1). “How Post Offices Are Targeting Abortion Pills”, Oct 18, 2024, Jessica Valenti, Abortion, Every Day, at < https://jessica.substack.com/
2). “Undelivered: Drug-Sniffing Police Dogs Are Intercepting Abortion Pills in the Mail”, Oct 16 2024, Debbie Nathan, The Intercept, at < https://theintercept.com/2024/
3). “Judge slaps down Florida effort to ban abortion ad: ‘It’s the first amendment, stupid’ State health department sent letter to stations demanding they not air TV ad backing abortion access ballot measure”, Oct 18, 2024, Carter Sherman, The Guardian, at < https://www.theguardian.com/
4). “BREAKING: Ron DeSantis Directed Threats Against TV Stations Threats over Amendment 4 ad came directly from Florida Gov's office”, Oct 21, 2024, Jessica Valenti, Abortion, Every Day, at < https://jessica.substack.com/
5). “Uphill battles that put abortion rights on ballots are unlikely to end even if the measures pass”, October 17, 2024, Geoff Mulvihill, AP, at < https://apnews.com/article/
6). “The Shadow Medical Community Behind the Attempt to Ban Medication Abortion: Anti-abortion groups orchestrated their legal challenge to wind up before far-right Judge Matthew Kacsmaryk”, Feb 28 2023, Jordan Smith, The Intercept, at < https://theintercept.com/2023/
~~ recommended by dmorista ~~
Introduction by dmorista: The ever-present authoritarian woman-hating forces of blue-noses and theocrats are working hard to frustrate the hopes of American Women. Women led the campaigns to restore their reproductive and abortion access rights by state constitutional amendments. Item 1)., “How Post Offices ….” and Item 2)., “Undelivered: Drug-Sniffing Police Dogs ….”; both look at the little known practices of local police and prosecutors, forced-pregnancy and forced-birth operatives, and religious fanatics; who are now trying to intercept the lifeline of Mifepristone and Misoprostol that are mailed to women living in Totalitarian Red State Hell Holes.
Item 3)., “Judge slaps down Florida effort ….”, and Item 4)., “BREAKING: Ron DeSantis Directed ….”, both look specifically at the situation in Florida where the state government, under the direction of Arch-fascist Ron DeSantis, is taking various measures to oppose Proposal 4 the Florida State Constitutional Amendment meant to repeal the Trump Abortion Ban, that was imposed by the reactionaries in the Florida State Legislature along with DeSantis.
The last two articles, Item 5)., “Uphill battles ….”, and Item 6)., “The Shadow Medical Community ….”; both look at some of the background material. Item 5). looks at the many hurdles that face Abortion Rights Advocates, and women in general, to convert a win for an abortion rights state ballot initiative into concrete access to abortion and reproductive healthcare in general. Finally Item 6). takes a look at some of the various far-right forces that are working and that have worked to impose the harsh forced-pregnancy / forced-birth agenda on the American Population.
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How Post Offices Are Targeting Abortion Pills
Criminalizing Care
If you haven’t read this investigation at The Intercept about drug-sniffing dogs ‘alerting’ to abortion medication and the way the USPS can be weaponized against reproductive rights activists, you should remedy that right now.
Focusing specifically on an investigation in Jackson, Mississippi, reporter Debbie Nathan provides a stark look at how local officials work with federal investigators to go after abortion pills—and how a Trump presidency could make mailing abortion medication a felony. I’ll give you the short version, but please, go read this piece.
Nathan looks at an incident where a police dog was brought to a Jackson post office after an employee there said they saw someone put pills into a pink envelope. The dog, documents said, alerted when presented with one of the envelopes. That in turn became evidence to get a warrant to open the package, which contained abortion medication.
But here’s the thing: dogs aren’t trained to alert to abortion medication, which is legal—just drugs like heroin, cocaine, etc. So what’s much more likely is that the police officer did something call “cueing” their dog, giving off subtle body language cues that they wanted the dog to alert:
“Handlers wishing to develop probable cause to do intrusive searches for narcotics can coax their dogs into drug-alerting behavior. To get a reward, the dog will alert, even if nothing illegal is present.”
Apparently this happens often enough that some agencies require K-9 handlers to wear body cameras to make sure they’re not cueing their dogs. And then there’s this:
“The Jackson investigation apparently also employed what’s called a mail cover: a little-known Postal Service method for collecting data about people suspected of committing crimes. Using an enormous database of images of the outside of envelopes and packages, postal inspectors can digitally compare names, addresses, and other information on one item to others. And the findings can be freely shared with almost any law enforcement agency that requests them.”
In other words, they can use a dog to come up with an excuse for why they need to get into a package, and then collect all sorts of information in order to build a case against the person who sent the package.
Nathan reports that dozens of envelopes with abortion pills were seized in Jackson, and officials declined to say whether a case is still open. While no one has been indicted yet, we do know that whoever was waiting for those pills didn’t get them. So at the very least, even if no one is arrested it’s a way for officials to stop women from getting the care they need.
Now, imagine we’re under a Trump presidency. The Comstock Act is being enforced, the USPS leadership is appointed by the president, and federal postal officers and investigators are working with law enforcement, who’ve been emboldened to go after abortion rights activists as “drug traffickers.” And as Nathan points out, if Comstock is revived dog handlers wouldn’t need to “cue” in order to start an investigation; the dogs would be trained to smell the pills once the medication was criminalized.
In other words, a total nightmare. Again, read the whole piece; I’ll be writing more about privacy and criminalization in the coming weeks before the election, but if this doesn’t scare the shit out of you I don’t know what will.
Anti-Abortion Strategy
Let’s keep talking about attacks on abortion medication, because it is really is enemy number one for the anti-abortion movement right now.
These pills don’t just mean that women can avoid the real life harassment at clinics that antis are so eager to dole out, but that they can end their pregnancies privately and at home. And in a post-Roe America, the mailing of abortion medication has been a saving grace for patients in states with bans. Remember, tele-health now accounts for nearly 1 in 5 abortions.
That’s why Republican Attorneys General are going after mifepristone in the lawsuit I told you about earlier this week, and why I’m so worried about things like USPS investigations. Today, Sarah Zhang at The Atlantic looks at some of the different ways that antis are coming up with to target abortion medication—like going after shield state providers.
Zhang also points out that anti-abortion groups are getting creative: Texas Right to Life wants to go after the pro-choice groups putting up billboards about abortion medication for “aiding and abetting,” and has lobbied for legislation that would “create liability for internet-service providers or credit-card-processing companies involved in abortion-pill transactions.” (Abortion, Every Day has reported on this and other efforts in Texas—like making pro-choice websites illegal, whether they provide abortion medication itself or just information about the pills.)
Then there’s the move to make abortion medication a controlled substance, claims that the pills are used by domestic abusers and sex traffickers, and efforts to drive up fake ‘complication’ rates so they can like about the medications’ (proven!) safety.
All of which is to say: This war on abortion medication is only getting started, there are a ton of different facets to it, and we need to be on top of every single one. If you missed my explainer on the latest anti-abortion lawsuit against mifepristone, read it below:
In the States
We have some rare good news out of Tennessee: A three-judge panel ruled that the state medical board can’t discipline or revoke the licenses of doctors who provide life-saving abortions. (Unfortunately, the panel lacked the authority to block the prosecution of doctors.)
This is a suit that was filed last year by the Center for Reproductive Rights on behalf of women and doctors impacted by the state’s ban. The Center pointed out that the ban’s ‘exceptions’ were deliberately vague, making doctors afraid to provide care—which, of course, endangers women. The judges wrote that the patient plaintiffs showed "they will suffer immediate and irreparable harm pending a final judgment in this case.”
The judges were also able to do one more important thing—expand the specifically-named conditions that qualify as “medical necessity exceptions” under Tennessee’s ban. Until now, only ectopic and molar pregnancies were listed by name; other than that, doctors had to use “reasonable medical judgement” in order to “prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function.”
The judges ruled that the state’s exception has to include:
Previable preterm premature rupture of membranes (“PPROM”)
Inevitable abortion, defined as dilation of the cervix prior to viability of the pregnancy, either by preterm labor or cervical insufficiency
Fatal fetal diagnoses that lead to maternal health conditions, such as severe preeclampsia and mirror syndrome associated with fetal hydrops
Fatal fetal diagnoses leading to an infection that will result in uterine rupture or potential loss of fertility
I hate that this is necessary—that doctors have to be given the explicit okay to save women’s lives. Naturally, Tennessee’s Attorney General Jonathan Skrmetti claimed that the ruling didn’t do anything new that and the state was always going to allow doctors to save women’s lives. But that’s just not true.
You may remember—because Abortion, Every Day was tracking this closely for months—that when Roe was first overturned, Tennessee had no exception for women’s lives. Instead, doctors had to break the law in order to provide life-saving abortions and then defend that decision after the fact.
When Republicans saw that voter outrage was going to be an issue, they decided to work on an exception for women’s lives. But, incredibly, anti-abortion groups like Tennessee Right to Life and Susan B. Anthony Pro-Life America lobbied them not to. That’s right—they didn’t want them passing an exception for women’s lives.
As the state GOP moved ahead with drafting an exception anyway, these groups pressured Republicans to make it as hard on doctors as possible. For example, originally the language of the exception would allow doctors to use “good faith” medical judgement. Anti-abortion groups made lawmakers change it to “reasonable” medical judgement. Why? Tennessee Right to Life claimed “it would be open season” for doctors “who wanted to perform bad-faith terminations.”
In other words, this was never about protecting women—but punishing them, and the people who care for them.
In more desperate-to-criminalize-news: When asked if he would prosecute abortion patients and providers if Pennsylvania passed an abortion ban, Republican Attorney General candidate Dave Sunday responded, “I will absolutely enforce and defend the abortion laws in Pennsylvania.” He then went on to say that such an abortion ban would never happen so folks shouldn’t even worry about it.
This has become such a ridiculous and annoying refrain fro Republicans in pro-choice states—claiming that abortion rights are safe and that they’ll follow the rule of law and what voters want. Americans can see that abortion rights are in danger everywhere; they’re not looking for equivocations and claims from politicians that they couldn’t pass or enforce a ban even if they wanted to. They’re looking for a moral stance.
Quick hits:
New Hampshire’s Republican gubernatorial candidate Kelly Ayotte is running from her anti-abortion stance;
I love that abortion is becoming an issue that even city candidates need to talk about it, like this commission race in Tallahassee, Florida;
And in a Massachusetts debate, Sen. Elizabeth Warren’s Republican challenger John tried to blame Warren for the end of Roe v. Wade, which is…something.
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Ballot Measure Updates
I told you yesterday about the good news out of Florida—a judge issued a temporary restraining order against Republican leaders who are dismantling democracy in order to keep abortion banned. It’s incredible that the government needs to be forced by a judge to stop violating free speech, but I’ll take whatever wins I can.
Here’s Bloomberg and The Guardian with coverage of that story. The temporary block will last until the end of the month, when the judge will hold a hearing on whether to extend the block. Given his quote, though—”It’s the First Amendment, stupid!”—I’m feeling pretty positive.
I also told you yesterday about the lawsuit against Amendment 4; brought by anti-abortion activists, the suit claims that pro-choice activists participated in voter fraud and that not enough Floridians actually supported the measure to put it on the ballot.
From the campaign director for Amendment 4, Lauren Brenzel:
"These lawsuits should be recognized for what they are—a deeply troubling anti-democratic effort to use the judiciary to keep the people of Florida from being able to make their own choice about whether Amendment 4 should become law.”
The other thing to note, and this is something I’ve said before, is that this particular attack is a way for Republicans to pretend that voters in Florida don’t actually support abortion rights. Which really does make it all the more insidious.
Meanwhile, more than 250 health care providers in Montana have signed a letter in support of the abortion rights amendment there.
“Doctors trust our patients to decide what's right for their unique situations — not politicians. We know that decisions around pregnancy, including abortion, birth control, and miscarriage care, are deeply personal and private, and should be made by patients with advice from their trusted physicians and families. There's no room for political interference in our exam rooms.”
Abortion rights have been protected in Montana since 1999, but Republican leaders in the state have taken every opportunity to roll back access and pass restrictions—so abortion rights activists want that added layer of protection in the state constitution. Republicans there have even tried to stop the amendment from making it to the ballot; this summer, the Secretary of State’s office tried to remove voters’ names from the petition to get the measure in front of voters, claiming that they were “inactive.”
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Drug-Sniffing Police Dogs Are Intercepting Abortion Pills in the Mail
It was a tip that brought a dog to the main post office in downtown Jackson, Mississippi. An employee there had reported seeing someone in the lobby putting pills into hot pink envelopes.
Hours later, Ed Steed, a police officer from the small city of Richland, just south of Jackson, walked into a back room at the post office where one of the envelopes had been set aside. Steed, a K-9 handler, arrived with Rip, his narcotics sniffer dog. Rip strode around and, when he got to the pink envelope, sat down. According to records obtained through a Freedom of Information Act request, Steed said this meant the dog had smelled narcotics. That claim became evidence to get a warrant to open the envelope.
This, though, was no ordinary drug bust. As it turned out, there were pills inside the package, but they were not the kind that Rip or other police K-9s are trained to detect. The envelope contained five pills labeled “AntiPreg Kit.” They were made in India, and their medical purpose is to induce abortion. Dwayne Martin, at the time the head of the U.S. Postal Inspection Service in Jackson, told me this was exactly what the initial tipster had suspected.
As it turned out, there were pills inside the package, but they were not the kind that Rip or other police K-9s are trained to detect.
About two-thirds of abortions in the U.S. in 2023 were done with mifepristone and misoprostol, the two-pill combination found in AntiPreg and similar products. Most were prescribed by clinicians at brick-and-mortar offices or through telehealth appointments. The World Health Organization advises that the pills are so safe in the first 12 weeks of pregnancy that supervision by a medical clinician is not needed. Taking the pills without clinician oversight is called “self-managed abortion.”
The practice has become so widespread that the New York Times estimated last year that it comprised 10 percent of all abortions being done in America. The U.S. Food and Drug Administration, however, has not approved the importation of foreign-made misoprostol or mifepristone pills, much less their distribution without a prescription.
The non-approved pills tend to enter the U.S. in bulk, most passing surreptitiously through customs at land borders and international airports. Many are delivered to feminist-oriented mutual aid groups who distribute them at low cost or for free. Others go to people who are just trying to turn a profit. Both groups repackage their international bulk shipments as single doses and mail them domestically — typically from post offices.
Today, you can order AntiPreg and similar brands by clicking links at websites including that of Plan C, an online clearinghouse for information about how to get abortion pills through the mail. One dose costs as little as $38, including shipping, and can be cheaper if the patient seeks financial assistance. The pills can be delivered in as quickly as four days.
In large part thanks to such easy availability, more people in the U.S. today are having abortions than before the fall of Roe.
What will happen to abortion-pills-by-mail and the people who use them if Donald Trump is elected in November? As the accounts of the regional USPIS head and FOIA documents show, a piecemeal crackdown is already underway during a Democratic administration. Under a Trump regime, things might go much further.
Whoever is in power, the incident in Jackson provides a potential window into the future — one in which freelancing local Postal Service employees and officials can call on local cops to halt women from accessing reproductive care and potentially charge and arrest those providing or using abortion medication.
My FOIA request asked for records from past years of investigations of people who’d used the mail to send pills. The documents I got back show how a willing administration might go after distributors. The feds could even lend support to police in states that have criminalized abortion care as they pursue cases under local laws. Pregnant people who order the medications could get caught in the dragnet.
The Shadow Medical Community Behind the Attempt to Ban Medication Abortion
The documents I received after my FOIA request are highly redacted but still reveal many details about a federal investigation that began less than two years ago in Mississippi. Dozens of envelopes with abortion pills were seized. The bust followed on the heels of the Supreme Court overturning Roe v. Wade, and came after a group of anti-abortion doctors filed a federal lawsuit in Texas, arguing that abortion pills should be banned from the mail.
The Jackson investigation apparently also employed what’s called a mail cover: a little-known Postal Service method for collecting data about people suspected of committing crimes. Using an enormous database of images of the outside of envelopes and packages, postal inspectors can digitally compare names, addresses, and other information on one item to others. And the findings can be freely shared with almost any law enforcement agency that requests them. The return address for the hot pink envelope in Jackson included an unused post office box number, the sort of information postal inspectors can use to correlate parcels to each other.
Reproductive justice activist Laurie Bertram Roberts worries about an anti-abortion regime taking power. They direct the Jackson-based Mississippi Reproductive Freedom Fund, which assists fellow Mississippians with any reproductive decision they make, from having a baby, to leaving the state to go to an abortion clinic, to using pills at home.
In a state where abortion is strictly banned post-Roe, Bertram Roberts is also a doula. Along with other doulas, they have organized help for people at the end of their pregnancies, including those which do not come to term. Whether that end is due miscarriage or to abortion is immaterial. “We don’t ask,” they said.
The pink-envelope investigation came out of a sort of collaboration between the feds’ regional offices and a local official: U.S postal workers and a city K-9 cop. Though no one in Mississippi has yet been arrested for helping carry out an abortion, Bertram Roberts fears that synergy. They leaned forward and tensed their lips as I opened my computer and pulled up images I’d obtained from the FOIA request: photos the USPIS had taken, in a post office parking lot, of vehicles suspected of belonging to the person who mailed the pills.
Bertram Roberts peered anxiously at the screen. “I don’t recognize them!” they said. Their face relaxed, but they shook their head. “The thing I worry about most is people getting criminalized.”
The USPIS is the investigative arm of the nation’s Postal Service. The agency has known for at least the past decade, according to FOIA documents, that foreign-made abortion pills are entering the U.S. and being distributed in quantity without prescription. FDA regulations hold that this is illegal; the senders can be punished with criminal penalties.
Days after Roe was overturned in June 2022, the USPIS announced that it would not proactively pursue pill mailers, even in states where abortion was being banned.
“We enforce federal law,” USPIS spokesperson Michael Martel told me. “We have no interest in enforcing state laws.”
He said, however, that the USPIS does go after people who import nonapproved pharmaceuticals and those without medical credentials who mail prescription drugs.
The investigations can rely on outside help. USPIS doesn’t have its own sniffer K-9s, so it employs local police dogs and their handlers to check the mail for contraband and provide the probable cause needed to get warrants. The arrangement occurs even in jurisdictions like Mississippi, where abortion is now banned under state law and local cops enforce state law. Steed, the dog handler from a nearby Rankin County police department who responded to the pink envelope in Jackson, was recently deputized as a USPIS investigator, and he uses office space in the agency’s regional headquarters at the Jackson postal center.
Using local dogs creates risk for abortion-seekers. With the post office inviting local law enforcement to assist with federal investigations, local police could theoretically do their own investigations, by copying names and addresses from the mail. And they could pass that information to anti-abortion district attorneys.
Police dogs, however, are trained to smell only the illegal drugs heroin, marijuana, ecstasy, fentanyl, and cocaine, not the ingredients in abortion pills, which currently remain legal. And the K-9s’ forensic reliability is suspect.
Why would a police dog alert on abortion pills in the first place, when they’re not narcotics?
Martel, the USPIS national spokesperson, speculated that the pills found in Jackson were contaminated in the manufacturing process by trace amounts of a drug such as marijuana, or perhaps someone was handling narcotics when they did the packing and left molecules behind that only canines’ super-sensitive noses can detect.
Theories along these lines are widespread among police, and they’re inherently impossible to disprove. Elisa Wells, a co-founder and co-director of Plan C, is skeptical. She said her group has conducted laboratory analyses of various brands of foreign-made abortion pills. They’ve all been pure, she said, and no one has ever complained about their containing narcotics.
There is another reason why a K-9 can zero in on a package that’s devoid of illicit drugs. Animal researchers call it “cueing.” Canines are exquisitely sensitive to the minutiae of a human’s posture, eye movements, and other subtle behaviors. Handlers wishing to develop probable cause to do intrusive searches for narcotics can coax their dogs into drug-alerting behavior. To get a reward, the dog will alert, even if nothing illegal is present. (Steed, the K-9 handler, declined to be interviewed for this story.)
Cueing can be deliberate, but it’s more often unconscious. In 2011, Lisa Lit, a researcher at the University of California, Davis, published a now-famous study in which she told the handlers of several police dogs that their K-9s would be searching for “target scents” hidden randomly in several containers. She put red tape on some containers and said it marked the targets. In reality, none of the containers had scents. Even so, most of the dogs alerted on containers, especially those with red tape.
Some policing agencies now require K-9 handlers to wear body cameras to check if they’re cueing their dogs. USPIS, though, doesn’t use body cameras, according to Martin, the former head of the office in Jackson. Chris Picou, a supervising deputy for Rankin County’s drug interdiction units who oversees many Central Mississippi police K-9s, including Steed’s dog Rip, told me in June that he had never heard of the Lit study about cueing.
Lawrence Myers, a retired professor of veterinary medicine at Auburn University with extensive experience researching the reliability of law enforcement dogs and their human handlers, said unacknowledged handler errors in the service of law enforcement can turn K-9s into mere “warrants on a leash.”
Once a warrant is issued and the parcel has been opened, a mail cover can help an investigation barrel forward.
Mail covers have been offered for generations by the U.S. Postal Service. They require neither a warrant nor any other Fourth Amendment control. Even so, they allow law enforcement agencies, from the FBI to local police to the USPIS itself, to collect information from the outside of an envelope or package. Annually, the post office photographs every one of the billions of pieces of mail that it processes. And every year, it approves thousands of requests from law enforcement for mail covers of individuals.
“We tend to think of first-class mail as relatively inviolable. But the outside of the envelope is the equivalent of social media,” said Frederick Lane, an attorney and writer who specializes in tensions between the Fourth Amendment’s guarantee of privacy and cybertechnology’s growing ability to snoop.
Lane, who is writing a book called “The Cybertraps of Choice: Pregnancy and Privacy in a Post-Roe World,” has investigated mail covers. He examined the abortion materials from the Mississippi FOIA request and said they constitute strong evidence that the USPIS got a mail cover from the Postal Service to enlarge its abortion pill investigation. (Martel, the USPIS spokesperson, declined to comment, saying only that the agency routinely withholds information from the public in order to protect its investigations.)
Lane said that using K-9s to alert for narcotics is one of the most common ways that the USPIS obtains warrants to search inside of mailed items, even when investigators don’t really believe they’re looking for narcotics.
Once the inspector got inside of the pink envelope in Jackson, he said, it appears that the USPIS collected data from outside the envelope — likely the unused post office box number in the return address — to locate additional envelopes with pills. The tactic would allow authorities to centralize the search by tracking related materials from disparate post offices as they come together at the Jackson distribution center.
Lane noted the Postal Service started photographing mail and digitizing it years ago to reduce the cost of sorting. After 9/11, and with the development of ever more sophisticated digital photography, the data recovered from one item could be compared with myriad other items and stored on ever-growing databases. These days, the ability to do this work “is growing by leaps and bounds,” Lane said.
“If you start involving local law enforcement in a state that is trying to ban access to abortion, including abortion medication, you are putting patients at risk.”
The information a mail cover extracts is handed over to law enforcement, with virtually no questions asked.
“Mechanisms for the post office helping local cops are in place without any supervision,” Lane said. He called the cooperation between policing agencies and the postal service “a candy store for law enforcement.”
That teamwork potentially threatens abortion rights, according to Nathan Freed Wessler, deputy director of the American Civil Liberties Union’s Speech, Privacy, and Technology Project.
“If you start involving local law enforcement in a state that is trying to ban access to abortion, including abortion medication, you are putting patients at risk,” he told me. “Individuals who are trying to access medical care should not have to fear the federal government coming after them. The specter of harm to people once local law enforcement gets wind of it in a hostile state could be really serious.”
The other potential federal threat to abortion rights is what’s colloquially called the Comstock Act. Passed by Congress in 1873, it has been dormant for decades but remains on the books as 18 U.S. Codes 1461 and 1462. Comstock criminalizes importing and mailing materials which, according to the language of the law, are “intended for producing abortion, or for any indecent or immoral use.”
Among hard-line anti-abortion activists who have Trump’s ear, plans are already afoot to revive the Comstock Act if he wins. Lately, Trump and his vice presidential running mate, Sen. JD Vance, R-Ohio, have been trying to distance themselves from unpopular calls to further restrict abortion. Vance recently said he supports abortion pills being legal, but before entering the race, he was publicly in favor of banning them from the mail.
On Abortion, JD Vance Is the Bridge Between Trump and Project 2025
Vance and other Republican lawmakers last year sent a letter to the Department of Justice asking for the Comstock Act to be enforced and for the department to “shut down all mail-order abortion operations.” In addition, Project 2025, the Heritage Foundation blueprint for turning the country sharply right, calls for using the Comstock Act to ban abortion pills from the mail. Trump and his campaign have also been trying to distance themselves from Project 2025, but Vance complicates matters; he wrote the foreword to a now-delayed book by Heritage chief and project architect Kevin Roberts.
Because the Comstock Act is federal law and the U.S. Postal Service is part of the executive branch, Trump, if he won the upcoming election, could issue an executive order reviving Comstock as early as the first day of his second term. Separately, his attorney general could authorize going after pills in the mail.
“I have absolutely no doubt that under a Trump administration the Postal Service would be required to enforce the Comstock laws against misoprostol and mifepristone.”
“I have absolutely no doubt that under a Trump administration the Postal Service would be required to enforce the Comstock laws against misoprostol and mifepristone,” said Lane, the cyber-privacy expert.
And if Comstock is revived, anyone caught sending abortion pills, even domestically produced brands not currently banned by the FDA, could be charged with a felony. With the pills officially defined as contraband, sniffer dogs could be trained to smell them on their own. Cueing by a handler would no longer be necessary.
And the government might not stop with banning pills. Andrew Beck, a senior staff attorney with the ACLU’s Reproductive Freedom Project, told me that, under Comstock, even clinicians doing surgical abortions in states where they are legal could be cut off from receiving the items they need: “gloves, surgical instruments, and everything else that’s used.”
Comstock could ban them all from being mailed.
Rip, the local police department dog, sniffed the pink envelope in Jackson on December 7, 2022. That same day, even before the USPIS got its warrant to look inside the envelope, the agency impounded 11 more nearly identical packages with the same address that the Postal Service had determined was bogus. The fact that they were impounded so early is evidence, Lane said, that the USPIS was using a mail cover.
December progressed and additional envelopes were seized every few days. They were addressed to recipients throughout the country. The USPIS claimed they were being flagged by employees at a smaller postal service branch in Jackson called LaFleur, but more likely they were identified through a mail cover, according to Lane, then seized when they reached the downtown distribution and processing center.
USPIS said that workers at LaFleur had acted as tipsters. LaFleur branch manager Fenton Stevens, however, told me that he had no recollection of workers reporting envelopes suspected of containing abortion pills.
“How could somebody know if abortion pills are in a package?” he asked, incredulously. “That’s not something we do. We don’t indulge in things like that.”
The USPIS also photographed vehicles presumably driven by the person doing the mailing — the photos Laurie Bertram Roberts later checked out. The case was eventually sent to the federal prosecutor’s office for the Southern District of Mississippi, in downtown Jackson. An assistant U.S. attorney was assigned to handle it.
By December 20, over seven dozen envelopes had been seized. Then, two days before Christmas, the Office of Legal Counsel for the Department of Justice issued an opinion implying physicians and other clinicians who mail prescription abortion pills into states where abortion is illegal could not be prosecuted under the Comstock Act.
The Justice Department’s reasoning was that the pills are used for several medical purposes besides abortion, to manage miscarriages, for instance. Thus, the government cannot know in any given case whether a mailer’s intention is to break the law. (The opinion still leaves mutual aid activists and other non-clinicians susceptible to being charged with crimes.)
In Jackson, a few more envelopes, the final seven, were impounded on January 6. That date marked one month since Rip had sniffed the first pink envelope and the USPIS initiated its investigation. A mail cover is permitted to last for one month before it must either be renewed or ended. After that final day, seizures of pills in Jackson ceased.
No one has since been indicted, and Martel, the USPIS spokesperson, declined to say if the case is still open.
Martin, the retired inspector, said it’s closed.
“The U.S. attorney’s office in Jackson is a very good office,” he said, “very aggressive.” But he guessed that “the political climate,” as he put it, made a prosecution for abortion pills “a hot topic nobody wanted to touch.”
Nobody, that is, under the pro-abortion-rights Biden administration. In the meantime, thanks to a Jackson-based postal worker, Rip the dog, and a federal agency that says it has no desire to police abortion, nearly 100 pregnant people did not receive little pink packages containing the medicine they requested.
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Judge slaps down Florida effort to ban abortion ad: ‘It’s the first amendment, stupid’
State health department sent letter to stations demanding they not air TV ad backing abortion access ballot measure
Florida’s health department can’t block a TV advertisement in support of a ballot measure that would protect abortion rights, a federal judge ruled on Thursday, after the department sent letters to local TV stations commanding them to stop airing the ad or risk criminal consequences.
“The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is ‘false’,” US district judge Mark E Walker wrote in his ruling. “To keep it simple for the State of Florida: it’s the First Amendment, stupid.”
Florida is one of 10 states set to vote on abortion-related ballot measures in November. If enacted, Florida’s measure would enshrine abortion rights into the state constitution and roll back the state’s six-week ban on the procedure, which took effect in May.
Earlier this month, Florida’s health department sent cease-and-desist letters to TV stations running an ad by Floridians Protecting Freedom, the campaign behind the measure. In the ad, a woman named Caroline speaks about being diagnosed with cancer while pregnant.
“The doctors knew if I did not end my pregnancy, I would lose my baby, I would lose my life and my daughter would lose her mom,” Caroline says in the ad. “Florida has now banned abortion even in cases like mine.”
The letters said the claim that women can’t get life-saving abortions in Florida was “categorically false”, since Florida’s ban permits abortions in medical emergencies. “The fact is these ads are unequivocally false and detrimental to public health in Florida,” Jae Williams, the Florida department of health communications director, said in an email late on Thursday.
However, doctors across the country have said abortion bans are worded so vaguely as to force them to deny people medically necessary abortions. A New York doctor recently said that she had treated a woman with an ectopic pregnancy – which is nonviable and potentially life-threatening if left untreated – who had been turned away from a Florida hospital.
In response to the letters, Floridians Protecting Freedom sued the Florida surgeon general, Joseph Ladapo, and John Wilson, the former general counsel for the state health department. At least one TV station stopped airing the ad, the coalition’s lawsuit alleged.
On Thursday, Walker granted a temporary restraining order blocking Ladapo from taking any further action against broadcasters or other media outlets that might air ads by Floridians Protecting Freedom.
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How Post Offices Are Targeting Abortion Pills
Criminalizing Care
If you haven’t read this investigation at The Intercept about drug-sniffing dogs ‘alerting’ to abortion medication and the way the USPS can be weaponized against reproductive rights activists, you should remedy that right now.
Focusing specifically on an investigation in Jackson, Mississippi, reporter Debbie Nathan provides a stark look at how local officials work with federal investigators to go after abortion pills—and how a Trump presidency could make mailing abortion medication a felony. I’ll give you the short version, but please, go read this piece.
Nathan looks at an incident where a police dog was brought to a Jackson post office after an employee there said they saw someone put pills into a pink envelope. The dog, documents said, alerted when presented with one of the envelopes. That in turn became evidence to get a warrant to open the package, which contained abortion medication.
But here’s the thing: dogs aren’t trained to alert to abortion medication, which is legal—just drugs like heroin, cocaine, etc. So what’s much more likely is that the police officer did something call “cueing” their dog, giving off subtle body language cues that they wanted the dog to alert:
“Handlers wishing to develop probable cause to do intrusive searches for narcotics can coax their dogs into drug-alerting behavior. To get a reward, the dog will alert, even if nothing illegal is present.”
Apparently this happens often enough that some agencies require K-9 handlers to wear body cameras to make sure they’re not cueing their dogs. And then there’s this:
“The Jackson investigation apparently also employed what’s called a mail cover: a little-known Postal Service method for collecting data about people suspected of committing crimes. Using an enormous database of images of the outside of envelopes and packages, postal inspectors can digitally compare names, addresses, and other information on one item to others. And the findings can be freely shared with almost any law enforcement agency that requests them.”
In other words, they can use a dog to come up with an excuse for why they need to get into a package, and then collect all sorts of information in order to build a case against the person who sent the package.
Nathan reports that dozens of envelopes with abortion pills were seized in Jackson, and officials declined to say whether a case is still open. While no one has been indicted yet, we do know that whoever was waiting for those pills didn’t get them. So at the very least, even if no one is arrested it’s a way for officials to stop women from getting the care they need.
Now, imagine we’re under a Trump presidency. The Comstock Act is being enforced, the USPS leadership is appointed by the president, and federal postal officers and investigators are working with law enforcement, who’ve been emboldened to go after abortion rights activists as “drug traffickers.” And as Nathan points out, if Comstock is revived dog handlers wouldn’t need to “cue” in order to start an investigation; the dogs would be trained to smell the pills once the medication was criminalized.
In other words, a total nightmare. Again, read the whole piece; I’ll be writing more about privacy and criminalization in the coming weeks before the election, but if this doesn’t scare the shit out of you I don’t know what will.
Anti-Abortion Strategy
Let’s keep talking about attacks on abortion medication, because it is really is enemy number one for the anti-abortion movement right now.
These pills don’t just mean that women can avoid the real life harassment at clinics that antis are so eager to dole out, but that they can end their pregnancies privately and at home. And in a post-Roe America, the mailing of abortion medication has been a saving grace for patients in states with bans. Remember, tele-health now accounts for nearly 1 in 5 abortions.
That’s why Republican Attorneys General are going after mifepristone in the lawsuit I told you about earlier this week, and why I’m so worried about things like USPS investigations. Today, Sarah Zhang at The Atlantic looks at some of the different ways that antis are coming up with to target abortion medication—like going after shield state providers.
Zhang also points out that anti-abortion groups are getting creative: Texas Right to Life wants to go after the pro-choice groups putting up billboards about abortion medication for “aiding and abetting,” and has lobbied for legislation that would “create liability for internet-service providers or credit-card-processing companies involved in abortion-pill transactions.” (Abortion, Every Day has reported on this and other efforts in Texas—like making pro-choice websites illegal, whether they provide abortion medication itself or just information about the pills.)
Then there’s the move to make abortion medication a controlled substance, claims that the pills are used by domestic abusers and sex traffickers, and efforts to drive up fake ‘complication’ rates so they can like about the medications’ (proven!) safety.
All of which is to say: This war on abortion medication is only getting started, there are a ton of different facets to it, and we need to be on top of every single one. If you missed my explainer on the latest anti-abortion lawsuit against mifepristone, read it below:
In the States
We have some rare good news out of Tennessee: A three-judge panel ruled that the state medical board can’t discipline or revoke the licenses of doctors who provide life-saving abortions. (Unfortunately, the panel lacked the authority to block the prosecution of doctors.)
This is a suit that was filed last year by the Center for Reproductive Rights on behalf of women and doctors impacted by the state’s ban. The Center pointed out that the ban’s ‘exceptions’ were deliberately vague, making doctors afraid to provide care—which, of course, endangers women. The judges wrote that the patient plaintiffs showed "they will suffer immediate and irreparable harm pending a final judgment in this case.”
The judges were also able to do one more important thing—expand the specifically-named conditions that qualify as “medical necessity exceptions” under Tennessee’s ban. Until now, only ectopic and molar pregnancies were listed by name; other than that, doctors had to use “reasonable medical judgement” in order to “prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function.”
The judges ruled that the state’s exception has to include:
Previable preterm premature rupture of membranes (“PPROM”)
Inevitable abortion, defined as dilation of the cervix prior to viability of the pregnancy, either by preterm labor or cervical insufficiency
Fatal fetal diagnoses that lead to maternal health conditions, such as severe preeclampsia and mirror syndrome associated with fetal hydrops
Fatal fetal diagnoses leading to an infection that will result in uterine rupture or potential loss of fertility
I hate that this is necessary—that doctors have to be given the explicit okay to save women’s lives. Naturally, Tennessee’s Attorney General Jonathan Skrmetti claimed that the ruling didn’t do anything new that and the state was always going to allow doctors to save women’s lives. But that’s just not true.
You may remember—because Abortion, Every Day was tracking this closely for months—that when Roe was first overturned, Tennessee had no exception for women’s lives. Instead, doctors had to break the law in order to provide life-saving abortions and then defend that decision after the fact.
When Republicans saw that voter outrage was going to be an issue, they decided to work on an exception for women’s lives. But, incredibly, anti-abortion groups like Tennessee Right to Life and Susan B. Anthony Pro-Life America lobbied them not to. That’s right—they didn’t want them passing an exception for women’s lives.
As the state GOP moved ahead with drafting an exception anyway, these groups pressured Republicans to make it as hard on doctors as possible. For example, originally the language of the exception would allow doctors to use “good faith” medical judgement. Anti-abortion groups made lawmakers change it to “reasonable” medical judgement. Why? Tennessee Right to Life claimed “it would be open season” for doctors “who wanted to perform bad-faith terminations.”
In other words, this was never about protecting women—but punishing them, and the people who care for them.
In more desperate-to-criminalize-news: When asked if he would prosecute abortion patients and providers if Pennsylvania passed an abortion ban, Republican Attorney General candidate Dave Sunday responded, “I will absolutely enforce and defend the abortion laws in Pennsylvania.” He then went on to say that such an abortion ban would never happen so folks shouldn’t even worry about it.
This has become such a ridiculous and annoying refrain fro Republicans in pro-choice states—claiming that abortion rights are safe and that they’ll follow the rule of law and what voters want. Americans can see that abortion rights are in danger everywhere; they’re not looking for equivocations and claims from politicians that they couldn’t pass or enforce a ban even if they wanted to. They’re looking for a moral stance.
Quick hits:
New Hampshire’s Republican gubernatorial candidate Kelly Ayotte is running from her anti-abortion stance;
I love that abortion is becoming an issue that even city candidates need to talk about it, like this commission race in Tallahassee, Florida;
And in a Massachusetts debate, Sen. Elizabeth Warren’s Republican challenger John tried to blame Warren for the end of Roe v. Wade, which is…something.
A message from our Sponsor: You’re smart. We’re smart (and funny). Let’s do this thing.
Ballot Measure Updates
I told you yesterday about the good news out of Florida—a judge issued a temporary restraining order against Republican leaders who are dismantling democracy in order to keep abortion banned. It’s incredible that the government needs to be forced by a judge to stop violating free speech, but I’ll take whatever wins I can.
Here’s Bloomberg and The Guardian with coverage of that story. The temporary block will last until the end of the month, when the judge will hold a hearing on whether to extend the block. Given his quote, though—”It’s the First Amendment, stupid!”—I’m feeling pretty positive.
I also told you yesterday about the lawsuit against Amendment 4; brought by anti-abortion activists, the suit claims that pro-choice activists participated in voter fraud and that not enough Floridians actually supported the measure to put it on the ballot.
From the campaign director for Amendment 4, Lauren Brenzel:
"These lawsuits should be recognized for what they are—a deeply troubling anti-democratic effort to use the judiciary to keep the people of Florida from being able to make their own choice about whether Amendment 4 should become law.”
The other thing to note, and this is something I’ve said before, is that this particular attack is a way for Republicans to pretend that voters in Florida don’t actually support abortion rights. Which really does make it all the more insidious.
Meanwhile, more than 250 health care providers in Montana have signed a letter in support of the abortion rights amendment there.
“Doctors trust our patients to decide what's right for their unique situations — not politicians. We know that decisions around pregnancy, including abortion, birth control, and miscarriage care, are deeply personal and private, and should be made by patients with advice from their trusted physicians and families. There's no room for political interference in our exam rooms.”
Abortion rights have been protected in Montana since 1999, but Republican leaders in the state have taken every opportunity to roll back access and pass restrictions—so abortion rights activists want that added layer of protection in the state constitution. Republicans there have even tried to stop the amendment from making it to the ballot; this summer, the Secretary of State’s office tried to remove voters’ names from the petition to get the measure in front of voters, claiming that they were “inactive.”
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Uphill battles that put abortion rights on ballots are unlikely to end even if the measures pass
FILE - Reproductive rights advocate Kat Duesterhaus holds up a sign as U.S. President Joe Biden and his Republican rival, former President Donald Trump speak about abortion access, as the the first general election debate of the 2024 season is projected on a outdoor screen at the Nite Owl drive-in theater, Thursday, June 27, 2024, in Miami. (AP Photo/Rebecca Blackwell, File)
FILE - Rabbis and supporters from around the country gather for a rally, one day after the midterm elections, to show their support for protecting abortion rights Wednesday, Nov. 9, 2022, in Clayton, Mo. (AP Photo/Jeff Roberson, File)
FILE - Anti-abortion protesters gather for a news conference after Arizona abortion-rights supporters delivered more than 800,000 petition signatures to the state Capitol to get abortion rights on the November general election ballot, July 3, 2024, in Phoenix. (AP Photo/Ross D. Franklin, File)
FILE - Amendment 3 supporters Luz Maria Henriquez, second from left, executive director of the ACLU Missouri, celebrates with Mallory Schwarz, center, of Abortion Action Missouri, after the Missouri Supreme Court in Jefferson City, Mo., ruled that the amendment to protect abortion rights would stay on the November ballot in on Tuesday, Sept. 10, 2024. (Robert Cohen/St. Louis Post-Dispatch via AP, File)
Voters in nine states are deciding next month whether to add the right to abortion to their constitutions, but the measures are unlikely to dramatically change access — at least not immediately.
Instead, voter approval would launch more lawsuits on a subject that’s been in the courts constantly — and more than ever since the U.S. Supreme Court in 2022 overturned Roe v. Wade and opened the door to state abortion laws. In some states where the issue is on the ballot, it’s already widely available.
If Missouri’s amendment passes and takes effect in December, the measure would not repeal a state ban at all stages of pregnancy or the layers of other regulations — including a 72-hour waiting period and 44-inch (112-centimeter) doorway rule for clinics — that forced Planned Parenthood to stop abortions in two offices years before Roe was overturned.
“A yes vote for this is not a vote to overturn anything. It is a vote to ensure that the courts will have to fight this out for a long time,” said Republican state Sen. Mary Elizabeth Coleman.
Coleman, who is also a conservative constitutional lawyer, said the Republican-dominated Legislature could also go back to voters to ask them to undo the amendment if it passes.
Still, the measure would mean that “the wind will be at our back” in court fights to overturn restrictions, said Emily Wales, the president and CEO of Planned Parenthood Great Plains, which operates in four states and is the only group in recent years to provide abortions in Missouri. The last clinic in Missouri, run by another Planned Parenthood affiliate, stopped offering abortions just before Roe was overturned.
“It will feel tremendously different to us to say, ‘Missourians have a constitutional right. If you’re going to interfere with it, you’ve got to have a pretty good cause,’” she said.
There’s some precedent for an amendment not settling everything right away. An Ohio measure passed last year all but undid a law that banned abortion after cardiac activity can be detected, at about six weeks and before women often realize they’re pregnant. Enforcement had already been blocked by a court. Ohio advocates have been prevailing in preliminary litigation against other regulations but those battles aren’t finished yet, and they worry lawmakers will block the use of taxpayer funds to support access.
“Having fewer legal restrictions is not necessarily meaningful to someone if they can’t afford the financial cost,” said Lexis Dotson-Dufault, executive director of the Abortion Fund of Ohio.
The most populous state with an abortion ballot measure this year is Florida. It would take approval of 60% of voters to win. And Republican Gov. Ron DeSantis’s administration has alleged fraud in the signature-gathering process that got it on the ballot. That could be the basis for a court challenge on whether the amendment would take effect on Jan. 7. Meanwhile, the measure’s supporters are suing current and former state health department officials over their efforts to get TV stations to stop running one pro-amendment ad.
The office of state Attorney General Ashley Moody, a Republican who sought to keep the measure off the ballot, did not respond to an interview request.
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A Nevada measure wouldn’t make an immediate splash because it would be required by law to not only pass in November, but in 2026 as well.
In Colorado, Maryland and New York — where the measure doesn’t say “abortion” specifically but bans discrimination based on “pregnancy outcomes” — abortion is already allowed at least until viability — generally considered to be after 20 weeks, with some exceptions.
Colorado’s measure would also repeal a ban on using taxpayer funds for abortion. A new law would be needed for abortion to be added to health insurance for government employees and people with Medicaid coverage.
Arizona’s amendment would go into effect with a governor’s proclamation if voters approve it. The state bars abortion after 15 weeks — and most occur before then. Earlier this year, some Republican lawmakers in the political battleground state joined with Democrats to repeal a much more restrictive 1864 ban before it could be enforced.
In Nebraska, the ballot includes competing measures: One would bar abortion after 12 weeks of pregnancy, with some exceptions, echoing the current ban but leaving open the possibility of tighter restrictions. The other would allow abortion until viability.
To take effect, an amendment would need not only majority support, but more votes than the other measure.
In South Dakota, where abortion is banned throughout pregnancy, opponents and advocates have been fighting over a measure that would prohibit the state from regulating abortion in the first trimester and allow regulations for the second and third trimesters only under certain health circumstances.
If the measure is adopted and survives the challenge, it would take effect July 1, 2025.
Life Defense Fund is focused on its campaign to defeat the measure at the ballot box rather than what might come next, said group spokesperson Caroline Woods.
Dakotans for Health sponsored the amendment and expects the Republican-dominated Legislature to try to “thread that needle” and impose restrictions during the second trimester if the amendment passes, said group cofounder Rick Weiland.
And that would probably mean more lawsuits.
“This is an issue that’s never going to go away,” Weiland said.
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The Shadow Medical Community Behind the Attempt to Ban Medication Abortion
Anti-abortion groups orchestrated their legal challenge to wind up before far-right Judge Matthew Kacsmaryk.
The Alliance for Hippocratic Medicine, a new anti-abortion umbrella group that is spearheading a sweeping federal challenge to medication abortion, incorporated in Texas just months before filing suit. The incorporation documents, obtained from the Texas secretary of state, provide further evidence that the plaintiffs cherry-picked a court they believed would be amenable to their arguments, an act of forum shopping that was orchestrated to land the case before Judge Matthew Kacsmaryk, a Trump-appointed darling of the far right.
The Alliance incorporated in Amarillo in August 2022, bringing together five out-of-state anti-abortion groups: the Catholic Medical Association, the Coptic Medical Association of North America, the American College of Pediatricians, the Christian Medical & Dental Associations, and the American Association of Pro-Life Obstetricians and Gynecologists. Three months later, the lawsuit was filed in the same Texas Panhandle city where Kacsmaryk hears all federal civil cases.
The lawsuit alleges that in 2000, the Food and Drug Administration, or FDA, wrongly approved mifepristone, the first of two drugs that make up the standard medication abortion protocol. The groups also argue that sending abortion medications through the mail violates federal criminal law. To advance their argument, the plaintiffs have assembled a raft of dubious evidence to allege that the FDA is anti-science and mifepristone is a wildly dangerous drug, despite decades of scientific research and hundreds of medical studies that demonstrate otherwise. They have dished it all up for a federal judge who, in just a short time on the bench, has developed a reputation for factitious legal opinions. A ruling in their favor could see medication abortion all but banned across the U.S., sparking a new round of chaos after the fall of Roe v. Wade and laying the groundwork for the dispute to land before the U.S. Supreme Court.
Suspect Assertions
Medication abortion is a two-drug protocol designed for use in early pregnancy termination. The first drug, mifepristone, blocks progesterone (a hormone needed to maintain pregnancy) and softens the uterine lining; the second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy.
The regimen was developed in France in the late 1980s, but it wasn’t until 2000 that the FDA finally approved it for use in the United States. Medication abortion accounted for just 5 percent of abortions in 2001 but has steadily grown in popularity; today, medication abortion accounts for more than half of all pregnancy terminations in the country. The protocol is also commonly used for miscarriage management.
The FDA has enforced a slew of restrictions tied to mifepristone that advocates and providers have long argued are medically unnecessary — including a rule that it must be dispensed in person, even though misoprostol is not taken until later at a place of the patient’s choosing. During the pandemic, the in-person dispensing rule was blocked, and in December 2021, the FDA announced that it was permanently lifting the requirement. The agency has since taken additional steps to expand access to medication abortion by allowing mail-order and brick-and-mortar pharmacies to dispense it to patients with prescriptions in states where abortion is legal.
“We’re Going to Where the Fight Is”: Abortion Rights Movement Sets Its Sights on Key States
It was against this backdrop that the Alliance for Hippocratic Medicine, its partner organizations, and several individual doctors — represented by lawyers with the Christian-right Alliance Defending Freedom — filed suit in Texas, arguing that the FDA never should have approved mifepristone in the first place, let alone expand its use or loosen dispensing requirements.
The filing is a jumbled mess of suspect assertions, cloaked in inflammatory and medically inaccurate language. The filing refers to medication abortion as “chemical” abortion and claims that mifepristone “starves the baby to death.” It alleges that medication abortion is far riskier than procedural abortion or carrying a pregnancy to term, which the plaintiffs argue “rarely” leads to threatening complications. They call mifepristone an “endocrine disrupter” that could threaten the normal development of adolescents who take it. And they assert that individuals suffering complications from medication abortion could “overwhelm” the health care system, leading to a flood of blood transfusions that “exacerbates the current critical national blood shortage.”
These allegations are baseless. An endocrine disrupter is a chemical that mimics or interferes with the body’s hormones, such as PFAS, a class of toxic “forever” chemicals found in dozens of common products that has been linked to cancer and other illnesses. The notion that mifepristone — taken in a single dose — falls into this camp because it “briefly blocks progesterone receptors in the uterus is completely unfounded,” according to an amicus brief filed in the case by the American College of Obstetricians and Gynecologists, the American Medical Association, the American Academy of Family Physicians, and eight other leading U.S. medical groups. “There is no reason to think, nor is there evidence to show, that preventing the absorption of progesterone for a brief window would have any effects on adolescent development,” the brief states.
“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day.”
The assertion that medication abortion is a risky and understudied endeavor recklessly approved by the FDA is equally spurious. To date, mifepristone has been used in more than 630 published clinical trials, including more than 420 randomized, controlled studies, which the amicus brief notes are the “gold standard of research design.” At less than 1 percent, the risk of serious complications is exceedingly low. The likelihood of any complication at all is about 5 percent; the most common is an incomplete expulsion, which may require a procedural abortion to complete. Meanwhile, the risk of death associated with carrying a pregnancy to term is 14 times higher than the risk associated with abortion.
“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day,” according to the amicus brief. Procedures like wisdom teeth removal, colonoscopy, and plastic surgery have higher complication and death rates, as does the use of Viagra. “Put simply,” the brief states, “medication abortion is among the safest medical interventions in any category — related to pregnancy or not.”
Behind the Scenes
The fight over abortion has long featured a shadow medical community that exists to promote counterfactual narratives about risks associated with the procedure. To Mary Ziegler, a law professor and legal historian at the University of California, Davis, the fact that the Alliance for Hippocratic Medicine was established to go after medication abortion isn’t surprising.
“There’s a tradition of groups like this forming,” Ziegler said. Back in the 1990s, for example, a group called the Physicians Ad Hoc Committee for Truth sprang up for the purposes of advocating for a ban on dilation and extraction abortion, which anti-abortion forces dubbed “partial-birth abortion.” Once Congress passed the ban, the committee disappeared.
While the Alliance for Hippocratic Medicine itself is a new entity, presumably incorporated to bolster the pending lawsuit, the groups organized under it have been around for a long time. The American Association of Pro-Life Obstetricians and Gynecologists, known as AAPLOG, formed in the wake of the 1973 Roe decision, initially as an affinity group of anti-abortion physicians who belonged to the American College of Obstetricians and Gynecologists, or ACOG, the country’s leading professional membership organization for OB-GYNs.
Over time, AAPLOG began to push back against the medical and scientific establishment, developing a narrative that abortion was not only immoral, but also dangerous. The group focused more on disputing the “factual premises of things ACOG was saying, rather than just disputing the morality or ethics of those decisions,” Ziegler said. “Medical arguments against abortion bans were effective enough that they needed to be met with medical arguments for abortion bans,” she explained. “There’s an appetite for these organizations to have their own narratives.”
AAPLOG has since split from ACOG and now has roughly 7,000 members compared to ACOG’s more than 60,000 (anyone can join the former, while the latter’s membership is limited to medical professionals). Despite its size, AAPLOG has successfully pressed its counternarrative in legislative and legal crusades to restrict or ban abortion, even when the scientific underpinning for its position is shaky.
Take the work of George Delgado, one of the named plaintiffs in the Alliance for Hippocratic Medicine lawsuit. A doctor in Southern California, Delgado developed so-called abortion pill reversal: the notion that a person who changes their mind about going through with a medication abortion after taking mifepristone (but before taking misoprostol) can interrupt the process by taking a large dose of prescription progesterone to reestablish the pregnancy. There is no evidence that the protocol is safe or effective; the only controlled study designed to interrogate it was halted based on “safety concerns” after three of 12 participants hemorrhaged and were taken to the hospital. Still, AAPLOG has deemed medication abortion reversal a “medically sound choice” and supported state efforts to mandate counseling on reversal for anyone seeking abortion.
“When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising.”
While the alternate narratives pushed by groups like AAPLOG may be politically powerful, they are also dangerous, offering the imprimatur of science without sound foundational support. “When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising,” Ziegler said. “Because normal people don’t know anything about these topics, right? They don’t know about the relative rate of complications of mifepristone. And so if what’s really going on here is a struggle over constitutional values and ethics and so on, we should be telling the truth about that.”
The shadow medical community’s efforts to legitimize various abortion restrictions have been effective — like a requirement that abortion doctors maintain hospital admitting privileges, which groups including AAPLOG claimed was a best practice designed to ensure patient safety. Broadly speaking, such efforts worked in front of state lawmakers but typically failed at the Supreme Court.
Now, with Roe in the rearview mirror and no immediately obvious need to keep pressing such pseudoscience, Ziegler suspects that groups like AAPLOG are still leaning into these arguments because their real aims — like establishing fetal personhood rights — “are still not popular,” she said. Anti-abortion ballot measures have repeatedly failed with voters, and a significant majority of Americans say abortion should be legal in all or most cases. “And so they’re having to take their claims to courts and to judges like Judge Kacsmaryk … and they’re having to rely on weird interpretations of FDA regulations.” This is “not a window into what they think is the most important,” she said, but “what they think will work.”
A Slippery Slope
Before being tapped to serve as the federal district court judge in Amarillo, Kacsmaryk worked at the religious-right First Liberty Institute, which, among other things, opposes the separation of church and state. Kacsmaryk has been vocal about his disdain for gay marriage, reproductive rights, and transgender people. In 2016, he signed onto a letter that called being transgender an “irrational … delusion” (the Catholic Medical Association, which is a party in the mifepristone lawsuit, was also a signatory). And he’s written that the sexual revolution was destructive, seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
In the Title X case, Deanda v. Becerra, Kacsmaryk sided with Texas father Alexander Deanda, who was challenging the program based on its guarantee of patient confidentiality. Deanda claimed that the program violated his rights as a parent raising his daughters according to “Christian teaching on matters of sexuality.” With Title X in place, he argued, he had no assurance that his daughters would be “unable to access … contraception” and other services that “facilitate sexual promiscuity.”
Among the criticisms leveled at Kacsmaryk in the wake of his ruling in favor of Deanda was that he lacked power to consider the case in the first place. To bring a federal lawsuit, a plaintiff must show they’ve been injured by the law they’re challenging, but Deanda — who never alleged that his children attempted to avail themselves of Title X services — hadn’t been harmed. Deanda had no standing to bring the suit, in other words, and Kacsmaryk had no cause to hear it. Nonetheless, Kacsmaryk ruled that the Title X program as administered violated the “constitutional right of parents to direct the upbringing of their children.”
In response to the pending mifepristone lawsuit, the federal government has argued that the FDA’s approval of the drug in 2000 was based on years of solid research, that the statute of limitations to challenge that approval has since run out, and that, like Deanda, the plaintiffs have no standing.
The FDA argues that neither the medical associations nor the individual doctors bringing the suit have suffered any injury related to the drug’s approval. And indeed, the plaintiffs’ claims of injury are tenuous. While the doctors who are party to the lawsuit don’t provide medication abortion, they argue that they may one day find themselves in a situation where a person allegedly harmed by mifepristone comes to them for treatment, thus drawing their attention away from existing patients. And they say that these impaired patients may present with an incomplete abortion, which would conscript the doctors into providing services that violate their conscience. Meanwhile, the organizations argue that the approval of mifepristone has forced them to divert time and energy away from other priorities, like advocating for fetal personhood, forcing them to focus instead on “educating” their members about the dangers of medication abortion.
To the FDA, this theory of legal injury is nonsense — and a slippery slope: Allowing the case to go forward would greenlight other baseless legal complaints, it argues in response to the Alliance lawsuit. “If FDA approved a new heart medicine, emergency physicians would have standing to challenge the approval on the theory that some patients would experience adverse events under the new treatment; in contrast, cardiologists would have standing to challenge the approval on the theory that some patients would no longer require their services.”
A Zombie Law
In a response filed in early February, the Alliance Defending Freedom lawyers brushed off the government’s arguments about standing — the doctors and organizations bringing the suit had “standing six ways from Sunday,” they asserted. They doubled down on their fearmongering, arguing that medication abortion had never been studied under “real-world conditions,” and that the doctors bringing the suit actually “treat and care for countless victims of this dangerous drug regimen.”
The plaintiffs also leaned into allegations that allowing medication abortion to be mailed to patients violates the 19th-century law known as the Comstock Act, which outlawed sending anything considered “obscene, lewd, lascivious, indecent, filthy or vile” through the mail, including contraceptives and “every article or thing” that could be used for abortion. Over the years, judicial and congressional actions have largely neutered the act, and in late December, the Department of Justice penned an opinion noting that the law does not apply where abortion is legal or when the sender doesn’t intend that the recipient would use the drugs illegally. But the Comstock Act is still on the books, a zombie law that the Alliance plaintiffs are trying to raise from the dead.
If Kacsmaryk agrees that the Comstock Act applies to medication abortion, the impact could be far-reaching. The act forbids the mailing of any device that may be used for abortion, which would include countless medications and routine gynecological instruments. It could also impact the availability of misoprostol, which absent mifepristone, can be used alone to accomplish an abortion. It is not as effective as the two-drug regimen but has for decades been used safely for that purpose; the Alliance lawsuit does not attack FDA approval of misoprostol.
A hearing in the case has yet to be scheduled. Meanwhile, a coalition of 12 states, led by Washington and Oregon, filed their own lawsuit last week asking another federal judge to rule that mifepristone is safe and effective and that its FDA approval is “lawful and valid.” The states are asking the judge to eliminate all remaining FDA-imposed restrictions on mifepristone, which they argue impermissibly impede access to the drug.
On February 24, Vice President Kamala Harris met with reproductive rights advocates and medical experts, including from ACOG and the American Academy of Family Physicians. The Alliance lawsuit is not just an attack on “women’s fundamental freedoms,” she warned. “It is an attack on the very foundation of our public health system.”
“Those who would attack … the ability of the FDA to make a decision” about approving a drug like mifepristone “ought to look in their own medicine cabinets to figure out whether they’re prepared to say those medications … should no longer be available to them,” she said. “Because that is what we are talking about.”
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