The Mifepristone Battle Isn’t Over Yet

Two years after the Trump-packed Supreme Court overturned Roe v. Wade and ostensibly kicked the question of abortion rights and access back to the states, we’re spending the summer waiting for that very same court to rule again on when, how, and whether the government can force us to stay pregnant against our will. Far from being relegated to a “states’ rights” issue, the fate of abortion access for tens of millions of women, transgender men, and non-binary folks again rests with a federal judiciary packed with hand-picked anti-abortion judges from the district level all the way up to the highest court in the land.  

We have one of two highly consequential rulings in hand already. While we’re still waiting for SCOTUS to rule on federal protections for emergency abortion access, in FDA vs. Alliance for Hippocratic Medicine, the Supreme Court ruled that a coalition of anti-abortion doctors lacked standing to sue to rescind the FDA’s approval for the abortion medication mifepristone. The unanimous decision was met with equal parts relief and surprise; the anti-abortion majority on the Court would surely have liked to have found a way to side with the Alliance, which was formed in the wake of Dobbs with the express purpose of seizing an opportunity to ban the most effective method of medication abortion, including in states where abortion remains legal.

But even this abortion-hostile SCOTUS couldn’t take the Alliance’s claims of harm seriously; these anti-abortion doctors (including a dentist, which makes my eyes roll all the way out of my head every time I think about it) were never going to prescribe mifepristone in the first place. So while mifepristone will remain accessible for now via telehealth and in states where abortion care has not been banned or restricted into practical oblivion, it’s in spite of, rather than because of, the court’s attitude toward abortion. 

You could be forgiven for thinking otherwise; headlines around the mife ruling gave the Court an undue amount of credit for the fact that access to the medication remains unchanged. This Associated Press headline is a typical example: “Unanimous Supreme Court preserves access to widely used abortion medication.” If you’ll allow the metaphor: The fact that mifepristone’s approval has been preserved for now is a side effect, rather than an on-label use, of the FDA vs. AHM ruling.

This credulous coverage works to the embattled Supreme Court’s advantage; we learn more every day about the depths of corruption on the Court, key members of which have been bought outright by ultra-conservative billionaire interests gunning for a second Trump administration. As Madiba Dennie, court-watcher and author of the new book The Originalism Trap recently told DAME: A growing body of evidence—from disturbing secret tapes to insurrectionist flag-waving and posh trips funded by Trump backers—“indicates that they’re already in the bag for Donald Trump.”

Conservatives love to construct elaborate narratives of imagined victimhood, and while the Alliance ruling was a bust for the anti-abortion group, their preposterous claims of harm facilitated a potentially more substantial win for the political right writ large by giving SCOTUS an easy out on abortion at a time when the Court is desperate to reestablish its image as a paragon of objectivity and legitimacy.

We can and should be relieved that medication abortion access remains unchanged for now; it’s important to take our wins wherever we can get them these days. But as repro legal scholars Reva Siegel and Mary Ziegler wrote in Slate, the Alliance ruling still “offers a road map for conservatives who want to challenge mifepristone access in politics and through the courts.” 

The mife case could be revived through challenges from Idaho, Kansas, and Missouri that would likely be routed through the Texas court of Matthew Kacsmaryk, Trump’s hand-picked anti-abortion judge. From there, it’s a straight shot to the rabidly anti-abortion Fifth Circuit Court of Appeals and back up to SCOTUS. Legal experts have suggested that states could have a more substantial argument over standing to ban or reduce access to mifepristone than anti-abortion doctors who’d never touch the medication in the first place. This is exactly the kind of political cover that would be welcomed by a beleaguered SCOTUS anxious to outlaw abortion while preserving its image by pretending its hands are tied in deference to the states.

It’s clear that the Supreme Court is as political an animal as any in the eyes of its right-wing justices, their wealthy Republican patrons, and the right-wing machinators who have grand—and explicit—plans to use a variety of means to ban and restrict abortion if Trump is elected again in November. We know that at least two justices—Alito and Thomas—are actively interested in the prospect of using the Victorian-Era Comstock Act to force an extra-legislative abortion ban on the nation as a whole.

National Democrats are finally catching on: Sen. Tina Smith (D-Minnesota)’s “Stop Comstock Act,” backed by a group of mostly women senators and representatives, aims to repeal parts of the wide-ranging anti-obscenity law that deal expressly with abortion. The hope is to preempt a potential Trump administration from weaponizing Comstock by snooping through Americans’ mail and targeting for prosecution people who use the postal service — or or other delivery services, like FedEx, or UPS—to ship or obtain medication abortion.

As Jezebel put it, the Stop Comstock Act is “better than nothing,” which seems to be the best we get these days when it comes to protecting abortion rights and access at the federal level. The fact that the Stop Comstock proposal exists in the first place is something of a wonder; NOTUS reported back in April that key national reproductive-rights groups were urging Congressional Dems not to touch Comstock out of fear that it might give the anti-abortion movement and its Republican backers ideas about the legitimacy of the law’s use in banning abortion. This laughable risk-aversion—after all, it was the anti-abortion movement’s idea in the first place to weaponize Comstock—seems to have been thrown aside for the moment.

It’s a good thing—the time is now for Democrats and the pro-abortion left in general to take big swings on abortion protections, because that’s the game the anti-abortion lobby has been playing for years. They swung for the fences and missed on the face of it in FDA v. AHM, but they have plans B and C ready to go: they’re striving to stamp out state votes on abortion rights, and they know that state abortion victories could fall anyway under a second Trump Administration. 

Mainstream reproductive rights groups and Democrats can do the same thing and refuse to continue submitting to their own fears of losing ground on abortion. Those fears only served to get us where we are today: With Roe a thing of the past, and state-level organizers fighting to regain the barest protections for bodily autonomy.

I sometimes wonder if this fear of losing isn’t also a fear of winning—of what might happen if we don’t just repeal Comstock’s abortion provisions, but send the whole steaming pile of 150-year-old, book-banning, LGBTQ-phobic bigotry to the dumpster. Of what might happen if we don’t just “Restore Roe,” but champion abortion access everywhere it is needed, whenever it is needed. Of what might happen if we don’t let up on ratifying the ERA, and continue to demand the repeal of the racist, classist, and misogynist Hyde Amendment. These efforts may not succeed now or even soon, but they’re valuable organizing and messaging tools, regardless—and we should use every tool at our disposal. I’m not sure what underpins this fear of winning; perhaps it’s as simple as being so burnt out and defeated by now that the prospect of losing even bigger gains in the future feels unthinkably depressing.

“Better than nothing” is an easier pill to swallow when we’re fighting on every front, and through every conceivable avenue. Still, of course, there are hard tensions to hold. We can be grateful for what we have—even when it’s “better than nothing”—while needing, wanting, and deserving so much more when it comes to the most essential decisions we’ll ever make about our bodies, our families, and our reproductive futures. We’re facing opportunities at the state and federal levels to rebuild this entire country’s framework—cultural, social, political, and legal—on abortion. We’ve never been better positioned to do so, though that position has come at the terrible price of women and pregnant people’s lives, health, and mental wellbeing. Surely those sacrifices deserved to be honored with more than “better than nothing.”

Support for abortion rights and access has never been higher, and that’s unlikely to change. In part because we’ve got a long way to go to regain lost ground on abortion; it’ll take years to restore access across the country, even if abortion bans are struck down. Clinics and providers will need time to re-fund and reopen, but the need for the full spectrum of abortion care on our own terms has never gone away, and never will. 

That’s the thing about making decisions around abortion and pregnancy and parenting; it’s hardly a quandary most people are faced with once and never again. Many of us are reminded of the stakes on a monthly basis. And we deserve better than “better than nothing” every single time.