Legal maneuvers over abortion rights in the spotlight

In the last nine months, a slew of anti-abortion bills have been introduced, passed, signed, and in some cases temporarily halted in states across the country. All the while, abortion seekers and pro-abortion rights activists are struggling to understand the new bills and are filing lawsuits to challenge them. 

“It is a really interesting time to be following reproductive rights because even for law professors, I feel like the cases we’re seeing involve so many different areas of law,” Cynthia Soohoo, a professor of law and the co-director of the Human Rights and Gender Justice Clinic at the City of New York School of Law, tells the American Independent Foundation. “It’s not just con[stitutional] law anymore. It’s administrative law, it’s wrongful death, it’s criminal law.”

District Court Judge Matthew Kacsmaryk, an appointee of former President Donald Trump in Texas, on April 7 ruled in a lawsuit filed in November 2022 by the conservative Christian legal advocacy group Alliance Defending Freedom. The suit challenged the legality of the Food and Drug Administration’s approval of the abortion drug mifepristone in 2000; Kacsmaryk suspended the drug’s approval, claiming it had been unlawful.

Mifepristone, which is used in over half the abortions carried out in the United States, is considered safe. The Food and Drug Administration says on its website: “The FDA approved Mifeprex more than 20 years ago based on a thorough and comprehensive review of the scientific evidence presented and determined that it was safe and effective for its indicated use. … The FDA’s periodic reviews of the postmarketing data for Mifeprex and its approved generic have not identified any new safety concerns with the use of mifepristone for medical termination of pregnancy through 70 days gestation.”

The Biden administration petitioned the 5th U.S. Circuit Court of Appeals to place a stay on Kacsmaryk’s ruling; the 5th Circuit did not do so, but narrowed some of the provisions of the judge’s ruling. The Department of Justice and the manufacturer of mifepristone then petitioned the U.S. Supreme Court to stop the 5th Circuit’s ruling from taking effect.

On April 21, 2023, the Supreme Court issued an emergency ruling that allows for continued access to mifepristone, at least for now. The 5th Circuit is scheduled to hear further arguments on May 17. 

Soohoo says: “I feel like it’s kind of ridiculous that we’re in this moment. … I feel like everyone has rehashed this in terms of them specifically choosing where to file, and a judge who’s very hostile to abortion rights.”

“There are other issues in terms of whether the plaintiff even had standing,” Soohoo continues. “I think they said something like, There are doctors who may treat people who have side effects with mifepristone. So it’s a very conjectural basis for standing. And I would think in most normal instances, the case would get dismissed for lack of standing.” 

David Cohen, a law professor at the Drexel University Kline School of Law, tells the American Independent Foundation that it will be at least a year before the 5th Circuit decides this case.

“The fact that they stayed the lower court decision is a good sign that they are not interested, at least right now, in upending a 23-year approved drug. But, when it actually gets to the Supreme Court, and it becomes a fully argued case, you always have to consider how abortion politics are going to impact whatever they do. And this group of justices has shown they’re hostile to abortion. So it’s going to be an uphill battle,” Cohen says.

Another legal concern for those in the pro-abortion rights community is whether more Republican-led states will enact laws similar to one passed in Idaho banning patients from traveling to other states to seek abortion care.

“The Idaho law is the first that we’ve seen that directly criminalizes some kind of travel,” Cohen says. “On its face it criminalizes travel within Idaho. But the only way you can get to Washington state is to first travel within Idaho and then cross the border, so it by necessity also criminalizes travel to Washington to get a legal abortion.”

Cohen says he thinks there’ll be more laws like the one passed in Idaho: 

The National Right to Life Committee has a model post-Dobbs anti-abortion law, and part of it includes the provision that Idaho enacted. So I think it’s being pushed by advocates. And I think also, because folks who are anti-abortion are not going to rest knowing that they’ve banned abortion within their state, they’re going to want to stop as many as they can. And that will mean banning people from their state from traveling to states where they can get one.

In March, a report published by the Guardian found that anti-choice lawmakers in Texas, Kentucky, South Carolina, Oklahoma, and Arkansas have introduced bills calling for abortions to be deemed criminal homicides, making both pregnant people who obtain abortions and physicians who perform the procedure subject to felony charges. 

Cohen says:

So this is a big debate within the movement right now. And I think it used to be sort of a third rail, but we don’t want to talk about punishing the person who gets the abortion, we only want to talk about punishing the doctor or other medical care provider or funder or assister. But there are more and more people within the anti-abortion movement who are talking about criminalizing the person who gets the abortion too. I’m not surprised that there are those five states. … I think we’re going to see more, because I think again, we’re going to see legislators who think that they want to stop abortion at all costs.

The New York Times’ tracker shows that most abortions are currently banned in 14 states. 

Last year, Republican Sen. Lindsey Graham of South Carolina introduced a federal bill that would ban abortion nationwide after 15 weeks of pregnancy. 

Cohen says passing a federal abortion ban would be pretty difficult: “I just don’t see how you get this past the filibuster and I don’t see the Republicans, even with one or two Democrats on their side, having 60. Especially because there are a couple of Republicans who are pro-choice too. So I just don’t see the math.”

In March, Sen. Tammy Baldwin of Wisconsin reintroduced the Women’s Health Protection Act, federal legislation that would restore nationwide access to abortion care by prohibiting the federal government and state governments from banning abortion before what it calls “fetal viability.” The bill would safeguard a patient’s right to travel out of state for abortion care and protect physicians and those who assist a patient in obtaining an abortion. 

Cohen says he’s doubtful the bill will pass. 

“Tell me how it gets passed in the Senate, with the House being controlled by a Republican, the Senate having the filibuster, with Democrats who don’t want to break the filibuster. … I mean, it’s certainly important messaging to show that he [President Joe Biden] supports abortion rights, but it’s not a practical possibility at this point in time,” Cohen says.

Updated 4-27-23 to correct a mistake in an interview transcription.

Published with permission of The American Independent Foundation.