Trump Remains Silent On SCOTUS Abortion Pill Case, But His Fingerprints Are All Over It
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Access to abortion pills has dominated national headlines this week, as the Supreme Court heard a case that could roll back critical access to mifepristone, one of the two drugs used in medication abortion.
President Joe Biden pointed to the case on Tuesday as a reason for voters to reelect him in November. Democrats used it to remind Americans that Republicans are actively trying to pass a national abortion ban. In an amicus brief, 145 Republicans made it clear they want the Supreme Court to slash access to mifepristone. And national anti-abortion organizations applauded the plaintiffs in the case and urged the court to restrict the drug.
But presumptive GOP presidential nominee Donald Trump has remained silent on the Supreme Court case. Trump’s campaign did not respond to HuffPost’s multiple requests for comment on whether the former president supports restricting access to mifepristone.
The decision to stay quiet likely has something to do with the Republican Party’s recent realization that rolling back reproductive rights, including abortion care and in vitro fertilization, is thoroughly unpopular. It’s no longer politically expedient for Republicans to center their campaigns on restricting abortion ― and Trump knows that.
However, despite his best efforts to appear uninvolved in the mifepristone case, Trump’s fingerprints are all over the attack ― in particular, the many “beautiful judges,” in his words, whom he put on the federal bench during his four years in office.
Most Americans know that the former president appointed the three conservative Supreme Court justices who were central in overturning Roe v. Wade in 2022. Trump used to brag about it all the time. But Trump and his allies also engineered the mifepristone case, hand-picking the anti-abortion judges who moved a case with no standing to the highest court in the country.
In 2019, Trump nominated and confirmed U.S. District Judge Matthew Kacsmaryk, a devout Christian with extreme anti-abortion beliefs, to a federal district court in Amarillo, Texas. Although legal experts say the arguments in the mifepristone case are weak, Kacsmaryk ruled that the Food and Drug Administration “manipulated and misconstrued” parts of the mifepristone drug approval process in order to “greenlight elective chemical abortions on a wide scale.”
Kacsmaryk suspended FDA approval of mifepristone, using terms like “unborn child,” “chemical abortion” and “abortionist” throughout his decision, all of which echo anti-choice rhetoric.
When the Biden administration appealed, the case was handed over to the 5th Circuit Court of Appeals, where two of the three judges on the panel were appointed by Trump. The panel partially upheld Kacsmaryk’s decision, ruling that mifepristone should be restricted from its current approval window of 10 weeks to seven weeks. The panel’s decision also ended telehealth visits where abortion pills are prescribed.
One Trump appointee, U.S. Circuit Judge James Ho, wanted to go further, fully siding with Kacsmaryk’s decision to repeal the FDA’s mifepristone approval, which would effectively ban regulated use of the drug. Ho argued that doctors “delight in working with their unborn patients, and experience an aesthetic injury when they are aborted.”
Both Ho and Kacsmaryk claimed it was illegal to send medication abortion through the mail because of the Comstock Act, a 150-year-old law that criminalizes sending “obscene” materials in the mail, including items that relate to sexual health and contraception. The archaic law has not been in effect for a century or so, but the anti-abortion movement wants to resuscitate the law to enact a nationwide abortion ban without having to pass new legislation.
Comments from Supreme Court Justices Samuel Alito and Clarence Thomas during Tuesday’s oral arguments signaled to anti-choice groups that they have at least two friends on the court if they pursue a lawsuit to enforce the Comstock Act. A decision in the mifepristone case will likely be handed down in late June.
When Trump was in the White House, he and his administration appointed and worked with some of the nation’s most extreme anti-choice leaders who are now trying to ban abortion nationwide. His administration tried to limit access to medication abortion during the COVID-19 pandemic, asking the Supreme Court in 2020 to reinstate a requirement that would force women to obtain abortion pills in person.
The former president recently confirmed that he is considering support for a national abortion ban if reelected. And he’s working with many of the same anti-abortion leaders from his first administration, who have laid out a policy agenda that includes revoking FDA approval of mifepristone and reviving the Comstock Act.
Mifepristone has been used by nearly 6 million Americans since the FDA approved the drug in 2000, according to the agency. The medication, generally prescribed as part of a two-drug regimen alongside misoprostol for abortion and miscarriage care, is over 95% effective and safer than Tylenol. More than 100 studies have corroborated the drugs’ safety and effectiveness. Mifepristone and misoprostol used together account for 63% of abortion care in the U.S., according to a recent study from the Guttmacher Institute.
