Less than a year after the Supreme Court gutted Roe v. Wade, causing untold harm to people across the country and sowing chaos throughout the land, abortion will return to the same nine justices. This time, it will be in the form of the Justice Department asking for emergency intervention in a truly flagrant distortion of both law and science that would severely limit access to medication abortion in the U.S. The question now is how many conservative justices are ready to follow their lower-court brethren, and how far, with potentially radical consequences.
The case was brought by anti-abortion doctors who are trying to undo the 23-year-old FDA approval of mifepristone, one of two drugs used in a medication abortion. The plaintiffs are second-guessing the approval of a drug with a longstanding, highly studied safety record. According to the brief filed by the American Medical Association and the American College of Obstetricians and Gynecologists, “Serious side effects occur in less than 1% of patients, and major adverse events — significant infection, blood loss, or hospitalization — occur in less than 0.3% of patients.” Whether an abortion happens by pills or by suction in a clinic, the medical association brief continues, “there is a greater risk of complications or mortality for procedures like wisdom tooth removal, cancer-screening, colonoscopy, plastic surgery, and the use of Viagra.” Meanwhile, one of the plaintiffs showed his supposed concern for women’s health by inventing a supposed “abortion reversal” scheme that proved so dangerous that a study on it had to be stopped after a quarter of the participants were hospitalized.
Never mind the facts — district court judge Judge Matthew Kacsmaryk, a Trump-appointed foot soldier of the Christian right, was ready to use any cherry-picked data in service of an ideology that prioritizes embryos and fetuses above pregnant people, safety, and the law. The resulting decision, released late last week, was so egregious in its tendentiousness and sloppy reasoning that it was easy to dunk on, and many did so.
The decision required making several wild leaps, starting with accepting that these doctors have the right to sue at all, known in the law as “standing.” These doctors don’t even prescribe mifepristone for abortion, but they claim their practices are being harmed when they have to treat the statistically rare complications from medication abortions. Among the handful of examples they cite is a woman who had to travel from Texas to New Mexico for her abortion — presumably because of Texas’s abortion bans, in effect since even before Roe was overturned — and then developed an infection that needed to be treated. This proves more than the plaintiffs intend; it’s hard to imagine this woman’s care was improved by having to travel for hours for her procedure. The plaintiffs also claimed that they’ve suffered a loss of “opportunity to provide professional services”: because every abortion means a baby they never get to deliver.
Instead of laughing them out of court, Kacsmaryk runs with their claims. To establish the harm of medication abortion, he writes that “other studies show eighty-three percent of women report that chemical abortion ‘changed’ them — and seventy-seven percent of those women reported a negative change.” But this was based on a qualitative “study” of 54 anonymous blog posts on an anti-abortion website dedicated to abortion regret, as Adam Unikowsky, a former Scalia clerk and appellate lawyer wrote in his cogent, much-circulated takedown of the opinion. “Wait a second,” Unikowsky wrote. “The website is called ‘Abortion Changes You.’ The URL is abortionchangesyou.com … This is roughly like reporting a statistic that ‘83% of people are fans of Judge Kacsmaryk’ without mentioning that the entire sample consisted of posters on JudgeKacsmarykFanClub.com.”
Dr. Antonia Biggs, an expert in abortion and mental health at the University of California, San Francisco, pointed out to me that even these anonymous blog posts — which for all we know weren’t written by real patients — include people saying the abortion was still the best decision for them. To be clear, the overwhelming actual evidence from hundreds of studies refute the claim that abortion causes long-term psychological harm.
Despite all this, Unikowsky ended his post by expressing faith in the judiciary. “Decisions like this one are rare,” he wrote. “We should be proud of the exceptionally high quality of the federal judiciary and its commitment to the rule of law. Individual decisions like these should not change that … Trust the process.”
Just after midnight on Thursday, the process continued apace — with the Fifth Circuit Court of Appeals essentially laundering Kacsmaryk’s opinion. Their decision splits the difference between his opinion and what the FDA has already approved: It doesn’t take mifepristone off the shelves, but rolls back access to it, including limiting the mailing of abortion pills, crucial to the post-Dobbs landscape. They lard their opinion with anecdotal accounts from doctors of incomplete medication abortion to claim these doctors have standing to sue, which flies in the face of precedent and would open the door for literally anyone to challenge anything. (It’s also nonsense, as University of Michigan law professor Leah Litman pointed out: “Are these doctors not going to be called on to treat patients for complications if/when there’s a switch to misoprostol-only medication abortion? Or pregnancy/childbirth?” In real life, when pregnant patients arrive in a red-state emergency room to get care for pregnancy complications, they’re being forced to bleed until infection is nigh.)
The Fifth Circuit uses somewhat less inflammatory language than Kacsmaryk did; they only say “unborn child” once, whereas he used some variation of “unborn humans extinguished by mifepristone” about a dozen times. “This is just as political as Kacsmaryk’s ruling — but more carefully manipulated to seem less crazy,” tweeted SMU law professor Joanna Grossman. “It seems pretty clear to me that the Fifth Circuit ruling was crafted, quite deliberately, as an attempt to take steam out of intervention by the Supreme Court,” wrote University of Texas law professor Steve Vladeck. The effect might be to allow the Supreme Court a chance to look reasonable in comparison, while severely limiting access to medication abortion.
One of the flaws in the plaintiffs’ case was that they filed in November 2022, six months after their six-year deadline to challenge the FDA’s 2016 changes. The Fifth Circuit came up with all sorts of contorted reasons why they should be allowed to file anyway without mentioning the likeliest explanation: In June 2022, the Supreme Court overturned Roe v. Wade with the Dobbs decision. The immediate effects included making medication abortion more important than ever, with pills sent through the mail providing access, whether abortion was legal in your state but local clinics were suddenly flooded with out-of-state patients, or whether it was a lifeline for someone who couldn’t travel out of a ban state. The FDA also made permanent a pandemic-era removal of the requirement to dispense the pills in person. And of course, Dobbs opened up the frontiers of legal possibility for people who want to make abortion illegal everywhere.
So far, their strategy is working — at least in the courts, especially the ones stacked with Trump appointees. As providers try to figure out what they can and can’t do, and how to reconcile the Texas case with a separate district court opinion in Washington state that requires maintaining access as is, blue states are already stockpiling abortion pills. Among the reasons patients have chosen medication abortion is because it’s the safest option they can access and because it offers privacy, away from the anti-abortion protester gauntlet. The Court could take yet another option away from them, while opening the door to anyone, including anti-vaccine forces, to try to undo longstanding FDA approvals.
On Wednesday afternoon, just hours before the Fifth Circuit ruling, I asked Drexel law professor David Cohen, who has written extensively on medication abortion, if he thought Kacsmaryk’s ruling would be too wild to stand. “I would love for there to be something that’s too crazy for the Fifth Circuit,” he said, presciently. Even among a cavalcade of outlandish decisions, Cohen observed, “Abortion changes all law. Standing, statute of limitations, administrative law, deference to agencies all of that gets thrown out of the window when it comes to abortion for some judges.” He added, “The right has found a cheat code by filing in these districts in Texas,” where a far-right judge is guaranteed to be assigned to the case, and then appealing to Fifth Circuit for more of the same and onward to a six-justice majority on the Supreme Court. “And we have not figured out a response to the cheat code.” Trusting the process does not seem to be the way.
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