Will We Lose the Right to Abortion?

Will We Lose the Right to Abortion?

Texas judge Matthew Kacsmaryk’s crusade to ban mifepristone is just the beginning of the next fight for reproductive rights.

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It took five Supreme Court justices to take away the right of more than half the people in the country to end a pregnancy. It took only one lower court Texas judge to ban the most popular method of doing so. That would be Matthew Kacsmaryk, a Trump-appointed federal judge in Amarillo, Tex., with a substantial record of anti-abortion views.

On April 7, in a case brought by the Alliance for Hippocratic Medicine, an obscure group of anti-abortion doctors, Kacsmaryk ruled that mifepristone, one of two pills used in combination to produce a medication abortion, had been wrongly approved by the FDA—23 years ago. Never mind that mifepristone is endorsed by the American Medical Association and the American College of Obstetricians and Gynecologists and has been used safely by millions in the United States and around the world. Never mind that pills are used in more than half of abortions in this country, and without them, the already limited ability to end a pregnancy in the post-Dobbs era would be drastically curtailed.

As I write, the fate of mifepristone is up in the air. Moments after Kacsmaryk’s ruling, a federal judge in Washington State ruled in favor of full access to the drug. The Fifth Circuit temporarily limited Kacsmaryk’s ruling, while restricting access to seven weeks and banning the pill’s delivery through the mail—a “compromise” with no medical basis. The Department of Justice has challenged the decision, and the Supreme Court agreed to let mifepristone stay on the market until it has a chance to review it; Democratic governors in California, Massachusetts, and Washington are stockpiling the medication. The eventual Supreme Court decision will have implications for the FDA and other regulatory agencies, Big Pharma, states’ rights, the legitimacy of the judiciary, and, of course, anyone who needs an abortion or ever might need one.

By the time you read this, my information will surely be out of date. But the conditions that led us here aren’t going away anytime soon.

Remember how people laughed at Candidate Trump as a lazy buffoon? Remember how they said he would do little harm as president because he was so uninterested in policy? Remember how people said his extensive past as a Manhattan Lothario meant he was probably pro-choice? None of that mattered a bit. Trump was elected by right-wing evangelicals and Catholics, and he paid his dues: It is because of that lazy buffoon that there is a conservative anti-choice supermajority on the Supreme Court and the federal judiciary is stuffed with right-wing Christians like Kacsmaryk.

One reason people didn’t take Trump seriously is that they thought reproductive rights were safe. That was the conventional wisdom pundits had been banging on about for decades: Americans were pro-choice, and Republicans would never ban abortion, because it would mean electoral suicide. Abortion rights campaigners, who had warned for years that our rights were fragile, were dismissed as Chicken Littles looking for donations themselves.

The pro-choice movement had long placed its faith in the courts. This was understandable, since rights are a matter of law, but it gave a lot of people a sense of security that has proved unwarranted. Turns out it takes only a few shifts in the right places to undermine long-standing precedent. Trump installed an extraordinary number of judges vetted by the archconservative Federalist Society, and there they lay like land mines, just waiting for the right case to step on them.

What happens in Texas doesn’t stay there. If you live in a blue state, restrictions that closed clinics in distant red states might have seemed irrelevant. After all, some states—New York, California, Vermont, Michigan—have beefed up abortion protections, moving us closer to the patchwork map that existed before Roe was decided. Some pundits even argued that letting each state decide would take the issue out of national politics: let the people of each state decide whether 10-year-olds should be forced to give birth. Democracy!

This view overlooked a lot, like the gerrymandering of districts and the disenfranchisement of likely Democratic voters, not to mention women’s rights. But it was also based on the false assumption that the anti-abortion movement would be content with its red-state half-loaf—more than a dozen states, and counting, have fully banned abortion so far. The anti-abortion endgame has always been to ban abortion throughout the land. Judge Kacsmaryk’s decision is a step forward on that path: If upheld, it would ban mifepristone in every state and set a precedent for removing FDA approval from other relevant drugs and devices, like hormonal birth control and IUDs, which abortion opponents consider to be abortifacients.

Right now, nothing is certain. Electorally, abortion bans have not worked well for the GOP, most recently in Wisconsin, where a liberal pro-­choice candidate for the state Supreme Court, Janet Protasiewicz, defeated her MAGA opponent by 11 points. People may not be keen on abortion, but they like government interference in such personal decisions even less, and the medical harm of abortion bans is becoming clearer as the media (finally!) reports on the disasters they cause for patients with dangerous pregnancies that doctors can no longer treat. Indeed, ob-gyns are leaving some abortion-ban states because they can’t practice good care.

Still, abortion opponents are forging ahead: On April 14, Ron DeSantis signed a six-week ban in Florida. In Idaho, a new law prohibits people from helping minors travel for abortion care without their parents’ consent. In North Carolina, a Democratic state legislator suddenly changed parties, giving the GOP a one-vote supermajority. The outcome of Kacsmaryk’s ruling will tell us a lot about whether there are limits to the campaign against abortion or whether we will lose the right, in Hemingway’s famous words, gradually, then all at once.

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