For the last few weeks, reproductive health and rights advocates have been experiencing a frighteningly familiar sense of dread as they follow a federal lawsuit out of Amarillo, Texas, which aims to yet again roll back abortion rights in the United States.
The lawsuit, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, challenges the FDA approval of the abortion medication mifepristone—one of two safe, well-studied drugs used in a medication abortion. The presiding judge Matthew Kacsmaryk is a Trump-appointee with a long history of ruling against abortion, LGBTQIA+ and gender identity rights and upholding attacks on them on religious grounds. At a hearing last week, he indicated openness to undoing FDA approval of mifepristone, and that he would issue his ruling soon.
While the suit frames it as a safety issue, mifepristone has been studied and used for more than 20 years and it is known to be safe—safer than Tylenol and Viagra. With the case, the plaintiffs really aim to eliminate medication abortion, the method used in more than half of abortions. They hope the ruling will trigger a nationwide ban on one of the key tools for medication abortion care—though three leading legal experts say he in fact does not have that power.
After Roe v. Wade was overturned last year, medication abortion became more critical than ever, offering one of the few options left to people living in states where abortion care is nearly impossible to access. Comprehensive sexual and reproductive healthcare including abortion has been under attack and unavailable to many Americans for many years, long before the overturning of Roe. But recent coordinated attacks on mifepristone have made things worse.
Rollbacks in reproductive rights are felt disproportionately by those who are already most marginalized in the healthcare system: Black, brown, Indigenous, LGBTQI+, immigrants, those with low incomes, people with disabilities, young people, and those at multiple intersections of these identities. While they bear the brunt of the worst effects, the damage to reproductive rights is by no means limited to these individuals; it adds up to a systemic failure that erodes reproductive rights for all of us. More than half of U.S. states outright failed rePROs Fight Back’s recent report card on reproductive health and rights.
Today, 18 million women in the 14 states already have bans or severe restrictions on the books, plus transgender and nonbinary people, must travel out of state and sometimes across multiple states to access abortion care—and that number may soon explode. In the wake of the Dobbs decision overturning Roe, a total of 24 states are expected to ban abortion in the near future.
I have personally interviewed leaders and advocates across the country about the dismal and disparate status of reproductive health and rights across in different states—for example, Alabama and Texas. This is a justice issue deeply intertwined with racial justice, economic justice, immigrant justice and more. In particular, young people’s rights to bodily autonomy and education are disregarded.
Many states have no mandate for sex education in public schools. Only 17 states require sex education to be medically accurate. Many states use abstinence-only curriculum, which has been proven to be as ineffective as it is detrimental.
This slide in reproductive rights won’t stop here. The assault on evidence-based sex education, family planning, gender-affirming care and LGBTQIA+ rights has been relentless, and the anti’s have no intention of slowing down. The recent loss of abortion rights will only embolden them in their fight. Birth control, gender-affirming care and LGBTQIA+ rights are clearly next. Those who live in states where abortion is protected and feel confident that their access to care won’t change should think again.
If anti-abortion forces succeed in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, Kacsmaryk may try to order the FDA to follow the withdrawal process and attempt to force mifepristone off the market nationwide—meaning that even those who live in a state where abortion is legal and protected will not be able to access it.
(Granted, the final decision to remove mifepristone from the market will be left in the FDA’s hands, David Cohen of Drexel Kline School of Law told Ms. “If the judge declares the drug was unlawfully approved, it’s now an unapproved drug. But it’s up to the FDA to enforce that. … The ruling may result in mifepristone being taken off the market. Absolutely. If the FDA is scared of the political pressure of not acting on an unapproved drug and Danco says, it’s too risky, we’re going to take it off the market, that may be the result. But that’s not a necessary result. And we shouldn’t say that it’s the judge who’s doing this.”)
In a post-Roe United States, we should look to the reproductive justice movement created and led by Black women for the future we want and how to build it. The ability to live freely, plan families and parent children in safe and sustainable communities requires states to empower people on many levels. They need access to safe housing, nutrition, economic opportunities, as well as reproductive care, to live healthy, happy lives informed by their own choices. We are far from that vision today. Banning mifepristone would only put it that much farther out of reach.