Author: Margaret Rice

Anti-abortion supporters won a significant legal battle this summer in the Supreme Court’s Dobbs decision, overturning the constitutional right to abortion in the United States. But they aren’t stopping there. Another approach to limiting abortions is gaining traction in the form of several current lawsuits that are utilizing various methods to target mediation abortion in the United States.

Although in-clinic procedures may be the more commonly known option for abortion, in recent years, more than half of abortions in the United States are medication abortions. This approach most often includes a combination of two pharmaceutical drugs: mifepristone and misoprostol. One ongoing lawsuit, Alliance for Hippocratic Medicine v. FDA, seeks to bar the Food and Drug Administration (FDA) from permitting the sale of mifepristone in the United States. The FDA approved the use of mifepristone for abortion in 2000, and the drug has remained safe and effective in the 20 years since. The plaintiffs in this case are calling for an unprecedented overturning of the FDA’s approval of a pharmaceutical drug that has been utilized for more than two decades.

Although the plaintiff’s arguments are considered by many to be meritless, there is potential for the case to be upheld due to the strategic forum shopping by the plaintiffs. The plaintiffs brought suit in the Northern District of Texas, where the case was all-but-guaranteed to be heard by Judge Matthew Kacsmaryk, a federal judge appointed by former President Trump. Kacsmaryk was likely selected for his conservative political views and his work for far-right religious groups. In his short time as a federal judge, Kacsmaryk has established a reputation for conservative and poorly reasoned rulings limiting the rights of immigrants, of the LGBTQ+ community, and reproductive rights. 

Based on this track record, Judge Kaccsmaryk may rule for the plaintiffs and might grant an injunction that would ban the distribution of mifepristone throughout the nation, even in states with legal protections for abortion. Banning mifepristone would further restrict abortion access throughout the United States. With limited access to the option of a medication abortion, the demand for in-clinic abortion procedures is almost certainly increase, compounding the burden faced by abortion clinics and providers following the Dobbs decision, and likely increasing wait times for pregnant people seeking an abortion, issues that the FDA has stated will harm the public.

In addition to the detrimental impacts this decision may have on remaining abortion access in the United States, it could also place the FDA’s drug approval process in question, creating opportunities to question other drugs that have been used safely and effectively for decades.

If the judge sides with the plaintiffs, the decision will undoubtedly be appealed. However, the route would take the appeal to the Fifth Circuit Court of Appeals, with a conservative reputation. If appealed further, the case could be taken up by the Supreme Court, which just months ago overturned the constitutional right to abortion. The continued evolution of this case, and others like it, demonstrate the implications of the Supreme Court’s decision to overturn Roe v. Wade and the threat to abortion access in the United States for years to come.

Abortion has long been a contentious issue in American politics, but the debate has been revived, perhaps more than ever, since the Supreme Court’s decision to overturn Roe v. Wade, altering the landscape of abortion access across the nation. One major impact of the Dobbs decision was a distinct shift in the scope of abortion policy to the state level. Elisabeth Smith, Director for State Policy and Advocacy for the Center for Reproductive Rights, says that in a post-Roe United States, “state constitutions are now the best vehicle to protect abortion rights and ensure access.”

The midterms held earlier this month were the first major elections held across the United States since Roe was overturned, providing many voters with an opportunity to contribute to abortion decisions in their states. Elected state officials such as governors, legislative representatives, and judges can play significant roles in shaping abortion policies and access in their states. In addition to the elected officials in the midterms, abortion was directly on the ballot in a record number of states with abortion-related legislative proposals.

With so much at stake for the right to abortion in midterm elections, many voters took advantage of the opportunity to make their voices heard. According to polling conducted by the Keiser Family Foundation, the Supreme Court decision to overturn Roe v. Wade had a major impact on voter turnout and choice for at least half of democratic voters, first time voters, and younger women voters.

The results of this voter turnout are clear: in each of the five states where abortion was directly on the ballot, proposed abortion protections were expanded, and proposed restrictions were rejected. Voters in California, Michigan, and Vermont approved amendments to their state constitutions to protect reproductive freedoms, and limit government intrusion into reproductive health care decisions. In Kentucky and Montana, voters rejected efforts to further restrict access to abortion. These results are following Kansas’ rejection of an anti-abortion state initiative in August. Although these states range from liberal, moderate, to conservative, where abortion was directly on the ballot, the people ultimately voted in support of abortion rights.

The election results are promising for abortion advocates. President and Chief Executive of the Center for Reproductive Rights, Nancy Northup called the midterms “a seismic win for abortion rights,” and emphasized that the outcomes show that “when people can vote directly on abortion in a non-partisan ballot initiative, abortion rights win.” The outcomes of the first major elections after the Dobbs decision may make the case for a glimmer of hope for the future of abortion rights and access in the United States.

The right to choose to have an abortion has been recognized as a constitutional right in the United States for nearly fifty years since Roe v. Wade. However, states have the right to impose restrictions on abortions until the vague point of “viability,” as long as the restriction does not present an undue burden to those seeking an abortion. For as long as the right to choose has been established, many states have persisted in efforts to chip away at abortion access by imposing a variety of restrictions. Since Roe, more than 1,000 restrictive laws have been enacted across the United States to limit abortion access. These efforts are gaining momentum, and more than a quarter of abortion-restrictive laws were enacted between 2010 and 2015. The trend has continued, and 2021 was the most restrictive year on abortion in American history. 

Abortion access has a long history of being weaponized as a political tool in the United States, and with increasing political pressures, more abortion restrictions than ever, and a conservative majority in the Supreme Court, this trend continues today. At the center of the current fight is Dobbs v. Jackson Women’s Health Organization, a case that was argued before the Supreme Court in December 2021. The case is regarding a Mississippi ban on abortions prior to 15 weeks of pregnancy, and will be the first case since Roe in which the court will determine the constitutionality of pre-viability abortion restrictions. The ruling, which is anticipated by the end of the Court’s term in June 2022, has the dangerous potential to overturn Roe and establish that there is no constitutional right to abortion in the United States. 

The consequences of the Dobbs ruling will be severe, whether Roe is overturned entirely, or if states are permitted to expand restrictions to abortion access. Approximately half of states are considered likely to completely outlaw abortion, or limit access to the point that abortions would be virtually inaccessible, following the ruling in Dobbs. Only fourteen states and the District of Columbia protect the right to abortion in their state laws or constitutions, and just five states protect both the right to abortion and have policies in place to enhance access to abortion. The stark contrast between states that will ban abortion and the few that will protect the right will create barriers to access in the nation where approximately 1 in 4 *women will have an abortion by age 45. It is important to acknowledge that lack of access to abortion has a disproportionate impact on low-income individuals and People of Color.  

In recognition of the importance of abortion access and the increasing threats to the right to choose, recent attempts to protect abortion at the federal level have made it farther than ever before. The Women’s Health Protection Act of 2021 would have enshrined the right to abortion in national law; however, after it passed in the House it failed to pass a Senate vote in March 2022. While this outcome is disappointing at a time when abortion rights are more at risk than ever, it is encouraging that the majority of American voters supported the WHPA, and marks important progress as the first time the Senate voted on legislation for the federal right to abortion. 

The right to abortion in the United States faces some of its most challenging obstacles to date. While the depth of the hill we continue to climb is to be determined by the outcome of Dobbs, regardless we must persist until abortion access for all is realized. 

*This post refers to “women” when the data being referenced refers specifically to women. It is important to acknowledge that abortion access impacts all people who may become pregnant, including trans and non-binary individuals.