On Friday, April 21, the Supreme Court ordered that access to mifepristone, an abortion pill, remain permitted throughout the federal territory of the United States.
Mifepristone, taken in conjunction with another pill, misoprostol, is used for half of all abortions performed in the United States. The administration led by President Joe Biden had asked the Court for an urgent opinion last week. It is likely that a definitive ruling will arrive within the next year.
7 out of 9 Supreme Justices - including 4 of the 6 Conservative justices - voted in favor of access to mifepristone. Only Conservative justices Samuel Alito and Clarence Thomas disagreed with the Court's majority opinion. Alito justified his decision in a 4-page document, while Thomas did not provide any reasoning.
The US Supreme Court Justices. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan.
Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson.
The Supreme Court was supposed to rule on Wednesday but Judge Alito had decided to postpone the decision until Friday, April 21, by midnight. The story is quite complex and has to do with the new objectives that pro-life groups have been trying to pursue since the Supreme Court, on June 24 last year, overturned the historic Roe v. Wade sentence that guaranteed the right to abortion at the federal level.
The mifepristone dispute began in November when a conservative advocacy group and anti-abortion doctors filed a lawsuit in a Texas district court. The group chose to give itself a rather high-sounding name: Alliance for Hippocratic Medicine.
The plaintiffs had chosen to file the lawsuit in the Amarillo division of Texas state district court, ensuring that their case would be heard by a judge appointed by former President Donald Trump: Matthew J. Kacsmaryk. According to the plaintiffs, the Food and Drug Administration, the US government agency responsible for the regulation of food and pharmaceutical products, had not considered the possible side effects that taking the drug could cause when it authorized its use in 2000.
Mifepristone is the most common abortion pill used in the United States. (Associated Press)
Mifepristone is taken within 48 hours in combination with another drug, misoprostol, a prostaglandin. Mifepristone blocks a hormone needed for pregnancy to develop while misoprostol helps empty the uterus. According to the most authoritative studies, mifepristone has a 99 percent efficacy rate for pregnancy termination, a very low risk of complications related to the intake, and a mortality rate of 0.0001 percent.
Nevertheless, on April 7, Texas District Court Judge Matthew Kacsmaryk agreed with the pro-life groups, ordering the repeal of the FDA approval of mifepristone. The same day, a federal judge in Washington state issued an opposing opinion to Kacsmaryk's, ordering the FDA not to restrict access to the drug in 17 states and the federal district of Washington.
Amid legal contradictions and general confusion, the US Justice Department challenged the Texas judge's decision before the US Court of Appeals for the Fifth Circuit (which has jurisdiction in Texas, Louisiana, and Mississippi). The Court of Appeals partially agreed with the Department of Justice but ordered the FDA to return to pre-2016 restrictions, when mifepristone could be taken up to the seventh week of pregnancy, thus prohibiting its distribution via telemedicine and making it necessary to be prescribed by three different doctors.
Finally, the administration led by President Joe Biden requested the intervention of the Supreme Court to defend access to mifepristone. Supreme Court Justice Samuel Alito then ordered a temporary halt on the execution of Kacsmaryk's sentence, allowing the distribution of mifepristone with restrictions imposed by the Fifth Circuit Court of Appeals.
The status of access to abortion in the United States. (Chart by 19th News)
In the United States, the right to abortion has no longer been guaranteed at the federal level since June 24, 2022, when the Supreme Court decided to repudiate Roe v. Wade with another historic ruling: Dobbs v. Jackson Women's Health Organization. On the same day, a series of state laws came into force aimed at making the practice of abortion illegal, the so-called trigger laws (laws passed specifically waiting for a certain event - trigger - to occur: in this case the overturning of Roe v. Wade ).
To date, abortion is illegal in 13 US states: Alabama, Arkansas, Kentucky, Idaho, Louisiana, Mississippi, Montana, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin. In Georgia, abortion is permitted up to the sixth week of pregnancy, when the vast majority of women do not even know they are pregnant. In Florida, Governor and possible Republican primary candidate, Ron DeSantis, signed a law equivalent to that of the state of Georgia, which will go into effect when the state Supreme Court has given its assent.
In Arizona, Utah, and North Carolina, abortions are permitted up to 15, 18, and 20 weeks into pregnancy. In Indiana, Iowa, North Dakota, Montana, Ohio, and Wyoming, trigger laws have not taken effect following challenges to the laws in state courts. This is the direction that the movements in favor of abortion rights believe to be most promising to counter the progressive limitation of the rights of US women. Abortion remains legal in most US states, but millions of American women currently live in states where the procedure is illegal, sometimes even in cases of rape or incest.
Legal status of abortion in the United States. (Chart by The New York Times)
According to a Pew Research Center poll conducted just weeks after the overturn of Roe v. Wade, 61% of Americans believe abortion should be legal in all or most cases. The support is not bipartisan, but 38% of the Republican electorate still supports freer access to the practice: a considerable percentage.
Representatives of the Republican party in Congress are by now quite clear that the restrictions imposed on access to abortion are going too far and some moderate fringes of the GOP are progressively distancing themselves from the issues that the pro-life movement's agenda attempts to impose, for fear of alienating the independent electorate and the more moderate segment of their own.
The mid-term elections that were held on last November, for the renewal of the entire House of Representatives and a third of the Senate, demonstrated how much abortion is an issue that pushes the Democratic electorate to the polls and highlighted the risks this entails for the successes or otherwise of the Republican candidates.
A striking example was the election for a Wisconsin Supreme Court seat, in which liberal Justice Protasiewicz triumphed. The exceptionality of that election concerned the politicization of the electoral campaign in which the two judges were involved. Protasiewicz publicly expressed her support for wider access to the practice of abortion. Her rival, Dan Kelly, did the opposite. Wisconsin voters ultimately elected Judge Protasiewicz, who won by an 11 percentage point margin over Judge Kelly, in a state where slightly more Republican voters than Democrats are registered. Protasiewicz's victory was attributable to Judge Kelly's anti-abortion positions.
Basically the same happened in Kansas and Montana last year, with Democratic voters flocking to the polls to reject measures that would make access to abortion illegal.
In short, the theme has taken on a very strong political connotation and could also become central to the campaign for the 2024 presidential elections. This was understood by former president Donald Trump, who already after the midterm elections had attributed the defeats of most candidates he supported to the radicalism of the positions of the pro-life movements in those states. This was also understood by the leader of the Republican minority in the Senate, Mitch McConnell, who on several occasions underlined the willingness of his party's leadership to let individual states legislate on the issue of abortion.
In post-Roe US society, the chances of election for democratic candidates are all the higher the more access to abortion practice is threatened in their states.
Edited by: Ritaja Kar
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