with where the Republican establishment and campaign apparatus are – urging Republicans to stress state-level solutions that include reasonable exceptions.
The intrigue: While Trump was speaking to lawmakers, the Supreme Court threw out its biggest abortion-related case since overturning Roe, saying that doctors opposed to a commonly used abortion pill, mifepristone, lacked legal standing.
- Use of the drug has increased since Roe was overturned, and Thursday's high court action further complicates GOP efforts to restrict abortion access.
What they're saying: Rep. Mike Kelly (R-Pa.), a vocal advocate for strict abortion restrictions, said the former president's comments signaled that a second Trump administration wouldn't pursue federal limits on access.
- "I think it will be as simple as exactly what it should be from the beginning: 50 states have the ability to make a decision, why turn it over to the federal government?" Kelly said.
- "With the [Senate] filibuster, we're not going to get any strong pro-life or pro-abortion policies passed. So the reality is: It is going to be at the state level," said Rep. Don Bacon (R-Neb.).
Zoom in: Several Republicans in districts President Biden won in 2020 signaled alignment with Trump on the issue.
- "It's a states' rights issue. Now it's up to the people to decide what they want in their respective states," said Rep. Lori Chavez-DeRemer (R-Ore.).
By the numbers: A record 32% of voters say they would only vote for candidates for major offices if they share their views on abortion, according to a new Gallup poll out Thursday.
The other side: Rep. Becca Balint (D-Vt.) told Axios that leaving abortion access up to states would still put women's lives in jeopardy.
- "Up to the states?! Why don't we ask Amanda Zurawski what she feels about that?," Balint said, referring to a Texas woman who nearly died after being denied abortion access under the state's strict post-Roe limits.
- "The former president doesn't care at all about the health of women," she added.
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Anti-abortion groups to Trump: Don’t water down GOP platform by removing support for federal ban | CNN Politics
Former President Donald Trump arrives at a campaign rally in the south Bronx, on May 23, 2024, in New York.Yuki Iwamura/AP Anti-abortion leaders are warning Republicans not to remove a federal abortion ban from the party’s platform at next month’s GOP convention even as their presumptive nominee, Donald Trump, backs away from it.
The current platform – put in place during Trump’s 2016 campaign for president and left unchanged when he ran for reelection four years later – calls on Congress to prohibit abortions after 20 weeks and for an amendment to the US Constitution giving the unborn the same rights as a person.
Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said it better stay that way.
“Our expectation is that the GOP platform will continue to unequivocally call for national protections for unborn children, rooted in the 14th Amendment,” Dannenfelser told CNN in a statement. “Watering down the GOP platform’s stance on life would entail an abandonment of its defense of the human dignity of all people.”
The sentiment was echoed last week by Ralph Reed, chairman of the Faith and Freedom Coalition and a close ally of the former president. Speaking during a virtual event hosted by the Washington Post, Reed publicly urged the Trump campaign “to proceed with great caution in sending any message of vacillation or retreat when it comes to the defense of the innocent unborn.”
“I don’t think it would be either morally sound or politically advisable for the party to signal retreat on the sanctity of innocent human life in its platform,” he said.
CNN has asked Trump’s campaign for comment.
A senior Trump adviser told CNN that the campaign expects the party will vote on a platform “that reflects the policy and vision and agenda of President Trump.”
“The platform is something that always gets renewed, revived, sort of amended. The whole process occurs in the executive sessions that lead up to the actual convention,” the adviser added. “We will work with the delegations and the representatives on each committee that has work to do to make sure that we have a great convention and we have we have a representation of the President’s leadership of the party as the nominee.”
The forewarnings speak to the concern that Trump’s aboutface on abortion will permeate throughout a party he has seized control of.
After watching the political landscape tilt against Republicans in the wake of the Supreme Court decision to overturn Roe v. Wade, Trump backed away from strict anti-abortion laws. During the Republican presidential primary, as many of his rivals fought for the support of evangelical voters by pushing for federal bans on the procedure, Trump angered some anti-abortion advocates and Christian leaders by refusing to take a stance.
Then, after wrapping up the GOP nomination, Trump said the future of abortion access should be left up to the states. In April, he asserted he wouldn’t sign a national abortion ban even if it passed through Congress – a total reversal from what he said when he ran for president in 2016.
The former president’s shift has come as his party is preparing its first official position on abortion since the 2022 decision in Dobbs v. Jackson Women’s Health Organization ended the Constitutional right to an abortion – a victory made possible by Trump’s overhaul of the US Supreme Court. But Republicans and anti-abortion groups have struggled to find their next target and have suffered a series of setbacks, including a recent winless streak in state ballot referendums.
For the past four decades, the GOP platform voted on at the party’s quadrennial convention has backed federal efforts to curb the procedure, either by awarding a fetus 14th amendment protection or through legislation like the Pain-Capable Unborn Child Protection Act, which bans abortion at 20 weeks into a pregnancy.
Trump would not be the first Republican presidential nominee to appear at odds with the party platform on abortion. Both John McCain in 2008 and Mitt Romney in 2012 supported exemptions for rape, incest and to protect the life of the mother, all of which were ultimately not included in the party’s platform. Trump, too, argued for similar exemptions in 2016 but was overruled by the party.
“We hear this every four years: a battle between the candidate and the party,” said Carol Tobias, president of the National Right to Life Committee. “It gets a lot of media hype and not a lot changes. I’m not expecting any major changes this year.”
“We know this isn’t something that will be decided in the next couple years. This is a long-term battle. Pro-lifers had been trying to overturn Roe for almost 50 years so we have a long-term mentality.”
But if anti-abortion advocates get their way this time, the GOP would enter the election with a wider chasm between a Republican nominee and the party platform on abortion than at any point since the court’s 1973 ruling in Roe v. Wade turned the issue into a national battle.
Trump has publicly and privately criticized how his party has navigated post-Dobbs politics, blaming abortion for the GOP’s underwhelming midterm performance in 2022. His attempts to recalibrate his position have come as President Joe Biden and Democrats have made clear they intend to hammer Trump over his monumental role in helping overturn Roe, allowing states like Texas and Florida to pass near-total bans on the procedure.
Earlier this week, as Trump prepared to address the Danbury Institute, a coalition of Christian groups, the Biden campaign blasted the former president for giving an audience to a group that wants to ban abortion nationwide.
“Trump brags that he is responsible for overturning Roe, he thinks the extreme state bans happening now because of him are ‘working very brilliantly,’ and if he’s given the chance, he will sign a national abortion ban,” Biden spokesperson Sarafina Chitika said in a statement. “These are the stakes this November.”
In his brief recorded remarks, Trump told the groups he hopes to be defending their values “side-by-side for your next four years.”
“These are gonna be your years because you’re gonna make a comeback like just about no other group,” he said.
Though Trump has not yet made clear where he stands on the platform, his campaign enters the convention having asserted control of the GOP at nearly every level. The party is led by Trump’s handpicked co-chair: his daughter-in-law Lara Trump and former North Carolina Republican Party leader Michael Whatley. The platform committee will be led by three close allies: Randy Evans, his former ambassador to Luxembourg; Russell Vought, a top official in the Trump administration; and Ed Martin, president of the Phyllis Schlafly Eagles who in 2016 wrote the book “The Conservative Case for Trump.”
The platform committee will also consist of two delegates, a man and woman, from each state and territory delegation to the party’s Milwaukee convention. They will meet early next month and present their report when the full convention meets the week of July 15.
Reed told CNN he has discussed the platform with the Trump campaign and expects the party’s position will remain “unapologetically pro-life” but stopped short of saying he has won that guarantee.
He insisted, though, there’s not much daylight between the party’s platform and Trump’s latest stance.
“The president’s position simply reflects the short term political reality for both sides: Neither side has the votes to pass federal legislation that reflects their values and aspirations,” Reed said. “The action is at the state level. The long term political reality is whoever wins that battle at the state level will build the momentum and gain the votes to achieve what they want at the federal level.”
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