April 13, 2024

The briefs that the Alliance for Hippocratic Medicine has filed with the Supreme Court in its effort to restrict access to mifepristone—a drug that has been used for decades, with demonstrated safety, in medical abortions—contain some remarkably dubious assertions. One is that the Justices are only being asked to uphold a very “modest” lower-court order. That decision would undo a series of rule changes made by the Food and Drug Administration (which approved mifepristone in 2000), beginning in 2016, that increased the drug’s availability. “Women will still have access to chemical abortion under the same protections that existed for the first 16 years of mifepristone’s use,” the A.H.M. writes. This is, of course, nonsense. As both the A.H.M. and the Justices—who will hear oral arguments in the case on Tuesday—know quite well, women in the United States do not have the same access to any type of abortion that they did in 2016.

In March, 2016, when the F.D.A. made the first of the rule changes that the A.H.M.—a medical group whose members, it says, oppose abortion with “purity and holiness”—is challenging, Donald Trump had not yet secured the Republican nomination, let alone appointed three Justices. As President, he remade the Court even as he transformed his party. We now live in a reality shaped not by Roe v. Wade but by Dobbs v. Jackson Women’s Health Organization, the 2022 decision that found that there is no constitutional right to abortion. Questions about reproductive health are being decided in a judicial and political atmosphere tinged with Trumpism: unrestrained and heedless of compassion.

Most commonly, mifepristone (also called RU-486, the abortion pill) is used in combination with a second drug, misoprostol, which helps to complete the process. Until 2016, the F.D.A. had approved mifepristone’s use only up to the seventh week of pregnancy; that was expanded to ten weeks. At the same time, the F.D.A. reduced the number of clinical visits required for a medical abortion from three to one, and allowed licensed medical professionals who are not doctors, such as nurse practitioners, to prescribe abortion pills. (States can write stricter rules.) In 2021, in the midst of the pandemic, the F.D.A. began permitting the clinical visit to take place via telemedicine, and pharmacies to deliver the pills by mail.

These adjustments would make sense in any context; they were based on a battery of studies encompassing tens of thousands of people, and on the real-world experience of millions, all of which showed that the associated risks are extremely low. According to an amicus brief from the American College of Obstetricians and Gynecologists and other groups, mifepristone “has a safety profile comparable to that of ibuprofen.” The ACOG brief also emphasizes that easier access is crucial to low-income and rural patients, many of whom live in what are called “maternity-care deserts.”

Entire stretches of the country are now undergoing rapid desertification, in terms of reproductive health. A study released last week by the Guttmacher Institute shows how the terrain is shifting—and how people are trying to find their way through the land of Dobbs. Fourteen states, including Texas, Missouri, and Indiana, have banned almost all abortions; Guttmacher found that in states that bordered those fourteen the number of abortions in the formal medical system had increased by thirty-seven per cent since 2020. (Nationally, the increase was ten per cent.) That number suggests that Dobbs has levied a travel tax: Guttmacher estimates that a hundred and sixty thousand people crossed state lines to obtain an abortion last year.

The Guttmacher report demonstrates how essential mifepristone is. Between 2020 and 2023, the proportion of medical abortions rose from fifty-three per cent to sixty-three. (In 2014, the number was thirty-one per cent.) Guttmacher cited a study finding that online-only providers now account for eight per cent of abortions. Telemedicine is not a panacea; pharmacies cannot mail the pills to or even within every state, and some people would prefer to be cared for in person. And ten weeks is still a relatively narrow window. But more access helps.

It’s the stubborn endurance of that potential for choice, rather than any fear about medical safety, that appears to lie behind lawsuits such as that of the Alliance for Hippocratic Medicine. The group says on its Web site that its members are committed to protecting life “from the moment of fertilization.” That credo is a reminder that the fight is not only about abortion but about many forms of contraception and miscarriage care, and—as evidenced by recent court rulings on “fetal personhood” in Alabama—the availability of I.V.F. The litigation demonstrates, too, the falsity of the idea that Dobbs would simply return the question of abortion to the states.

The mifepristone case emerged from the Fifth Circuit, which, as Vox put it, has become the nation’s “Trumpiest court.” Still, it is shocking that the case has come this far. To bring a suit, parties are supposed to show “standing”—meaning that they have been harmed in some direct way that a court can remedy. The A.H.M.’s contention is that some of its members are doctors who theoretically might encounter patients in an emergency room who needed care after taking mifepristone and be forced to treat them in some manner that could violate those doctors’ consciences. It’s not clear that this has ever happened. The A.H.M. also argues that treating these patients would divert “time and resources” from those its members do approve of.

Normally, the Court asks for far more than such speculation to establish harm. If, nonetheless, the Court finds that the A.H.M. has standing, the most vulnerable provisions will be the ones allowing for by-mail prescriptions and, perhaps, telemedicine. Their fate would depend on whether the Justices read an 1873 law known as the Comstock Act as banning the mailing of medications used for any abortion or only for an illegal one.

A hundred and forty-five Republican senators and representatives submitted an amicus brief in support of the A.H.M. Meanwhile, two hundred and sixty-three Democratic members of Congress submitted a brief supporting the F.D.A. and continued broad access to mifepristone. Those duelling briefs reflect a growing divide on reproductive rights between the parties—if not their voters. Polls continue to show that a majority of Americans support access to abortion, with some limits. And, as was the case in 2016, both Trump and reproductive rights are on the ballot. ♦


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