On Friday, a three-judge panel of the Fifth U.S. Circuit Court of Appeals ruled that the mailing of prescriptions of mifepristone violates the abortion ban of Louisiana and other states. The ruling requires that the abortion pill be distributed only in-person at clinics, even in states with no abortion restrictions.
Danco Laboratories and GenBioPro, two makers of mifepristone and defendants in the Louisiana lawsuit that resulted in the Fifth Circuit ruling, immediately requested the Supreme Court to stay the lower-court order until it can be appealed on the merits. Danco warned that the ruling “injects immediate confusion and upheaval into highly time-sensitive medical decisions.” The Supreme Court did issue a temporary administrative stay until May 11.
Ever since the Supreme Court overturned Roe v. Wade in the Dobbs case in 2022, about 60 percent of abortions in the U.S. have been performed via medication, and about 1 in 4 have been prescribed via telehealth. Several states led by Democrats have enacted shield laws to protect providers who prescribe mifepristone to out-of-state women seeking to terminate pregnancies. These are also the subject of litigation.
To further complicate the legal tangle, the Fifth Circuit order bans the mailing of mifepristone, but not of misoprostol. The two are generally used in combination. Misoprostol alone also can be used to terminate pregnancies but is not as effective.
In a libertarian country, these and other restrictions on a woman’s control over her own body have proven monumentally unpopular. Since the Supreme Court overturned Roe, the right to end a pregnancy has been put on the ballot in 17 states; and choice advocates have won 14 of those measures including in Republican-leaning states such as Missouri, Montana, and Ohio. And now, Republicans are turning on each other.
Donald Trump has realized the political unpopularity of the anti-abortion crusade. He has tried to distance himself from the issue politically. Trump has said that he would not sign a national abortion ban and that the issue should be left to the states. Trump further annoyed anti-abortion groups when his FDA last year approved another generic version of mifepristone.
“Trump is the problem. The president is the problem,” Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, said in an interview with The Wall Street Journal. If Republicans don’t abandon the president’s strategy of letting states decide abortion law, she declared at the group’s spring gala, “then the movement as we know it is finished.”
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When the Supreme Court ruled in 1973 in Roe v. Wade that abortion was legal nationwide, some women’s rights advocates argued that the ruling was premature. At that point, only four states had legalized abortion entirely (Alaska, California, Hawaii, and New York). Others had legalized it only for “therapeutic” purposes. Some advocates were concerned that the pro-choice movement had not yet won in the court of public opinion. Sure enough, Roe stimulated a massive backlash and energized the so-called right-to-life movement.
Now, however, the shoe is on the other foot. Two generations of voters, especially women, who came of age taking the right to legal and safe abortion for granted, are getting a sense of what life is like when zealots try to control other people’s bodies and criminalize medical practice.
Until Friday’s court ruling, the abortion issue was out of the headlines. Now it is front-page news again, and in a fashion that divides Republicans.
In the coming midterms, Democratic congressional candidates will press their Republican opponents on whether they support the restrictions on the mailing of abortion pills, and whether they support even more extreme measures, such the Texas laws empowering vigilantes to file civil suits against both providers and women who have had abortions, including medication abortions.
It’s yet another Trump-era case of Republican candidates having to choose between the demands of the most extreme people in the MAGA and religious-right base and the views of a majority of voters. The court ruling is outrageous, but it contributes to an overdue reckoning.
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