The Right’s Upside-Down Argument Against the Abortion Pill

Over the last few days, the courts have contributed yet again to the ongoing American whiplash about abortion access. On Friday, a ruling from the super-conservative Fifth Circuit appeals court essentially overrode Food and Drug Administration guidelines for mifepristone, one of two drugs used for medication abortion, so that it could no longer be prescribed by a telehealth provider. Manufacturers of the drug requested that the Supreme Court intervene, and on Monday the court issued an administrative stay for one week. As mifepristone was restricted and made available again over the course of a few days, anyone just trying to get a prescription could be forgiven for not knowing whether a provider would be willing to prescribe it. This kind of confusion is useful for anti-abortion groups, for whom killing Roe was never the final goal but only a step along the way to ending abortion entirely. Or, as the plaintiffs in this latest mifepristone challenge put it in the opening line of their lawsuit, “The fight for life is far from over.”

The legal challenge, brought by the attorney general of Louisiana, alongside the Christian nationalist law project Alliance Defending Freedom, argues that the FDA, by increasing access to mifepristone, is responsible for instances of reproductive coercion. The lawsuit also argues that by allowing people in a state where abortion is banned to obtain pills from providers in states without bans, the FDA guidelines interfere with the state’s sovereign laws. These claims get things more or less backward. Access to medication abortion, far from encouraging the coercion of pregnant people, has allowed those in abusive relationships, including those whose partners have sexually assaulted them, to access abortion privately, thus reducing the threat of reprisal from their partners. As for so-called states’ rights, the plaintiffs’ aim here is not to let states decide abortion restrictions or access for themselves; it’s to bring all states in line with the most restrictive laws. With this case, these anti-abortion groups are predictably trying to redefine reproductive freedom as “coercion” or “abusing women,” and genuine coercion as “states’ rights” or “protecting women.” Over decades, it’s become clear that these same groups, along with the legislators and attorneys general who share their politics, won’t rest until abortion is banned or all but banned across the country. This legal challenge demonstrates that they are willing to rerun the same arguments in the same courts over and over until they win.

The Supreme Court has, in fact, already heard a case concerning FDA guidelines for accessing mifepristone with telehealth. When the same law project behind the current case, Alliance Defending Freedom, made its arguments in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration in 2024, ADF failed to convince the court that the purported health care providers’ group it represented had standing to challenge the FDA’s guidelines. Though the court did not say so explicitly in its opinion, it was nevertheless clear that the group had no apparent purpose other than bringing the next big anti-abortion case to the Supreme Court after Dobbs; indeed, the group was incorporated weeks following that ruling, in a judicial district where it had no activities besides bringing the lawsuit.

The truth of that earlier case was this: Mifepristone was as safe before Dobbs as it was after Dobbs. In fact, Dobbs led to an expansion of medication abortion in states where abortion was either banned or all but banned. That expansion of access was made possible in part by an administrative rule change at the FDA, permanently removing the requirement for in-person dispensing of mifepristone. ADF and other anti-abortion groups are now trying to rewrite history to cast mifepristone as a dangerous drug that the FDA is allegedly allowing to menace unsuspecting women. (It’s worth remembering that it was their own obsessive campaign to end Roe that made access to mifepristone so critical in the first place.)

Following its loss in Alliance for Hippocratic Medicine, Alliance Defending Freedom regrouped and took another swing at the highest court. This time, it’s joining a lawsuit with the Louisiana attorney general, representing a Louisiana woman who, “under immense pressure and fearing for her safety ... took abortion drugs that her boyfriend obtained,” as the lawsuit contends. The choice of collaborator is telling: After Roe, abortion in the state was completely banned with very limited exceptions, and no clinics there provided procedural abortion. Last year, the Louisiana state legislature reclassified misoprostol and mifepristone as “controlled substances.” Getting mifepristone through the mail, prescribed by providers outside the state, was a lifeline for pregnant people in Louisiana; it meant that they could access abortion despite the state laws. This is what ADF’s lawsuit is really about: forcing providers to abandon patients and forcing patients to continue pregnancies.

That makes their new post-Dobbs argument, as seen in the Louisiana lawsuit, all the more cynical. Anti-abortion lawmakers such as Missouri Senator Josh Hawley and Louisiana Senator Bill Cassidy have lately retooled their opposition to medication abortion, now blaming it for the “abuse” of women, as Garnet Henderson at the reproductive rights and justice news site Autonomy News has reported. It is in that context that an individual who says she has experienced reproductive coercion has been made the face of the Louisiana challenge. But her story aside, she may be a more desirable plaintiff for other reasons: By making her part of its case, the state argued in one filing, it was possible to supply “the standing piece that the Supreme Court found lacking in Alliance.” That is, unlike the purported group of health care providers in that case, not one of whose members had prescribed mifepristone, the Louisiana legal challenge involves an actual person who was allegedly harmed. If not for that defeat, we likely would not be seeing this rerun of a legal challenge now.

As of now in this case, that alleged harm has not yet been fully considered; the dispute so far has been limited to the question of whether to block the FDA guidelines as the case proceeds. But even if ADF were ultimately to prevail here, many things about medication abortion would not change. Getting mifepristone would require an in-person appointment before prescription, yes. But it’s possible to perform a medication abortion with only misoprostol, and telehealth access for that pill remains unchanged. People who were getting mifepristone outside direct prescription, such as by ordering from overseas or through informal networks, would still have that option. A win for ADF does not make it a crime to possess mifepristone.

But as we have learned in this country over decades of anti-abortion lawmaking and court-wrangling, abortion need not actually be banned for it to be difficult to get, or for people to feel afraid to try. Merely producing headlines about “abortion pills” being “blocked,” even for a day, or half a day, introduces doubt. News that a court now blocks medication abortion could make someone question whether the pills are illegal or unsafe.

We’ll know more within a week about whether this particular case is the one anti-abortion groups have been hoping for: a follow-up to Dobbs that permanently blocks telemedicine access to medication abortion across the country and casts doubt on its safety and legality. Whether they win or lose, however, this is not the end for those who have already devoted 40 years to killing Roe. The extreme abortion bans that followed Dobbs—these groups’ big victory—helped make medication abortion more common. They will not stop here.