Originally published by Breaking the Chains magazine.
After two different judges issued conflicting rulings on the accessibility of mifepristone, more commonly known as the abortion pill, the Supreme Court weighed in on April 21, temporarily allowing the continued use of mifepristone pending a full appeal.
While the Supreme Court paused far-right Texas judge Kacsmaryk and the Fifth Circuit’s decisions, which severely restricted the use of mifepristone, this only provides temporary relief. The case will now be handed back to the Fifth Circuit and however they rule, the decision will likely be appealed to the Supreme Court.
The Supreme Court is not a democratic institution. Nine unelected judges, appointed for lifetime terms, proved this when they overturned Roe v. Wade in the Dobbs decision. In temporarily safeguarding mifepristone, they did the bare minimum for human rights by blocking a decision that should not even be coming before the Court. The Court should have dismissed Kacsmaryk’s decision outright rather than staying it pending further review. And even though the decision was stayed, access to abortion pills will still be limited to those states where abortion is legal.
Throughout history, the Supreme Court has made it abundantly clear that it is an enemy of the people. It upheld slavery as a legal institution until the Civil War ended it. It made apartheid and segregation the law of the land in 1896 and today is taking back voting rights for Black people, human rights for immigrants and union rights for workers. Until the mass movement of the LGBTQ community forced the Supreme Court to change, it denied marriage equality and other basic rights.
So why is the Supreme Court now ruling to temporarily safeguard the abortion pill?
Had the Supreme Court ruled to uphold Kacsmaryk’s decision banning mifepristone, it would have only served to further demonstrate their illegitimacy as an institution and their enmity to basic human rights. Such a decision would have further exposed the influence of the far-right on the Court, demonstrating that their decisions are made politically rather than based in a neutral application of the law.
We also cannot ignore the role that the pharmaceutical industry, worth billions, played in the Supreme Court’s decision. In undermining the FDA and medical science more broadly, the Texas decision has come into conflict with a significant portion of the establishment. After the Fifth Circuit’s ruling, more than 500 pharmaceutical executives and researchers signed an open letter urging the Supreme Court to rule against Kacsmaryk’s decision, claiming that if the Supreme Court upheld the nationwide mifepristone ban, it would result in “uncertainty for the entire biopharma industry.” The president of the American Medical Association, Dr. Jack Resnick Jr., speaking for the country’s doctors, strongly opposed the Texas ruling, explaining that the case “jeopardized our nation’s 85-year-old drug regulatory system” and risks becoming a precedent for the arbitrary outlawing of many medications on a political basis. The Dobbs decision demonstrated that the Supreme Court is willing to rule against popular opinion, but the mifepristone stay suggests they are more cautious when opposed by corporate interests.
Justices Thomas and Alito publicly disagreed with the decision to stay the Texas ruling. In his dissent, Alito claimed that there was “no harm” in the Fifth Circuit’s decision, which is wildly out of touch. For working-class people the difference between abortion access at seven weeks and at 10 weeks is a meaningful difference, especially when many women may not know they are pregnant at seven weeks. Additionally, the Fifth Circuit’s decision bans telehealth access, meaning that those seeking abortion care must go to the doctor’s office to receive the pill, which puts an additional burden on poor and working-class people, especially those living in rural areas or states where abortion has been banned or effectively banned.
Background on the case: A timeline
On April 7, far-right Texas judge Matthew Kacsmaryk and Washington judge Thomas Rice issued conflicting decisions about the use of mifepristone, one of two pills used for medication abortions and miscarriage care. While Kacsmaryk ruled to suspend the FDA approval of mifepristone, Rice ordered to keep the drug available in 17 states and Washington, D.C.
After Kacsmaryk’s decision, the Justice Department filed an appeal to the Fifth Circuit Court of Appeals, which largely upheld the decision while only reversing parts of it, namely Kacsmaryk’s ruling that the FDA approval of mifepristone in 2000 was unconstitutional. However, the Court did uphold Kacsmaryk’s decision against the 2016 FDA update to the use of the drug. This update determined that the drug is safe for use up to 10 weeks of pregnancy, whereas the original approval was only up to seven weeks of pregnancy.
This decision, if allowed to stand, would impose a ban on the abortion pill after seven weeks of pregnancy. It would also ban the distribution of the abortion pill by mail, as part of Kacsmaryk’s ruling is based in the Comstock Act of 1873, which made it illegal to send “obscene” materials through the mail.
The Fifth Circuit Court’s decision upholds misogynistic and unscientific arguments made by Kacsmaryk like the assertion above. It allows doctors who have not used mifepristone to file lawsuits against the FDA on behalf of women who are too “ashamed” or “traumatized.” Kacsmaryk also argues that the FDA did not consider the “psychological” effect abortion could have on mifepristone users, and that “‘the abortion pill involves the termination of a human life,’ elevating the rights of a fetus above those of a pregnant person.”
None of these reasons are based on scientific evidence; Kacmaryk’s ruling is clearly a set of extreme far-right talking points. And the Fifth Circuit Court is no better. Although they have been framing their ruling as a compromise decision, it is clear based on what portions of Kacsmaryk’s decision they upheld that they too are trying to overturn abortion rights nationwide.
The struggle over medication abortion is far from over
Decades of science has already proven that mifepristone is safe, with more than 100 studies conducted on the topic and over twenty years of the drug’s usage. Not only is mifepristone effective for medication abortion and approved in 19 countries, but it is also used extensively for women experiencing miscarriages. There is absolutely no evidence that the drug is dangerous or that the FDA rushed its approval, and for the Supreme Court to rule against the FDA in an appeal would set a legal precedent and have drastic consequences for women.
We cannot let the Supreme Court’s decision lull us into complacency. The Supreme Court should have thrown the case out — instead, women’s access to a safe, effective, life-saving drug continues to be the subject of political football. Abortion is popular, but that didn’t keep the Court from eviscerating federal protection of abortion rights. Far-right elements of the ruling class will continue to roll back our rights as long as they can get away with it; and the Democrats are either unwilling or unable to stop them. It is only the people — organized in an independent movement — who can secure abortion rights and all our human rights once and for all.