On March 26, the Supreme Court heard oral arguments in a case regarding access to mifepristone, more commonly known as the abortion pill. Mifepristone, also prescribed in miscarriage care, is used in the majority of abortions in the U.S. and has been approved for use for the last 20 years. During the Covid-19 pandemic, accessibility to mifepristone increased, and allowed for accessible abortions for working class women who cannot spend days away from their jobs or children to seek abortion care.
Mifepristone is safe and widely used. That the Supreme Court even heard this challenge demonstrates the right-wing character of the U.S. judicial system. One year ago, in a ruling that has been described as a “backdoor ban on abortion,” far-right, Trump-appointed Texas judge Matthew Kacsmaryk banned access to mifepristone nationwide. One hour after Kacsmaryk issued his ruling, Judge Thomas Rice in Washington state issued a conflicting decision that would lift “unnecessary and burdensome” restrictions on mifepristone imposed by the FDA in January. The conflicting rulings led to a temporary allowance for the continued use of mifepristone by the Supreme Court, which has now led to the current Supreme Court hearing.
The Supreme Court is not a democratic institution. Nine unelected judges, appointed for lifetime terms, proved this when they overturned Roe v. Wade in the Dobbs decision. In temporarily safeguarding mifepristone, they did the bare minimum for human rights by blocking a decision that should not be coming before the Court. The Court should have dismissed Kacsmaryk’s decision outright rather than staying it pending further review. And even though the decision was stayed, access to abortion pills was still limited to those states where abortion is legal.
When seeking a ban on mifepristone, anti-abortion groups went “judge shopping” to find someone who would take their case and rule in their favor, leading them to Kacsmaryk. Although the Supreme Court is clearly culpable in attacks on democratic rights, it is in fact the entire judicial system that is corrupt.
Medication abortion is used in two thirds of abortions nationwide, with 16% of abortions provided through telehealth. If the Supreme Court upholds Kacsmaryk’s decision, access to mifepristone would be highly restricted, blocked from telehealth and distribution at pharmacies even in states where abortion is legal. The result would be disastrous for women and others seeking abortion care. This attack on healthcare, a basic human right, would add to the many democratic rights that the Supreme Court has recently stripped away.
Mifepristone is typically taken in conjunction with misoprostol, and together they are more than 95% effective in terminating pregnancies up to ten weeks. If mifepristone is banned, medication abortion and miscarriage care are still possible using only misoprostol, but it will require providers to change their prescribing practices, conduct extensive education, and potentially cause more side effects for patients. The Supreme Court, with no medical training whatsoever, has unchecked power over trained medical professionals. Additionally, a ban on mifepristone would also set a precedent against the FDA’s expert authority over drug approvals, especially for those which may be perceived as “controversial.”
It doesn’t have to be this way. The Party for Socialism and Liberation’s presidential candidates, Claudia De la Cruz and Karina Garcia, speak to a society that puts people first. Their Vote Socialist 2024 campaign platform explains: “Abortion should be available without restrictions and provided for free so that women and all people have the right to control their own bodies.” The platform continues, “The Democrats refused to take any of the many opportunities they had – including the period between the 2020 and 2022 elections – to pass a law at the federal level legalizing abortion. We need such legislation immediately, along with other measures to ensure abortion services are available on demand regardless of income.”
At this point the Supreme Court’s response to the oral arguments challenging the Food and Drug Administration’s regulation of mifepristone indicates that they are unlikely to ban mifepristone. However, even if they do the bare minimum and uphold access to this necessary medication, the fact that they have taken this case at all signals a willingness to hear more abortion ban cases. The right to abortion, a basic human right, will continue to be precarious.
Throughout the oral arguments, much was made of the Comstock Act. The Comstock Act of 1873 outlawed sending “obscene, lewd or lascivious,” “immoral,” or “indecent” publications through the mail, and is now once again being used as an argument against sending the abortion pill through the mail. The discussion around the Comstock Act indicates that it might be a way for right-wing forces to ultimately achieve banning medication abortion. This 151 year old law is threatening our basic human rights. Congress could have taken action to repeal this legislation but never did.
The Supreme Court is not the only one to blame. The Biden administration has previously stated that “the only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a Congress who will pass a law restoring Roe versus Wade.” These empty words add insult to injury when part of the reason we are facing this crisis is due to the Democratic Party’s failure to codify the right to abortion, despite having had plenty of opportunities to do so over the years.
Abortion rights are supported by the vast majority of Americans. History tells us that if we want to preserve these rights, we need to fight back. Mass struggle is the only proven pathway to protect our human rights. We need a militant women’s movement in the streets if we are to defend the right to abortion care as a human right. We won’t go back!
