Inside the push for a nationwide ban on abortion medication

(Photo by ROBYN BECK/AFP via Getty Images)

Right-wing officials insisted their push to overturn Roe v. Wade was an effort to respect states' rights and the democratic process. Mississippi Attorney General Lynn Fitch (R), who represented her state in its successful effort to invalidate Roe, wrote a November 2021 op-ed in the Washington Post claiming the case was about "returning decision-making about abortion policy to the people." 

Fitch wrote that "the core principle of democratic self-governance [is] that U.S. citizens act on hard issues through the men and women they elect and can hold accountable at the ballot box." She lamented that in Roe, the Supreme Court "acted to keep abortion policy behind the bench, where unelected judges decide the fate of the people’s laws."

That entire argument, however, was a ruse. 

On Friday, Fitch submitted an amicus brief in the Northern District of Texas in support of the plaintiffs in the case of Alliance for Hippocratic Medicine v. FDA. The brief, which Fitch filed on behalf of Mississippi and 21 other states with Republican attorneys general, supports the plaintiff's effort to ban mifepristone, a drug used to induce abortions. 

This isn't about Mississippi because Mississippi — and many of the other states that signed onto the brief — have already made virtually all abortions, whether by medication or surgery, illegal. The lawsuit is about prohibiting the use of mifepristone in the 31 states where abortion remains mostly legal. 

So much for states' rights. 

The impact of Alliance for Hippocratic Medicine could be even more dramatic than Dobbs v. Jackson Women's Health, the Supreme Court case that overturned Roe. While Dobbs restricted abortion access for 24.5 million women of reproductive age, Alliance for Hippocratic Medicine, could restrict access to reproductive healthcare to 64.5 million women, according to a study by the NARAL.

Mifepristone, which was approved by the FDA in 2000, now accounts for the majority of abortions in the United States, according to the Guttmacher Institute. 

Mifepristone, which is used in combination with another drug, misoprostol, has grown in popularity because it is highly effective — successfully terminating a pregnancy 99.6% of the time — and safer than Tylenol. 

So if mifepristone has been used safely for more than two decades, what is the legal case for the courts to ban it? There isn't much of one. But Fitch, the Alliance for Hippocratic Medicine, and their allies have a real shot of success anyway. Why? Because of a radical Trump-appointed federal judge named Matthew Kacsmaryk.

How to rig the federal judiciary

Kacsmaryk was appointed by Trump to the federal court in the Northern District of Texas in 2019. Prior to his appointment, Kacsmaryk was Deputy General Counsel to the First Liberty Institute, a right-wing legal organization dedicated "exclusively to defending religious liberty." 

Kacsmaryk is an impassioned critic of the "sexual revolution," which he described as "the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults." During his confirmation hearing, Kacsmaryk was asked if he believed the government had a "compelling interest" to protect access to contraception for women. "That remains an open question," Kacsmaryk replied. 

Since taking the bench, Kacsmaryk has "gained a reputation as perhaps the most lawless jurist in the country." Over the last three years, he "has seized control over border policy, repeatedly defied the Supreme Court’s decision protecting LGBTQ employees, and restricted minors’ access to birth control."

It's not an accident that the lawsuit to ban abortion medication ended up in Kacsmaryk's court. Congress has divided up the 94 federal district courts into smaller divisions but "left it to each district court to decide how to divvy up cases among its divisions." Texas has "distributed their judges unevenly" in these divisions, with nine divisions assigned only one judge. This means that any case filed in Amarillo, Texas is a lock to be assigned to Kacsmaryk. 

Right-wing advocates have gone to Amarillo to challenge "at least five administration policies on immigration, as well as the student loan debt relief program, the Department of Health and Human Services’ post-Dobbs abortion guidance and federal Covid vaccination mandates." 

So it's no surprise that the plaintiffs seeking a national ban on abortion medication went to Amarillo as well. 

Resuscitating an archaic, 150-year-old, law

It might not take much to convince Kacsmaryk to impose a national ban on abortion medication. But the plaintiffs and their allies need an argument. They've settled on the Comstock Act, an 1873 law that has been ignored or limited by federal courts for decades. 

The Comstock Act made it "made it illegal to send 'obscene, lewd or lascivious,' 'immoral,' or 'indecent' publications through the mail. The law also made it a misdemeanor for anyone to sell, give away, or possess an obscene book, pamphlet, picture, drawing, or advertisement." It is named after Anthony Comstock who was the "head of the New York Society for the Suppression of Vice." After the bill's passage, Comstock was appointed a special agent for the Post Office in charge of enforcing the law. He famously arrested Ezra Heywood for mailing a copy of  "Cupid’s Yokes, in which [Heywood] asserted that women should have the right to control their own bodies." Comstock considered that obscene. 

The Comstock Act also purports to make it illegal to "mail" a drug that "is advertised or described in a manner calculated to lead another to use or apply it for producing abortion." This is potentially very significant, because "abortion clinics are not manufacturing their own pills; they’re purchasing them from drug companies, pharmacies or getting them in the mail.”

In December 2022, the Department of Justice issued an opinion concluding the Comstock Act  "does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully." The Department of Justice relies on a century of legal interpretation wherein "the Judiciary, Congress, and USPS have all settled upon an understanding of the reach of section 1461 and the related provisions of the Comstock Act that is narrower than a literal reading might suggest."

Kacsmaryk is expected to issue a decision on the case sometime after February 24. 

This attack on reproductive freedom is brought to you by corporate America

Many Republicans claim that Corporate America has gone "woke." They would be surprised to know that major corporations are spending hundreds of thousands of dollars backing the politicians bolstering the effort to ban abortion medication. 

The brief filed by Fitch was signed by 21 other state attorneys general. All 21 are members of the Republican Attorneys General Association (RAGA), a key group devoted to electing Republican Attorneys General and keeping them in office. 

RAGA, in turn, collects millions to support its efforts from major corporations. Among the major corporate supporters are several who have positioned themselves as champions of reproductive rights, pledging to pay for their employees' abortion-related travel after Roe was overturned. That group includes Comcast (316K), AT&T (125K), T-Mobile (100K), Uber (50K), Mastercard (25K), and Bank of America (25K).

Last year, Popular Information reported that the Match Group, the Dallas-based company which operates popular dating sites including Match, Tinder, Hinge, and OK Cupid, donated $100,000 to RAGA while telling its employees that it backed reproductive rights. A week later, the company announced it would no longer support RAGA.