The future of a widely used pill to end pregnancies, American women’s health care options, and even the viability of US regulatory approvals for everyday pharmaceuticals are all in doubt as the Supreme Court deliberates on a major abortion case ahead of a Friday deadline.
Justice Samuel Alito granted the court extra time on Wednesday, prolonging a temporary halt on a Texas judge’s order that would prohibit approval of the mifepristone, as well as a later appeals court ruling that would allow the government’s approval of the drug to stand but agreed access might be limited. It is the most significant abortion lawsuit since the Supreme Court reversed Roe v. Wade last year. The medicine is still available because the deadline has been extended until 11:59 p.m. ET on Friday. However, the prospect of health-care upheaval will not go away in the next 48 hours.
The perilous two-day period is a microcosm of the grave uncertainty surrounding the prolonged availability of abortion in some states nearly a year after the court’s conservative majority destroyed the procedure’s constitutional right. It reflects how the anti-abortion movement has ramped up its efforts to eliminate abortion rights everywhere since Roe v. Wade. The current lawsuit also demonstrates that President Joe Biden’s administration is prepared to intervene vigorously in court to defend abortion rights.
The fallout from the Texas ruling, which blocked FDA approval of the drug, is also reintroducing abortion into the Washington political fray in a way that has proven to be a liability for the Republican Party among more moderate and swing voters – an ironic result of conservatives’ decades-long campaign against Roe.
Another irony in an all-consuming judicial battle. Alito said in his majority opinion overturning Roe last summer that the 1973 decision was improper because the judges had hijacked the Constitution and took away the task of deciding abortion rights from legislatures. However, the power play by the Trump-appointed Texas judge in this case, which quickly went to the Supreme Court, demonstrates that Alito and his colleagues will be involved in deciding abortion law for years to come.
Outsiders were baffled by Alito’s decision to extend the temporary restraining order, as is the case with most Supreme Court decisions. He could have simply given his colleagues more time to analyse an extremely complex legal and clinical problem. Alternatively, there may be no existing majority on the bench for any course of action. The court is considering both District Judge Matthew Kacsmaryk’s decision to stop mifepristone approval and a 5th US Circuit Court of Appeals judgement that upheld the FDA’s certification of the medicine but limited its use.
The Supreme Court might sustain either ruling, reject it, find a medium ground, or extend the stay on Kacsmaryk’s ruling pending litigation in what could be a pivotal case. A judge in Washington state issued an order contradicting Kacsmaryk’s, mandating the FDA to keep mifepristone available in 18 liberal areas, further complicating the legal situation.
Former federal prosecutor Jennifer Rodgers remarked on “AWN News Central” on Wednesday that the fact that the court did not grant a longer stay than the current two days could indicate that the justices “are seriously thinking about affirming some of what the Fifth Circuit said.”
“If they agree with the Fifth Circuit as to which parts of Judge Kacsmaryk’s (order) could survive or be rejected, it would mean that women would have to go to their doctor in person, multiple times, and could only get mifepristone up to seven weeks (into a pregnancy),” Rodgers said.
Why is the current case so significant?
The decisions that the judges may make in the coming days may have far-reaching consequences that go beyond the mere question of whether or not mifepristone can be used.
— The Supreme Court could issue a decision that effectively allows a single judge – in this case, in a red corner of Texas – to influence the medical decisions and limit the freedoms of millions of American women, not just in states where abortion is illegal, but also in more liberal areas where it is legal.
“This was an unelected judge making a decision – a federal decision basically on this,” South Carolina Republican Rep. Nancy Mace told AWN’s Manu Raju on Wednesday.
This broad use of judicial power appears to violate not only the spirit of the Supreme Court’s decision last year permitting legislators to decide abortion rights. The judgement by Kacsmaryk, a long-time opponent of abortion rights, demonstrates the ambition of elements of the post-Roe anti-abortion rights movement.
However, it may pave the way for liberal judges to abuse their power in the same way, resulting in a tangle of lawsuits that could end up before the Supreme Court. The judiciary’s ostensible reputation for restraint and avoiding partisan politics is already under threat.
— The eventual verdict of the Supreme Court could have a far-reaching impact on how mifepristone is prescribed – commonly as part of a two-drug regimen to end pregnancies and miscarriages – and, in some situations, on the availability of abortion services to millions of women. As with the aftermath of Roe v. Wade, the court’ judgement here may imply that women’s rights and freedoms to make their own health care decisions may be more restricted in some states than others.
On Wednesday, Katie Watson, an associate professor at Northwestern University, told AWN’s Jake Tapper that even a partial loss of access might have serious implications. “Approximately a half million women have used this drug in recent years, and they are dependent on it,” she said.
— Critics believe that if Kacsmaryk’s ruling is sustained, along with the Fifth Circuit’s restrictions on mifepristone use, it will justify the choice of a single judge or panel with no medical knowledge over scientific and clinical norms. Since the FDA approved mifepristone two decades ago, it has been safely prescribed. However, anti-abortion doctors and medical organisations contended in court that the government broke the law by approving the medication for abortions in 2000. They ensured Judge Kacsmaryk would hear the lawsuit by filing it in Amarillo, Texas.
“They basically have said, these two judges, hey, we know better than the FDA,” Amy Klobuchar, a Democrat from Minnesota, told Tapper.
A precedent like this might cause havoc in the pharmaceutical sector and in medicine, as well as jeopardise the regulatory system for approving novel medicines. It may also inspire other courts to target permitted pharmaceuticals, such as birth control pills or therapies for common diseases and pain relievers. A scenario like this would blatantly contradict the basic foundation of federal government.
“Even if they say the Washington order and the Texas order are both valid, the FDA cannot regulate federally.” “The impact is massive,” Watson remarked.
— The justices’ deliberations may potentially have a significant impact on the court’s reputation. Many moderate Americans increasingly regard the conservative majority as a collection of unelected right-wingers flouting popular opinion on topics such as abortion, which, according to many polls, majorities do not want to be outright banned. While the conservative justices insist that they are simply interpreting the Constitution as written and returning issues to the states, a decision that causes widespread upheaval could harm the court’s image at a time when the court is also dealing with ethics concerns surrounding conservative Justice Clarence Thomas.
— A decision to ban mifepristone might send shockwaves similar to those caused by the Roe v. Wade decision, which harmed Republicans in last year’s midterm elections and most recently galvanised people in Wisconsin’s Supreme Court battle earlier this month. Abortion opponents may be unconcerned about the political ramifications. In one of the most major political wins in modern American history, the elimination of a constitutional right to abortion validated the anti-abortion movement’s half-century-long battle. However, the Republican Party may pay a price in the upcoming presidential and legislative elections. Liberals may have been smug in believing that Roe would never be reversed, but they have used the issue skillfully ever since.
“Our Republican colleagues, for the most part, have been silent on this,” Klobuchar remarked, referring to the Supreme Court cases presently under consideration. “We are standing up, the Democratic Party, President Biden, for women’s rights, to say that women have the right to make their own health care decisions.”
Mace, a Republican from a vulnerable seat in South Carolina, warned on Wednesday that the GOP’s approach could lose it the House majority in 2024.
“It’s a purple district, and as a bellwether for the rest of the country, it’s one of the reasons why we will not win the popular vote in ’24 if we continue down this path of extremism,” Mace said of her seat in the Charleston region. “That is not where the American people are, and we need to talk about where we are and where the middle ground is.”
The Impact of the Abortion Debate on America
The Supreme Court’s deliberations occur at a time when abortion is already at the centre of federal, local, and state government policy discussions, straining the court system with contradictory verdicts that further politicise the legal system.
According to a new report by the Society of Family Planning, there were approximately 32,000 fewer abortions in the six months following the Supreme Court’s decision to overturn Roe. And, according to AWN, fewer medical students are applying to ob/gyn residency programmes, with the reduction being most pronounced in states with the strictest restrictions.
A patchwork of abortion laws and restrictions on access is growing across the country. Mississippi Republican Gov. Tate Reeves, for example, signed new bills on Wednesday that he claims will codify a “culture of life” by creating a safety net for foster children and boosting adoptions and support for women who discover they are pregnant.
Last Monday, Florida Republican Gov. Ron DeSantis signed legislation prohibiting most abortions in the state beyond six weeks, when many women are unaware they are pregnant. The possible presidential candidate’s hesitancy to publicise his decision, which was made late at night, highlighted the GOP’s tug of war between the desire to go all in on abortion prohibition and the realisation that doing so would alienate more moderate voters in a national election.