How The Far Right Engineered An Assault On Abortion Access, Even In Blue States
The Supreme Court took a sledgehammer to U.S. abortion rights two years ago, ostensibly sending it back to the states. But the campaign to dismantle abortion access continues, spurred on by a powerful network of ultraconservatives.
On Tuesday, the justices will hear arguments in a case specially designed to give them another opportunity to erode abortion access across the country: FDA v. Alliance for Hippocratic Medicine.
Since the court ruled on Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade, Americans have come to rely even more on an “abortion pill,” mifepristone, a method of ending a pregnancy that can fit through the mail and be taken from the comfort of home. The drug was already the most common drug used in medication abortions before the court’s bombshell decision, and data shows that its use has ticked up as abortion clinics shuttered across conservative-led states.
But with this case, access to mifepristone may now under threat even in states that passed measures to preserve the right to abortion.
For the conservative legal movement — a decades-long effort to legitimize right-wing legal theories that is fueled in large part by a network of dark-money groups — the dismantling of Roe v. Wade had been a pinnacle achievement, leading to short-lived questions about how to proceed.
In August 2022, a collection of five anti-abortion medical groups filed to incorporate as the Alliance for Hippocratic Medicine in Amarillo, Texas. None of the groups were based in the small city, or even the state. But anchoring the umbrella organization in Amarillo provided an excuse to file a federal lawsuit in Amarillo, where there was a 100% chance that the case would be picked up by one man: U.S. District Judge Matthew Kacsmaryk.
It’s a strategy known as “judge-shopping,” increasingly used by conservatives hoping to secure favorable outcomes by seeking out judges they believe will be sympathetic to their cause.
Former President Donald Trump appointed Kacsmaryk to the court in 2017, although it would take two years for him to be confirmed to the bench along partisan lines. Kacsmaryk’s career up to that point had already led him on a crusade against LGBTQ+ rights, in the name of Christian religious liberty. Like many of Trump’s appointees, he was a member of the Federalist Society, a bastion of the conservative legal movement.
Together with other anti-abortion plaintiffs, the Alliance for Hippocratic Medicine claimed that the U.S. Food and Drug Administration had erred in its initial approval of mifepristone back in 2000, and in its subsequent expansions of that approval. Their lawsuit, filed in November 2022, demanded the drug be pulled from the market.
“They’re not legitimate medical groups sounding an alarm. They’re ideological organizations, basically registering a website and using it to roll back reproductive rights,” Caroline Ciccone, president of the watchdog group Accountable.Us, said Thursday. “Basically, it’s a contrived coalition of extremist groups.”
The suit made a variety of false and misleading claims about mifepristone and it sought to smear the drug as one that regularly lands pregnant patients in the emergency room, where they supposedly overwhelm medical staff, even though plenty of evidence affirms the drug’s safety. In the more than two decades since its initial approval, mifepristone has been used by nearly 6 million people in the U.S., according to the FDA. It is generally prescribed as part of a two-drug regimen alongside misoprostol, and more than 100 studies have shown it to be safe and effective.
Yet the plaintiffs found a sympathetic audience in Kacsmaryk. Last April, the judge agreed that the FDA’s mifepristone approval should be invalidated with a 67-page decision that took a series of bizarre turns, at one point stating the term “fetus” was “unscientific.”
The Supreme Court subsequently took action to preserve the status quo while the case wound its way through the courts — meaning that for now, mifepristone access remains undisturbed.
The case, though, was already on its ideal path. The Biden administration appealed Kacsmaryk’s ruling, handing the case to the 5th Circuit Court of Appeals, one of the most conservative courts in the entire country. Republican presidents appointed 12 of its 17 active judges. Trump alone appointed six, including James Ho, who landed on the panel assigned to the mifepristone case.
Ho would have sided with Kaczmaryk and revoked the FDA’s mifepristone approval, a position he argued in part by claiming doctors “delight in working with their unborn patients, and experience an aesthetic injury when they are aborted.” His colleagues, however, offered a more moderate position. In August, the 5th Circuit ruled that the FDA’s 2000 approval could stand if the agency rolled back the rules it implemented in 2016 and 2021 that expanded access to the drug. It was simply too late to challenge the 2000 approval, they said.
The opinion rested in part on studies questioning the safety of mifepristone. They’ve since been retracted for shoddy science and for failing to disclose the researchers’ ties to anti-abortion groups.
As Rebecca Buckwalter-Poza, senior fellow with the progressive group Alliance for Justice, put it: “The Fifth Circuit is the most receptive circuit if you’re a far-right idealogue who doesn’t care a whole lot about facts.”
Now the case rests with a Supreme Court with six conservative justices who have already been shown to hold clear anti-abortion views.
If the high court agrees with the 5th Circuit, mifepristone will remain an FDA-approved drug. But it will only be able to be taken through the seventh week of pregnancy, rather than the 10th, and patients will not be able to obtain a prescription through a telehealth appointment. Nurse practitioners and physicians’ assistants will also no longer be able to prescribe mifepristone.
“It essentially turns the clock back to the way medication abortion was provided nearly a decade ago, ignoring scientific developments that have improved health outcomes,” said Amanda Allen, a deputy executive director with the abortion rights group The Lawyering Project.
“Mifepristone is also recommended for use in miscarriage management, and turning the clock back makes its use for this purpose nearly impossible,” Allen noted.
Such a decision would strike a huge blow to the regulatory power of the FDA, which has for decades been trusted to make science-based judgments on drugs without influence from officers of the court. A victory for the plaintiffs could potentially jeopardize all sorts of other long-approved medications.
“Alliance for Hippocratic Medicine managed to bring a case to the Supreme Court that can undermine national abortion access and the entire concept of independent FDA approval,” Ciccone said, adding that it is “completely shocking that there’s a system in place currently that this is even possible.”
Legal experts say the suit should have been stopped from the very beginning.
In order to bring a federal lawsuit, a plaintiff must generally be able to show they were harmed by the person or entity they are suing. The legal term for this is “standing.” People are not supposed to be able to sue the government over some imaginary harm they thought up — the Supreme Court even said so back in 2013, when it ruled on Clapper v. Amnesty International, a case about government surveillance of foreign nationals. The high court determined that, at the very least, plaintiffs have to be able to show harm is “certainly impending.”
The anti-abortion groups currently suing the FDA, however, argue they have standing because they might have to see a patient who seeks emergency room treatment after taking mifepristone, which would conflict with their philosophical or religious views on abortion. The expanded access to the drug the FDA allowed in 2016 and 2021 supposedly made this more likely to happen.
It’s a hypothetical injury — arguably too hypothetical.
But the lawsuit’s plaintiffs have plenty of financial resources to appeal their case up to the Supreme Court, a task that can end up costing millions of dollars in legal fees.
The Alliance for Hippocratic Medicine has the backing of the Alliance Defending Freedom, a right-wing legal group with a track record of attacking civil rights. The group was behind 303 Creative v. Elenis, the Colorado wedding website case that led the court to permit various types of legal discrimination against LGBTQ+ people.
The Southern Poverty Law Center has designated the Alliance Defending Freedom as a hate group. It gets at least some of its funding from shadowy groups like DonorsTrust, once dubbed “the Right’s dark-money ATM” by Mother Jones.
Buckwalter-Poza noted that the Alliance Defending Freedom’s size — it’s “comprised of thousands of lawyers” — allows it to simply “throw humans at the problem.”
The Supreme Court will have its say on mifepristone. New rules recently adopted by the Judicial Conference, though, could help bar similar cases from going forward in the future. Earlier this month, the oversight body for the federal judiciary took steps to crack down on “judge-shopping,” requiring certain cases to be randomly assigned to one of many judges in a district.
“It cannot be overstated how important it is that the Judicial Conference as an entity has said judge-shopping is a problem,” Buckwalter-Poza said. “But the actual substance of their response is not quite as effective as we would hope for, if there were really going to be an effort to put an end to judge-shopping.”
