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Supreme Court Rules that Access to Key Abortion Drug Remains, But the Fight is Just Beginning [1]

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Date: 2023-04-23  

On Friday, the Supreme Court put a temporary stay on a lower court’s restrictions on access to mifepristone, a key abortion drug used as part of a two-drug regimen in virtually all abortions. On Wednesday, the Fifth Circuit Court of Appeals had issued a partial stay on Judge Matthew Kacmaryk’s ruling invalidating the Food and Drug Administration’s (FDA) 23-year old approval of mifepristone. Mifepristone can still be bought and sold, but it is not clear how the Supreme Court’s ruling affects a Washington state’s ruling that the drug should be dispensed by mail, as well as in-person. This is the first major abortion-related ruling since the court struck down Roe v. Wade and federal protections for abortion rights. The Supreme Court’s ruling is good news, but it is only a pause in the battle to secure abortion rights.

The uncertainty regarding access to mifepristone by mail is typical of emergency rulings. These rulings do not typically come with a lot of explanations, so all we know is that conservative Justices Clarence Thomas and Samuel A. Alito Jr. said that, basically, if it were up to them, they would not have granted a stay. Alito, unlike Thomas, explained his reasoning, saying that declining a stay would not have been against the public good, saying that, “It would simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016 under three Presidential administrations”.

Now, although we have a breather, the risks remain. There is a longstanding tradition that the Court should not try to Monday-morning quarterback the FDA’s scientific judgments. The reason is simple: the Court does not know anything about science, it is not a scientific body. In terms of approvals, the highest body in the land is not the Court, it is the FDA. In fact, no federal court in the country has jurisdiction to hear this case. The anti-abortion lobby group’s case is so bad that one attorney, Adam Unikowsky, who clerked with conservative Justice Antonin Scalia, said that “if the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court.” There is no evidence-based reason to rule against the use of mifepristone. This case is about politics, not science, it is about values that seek to push back the rights of women, against values that seek to defend and expand women’s rights.

On a legal basis, there are no merits to this case. However, because the Supreme Court, with its conservative supermajority, leans so far right, we have to really worry about whether or not it will, once again, bastardize legal principles, in order to kill access to abortion.

We have to continue to spread the word about what’s happening, organize, donate to lobby groups, and work to defend abortion rights. The conservative project has not slowed down. If we sleep at the helm we will wake up to an America that has gone back decades in terms of women’s rights. We cannot slow down, because our opponent will not give up.

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[1] Url: https://www.dailykos.com/stories/2023/4/23/2165481/-Supreme-Court-Rules-that-Access-to-Key-Abortion-Drug-Remains-But-the-Fight-is-Just-Beginning

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