We look at the state of abortion access in the United States with The Nation's Amy Littlefield as the Supreme Court is expected to weigh in on a ruling set to take effect Saturday that effectively overrides the Food and Drug Administration's two-decade-old approval of the medication abortion pill mifepristone. Her most recent piece is headlined “A Conservative Christian Judge Rules Against Medication Abortion. How Hard Will Democrats Fight Back?”
AMY GOODMAN: We begin today’s show looking at the status of abortion access in the United States. Less than a year after the Supreme Court overturned the constitutional right to abortion in Roe v. Wade, it’s expected to weigh in today on a ruling set to take effect Saturday that effectively overrides the Food and Drug Administration’s 20-year-old approval of the medication abortion pill mifepristone. This comes after the 5th Circuit Court of Appeals Wednesday partially blocked last week’s ruling by a Trump-appointed federal judge in Texas that banned the pill nationwide. It upheld parts of the decision that will only allow patients to access the pill through a doctor’s office or clinic, and not through the mail or over the counter.
Meanwhile, in Washington state, U.S. District Judge Thomas Rice has rebuffed Wednesday’s appeals court ruling, saying the drug is to remain available, restriction-free, in 17 states and the District of Columbia, following his ruling last Friday ordering the FDA to not roll back access to mifepristone, as a result of a lawsuit brought by the attorneys general in those 17 states and D.C.
Protests to save abortion are planned across the country this weekend, including in Florida, where Governor Ron DeSantis has just signed a six-week abortion ban into law that will take effect if Florida’s current 15-week ban is upheld at the conservative-controlled state Supreme Court, where it’s being challenged.
For more, we’re joined by Amy Littlefield. She’s the abortion access correspondent at The Nation. Her most recent piece, “A Conservative Christian Judge Rules Against Medication Abortion. How Hard Will Democrats Fight Back?”
Before we go to the nationwide battle, Amy Littlefield, although they’re all connected, let’s go to the latest that’s just taken place in Florida, Ron DeSantis signing yesterday a six-week abortion ban. Talk about what this means.
AMY LITTLEFIELD: Yes. And first, I just want to say, Amy, happy belated birthday! And I wish that we were here celebrating, and not staring down the ghost of Anthony Comstock and the looming possibility of a nationwide abortion ban.
But you’re right to start with Florida, because that is absolutely essential. If you look at the map of abortion access in this country, Florida is almost an island in the South. In the six months after the Supreme Court overturned Roe v. Wade, no state saw a higher rise in abortion patients traveling to the state for care than Florida. There were more than 7,000 additional abortions that happened in the state after the Dobbs decision compared to before, over that six-month period. And so Florida has been a haven for abortion patients all across the South.
And the fact that they now have this six-week ban is going to have a ripple effect across the entire nation, because we’re going to see people pushed further and further out. We’re going to see wait times extending at clinics all across the country in order to meet the need of this surge in patients. And, of course, there will be an untold number of people who resign themselves to unwanted pregnancies because of this.
JUAN GONZÁLEZ: And, Amy, could you talk about the — what happened on Wednesday with the three-judge panel in the 5th Circuit Court of Appeals in Texas partially upholding a nationwide ban on mifepristone that a federal judge issued there, and what that order is going to look like on the ground?
AMY LITTLEFIELD: I think that is the big question, Juan. And the reigning sentiment right now, among abortion providers, among legal experts, is confusion, because we don’t have a script for something like this, for a judge trying to revoke the government agency in charge of reviewing drugs, you know, trying to roll back decades of scientific advancements and approvals.
And so, as best we can tell, what happened, you know, to recap, a rogue judge in Texas tried to revoke the FDA’s 23-year-old approval of mifespristone last Friday, and then, in the middle of the night, overnight on Wednesday, two Trump appointees, who are among the most conservative judges in our country, looked at that ruling and said, “OK, even we think that Judge Matthew Kacsmaryk went too far here. You can’t reach back 23 years and revoke the approval of a drug like this. The statute of limitations does not allow that.” But what they did do is try to roll back the clock to a time before 2016 when the FDA’s regulations required people seeking medication abortion to go to a clinic in person three times to take a higher dose of the drug, that causes more side effects, that capped the gestational age for medication abortion at seven weeks instead of 10 weeks, and that required doctors, rather than nurse practitioners or physician assistants, to prescribe it. So they’re trying to reinstate this reality. If the 5th Circuit gets their way, that’s what will happen. Now, of course, there’s mitigating factors, including the fact that even during that time period when those regulations were in place, there was off-label use of mifespristone that allowed people who were through 10 weeks to get access to medication abortion.
So, we don’t know how the FDA is going to respond to whatever ruling ends up coming from the Supreme Court. What we do know is right now nothing has changed, because these orders are not in effect. Medication abortion is still available in states where it was legal, and unavailable in states where it’s illegal, unless you’re going to go to PlanCPills.org and look for ways to reach around those legal channels. And all eyes are on the Supreme Court, and defenders of abortion rights are in the highly unenviable position of relying on the Supreme Court and its three Trump nominees, who were put on that court precisely to undermine abortion rights, to save abortion access in America. There’s another —
JUAN GONZÁLEZ: And at this point —
AMY LITTLEFIELD: — really important piece — yeah, go ahead.
JUAN GONZÁLEZ: No, no, go ahead. I’m sorry.
AMY LITTLEFIELD: I was just going to say there’s another really important piece that you’ve already covered on the show, and that’s the ghost of Anthony Comstock that is hanging over all of this. And I’m glad you had Lauren MacIvor Thompson on the show. It’s amazing that we need a 19th century historian to explain the state and future of abortion rights in America. But both Judge Matthew Kacsmaryk’s ruling and the 5th Circuit ruling that came out overnight on Wednesday pay credence and seem to support the reinstatement of the Comstock Act to be used in stopping the mailing of medication abortion drugs. And that could be catastrophic. And if the Supreme Court supports that idea, it would be tantamount, potentially, to a nationwide ban on abortion, including in blue states, because it’s very hard for clinics to operate if they can’t use the mail.
JUAN GONZÁLEZ: And you mentioned the Supreme Court. How likely is this to get there, and how quickly do you envision it getting to the court?
AMY LITTLEFIELD: Right. It could happen very fast, because the Biden administration — you know, we have this situation where there’s conflicting rulings. The 5th Circuit Court of Appeals has said one thing. A judge out of Washington state has said in 17 states and Washington, D.C., the FDA may not impose any new requirements. And so the FDA is facing these two conflicting rulings.
And so, I think what abortion rights advocates are hoping is that the Supreme Court is going to act between now and Saturday, before the 5th Circuit ruling would take effect, in order to preserve access to mifespristone and medication abortion. That’s sort of the best-case scenario. Of course, we don’t know what the Supreme Court is going to say. But even if they do come in and save the day here when it comes to medication abortion, I think everyone should be paying very close attention to what they say on the 1873 Comstock Act and whether they think that it could apply to the mailing of medication abortion drugs and devices.
AMY GOODMAN: Amy, on Thursday, Democracy Now! reached Francine Coeytaux, the co-founder of Plan C, which provides information on how people in the U.S. are accessing at-home abortion pill options online.
FRANCINE COEYTAUX: If you’re person, just a person who can afford to go online and purchase the pills, go online, purchase them, put them in your medicine cabinet and share them with friends. Tell people about it. Make sure you have access to these pills. There are many routes of access, and our Plan C website will tell you how to do, wherever you live, what your access to these very safe and very, up until today, legal pills.
If you’re a clinician, continue to do what you can to provide and, you know, do the best you can.
If you’re a lawyer, step up and fight this undemocratic attack on use of the judiciary to try to literally rape all sorts of conventions that are really so undemocratic, it’s hard to believe they’re happening.
If you’re an activist, get out in the streets and talk about this. Do your bit. Everyone needs to step up. I think this is a moment in time, and we all have a role. And this will not be taken away, because it’s really an attack on our agency, on our rights, on our human autonomy.
AMY GOODMAN: Again, that’s Francine Coeytaux, the co-founder of Plan C, which is a play on Plan B, the morning-after pill. But this follows up on a quote of yours in your piece, Amy, from Amy Hagstrom Miller, founder of Whole Woman’s Health, saying, “I don’t think the courts are the only path for justice; that comes from somebody who sued the state of Texas 11 times. We can’t be too naive to think that the only path for justice here is going to be in the courts.” So, what are the other options? And we’re going to end with that, Amy. We’re at a point — right? — where about a dozen states have outlawed abortion. Talk about the grassroots movement and what difference that can make in this country.
AMY LITTLEFIELD: Right. I mean, the grassroots movement here is huge. And just because you’re not hearing about it doesn’t mean it’s not happening. That can be intentional, right? Aid Access has seen a huge surge in people seeking advance provision, meaning ordering medication abortion kits so that they have them on hand in case they need them or need to give them to a friend. All of the different telemedicine services have seen a surge in interest and questions about getting medication abortion ahead of time. So people are preparing to help each other, to help their neighbors, to be ready. And those grassroots networks are huge. And sometimes they’re through the legal channels, like abortion funds that are paying for people’s flights, are doing airlifts, are getting people to abortion clinics. And sometimes they’re underground and less formalized, and they have to do with, you know, bringing pills in from groups like Las Libres in Mexico or ordering them from overseas through channels like PlanCPills.org. And providers like Amy Hagstrom Miller have been out front, saying, “Look, whatever the court is going to do here, we’re going to wait to hear from the Biden administration, because we take our orders from the FDA.”
So, I’ve got one final thing here that can happen, which is for Democrats, right? I mean, we’ve seen Democratic officials at the state level, in states like California, Washington state, Massachusetts, New York, stockpiling medication abortion pills. For Democrats in Congress, I’ve got something you can do today. Introduce legislation to repeal the Comstock Act. Even if it doesn’t pass, put every Republican in Congress on record trying to resuscitate the ghost of a man who wanted to ban contraception and boasted of driving his targets to suicide with his anti-obscenity crusades. Bring Anthony Comstock back. Let’s have a public airing about his legacy, because Republicans understand they can’t ban abortion nationwide unless they’re able to resuscitate this law from 1873. And that’s what they’re trying to do. So, Democrats, you know, if they needed a plan on abortion, here, I’m giving you a plan. Try this. Repeal the Comstock Act, because that is the strategy for anti-abortion activists moving forward, and these lawsuits are clear evidence of that.
AMY GOODMAN: And, of course, Amy, there are Republicans who also are pro-choice, like Congressmember Mace.
AMY LITTLEFIELD: Right, of course. And we need to hear from them, and we need to hear — have a full airing, because abortion rights are popular. Right? They’re popular across party lines. Referendum after referendum has shown us that. The Wisconsin state Supreme Court election just showed us that, right? And so, anti-abortion strategists are trying to go through these back channels, using conservative courts that have been stacked with Trump appointees. And the more that we can talk about this in public, the better.
AMY GOODMAN: Amy Littlefield, abortion access correspondent at The Nation. We’ll link to your piece, “A Conservative Christian Judge Rules Against Medication Abortion. How Hard Will Democrats Fight Back?”
Next up, we go to Ireland as President Biden is there marking the 25th anniversary of the Good Friday Agreement that ended more than three decades of fighting in Northern Ireland. Stay with us.
AMY GOODMAN: “Wrath of My Madness” by Queen Latifah. This week, she become the first female rapper to be inducted into the Library of Congress’s National Recording Registry for her 1989 album, All Hail the Queen.