The Supreme Court tackles abortion again. How much will it hurt Republicans in 2024?
Op-Ed
Jackie Calmes March 24, 2024
To the dismay of Republicans, and the advantage of Democrats, abortion rights remain a high-priority issue for voters nearly two years after the Supreme Court ended a half-century of constitutional protection nationwide. That should come as no surprise.
The topic has rarely been out of the news since the Dobbs decision, what with all the coverage of red states bans, voters backlash and horror stories of women denied healthcare or forced into unnecessary procedures, costs and travel to get the care they want or need. An Arizona state senator made national headlines in recent days
[Monday 3/18]
after describing the invasive sonogram and erroneous lecture on abortion alternatives that she had to endure before she could end a pregnancy that wasnt viable actions prescribed by state law, not her doctor.
The drumbeat of real-life testimonials and political controversies wont let up between now and November. It could well get louder: The Supreme Court on Tuesday will hear arguments in the most significant abortion case since Dobbs, weighing whether to restrict mifepristone, one of two drugs used in medication abortions, now the way most pregnancies are terminated.
The court takes up the case just days after the pro-reproductive rights Guttmacher Institute reported that the number of abortions in the United States was more than 1 million in 2023, the first full year since the justices overturned Roe vs. Wade despite that ruling and the resulting state bans and strict limits in nearly half the states.
That figure represents a 10% increase over 2020, the last year for which data are available.
Medication abortions accounted for nearly two-thirds of the total, 63%, up from 53% in 2020.
In other words, the antiabortion Supreme Court will now decide whether to restrict what has become the most common procedure in states where abortion remains legal, and whats virtually the only method available through the mail in states with abortion bans.
To antiabortion groups, this pill delivery amounts to a national mail-order abortion scheme that subverts their long-sought court victory, and they set out to stop it almost as soon as Dobbs was decided. Thus the case against mifepristone thats now made its way from a like-minded federal judge in Texas, Donald Trump appointee Matthew Kacsmaryk, to the Supreme Court.
At least the justices narrowed the scope of what theyll decide: Theres no chance of an outcome as noxiously sweeping as Kacsmaryks ruling, which would have removed mifepristone from the market entirely. Even for the very conservative Supreme Court, as well as for the right-wing 5th Circuit Court of Appeals before it, Kacsmaryk went too far.
In reaching his decision,
the district judge, formerly a lawyer for a Christian conservative legal group, substituted his scientific expertise none for that of the U.S. Food and Drug Administration. Way back in 2000, the FDA determined that mifepristone was safe as part of a two-drug regimen with another medication, misoprostol, to abort pregnancies up to seven weeks. By 2021, with more safety data in hand, the FDA had liberalized the drugs use so that patients up to 10 weeks pregnant could get the pills by prescription from pharmacies or by mail, without a doctor dispensing them in person.
Kacsmaryk ruled in a decision replete with antiabortion jargon about unborn humans and citations of scientific studies since retracted that the FDA should never have approved the drug in the first place. (The Texan is prime evidence for my argument that voters this year must pick a president as if the federal courts are on the ballot too,
toand
make sure Trump never again has power to pack them.) The 5th Circuit disagreed, but it upheld
Kacsmaryk’s
finding that the FDA had erred in its decisions expanding and easing the pills usage.
Now it’s up to the Supreme Court to decide whether to turn back the clock, returning to the days when abortion pills could only be administered by doctors
in their offices,
and only up to seven weeks
into a
pregnancy.
Women, including in the vast swaths of the nation that ban or severely limit abortion, could still get the second pill, misoprostol, an ulcer medicine used off-label for abortions. But
taken
alone, it is associated with more cramping, bleeding and nausea. Realistically, women in restrictive states who want or need an abortion will have to hit the road and go elsewhere.
The Guttmacher Institute report on the increase in U.S. abortions attested to how frequent that extraordinary step already is. States without bans saw a 25% increase in abortions last year, on average, compared to 2020. The increase was greatest in states bordering those with bans
.
Blue-state Illinois, neighbor to antiabortion Indiana and Missouri, had a 72% increase;
two-thirds
of its patients werent Illinois residents. New Mexico, adjacent to Texas and Oklahoma, had
257%
more abortions.
If the Supreme Court decides, again, for the antiabortion groups, those percentages will only increase. Scores of thousands more women will be forced to expend time, money and stress to travel out of state for medically approved healthcare, when for most of them, a prescription and pills taken at home is all theyd need.
It’s little wonder that
the
demand for abortion rights has been driving voters to the polls. As Justice Samuel A. Alito Jr. patronizingly wrote in the Dobbs opinion, Women are not without electoral or political power. And neither are the men who support womens freedom. A
s
in past elections since 2022,
let’s
show the justice how right he was, if only in that one regard.
