The U.S. Supreme Court temporarily halted a lower court's ruling restricting an abortion pill until Wednesday night. The hold will give the Supreme Court time to review the controversial legal battle over mifespristone, the drug in question, and is the latest chapter in an ongoing battle on this issue since the high court overturned Roe v. Wade last year.
The Friday ruling came after the Biden administration requested the high court preserve access to the abortion pill, seen by many as a way for Americans to skirt state laws limiting abortion.
The U.S. Court of Appeals for the Fifth Circuit ruled in favor last week of more restrictions on mifespristone, an abortion-inducing pill, notably that it can no longer be distributed via mail.
That court found that the U.S. Food and Drug Administration ignored alarming data about the safety of the pill and removed safeguards, possibly for political reasons, in the last year of the Obama administration.
“Imagine that an agency compiles studies about how cars perform when they have passive restraint systems, like automatic seatbelts,” the court said. “For nearly a decade, the agency collects those studies and continues studying how cars perform with passive safety measures. Then one day the agency changes its mind and eliminates passive safety measures based only on existing data of how cars perform with passive safety measures. That was obviously arbitrary and capricious in [an earlier 1983 case] State Farm. And so too here.”
The court also said that the FDA misrepresented data in a troubling way.
“Second, the 2016 Major REMS Changes eliminated the requirement that non-fatal adverse events must be reported to FDA. After eliminating that adverse-event reporting requirement, FDA turned around in 2021 and declared the absence of non-fatal adverse-event reports means mifepristone is ‘safe.’ This ostrich’s-head-in-the-sand approach is deeply troubling.”
The FDA took fire after the fifth circuit court’s ruling.
“The FDA put politics ahead of the health of women and girls when it failed to study how dangerous the chemical abortion drug regimen is and when it unlawfully removed every meaningful safeguard, even allowing for mail-order abortions,” Alliance Defending Freedom Senior Counsel Denise Harle said.
Democrats were quick to blast the ruling.
“This is a step toward a nationwide abortion ban,” Vice President Kamala Harris wrote on Twitter.
Attorney General Merrick Garland said Thursday that he “strongly disagrees” with the ruling, and the filing to the Supreme Court came in soon after.
“The course of this litigation has been troubling at every level,” that filling reads.
The litigation in question, Alliance for Hippocratic Medicine v. FDA, began in November of last year when a coalition of pro-life groups filed a lawsuit in Texas against the FDA over the abortion pill.
Since the Supreme Court overturned Roe v. Wade last year, the battlefield has majorly shifted on this issue.
Given new latitude by the Supreme Court, states have been passing laws either clamping down or opening up abortion access, depending on their political leanings.
Florida Gov. Ron DeSantis signed the “Heartbeat Protection Act” that banned abortions after a heartbeat is detectable, at about 6 weeks of life. Women who have experienced rape, incest, or human trafficking have longer, up to 15 weeks, to have an abortion. The law allows exceptions for when the life of the mother is at risk as well.
“Thank you [DeSantis] for having the courage to do the right thing,” said Kristan Hawkins, president of Students for Life. “You are setting the standard for GOP and they should follow your lead.”
These debates likely mean whichever party controls the next majority, and the White House, will have the ability to codify federal restrictions, or protections, for abortion pills and abortion access generally during that Congress, meaning Roe v. Wade’s overturning did not end the abortion fight but increased it.
In July, President Joe Biden decried the decision and doubled down, pledging to use the full force of his administration to increase abortion access as much as possible in all 50 states and the District of Columbia.
“HHS will increase outreach and public education efforts regarding access to reproductive health care services – including abortion – to ensure that Americans have access to reliable and accurate information about their rights and access to care,” the White House said at the time.
The double-digit loss for conservatives in last week’s Wisconsin supreme court election has set off a new round of fretting among Republicans over the politics of abortion.
Flipping the state’s high court to a 4–3 progressive majority will have sweeping implications for the rule of law and conservative policy in Wisconsin, but the alleged national electoral implications are being overstated by the liberal press and many on the right.
Wisconsin’s spring supreme court election was a base election: 800,000 fewer Wisconsin voters cast ballots in April 2023 than in November 2022, and the drop-off in turnout was far steeper in rural red counties than in blue counties.
The midterms were a better test of the politics of abortion after Dobbs, and the results were mixed — in Wisconsin and elsewhere. In the Badger State in 2022, Republican U.S. senator Ron Johnson won reelection by a point, and House GOP candidates cumulatively edged out their Democratic opponents by two points, while Democratic governor Tony Evers won reelection by three points.
Wisconsin Democrats put abortion front and center in those campaigns, too, but they were able to more accurately frame the supreme-court race as a referendum on Wisconsin’s abortion law that was in effect for more than a century before Roe, never repealed by the legislature, and thus the subject of litigation. That law is unpopular because it bans abortion throughout pregnancy and includes an exception only to protect the life of the mother. Moreover, as happened in Michigan, Republicans in the legislature never had a realistic shot at enacting any sort of compromise because a pro-abortion Democrat held the governor’s mansion.
Leadership matters. Republican governors who signed bold pro-life laws fared well in the November elections. Governors Brian Kemp of Georgia, Kim Reynolds of Iowa, and Mike DeWine of Ohio each signed bills into law limiting abortion to the first six weeks of pregnancy, after which point a baby’s heartbeat is detectable. Kemp won Georgia by eight points; Reynolds won Iowa by 19 points; and DeWine won Ohio by 25 points.
The issue of abortion did not cost Republicans the Senate; flawed Trump-backed candidates did. “Republicans would have won the Senate, and fairly decisively, if only the likes of Dr. Mehmet Oz or Herschel Walker had fared as well as Republican House candidates on the same ballot,” Nate Cohn of the New York Times reported in December. Herschel Walker ran far behind pro-life House Republicans and the pro-life Republican governor not because of abortion policy but because of his character and temperament.
Yes, abortion played a role in the GOP’s slimmer-than-expected House majority. But House Republicans still won the national popular vote by three percentage points — right about where polling showed them before the Dobbs opinion was leaked. And flawed Trump-backed candidates were a big factor in the House GOP’s underperformance — see Joe Kent in Washington State, for example.
That’s something the Wisconsin supreme-court election did have in common with the 2022 midterms — the losing candidate could be tied to Trump and specifically to Trump’s disreputable challenge to the 2020 election. Democrats focused a lot on abortion, but they also hammered the conservative Wisconsin supreme-court candidate, Dan Kelly, for providing legal advice to the Wisconsin GOP party chairman who signed up to serve as an “alternate elector” for Trump. Nor was Kelly a great campaigner; he was previously ousted from the bench by an identical eleven-point margin in 2020, but he was at a big disadvantage that year because a competitive Biden–Sanders presidential primary boosted Democratic turnout.
None of this is to ignore the challenge that the issue of abortion poses to Republicans and the critical need for pro-life statesmanship. The pro-life side lost every ballot initiative in 2022, including in red states such as Kansas and Kentucky. The referendum losses are due in part to voters’ fearing that a pro-life victory would result in a total abortion ban. Pro-life officials need to exercise prudence when crafting legislation so that it can be sustained by public opinion, and they need to inform voters about the extreme position on late-term abortion and unlimited taxpayer-funded abortion embraced by almost all Democratic politicians.
Perhaps the single most important thing pro-life officials can do right now is work to ensure all hospitals act on the correct understanding that every abortion law includes an exception at least to protect the life of the mother, and that no law requires doctors to wait until a threat is imminent to provide treatment. The Center for Reproductive Rights filed a lawsuit in Texas last month that acknowledged that the state abortion laws’ exception to protect the mother “does not require that any of the risks to the pregnant person be imminent,” and that “physicians are over-complying with the laws to the detriment of their patients’ lives and health.” The pro-abortion legal outfit blames this malpractice on confusion stemming from the drafting of and language in the Texas law itself. Pro-life doctors have the better argument in pointing out there was never any confusion over identical language in effect for nearly a decade before Dobbs in Texas’s late-abortion ban.
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