“A New Jane Crow”: Abortion Advocates Brace for Supreme Court Ruling That Could Ban Mifepristone
Written by GRB on 21/04/2023
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman.
On Wednesday, the Supreme Court pushed back their decision on the abortion pill mifepristone until Friday, keeping the country’s most popular abortion method available for at least another day as the court reviews a ruling earlier this month which banned the drug. The Center for Reproductive Rights said the court, quote, “should have issued a stay … but instead, the Court continues to delay any action. In the meantime, abortion providers and their patients across the country have been living in chaos, unclear if they’ll still be able to prescribe and access this critical medication,” unquote.
The Justice Department and drugmaker Danco Laboratories warned the court if it does not step in, the supply of the medication could end almost immediately. They say one version of the medication would be considered misbranded, and the generic version would be rendered unapproved. This week, the maker of the generic version of mifespristone sued the FDA in a bid to keep the drug on the market, no matter what the court rules.
The original April 7th ruling in the fast-moving case was by the Trump-appointed U.S. District Judge Matthew Kacsmaryk, a longtime abortion opponent and activist. The Supreme Court’s orders on Wednesday were issued by Justice Samuel Alito, who also wrote the decision in the Dobbs ruling last year that ended the constitutional right to abortion, overturned Roe v. Wade.
For more on all of this and the fight to keep abortion legal and accessible, we’re joined by two guests. In Wichita, Kansas, Julie Burkhart is with us. She’s president of Wellspring Health Access and co-owner of Hope Clinic. She worked for eight years with the abortion provider Dr. George Tiller before he was assassinated in church in 2009. Last May, her clinic, which was set to open in just weeks, was firebombed by an anti-abortion arsonist. Her recent piece for Salon is headlined “I own the only abortion clinic in Wyoming: Post-Roe America is a tragedy, and an opportunity.”
We’re also joined by Michele Goodwin, visiting professor of law at Harvard Law School and founding director of the Center for Biotechnology and Global Health Policy. She hosts the Ms. magazine podcast On the Issues with Michele Goodwin and is the author of Policing the Womb: Invisible Women and the Criminalization of Motherhood. Last year, she wrote a guest essay for The New York Times headlined “I Was Raped by My Father. An Abortion Saved My Life.”
We welcome you both back to Democracy Now! Michele Goodwin, let’s begin with you. Start off with what this temporary stay — well, the first one was temporary, until this past Wednesday, and now until Friday. What does this stay mean?
MICHELE GOODWIN: Well, this stay could mean that the court is still deliberating. It could mean that there are justices that are drafting dissenting opinions, concurring opinions. We don’t know.
But it means something more, which is that mifespristone is still available. It is still available under the conditions that were set by the FDA prior to Judge Matthew Kacsmaryk’s opinion. That is the judge in Amarillo, Texas, that decided that mifespristone should be removed from the marketplace, basically siding with the petitioners, who claim that the drug was rushed to the market and that it was unsafe.
It’s worth noting, Amy, as you’ve discussed before, that this is a drug that was under review for 54 months when it was put on the marketplace in 2000. To put that in comparison with other FDA-approved drugs in that same period, they were reviewed for about 15 months. And then, secondly, the claims that it is an unsafe drug really is quite unfounded. When the FDA did approve mifespristone to be in the marketplace, it had already been used in Europe for decades. And we know, through decades of research since 2020 — or, since 2000, excuse me, when it was placed in the marketplace, that it is a drug that has lower morbidities than Tylenol, than Viagra, than penicillin.
So, we don’t know what the Supreme Court will do on Friday, but one more point with this is that there are over 200 drug manufacturers that have signed a letter expressing their deep concern about the ruling that came out of Amarillo, Texas, because it could affect more than just mifespristone and drugs related to reproductive health. It could be virtually any drug that is petitioned to be removed from the U.S. marketplace.
AMY GOODMAN: So, Michele Goodwin, talk about Samuel Alito and his role. I mean, this came under his jurisdiction, but Justice Alito is well known as the man who is the author of the Supreme Court decision overturning Roe v. Wade. So, what it means that he was the original person who extended the stay and now has done it again?
MICHELE GOODWIN: Well, it’s hard to read the tea leaves with that, but you make an excellent point, which is that Justice Alito authored the decision in Dobbs, that June 24th, 2022, decision, just less than a year ago, that overturned Roe v. Wade and Planned Parenthood v. Casey. Planned Parenthood v. Casey was a 1992 decision, and Roe v. Wade, 1973, so we’re talking about decades of precedent then rendered virtually meaningless through the Dobbs decision.
You know, it’s worth noting that the Dobbs decision was a case that came out of the state of Mississippi, where there had only been one abortion clinic, and in that state, if you’re a Black woman, you’re 118 times more likely to die by carrying a pregnancy to term than by having an abortion.
But Justice Alito’s opinions in this domain must also be linked to the Burwell v. Hobby Lobby decision, which is one that challenged the mandate through the Affordable Care Act that contraceptives would be available. And Justice Alito authored that decision, too, which basically meant that employers who claim some religious objection to contraception could deny that to their female employees.
So we see a trajectory of cases with Justice Alito that side against reproductive health rights and justice, but we don’t know exactly what the court will do in this particular case, particularly given that drug manufacturers have spoken out.
And one last point is that in the Dobbs decision, the court said that these matters would be returned to the states, that the laboratories of democracy are in this states, and that if people want access to abortion, then that’s the place in which these issues should be settled. By Judge Kacsmaryk’s order, that basically flies in the face of the Dobbs decision, meaning that if his order were allowed to stand in states like California, Illinois, New York, mifespristone would no longer be available for this use, therefore making hash of what the Supreme Court issued just last year.
AMY GOODMAN: Michele Goodwin, what do you think of congressmembers like AOC, Alexandria Ocasio-Cortez, saying that the Biden administration should simply ignore this ruling? What are the grounds for this?
MICHELE GOODWIN: Well, you know, right now — she’s not alone. There are also doctors that are articulating just how distressing this happens to be. So, if we set the ground a bit more, which I think is really important, the United States is the deadliest place in all of the industrialized world to be pregnant. It’s alarming. And I know for many Americans, that is shocking. But we rank somewhere around 55th in the world in terms of maternal safety. That is, it’s far safer to be pregnant and to have a child with dignity in countries that have been recently war-torn. In the United States, the Supreme Court conceded in 2016 in a case, Whole Woman’s Health v. Hellerstedt, that a woman is 14 times more likely in the United States to die by carrying a pregnancy to term than by having an abortion.
So, what does this then mean for doctors, not just AOC? For doctors in states across the country now that have banned abortion, they face, such as in Texas, 99 years’ incarceration, $100,000 in fines, losing their medical license to practice, if in fact they are found to have tried to save a woman’s life at a point before she was very, very close to death. And this is relating to a lawsuit that is right now in the state of Texas brought by five women who were not necessarily pro-choice — in fact, some articulated anti-abortion views — but it turned out that they would need abortions to save their lives. And in times that were most critical, with sepsis setting in, with one woman gestating twins, but one of the twins dying, and that causing health effects for her and also the other fetus — in those instances, doctors in Texas felt that they were handcuffed, that they could not respond to the urgent needs of their patients. And so, what we hear from doctors, what we hear from AOC, is that something must be done now. This is a time that is much like Jim Crow. It is a new Jane Crow in the United States, where there are free states and there are those where people no longer have access to bodily autonomy.
AMY GOODMAN: You have now the leading pharmaceutical companies in this country signing a letter talking about the danger to not just mifespristone, but to all drugs, and the idea that a judge is overruling scientists at the FDA, Michele. Professor Goodwin?
MICHELE GOODWIN: Yes. Yes. Well, that is a very deep concern and worry. Let’s be clear: We’re still in a pandemic. But note that over the last three years now there have been people who have denied that there is such a thing as COVID, that there is a pandemic. There are people who have been pressing that COVID vaccines be taken out of the marketplace. There are people who have moral opposition to vaccines. There are parents who do not want to vaccinate their children against smallpox. You can imagine that those types of individuals could also then petition a judge, that they select, that they know might have similar views, and petition that judge in order for those types of drugs to be removed from the marketplace, as well.
Now, years ago, that might have seemed to be something extreme and that would never happen in the United States. But we’re in a critically unusual time, where a case such as this has now reached the Supreme Court. And what that does mean is the potential for other kinds of petitioners to come forward who are against other prescription medications. And in some ways, when you look at the Burwell v. Hobby Lobby decision, there is an aspect of that that has already been visited by the Supreme Court.