Activists Are Trying to Ban Abortion Pills in Blue States, Forcing Patients to Face Protesters
"If the New York clinics are backed up and you need an abortion, you’re not going to feel like you have access," a law professor told Jezebel.
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People in blue states might recognize the threat of Congress passing a nationwide abortion ban under a Republican president in, say, 2025—but two recent under-the-radar actions on abortion pills underscore that no zipcode is safe from Republicans post-Roe v. Wade.
In November, anti-abortion activists filed a lawsuit asking the federal courts to revoke the Food and Drug Administration’s approval of mifepristone, the first drug used in a medication abortion. Days later, a different group filed a citizen petition with the FDA in which it weaponized environmental regulations to argue that patients need to bag up the products of conception and return them to abortion providers to dispose of as medical waste.
It’s been obvious for some time that medication abortion would be “the next phase of the battle” for anti-abortion activists, said Greer Donley, associate professor at the University of Pittsburgh Law School. “They’re trying to do whatever they can to go after pills,” she told Jezebel. “I’m not surprised at all—that doesn’t mean I’m not worried.”
While Donley called the claims in the Texas lawsuit “frivolous,” this is the effort she’s most worried about, because it could result in a nationwide ruling that makes the pills much harder to access in blue states. “We’re talking about the potential to end access to medication abortion nationwide—or to mifepristone at least,” Donley said.
The case was filed in a district with a particularly rogue Trump-appointed judge, Matthew Kacsmaryk—who’s so wild that he issued a ruling in 2021 forcing the Biden administration into negotiations with Mexico over border policy—and the appeals courts above that are the ultraconservative Fifth Circuit and the Supreme Court. The outcome does not look good. “It doesn’t take that much at this point [to get an anti-abortion ruling],” she said.
“If this lawsuit is successful, it’s going to be a real shot—not even a warning shot, just a shot—showing everybody how seriously the anti-abortion movement takes this stuff,” she said.
Donley doesn’t believe people are prepared for a possible nationwide ruling resulting from the Texas case, which could happen in the coming weeks or months. She said the fact that it’s flying under the radar is “very worrisome.” The capture of the federal courts means conservatives could effectively ban a method of abortion without passing a single law, and without much news coverage in the lead-up.
The impact of a possible mifepristone ban
Since it’s FDA-approved through 10 weeks of pregnancy, medication abortion with mifepristone is becoming increasingly popular. In 2020, abortions with pills made up a staggering 54 percent of abortions done in medical settings (that’s not counting people who did their own medication abortions outside the medical system).
If Judge Kacsmaryk issues a nationwide ruling revoking the FDA’s approval of mifepristone, it would ban healthcare providers from prescribing it for abortion. (The drug is also sold as Korlym to treat Cushing’s syndrome.) Even people seeking care in states where abortion is still legal wouldn’t be able to get the pills from brick-and-mortar clinics or from telemedicine services. The only option would be Aid Access, based in Europe, or word-of-mouth networks.