Where we are in the abortion wars
During the last two weeks, there have been two big newsworthy events concerning abortion. The first was two reports produced by the Guttmacher Institute[i] on the use of abortion pills and on the number of abortions performed in 2023. The finding of the report on the use of abortion pills made intuitive sense. It found that abortion pills accounted for 63% of all abortions in 2023, an increase from 53% in 2020, the last year Guttmacher collected such data.
What was not so intuitive was the finding of the second report. Despite total bans in 14 states and partial bans in 7 others, the number of abortions performed increased from 2020 to 2023 and is the highest it’s been in a decade. Guttmacher gives some explanations for that, including the increased availability of abortion pills.
It's not the first time research has found that the number of abortions performed did not go down after Roe v Wade was reversed. One study last year found that the number of legal abortions was essentially unchanged one year later. That study only looked at abortions that happened legally. It didn’t look at abortions that happened outside the formal healthcare system, which means it’s likely a significant undercount.
One unintended consequence of reversing Roe v Wade has been raising awareness of the availability of abortion pills. It has paradoxically meant that in many states where abortion is banned it has become more accessible than it was when Roe was the law. Between the internet and the availability of abortion pills, enforcing laws against abortion is all but impossible. Inevitably, that is going to lead to efforts on the federal level to try to curtail abortion pill access, which was on display this week and was the second newsworthy event.
Almost a year ago, a hack judge in Texas ruled on completely made up grounds that the FDA had wrongly approved mifepristone, one of two abortion pills. I wrote about the ruling at the time so feel free to check it out for more detail. On appeal, the Fifth Circuit, a court dominated by MAGA judges, mostly upheld the ruling. Although the panel that heard the appeal didn’t completely revoke mifepristone’s approval, two of the judges ruled against changes made by the FDA in 2016 and 2021 to allow it to become available via telemedicine and to be used up to 10 weeks of pregnancy rather than 7.[ii] It was then appealed to the Supreme Court (SCOTUS), which put the Texas ruling on hold and that is where we are now.
On Tuesday, SCOTUS heard arguments from the government defending mifepristone and plaintiffs trying to get it taken off the market. There has been a debate over whether the plaintiffs even have standing to sue in the first place. I thought SCOTUS would find a way to give them standing so they could rule on the merits, but I doubt that will happen. SCOTUS looks highly likely to dismiss the case for lack of standing.
During the arguments, every justice save for Clarence Thomas and Samuel Alito, the Marjorie Taylor Green and Matt Gaetz of SCOTUS, sounded highly skeptical of the plaintiffs’ case for why they had standing. For those not familiar with the concept of standing, it just means a plaintiff has to show that they were affected by an act of the government or a private party. It’s usually very easy to satisfy. For example, if a law is passed banning the sale of motorcycles and I run a business selling motorcycles, I am clearly affected by it and so I have standing to sue. Having standing to sue is hardly sufficient to win, but it’s absolutely necessary.
Here, some of the plaintiffs are doctors who are opposed to abortion. None of them have ever performed one and are not required to provide abortions or anything they believe is against their conscience. Their argument for why they have standing is beyond ridiculous and depends on many unlikely things happening. It would require (a) someone to take mifepristone and become hospitalized by it, (b) for no other doctor be available to treat that patient, and (c) assumes treating that patient would involve providing an abortion. By their own admission, two of the doctors who provided written declarations have never been in that situation.[iii]
Standing requires a clear connection between an action taken by the government or private party and the impact on the plaintiff and there is no such connection here. Technically, it’s possible those doctors could be in that situation, but it’s extremely unlikely and they don’t have to provide abortions anyway. Federal law, as some of the SCOTUS justices pointed out, allows for individual doctors to opt out of things they find morally wrong. The doctors are saying because they might conceivably have to treat someone affected by taking mifepristone that nobody should have access to it anywhere.
Contrary to the plaintiffs’ assertions, mifepristone is very safe. Almost no study done on it has concluded otherwise. Not only that, but two studies cited by the hack judge in Texas arguing that mifepristone was dangerous have since been retracted. Virtually every study that has claimed mifepristone is unsafe has been done by people with anti-abortion connections.
This is not about the safety of mifepristone. It doesn’t matter that mifepristone is safer than many other kinds of commonly used medicines. It allows for abortions to happen and no scientific study is going to convince those opposed to it to change their minds. Legal niceties prevent the plaintiffs and sympathetic judges from saying that, but don’t think for a second that any of them think mifepristone is fine, but are just worried about patient safety.
There is not one party to the effort to get mifepristone off the market that is not opposed to abortion. Their efforts are an acknowledgment that the abortion bans in place now are not very effective. It’s why I believe there will ultimately be a national settlement on the abortion issue because no other alternative is likely to be tenable.
Anyone who thought Dobbs was the end of courts’ involvement in the abortion debate was dead wrong. Dobbs was just the beginning. An example of that was what just happened in Alabama. There, the state supreme court all but outlawed IVF. There has been a major backlash to it and it has put Republicans on the defensive nationally. Under Roe, such a ruling never would have happened or wouldn’t have been enforceable if it did, but after Dobbs it’s open season.
In the case of mifepristone, if SCOTUS dismisses the plaintiffs’ lawsuit for lack of standing, it still can be argued again and it will. Mifepristone has been used by millions of women since it was first approved in 2000. Statistically, in a group that big, the odds that someone was hospitalized because of it are 100%. Sooner or later, someone will be able to satisfy the standing criteria and the case will be back at SCOTUS.
It won’t just be on mifepristone where abortion will be at SCOTUS again. Six states have passed laws allowing for doctors there to prescribe abortion pills to patients in states where it’s banned. Anti-abortion groups and some states attorneys general are looking at challenging those laws in court. I am not sure how they have standing to sue, but someone will have it sooner or later and it will be at SCOTUS at some point.
2024 stakes
It would be a big understatement to say there is a lot at stake when it comes to abortion this November. Trump and most other Republicans have tried to talk as little about it as possible. Behind the scenes, though, it’s a different story. As I mentioned in a piece last year, the Heritage Foundation is already collecting resumes to staff the Trump Administration if he wins. The effort is referred to as Project 2025. It’s everything from your worst nightmares.
It entails hiring MAGA true believers for the lower level staff jobs that do the nitty-gritty work of carrying out laws and have some wide leeway in deciding how far to take things. On abortion, the plan is to aggressively use the Comstock Act. I mentioned that law in the piece I wrote about mifepristone, but it’s worth going over again here. It’s a law passed in 1873 that was named for and championed by a crusader against contraception and anything that would advance newfound sexual freedom. It has a horrible history and was frequently used against women’s rights activists in the early 20th century.
It has largely been dormant since the 1960s, but is still on the books. One lawyer who was involved in Texas’ efforts against abortion has said there is no need for a national ban when the Comstock Act is available. The law has played a big role in the efforts to get SCOTUS to take mifepristone off the market. True believing MAGA appointees at the FDA could try to invoke it to take mifepristone off the market.
The Comstock Act could also be used to go after abortion providers across the country. It could be used to try to ban the transportation of abortion pills or products used in providing abortions. If abortion pills can’t be pulled altogether, appointees at the FDA could try to revoke their being available via telemedicine.
For all the attention bans at X number of weeks get, no national ban is likely to get passed even if Trump wins and Republicans keep Congress. They would have to eliminate the filibuster, which is not going to happen. The biggest federal threat to abortion rights comes from executive actions, not Congress or even courts.
There is a good reason why anti-abortion groups, Trump and other Republicans are keeping quiet about what they want to do. That’s because it’s toxically unpopular. Most of them are smart enough to know that if they publicly pushed for it and campaigned on it, they would lose. Trump is hardly brilliant, but he has better instincts on most issues than almost all other Republicans do.
Whether executive actions against abortion would be successful, I don’t know. Any action taken by the FDA against mifepristone would be immediately challenged in court. The same is true for any other actions taken that invoke the Comstock Act. I have no doubt that no matter what lower courts say, SCOTUS will take it up. Like I said, Dobbs was only the beginning of abortion litigation.
The task Biden and other Democrats have in front of them is to let everyone know about the threat to abortion another Trump term poses. I have no doubt there will be a big effort by the Biden campaign and supporting groups to emphasize the stakes of this election. The good news is they have plenty to work with. Most people don’t associate Trump with reversing Roe. He has openly bragged about it, but most people aren’t paying attention right now. Hundreds of millions of dollars of attack ads should change that.
There are some swing states that protect abortion like Nevada and Michigan. There are others where it’s legal and popular like Pennsylvania. In those states, I suspect many people think the issue is settled and they have nothing to worry about. They will have to be shaken out of that false comfort.
Democrats downballot will have to do the same and it’s a big opportunity. The Republican majority in the House depends on keeping seats in California and New York. In those states, abortion is protected and so Republicans there have largely been spared from the backlash to Dobbs. National action taken against abortion will threaten it everywhere. Even though a national ban is unlikely to pass, it’s widely supported among congressional Republicans.
The Republican Study Committee, a group representing around 80% of House Republicans, put out a policy proposal that has mostly gotten attention for pushing to raise the retirement age for Social Security eligibility. What has gotten less attention is the group’s endorsement of a national ban on abortion from conception. That is something every Democrat running against a Republican in a blue state should pound them with.
The pro-choice advocacy world is still not great
I am frequently critical of the left-wing advocacy world and that includes the national pro-choice groups (the national groups). In their case, though, I am a lot less worried than I was when Roe was reversed. A worry I had was that the national groups were so ensconced in their own little world that they wouldn’t realize how bizarre, cringy and off-putting the way they tend to talk about abortion is. I was afraid their self-destructive tendencies would undermine the pro-choice cause in the states where the battle was being fought.
Those worries have so far proven to be wrong. It’s not that the national groups have rediscovered sanity. It’s that they have very little relevance outside of parts of New York, DC and a few other places. On the state level, particularly when it comes to ballot initiatives, it has been people in those states who have led the efforts in favor of pro-choice amendments and against anti-abortion amendments. The messages those groups have used have been well-suited to their states and a far cry from what the national groups would emphasize.
In campaigns for national and state offices, Democrats have avoided talking like the national groups. In virtually every competitive race held since Dobbs where abortion has been an issue, the Democratic candidate has won. It happened again on Tuesday when a Democrat won a state house seat in Alabama after campaigning heavily on abortion and IVF and sharing her abortion story.
Unlike environmental groups, the national groups have not undermined Biden. They are well aware of the stakes of the upcoming election and are 100% behind him. They have differences with Biden, but, to their credit, are putting all that aside for now. Still, I have issues with what the national groups are aiming for and am dismayed that some of their state level counterparts are eager to snatch defeat from the jaws of victory.
The differences the national groups have with Biden are rhetorical and substantive. On abortion in general, Biden is a reluctant fighter, which is why I think he’s a great messenger for the pro-choice cause. I say that because there are many voters who have moral issues with abortion, but don’t think it should be banned. Biden will often say something along the lines of, “As a Catholic I don’t like abortion, but Roe v Wade was right.” That’s not an uncommon sentiment and it’s those kinds of voters who need to be convinced of what is at stake in the election and to prioritize voting on abortion.
The national groups hate that rhetoric because they believe abortion is 100% morally right. There are no ambiguities and they don’t feel ambivalent about it in the slightest. I agree with that position, but I’m not someone who needs to be convinced to vote for Democrats. The way the national groups talk about abortion is designed for preaching to the choir, not for reaching swing voters who decide elections.
On substance, Biden’s position is to federally codify Roe v Wade. The national groups want to go even further. Contrary to what some think, Roe never said the right to abortion was absolute. It was very permissive and allowed for almost all abortions to happen, but it didn’t say there could never be any limits on abortion under any circumstances. The position of the national groups is that abortion should have no limits.
There are some state level pro-choice groups who have that position and it’s becoming a big problem. For example, in South Dakota, there is an effort to collect enough signatures to get a measure on the ballot that would be almost as permissible as Roe was. The state Planned Parenthood and ACLU are both opposed to it because it doesn’t go far enough. Reading that makes me want to jump out a window.
In Missouri, there is an effort to get a measure on the ballot that would be just like what was passed in Michigan and Ohio. Initially, the state Planned Parenthood opposed it because it didn’t go far enough, but they have since pulled their heads out of their asses and are now in favor of it. Right now, Missouri has a total ban on abortion.
Like Missouri, South Dakota also has a total ban. If the measure gets on the ballot and is approved, it would permit close to 99% of abortions. Apparently, some groups would rather have 0% of abortions be legal than 99%. Given how red of a state South Dakota is, it’s a small miracle that such an initiative has any chance at all. South Dakota is not Michigan, Ohio or even Kansas. It voted for Trump by more than 25 points both times.
Getting the measure approved will require an all-hands-on-deck effort. That was what happened in Michigan and Ohio. In South Dakota, the vote will likely be much closer and the pro-choice side can’t afford any big defections. Having two of the biggest pro-choice groups in the state opposing their efforts will probably make the measure’s odds of passing a lot lower. The alternative to the proposed measure passing isn’t pro-choice paradise, it’s a total ban on abortions. Those groups better wise up fast.
[i] Guttmacher is a pro-choice group, but the team there does great research and produces solid data that is widely cited by people on both sides of the abortion debate.
[ii] The other judge partially dissented and would have revoked mifepristone’s approval entirely just like the hack judge in Texas did. In his partial dissent, he wrote that doctors have standing to sue against mifepristone because they get an aesthetic pleasure from looking at ultrasounds of fetuses and abortion deprives them of that. Seriously, he really wrote that.
[iii] By the plaintiffs’ logic, a doctor who treats gunshot wound patients should be able to sue to get all guns banned. That’s flatly ridiculous and no court would ever agree with it, but it’s no different from what the hack judge in Texas and the Fifth Circuit accepted.