Jarvis: Zombie abortion-pill lawsuit undermines Trump’s backpedaling

A renewed attack on medication abortion is threatening nationwide access to mifepristone, one of two drugs used to terminate a pregnancy. The new legal filing, from state attorneys general in Idaho, Kansas and Missouri, poses a direct threat to mail-order delivery of the drug. It’s a last-minute reminder of what’s at stake for women’s health in this year’s election — in which voting has already begun.

If this sounds eerily familiar, it’s for good reason. The U.S. Supreme Court in June rejected an earlier version of the case, filed by a group of Texas doctors, based on standing, meaning they were not harmed by the drug and had no grounds to sue. Normally, the case would then be dismissed by the lower courts, following the high court’s guidance, explains David Cohen, a law professor at Drexel University.

But there was a plot twist: Before the Supreme Court had ruled, the three state attorneys general had been allowed to intervene in the case by the federal judge who originally heard it, U.S. District Judge Matthew Kacsmaryk. And Kacsmaryk is known for not following the usual script; he could very well find a way to allow the AGs to move forward even though the original plaintiffs cannot proceed.

Nationwide access tested

If their gambit is successful, it will test mail-order access to abortion pills across the country.

Dismantling nationwide access to mifepristone has been a cornerstone of anti-abortion activists’ strategy following the Supreme Court’s 2022 decision to overturn Roe v. Wade, which found that the U.S. Constitution broadly protected a woman’s right to abortion.

Although Donald Trump has recently sought to back away from hardline messaging around abortion, his most ardent supporters are determined to follow through on their goals of making it harder for women to access care. In fact, there’s already a Victorian-era law on the books that could make mail-order pills a thing of the past if a future president chose to enforce it. (More on this later.)

Activists are particularly animated by Food and Drug Administration rules that allow the pills to be prescribed via telehealth and mailed to someone’s house. The doctors in Texas focused on regulators’ approval of the drug; this time, the state AGs are focused on pills sent by telehealth providers located in states where abortion is legal.

That delivery method has greatly expanded the use of the pills, particularly among women living in states with abortion bans. In 2023, medication abortion accounted for 63% of abortions, up by more than 50% over 2020, according to the Guttmacher Institute.

Abortion foes have based their legal challenges on false claims about mifepristone, and this latest filing is no different. The AGs claim the mail-ordered pills are “flooding” into their states and sending women to emergency rooms. (A familiar tactic by anti-abortion groups is to conflate ER visits with actual harm. As I’ve written in the past, studies show only a tiny percentage of women go to the ER after taking mifepristone at home, and often it’s simply to ask questions or confirm that their pregnancy has ended.)

The AGs appear to be eager to piggyback on the zombie case, rather than launch a separate lawsuit, to get their argument in front of Judge Kacsmaryk, an extreme anti-abortion jurist. “They are playing the system in a nakedly cynical way by trying to join this case,” says law professor Cohen.

Comstock Act

In their suit, the state AGs are trying to revoke mail-order access to abortion pills by invoking the Comstock Act. The attorneys argue that this 150-year-old law bars people from mailing “obscene” or “lewd” materials including those related to ending a pregnancy, explains Mary Ziegler, a legal scholar and historian at UC Davis. While this dusty law has not been applied to abortion in half a century, the AGs are using it to argue the FDA has unlawfully authorized “illegal activities” by allowing mifepristone to be sent to people’s homes.

This case tries to use Comstock to undermine the FDA’s authority, but the ancient law could also be used to curb access, regardless of the outcome of this case. Post-Roe, it has always been in the purview of the Justice Department to decide whether to enforce the  Comstock Act — and the Biden administration’s DOJ has pointedly stated it will not.

If Vice President Kamala Harris becomes president, she could choose not to enforce the Comstock Act, regardless of how the case unfolds, Ziegler says. But it still would be hanging on the wall like a weapon to be pulled down and used by a future GOP administration. If Donald Trump were in office, “there would be tremendous pressure from abortion opponents to start enforcing it,” she says.

All of this comes at a very inconvenient time for Trump, who realizes that abortion has become a political albatross for his party and is trying to soften his language around it. A new survey from KFF shows restoring access to abortion is the second-most critical issue among women voters of reproductive age, and that the majority of women in both political parties believe Trump would sign a federal ban on abortion.

Trump’s personal beliefs on abortion have been murky, and he’s offered differing views on access to mifepristone depending on the political moment. His most recent message has been that he is happy to allow the states to decide abortion laws. The irony is that voters in Kansas in 2022 voted to protect abortion rights (mifepristone is legal in the state); voters in Missouri will have their say this year, and voters in Idaho may get a chance in 2026. Their state attorneys general would rather take matters into their own hands.

This latest twist to the mifepristone saga should dispel any notion that a Trump presidency would yield anything other than more abortion restrictions — even in states where voters have made clear their desire for reproductive freedom.

Lisa Jarvis is a Bloomberg Opinion columnist covering biotech, health care and the pharmaceutical industry. ©2024 Bloomberg. Distributed by Tribune Content Agency.