The Supreme Court granted a reprieve in the far-right’s fight to upend medication abortion access—for now.
The Court on Friday stayed the order U.S. District Judge Matthew Kacsmaryk had issued earlier in the month from Amarillo, Texas that purported to pull FDA approval of mifepristone, one of two drugs used in medication abortions. By putting a hold on Kacsmaryk’s lawless order, the Court has maintained the status quo regarding mifepristone access. That means it will be months, if not longer, before anti-abortion advocates will be able to weaponize the courts in their bid to restrict, if not remove entirely, access to the drug.
The ruling, frankly, was a bit of a surprise. Abortion rights advocates are not used to good news from the Supreme Court on abortion. On April 14, Alito issued a brief administrative stay that was set to expire April 19. So when Alito extended the Court’s initial order for a stay by an additional two days, advocates and court watchers braced for the worst and assumed the Court would do something to mess with medication abortion access.
Instead we got Alito’s bad-faith dissent, where he complained about the Court making policy via its shadow docket and stated with a straight face that rolling back mifepristone regulation to where it existed in 2016—a far more restricted state of access—was in reality no big deal.
Alito’s belligerent dissent aside, I’m calling that a win.
Despite the fact the win essentially maintains the status quo, there’s an emerging sense of where the fight to rebuild post-Roe abortion access is headed—or already situated.
Two years ago, my colleague Imani Gandy wrote about Purvi Patel, an Indiana woman who prosecutors would claim both self-managed an abortion and had a live birth that resulted in a dead infant, despite the obvious contradiction. How can one person both end their pregnancy and deliver a live birth that she criminally, and feloniously, neglected?
As Gandy put it, Patel’s story is a cautionary tale. And given that Kacsmaryk cited her case in his opinion—and uses it as justification to state—wrongly—that mifepristone is unsafe, Patel’s case is more than a cautionary tale now. Here are the facts of the case as described by Gandy in 2021:
In July 2013, Patel, an Indian American woman who lived at home in a conservative Hindu household, entered an emergency room outside South Bend, Indiana, while suffering heavy vaginal bleeding. She eventually admitted to her doctors that she had been pregnant and had miscarried; she told them the fetus was stillborn and that she had disposed of the remains. Medical staff at the hospital alerted the police, who went looking for the fetal remains and found them in a bag in a dumpster at a nearby Target.
The police proceeded to interrogate Patel without a lawyer present while she was still in the hospital. Police also searched her cellphone, which led them to a series of text messages in which Patel told a friend that she had ordered mifepristone and misoprostol, the two drugs used in a medication abortion, online from a pharmacy in Hong Kong. Patel, who was living at home with her parents, wanted to keep the pregnancy a secret. Prosecutors claimed that the text messages made the case for Patel’s illegal abortion and felony charges.
Prosecutors would eventually charge her with both feticide and felony neglect of a dependent, based on the theory that Patel had tried to self-induce an abortion and delivered a live infant, which then almost immediately died post-delivery. She was convicted of both counts in February 2015. (A judge would ultimately overturn her conviction, stating that she had already served enough time.)
This was former Vice President Mike Pence’s Indiana—a state that permitted prosecutors to call as an expert witness a pathologist who relied on a widely discredited “float test” to support the state’s claim that Patel delivered a live infant.
The float test is as wacky as it sounds: requiring removing a fetus’ lungs and placing them in a container of liquid to see if they float. Developed in the 17th century, it goes something like this: If the lung floats, it means the pregnancy resulted in a live birth—and it’s evidence of at least one breath of air before death. If the lung sinks, the delivery was stillborn. Indiana’s attorneys were willing to try almost anything to prosecute and convict Patel.
Since Patel’s prosecution, the stakes around self-managing abortion with pills have accelerated in both promising and terrifying ways. The ability to order abortion pills online and manage your own abortion at home, safely (medically) and discreetly has the anti-abortion movement shook. It’s easier and safer than ever before. Anti-abortion activists know that so long as abortion pills—and accurate and reliable information about how to use them—remains widely accessible, their entire crusade is doomed to fail. Abortion will be here to stay.
As abortion pills have become more available online, the surveillance state around reproductive health care has expanded at an exponential rate. That’s thanks in no small part to the reversal of Roe v. Wade last summer in Dobbs v. Jackson Women’s Health Organization. And that expansion of the police state around abortion care has happened at the exact time as conservatives’ appetites to prosecute those who terminate their pregnancies has increased. That’s no coincidence.
The stakes are higher and more dangerous now.
Patel’s prosecution was a perfect storm of sorts. She lived in a rabidly anti-choice state that had already shown an interest in prosecuting women of color who experienced pregnancy loss and where accurate evidence-based information around pregnancy and abortion is difficult to obtain. She was a young, brown woman living with her immigrant parents in a community that exalts America. Of course prosecutors saw her as a target.
Kacsmaryk citing her case as part of his crusade to declare mifepristone unsafe and remove it from the market nationally should alarm everyone. Should he succeed, it could usher in a low-key national ban on medication abortion as it is currently practiced in this country and open the floodgates to a new wave of criminal prosecutions related to miscarriage and self-managed abortion.
This is intentional.
Anti-abortion activists want this reality, and the resurrection of the Comstock Act—the principal statute at the heart of this attack on mifepristone availability—is their key instrument in forcing it on the rest of us. It’s no surprise they are relying on a law from the Victorian age to force a new age of state-sanctioned sexual purity on the nation. It’s also not a coincidence this is happening at the same time they’re openly and seriously discussing executing patients if they have an abortion.
There are no coincidences with the anti-abortion movement.
Mifepristone’s legal battle is far from over. The case now heads to the Fifth Circuit Court of Appeals, which will hear arguments in mid-May. Meanwhile, lawsuits directing the FDA not to do anything that would roll back mifepristone’s availability are making their way through federal courts in both Washington state and Maryland; drug manufacturers are also separately challenging a West Virginia law that would also threaten mifepristone’s availability.
It’s chaotic. That’s the point.
But while the Supreme Court’s decision to stay Kacsmaryk’s order is a gift of sorts, it is worth acknowledging, as Robin Marty recently pointed out, that the right has been successful in making the status quo seem like a win.
We know there is a majority of votes on the Court to do whatever the hell they want with medication abortion, the law be damned. The fact they didn’t do so in this case is more of a statement about the Court’s politics than it is a statement about the weaknesses of the anti-abortion movement’s case here specifically. The law barely matters anymore when it comes to abortion, and most of the conservative movement openly acknowledges that now.
So if there was ever a time to gather community and resources and dig in deep on contingency plans surrounding access to mifepristone, it’s now. Because the war on drugs isn’t coming for abortion pills sometime soon. It’s already here.