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.
People self-managing might move to misoprostol-only abortions out of necessity, and while that method is effective, it’s slightly less so than the two-drug combination. It’s also an off-label use of the drug, meaning it’s not FDA approved for that purpose. Because of that fact, it’s not clear if telehealth services would offer misoprostol-only abortions.
The possibility of telemedicine services halting care and clinics in blue states only offering procedural abortions would have ripple effects on access. “The waiting times that we see are going to balloon to the point where it’s really making abortion almost inaccessible throughout the country,” Donley said. “Not just for people in red states traveling, the people in New York wouldn’t feel safe…if the New York clinics are backed up, and you need an abortion, you’re not going to feel like you have access.”
And not only would wait times increase, but making people go to clinics for abortions they could have at home would also force them to face protestors. Medication abortion has been “harder to stigmatize in a lot of ways,” and the fact that people have their abortions at home is one reason why, Donley said.
Another attack from the 19th century that could ban all abortions
Donley said that beyond these federal efforts, state lawmakers will also target mifepristone in 2023, including attacks on even talking about abortion pills. It’s a play from the 1873 Comstock Act, a law that criminalized the mailing, possession, or sale of “obscene materials,” which included information about birth control and abortion.
In a chilling New York Times op-ed about the coming crackdown on abortion-related speech, legal scholars Michele Goodwin and Mary Ziegler explained that some activists argue Comstock is still in effect and that it trumps state laws protecting abortion. It’s a theory championed by Texas activist Mark Lee Dickson and lawyer Jonathan Mitchell as they have pursued local anti-abortion ordinances since 2019—most recently in New Mexico and Colorado. Mitchell, we should note, is the same lawyer who wrote the Texas bounty-hunter law that the Supreme Court upheld while Roe was still on the books.
In June, the National Right to Life Committee released model legislation that would define “aiding or abetting an illegal abortion” to include simply providing information about abortion. This is Comstock 2.0. South Carolina lawmakers introduced their version of it, and while the bill didn’t go anywhere in 2022, Donley thinks that will change next year.
“I think you’re going to see a swath of states pass ‘aiding and abetting’ abortion laws,” she said, This would be an effort to criminalize people who are spreading information about abortion pills, setting up “a big battle between the First Amendment and state lawmakers.”
But don’t let the fact that banned states are likely to pursue it fool you: This strategy could also have nationwide implications. The Comstock threat is buried as an argument in the Texas mifepristone lawsuit, Donley notes—look for “18 U.S.C. §§ 1461-62”—and if a judge takes it seriously, it has the potential to not just ban abortion pills in blue states, but procedural abortions, too.
“Comstock is really terrifying,” she said. That’s because any clinic that gets supplies shipped across state lines could be found in violation of the law. “If anyone were to find that that law is still active, that ends abortion nationwide—all abortion.”
Dickson has already passed resolutions in dozens of cities arguing that fetuses are people and abortion should be outlawed. But at some point since, the resolutions were changed to claim that clinics are actually violating Comstock. Currently, he’s pushing to have it passed in Pueblo, Colorado—despite lawmakers codifying the right to abortion in state law earlier this year. It reads in part:
“Federal law imposes felony criminal liability on every person who ships or receives abortion pills or abortion-related paraphernalia in interstate or foreign commerce, see 18 U.S.C. §§ 1461-62.”
Yes, it’s very ironic to see anti-abortion activists trying to claim there’s no First Amendment right to sharing abortion information when they have taken multiple free speech cases all the way to the Supreme Court. They’ve also relied on the free speech argument in order for pharmacists to refuse to dispense emergency contraception and even regular birth control, as Goodwin and Ziegler note.
But pointing out antis’ hypocrisy won’t solve the problem of having Trump-appointed federal judges who rule by fiat. These recent moves point out the movement’s real plans. “Their goal was never [just] to overturn Roe,” Donley said. “It was to end as many abortions as possible.”