Since the end of Roe. v. Wade, the abortion drug mifepristone has increasingly become a flashpoint between pro-life and pro-choice advocates. Four months after the Supreme Court rejected a lawsuit to reverse changes by the Food and Drug Administration that made the drug more widely accessible, a group of conservative states is taking another crack at bringing the issue back to court.
Abortion pills are back on the chopping block
The original lawsuit, which was filed in 2022 by anti-abortion doctors and groups, was unanimously rejected by the Supreme Court. The plaintiffs had no standing to sue the FDA because they "do not prescribe or use mifepristone" themselves and were instead trying to regulate the actions of others, Justice Brett Kavanaugh said in the court's opinion in the case. Last year, Missouri, Idaho, and Kansas petitioned to join the suit at the lower court level and were granted the status of intervenors. After the court dismissed the original case, they filed an amended complaint as plaintiffs.
The Week
Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.
Sign up for The Week's Free Newsletters
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.
The attorneys general also argued that mailing abortion pills violates the Comstock Act, a "19th-century law that's laid dormant for decades that bans the mailing of anything related to abortion," said Forbes. If they successfully convince the court, the ruling could "help anti-abortion rights advocates use that law to ban abortion more broadly." The act bans not just mailing the pills but any equipment related to abortion. It has been viewed as a "potential way for Republicans to functionally outlaw abortion without imposing a federal ban," as it would make it "largely impossible to perform the procedure."
'A nakedly political and judge-shopping ploy'
The states might have a slight edge over the original plaintiffs regarding having the standing to take on the FDA. Still, their ability to claim the FDA is harming them could face substantial challenges, David S. Cohen, a law professor at Drexel University, said to the Times. It is also questionable that the states filed in the same court where the original group was rejected. "It is a nakedly political and judge-shopping ploy," Cohen said. If Missouri, Idaho, and Kansas are "really are harmed by these pills," they should file in their states. But they want to appear before U.S. District Judge Matthew Kacsmaryk, a Trump appointee, so they can "piggyback on this lawsuit that had no standing in the first place, and that shouldn't be allowed."
It is ironic that the states' invocation of the Comstock Act "represents a deliberate effort to upend their sovereign authority over abortion," Shoshanna Ehrlich said at Ms. Magazine. In doing so, they are "calling upon the power of federal law to cut off access to medication abortion in states where abortion is legal — thus upending their sovereign authority." The right's "relentless post-Dobbs crusade" to block access to abortion "represents a power grab by states aimed at forcing pregnant people, including teens, to bear children by legal fiat."
-
The controversial Free Birth SocietyThe Explainer Influencers are encouraging pregnant women to give birth without midwife care – at potentially tragic cost
-
Wes Anderson: The Archives – ‘quirkfest’ celebrates the director’s ‘impeccable craft’The Week Recommends Retrospective at the Design Museum showcases 700 props, costumes and set designs from the filmmaker’s three-decade career
-
Is conscription the answer to Europe’s security woes?Today's Big Question How best to boost troop numbers to deal with Russian threat is ‘prompting fierce and soul-searching debates’
-
Trump: Is he losing control of MAGA?Feature We may be seeing the ‘first meaningful right-wing rebellion against autocracy of this era’
-
US government shutdown: why the Democrats ‘caved’In the Spotlight The recent stalemate in Congress could soon be ‘overshadowed by more enduring public perceptions’
-
A crowded field of Democrats is filling up the California governor’s raceIn the Spotlight Over a dozen Democrats have declared their candidacy
-
Ted Cruz teases big 2028 movesIN THE SPOTLIGHT The Texas Republican is playing his cards close to his chest, even as others in Washington start looking for hints about the arch-conservative’s future
-
The ‘Kavanaugh stop’Feature Activists say a Supreme Court ruling has given federal agents a green light to racially profile Latinos
-
‘Officials say exporters pay the tariffs, but consumers see the opposite’Instant Opinion Opinion, comment and editorials of the day
-
GOP retreats from shutdown deal payout provisionSpeed Read Senators are distancing themselves from a controversial provision in the new government funding package
-
Alaska faces earth-shaking loss as seismic monitoring stations shutterIN THE SPOTLIGHT NOAA cuts have left the western seaboard without a crucial resource to measure, understand and predict tsunamis
