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The Supreme Court this week heard the first major challenge to abortion rights since it struck down Roe v. Wade two years ago — an attempt to severely limit access to mifepristone, the most commonly used abortion pill in the country, by a group of doctors who are morally opposed to the practice.
The justices seem prepared to throw out the lawsuit. During oral arguments, they questioned whether the doctors had suffered the harm necessary to bring the suit in the first place.
But that should come as small comfort to anyone concerned for the future of reproductive freedom in America. Judges at the state and federal level are ready to further restrict reproductive options and health care access. The presumptive Republican nominee for president, Donald Trump, has indicated support for a 15-week national abortion ban. And while the Supreme Court, in overturning Roe, ostensibly left it to each state to decide abortion policy, several states have gone against the will of their voters on abortion or tried to block ballot measures that would protect abortion rights. Anti-abortion forces may have had a tough week in the Supreme Court, but they remain focused on playing and winning a longer game.
Even potential victories for reproductive freedom may prove short-lived: The mifepristone case, for instance, is far from dead. Another plaintiff could bring the same case and have it considered on the merits, a possibility Justice Samuel Alito raised during oral arguments.
“Is there anybody who could challenge in court the lawfulness of what the F.D.A. did here?” he asked the solicitor general, Elizabeth Prelogar. Such a challenge would be exceptionally weak, given that the F.D.A. provided substantial support for its approval and regulatory guidance on the use of mifepristone, but the right-wing justices on the Roberts court may be willing to hear it again anyway. The justices have already illustrated their hostility to the authority of administrative agencies, and that hostility may persist even in the face of overwhelming scientific evidence.
Then there is the Comstock Act, a 151-year-old federal law that anti-abortion activists are trying to revive to block the mailing of mifepristone and other abortion medication. During the oral arguments this week, Justices Alito and Clarence Thomas repeatedly expressed their openness to the use of the law, which was pushed by an anti-vice crusader decades before women won the right to vote. If anti-abortion activists can get themselves before a sympathetic court and secure a national injunction on this medication being mailed, they may well be able to block access to abortion throughout the country, including in states where it is legal.
However the mifepristone case turns out, the threats to reproductive rights the justices unleashed by overturning Roe go much further.
The anti-abortion movement is pursuing its aims on many legal fronts. One focus of intense activity are so-called fetal-personhood laws, which endow fetuses (and, in some cases, even fertilized eggs) with the same legal rights as living, breathing human beings. Last month, Alabama’s Supreme Court ruled that frozen embryos created through in vitro fertilization were to be protected as “extrauterine children,” relying in part on an 1872 state law. That sent lawmakers in Alabama scrambling to protect a procedure that is highly popular among Republicans and Democrats alike. Three weeks after the court ruling, they passed a law protecting patients and doctors who perform I.V.F. procedures from legal liability.
Fetal-personhood laws can also be used to target access to birth control, embryonic stem cell research and even women who suffer miscarriages.
In eliminating a woman’s constitutional right to choose what happens in her own body, the Supreme Court claimed to be respecting the democratic process by allowing state legislatures to determine whether abortion should be legal, and what, if any, limits should be placed on it. Roe v. Wade had been “egregiously wrong” to wrest a fraught public debate from the American public, Justice Alito wrote in the majority opinion for Dobbs v. Jackson Women’s Health in 2022. It was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Instead of being settled at the state level, less than two years since the Dobbs ruling the issue of abortion has returned to the court and is likely to continue to do so for the foreseeable future.
The Dobbs ruling has forced a new public debate on abortion, and galvanized Americans’ support for it, which has been strong for decades. Since 1975, a majority of Americans have supported legal abortion in some or all cases, according to polling by Gallup, and that support has increased slightly since Dobbs. The percentage of Americans who think abortion should be illegal in all cases has gone down.
Since Roe was overturned in 2022, in every state where reproductive rights has been on the ballot, from Vermont to Kentucky, the abortion rights side has won. This past Tuesday, the same day that the court heard the mifepristone case, voters in Alabama elected to the state legislature a Democrat who ran on a platform of protecting access to abortion and I.V.F. The candidate, Marilyn Lands, had lost her race in 2022 by seven points; she won this week by 25 points.
There are limits to the state-by-state approach when it comes to protecting bodily autonomy. Some states don’t allow ballot initiatives of the type that have led to abortion rights victories elsewhere. In Ohio and other states, lawmakers have sought to block or overturn attempts by voters to protect abortion rights, and anti-abortion lawmakers in several states have sought to prosecute anyone who helps a woman travel to another state to get an abortion.
In short, there is no silver bullet for reproductive rights. The judiciary is no haven, not as long as the current Supreme Court majority holds; state and lower federal courts aren’t much better, going by the Alabama I.V.F. ruling and the decisions that pushed the mifepristone case to the Supreme Court. At the same time, voter support for reproductive rights won’t make a difference if they can’t use ballot measures to make that support known.
That is why any successful strategy to protect or restore abortion rights must understand reproductive rights and representative democracy as inextricably linked.
That means understanding the stakes of the elections in November. If Mr. Trump’s party wins solid control of the House and Senate, this could put Americans’ reproductive rights at further risk, especially if Republicans first decide to do away with the filibuster. That would lower the threshold for passing legislation such as a 15-week abortion ban, which Mr. Trump seems likely to support.
Voters will be faced with a stark choice: the choice of whether to protect not just reproductive rights, but true equality for women.
Source photograph by Getty Images.
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The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.
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