A win that might not be
Well, whoop-de-doo.
It looks like the US Supreme Court will decline, for now, to restrict access to a widely used abortion medication in the United States.
Forgive me if I decline to celebrate, prematurely or otherwise.
Yes, it is good news that this case was so weak that most of this lopsided, mostly antiabortion bench appears to have balked at it. It’s nice to know they have some standards, I suppose.
But the bar here was pretty low. The plaintiffs in this case were trying to get jurists to substitute their judgment for that of the experts at the FDA, and to decree that, despite clear and voluminous evidence to the contrary, the medication, used in more than 60 percent of the abortions in this country, is not in fact safe to use.
Of course the Christian nationalists behind the lawsuit brought the case to Judge Matthew Kacsmaryk, a US District Court judge in Amarillo, Texas, and a zealot who has dedicated himself to criminalizing abortion, however flimsy the pretext. He was all too happy to decide mifepristone is unsafe based on the junky, discredited studies proffered by the plaintiffs. In doing so, he opened the door to a world in which any crackpot judge could substitute his judgment for that of the experts at the nation’s highest public health authority.
Legal analysts say the Supremes probably will avoid dealing with the substance of the issues in their decision, instead rejecting the lower court decisions because the plaintiffs lack standing: They are a handful of antiabortion physicians worried that they might have to treat a patient who has used mifepristone in the unlikely event that something goes wrong and the patient turns to them for care — care they can already legally refuse to provide.
To save the doctors from the mere possibility of this fantastical scenario, they argued that mifepristone should be banned everywhere. Including here in Massachusetts, where abortion remains very legal, and where mifepristone is routinely prescribed.
Because of this state’s laws shielding abortion providers from legal action by authorities in states where abortion is banned, Massachusetts, along with a few other shield-law states, has become a center for those seeking medication abortion in Idaho, Kansas, Missouri, and other restrictive places. Organizations like Aid Action and The Massachusetts Medication Abortion Access Project (The MAP), which use telemedicine to provide the medication to most patients for $250, would be hamstrung, and/or forced to dispense a less effective medication, if this case were allowed to stand.
It looks like they will survive, for now. But for how long? Republicans and their judicial fellow-travelers have made no bones about their goal to ban abortion in every state in the country. During Tuesday’s hearing, extremists Samuel Alito and Clarence Thomas suggested abortion medication is already illegal under an 1873 law called the Comstock Act, a super-broad zombie law that antiabortion absolutists have been dusting off in the hopes of ending medication abortion once and for all. Legal analysts are sure Comstock is headed to the highest bench in the land.
On top of that, Republican presidential nominee Donald Trump has spoken openly of enacting a national 15-week abortion ban. And the Heritage Foundation’s Project 2025 — the blueprint for a second Trump administration — lays out all kinds of dystopian plans, including using federal agencies to monitor who provides and receives abortions.
Tuesday’s hearing was slender consolation in the face of all that.
The only victories worth celebrating at this point will come at the ballot box.
So let’s take a second now to revel in Tuesday’s real win. Let’s hear it for Marilyn Lands, an Alabama Democrat who won a special election to the Legislature after running proudly on her support of reproductive rights. She wants to repeal Alabama’s abortion ban and fully restore access to IVF in the wake of a state Supreme Court decision ruling that frozen embryos are people.
Though the electorate was small, that race demonstrates the continued potency of reproductive rights as a campaign issue. Two years ago, Lands lost the suburban Trump district by 7 percentage points. This week, she blew out her opponent by 25 points.
Her victory just might be a harbinger of bigger ones to come.
Whoop-dee-doooooo!