All Of It — "Unpacking The Supreme Court's Mifepristone Case"

Podcast: All Of It (WNYC)
Episode Date: March 26, 2024
Host: Kusha Navadar (substituting for Alison Stewart)
Guest: Shefali Luthra, Healthcare Reporter at The 19th

Episode Overview

This episode examines the key legal arguments and broader implications of the Supreme Court case "FDA vs. Alliance for Hippocratic Medicine," focused on the abortion medication mifepristone. Guest Shefali Luthra draws on her reporting and reaction to the morning's oral arguments, exploring what’s at stake for reproductive rights in the U.S., the legal strategies involved, and the cultural and political context shaping this pivotal case.

Key Discussion Points & Insights

1. Understanding the Case: FDA vs. Alliance for Hippocratic Medicine

• Who is the Alliance and Their Argument
  • The Alliance for Hippocratic Medicine, formed post-Roe v. Wade's overturn, is a coalition of anti-abortion doctors aiming to expand abortion restrictions nationwide—not just in states with bans.
  • Their central argument is that mifepristone, one of two drugs used for medication abortion, was improperly approved and that the FDA’s 2016 and 2021 expansions (e.g., allowing telemedicine prescribing and for use up to 10 weeks) should be reversed.

    "They argued in this particular case that mifepristone... was improperly approved... going back to 2000 when they approved the drug for market... The court hasn't been receptive to that argument." —Shefali Luthra [03:37]

2. Why Now? The Post-Roe Context & Medication Abortion

• Persistence of Access Despite Bans
  • Despite state bans post-Roe, many still access abortions—some via travel, others through telemedicine, with doctors in states like NY mailing pills to restricted states.

    "...people are still able to access abortions... Having doctors in other states... prescribing and mailing medication abortion pills to people in a state like Texas, Oklahoma..." —Shefali Luthra [04:47]

• Medication Abortion as an “Existential Threat”
  • This resilience frustrates abortion opponents, leading to new strategies to restrict mifepristone at the national level.

3. Supreme Court Oral Arguments: A Focus on 'Standing'

• Standing as a Legal Threshold
  • The Justices, including conservatives, expressed skepticism that the Alliance had “standing”—i.e., had not proven personal harm necessary to bring the suit.

    "We saw a lot of justices, including conservatives like Neil Gorsuch, expressing some skepticism that the alliance... had standing to file this suit." —Shefali Luthra [05:57]

• Potential Dismissal
  • If plaintiffs lack standing, the case could be dismissed, a possibly positive sign for abortion rights advocates—but Supreme Court outcomes remain unpredictable.

4. Legal Pathway & The Amarillo Court

• How the Case Advanced
  • The case started in the Amarillo, TX court of Judge Matthew Kaczmarek, known for his anti-abortion rulings. Anti-abortion activists increasingly steer cases to his court for favorable outcomes.

    "...for those who are trying to restrict access... they often take their cases through Matthew Kaczmarek's court, hoping and often getting a favorable ruling." —Shefali Luthra [06:59]

5. Comstock Act Resurfaces

• Historical Law, Modern Implications
  • Attorneys cited the 1873 Comstock Act, which bans sending “obscene” items, including abortifacients, through the mail.

    "The Comstock act is still on the books. It hasn't been enforced in decades... but it's become this linchpin of the future of the anti abortion movement." —Shefali Luthra [09:54]

  • The DOJ rejects using Comstock against mifepristone, since it also treats miscarriages. However, its invocation by Justices Thomas and Alito signals possible future cases.
• Strategic Interest from the Right
  • The law is part of anti-abortion strategy documents for a potential second Trump administration.

6. What If Mifepristone Becomes Unavailable?

• Other Medication: Misoprostol
  • Misoprostol, the second drug in medication abortions, faces no current legal challenge (not FDA-approved for abortion, but widely used). Alone, it's less effective, more uncomfortable, and riskier, potentially driving more toward surgical abortions.

    "If we see a misoprostol only regimen take root in the US they are concerned about higher rates of patient hemorrhages, for instance..." —Shefali Luthra [12:13]

• Civil Disobedience
  • Some providers in shield law states may continue prescribing, potentially increasing legal risk for both clinicians and patients.

7. From States’ Rights to National Strategy

• Emboldening of the Anti-Abortion Movement
  • Far from settling the issue at the state level, overturning Roe catalyzed a push for broader, even national, restrictions.

    "There is no doubt that undoing Roe has emboldened the anti abortion movement. They got something they had been working for for 50 years and many of them are frustrated that the number of abortions in the US hasn't gone down. It's, it's actually gone up." —Shefali Luthra [14:12]

• Ongoing Legal Uncertainty
  • The Dobbs decision opened a "very large can of legal questions" likely unresolved for decades.

8. Fetal Personhood and Broader Reproductive Rights

• Personhood as Endgame
  • Alabama’s Supreme Court ruling on frozen embryos reflects the “personhood” ideology—a key goal of anti-abortion activists, targeting IVF and some contraceptives as well.

    "Fetal personhood is one of the ultimate end goals of a very large sector of the anti abortion movement." —Shefali Luthra [15:30]

9. Possible Outcomes and Political Stakes

• If the FDA Loses
  • The path forward is murky; possible actions include new studies or regulations, but there's little precedent.

    "But again, we are entering quite uncharted territory. So what the government's options would be, I think a lot of people are just guessing right now..." —Shefali Luthra [16:28]

• Election Year Dynamics
  • The current administration defends the FDA’s authority; a different executive could choose not to, or could try to enforce Comstock, making executive politics central to abortion access.

    "A Trump presidency could be far less interested in defending government agencies from anti abortion lawsuits. It could also be much more interested in enforcing the Comstock act as discussed today. And that would have really drastic implications for access to abortion." —Shefali Luthra [17:25]

Notable Quotes & Memorable Moments

• On the anti-abortion movement’s new focus:

  "Mifepristone really does represent one of the greatest existential threats to the anti abortion movement in the year and a half since Roe v. Wade was overturned." —Shefali Luthra [04:47]

• On how legal strategies are set:

  "What we've seen in the past year and a half is... they often take their cases through Matthew Kaczmarek's court, hoping and often getting a favorable ruling." —Shefali Luthra [06:59]

• On standing and possible case dismissal:

  "...the doctors in this organization hadn't proven that they themselves had been harmed by the FDA's actions. And if they can't prove that, then they cannot pursue legal remedy through the courts." —Shefali Luthra [05:57]

• On the unresolved nature of post-Roe reproductive rights:

  "When you undo 50 years of legal precedent, it opens a very, very large can of legal questions that will probably take decades for us to resolve." —Shefali Luthra [14:12]

Timestamps for Important Segments

• [03:37] – The Alliance for Hippocratic Medicine’s argument and court’s response
• [04:47] – Why mifepristone access is being challenged post-Roe
• [05:57] – Supreme Court Justices’ skepticism about plaintiffs’ standing
• [06:59] – Legal tactics: venue selection and the Amarillo court
• [09:54] – The Comstock Act’s history, relevance, and rising interest
• [12:13] – Consequences if mifepristone is restricted: reliance on misoprostol
• [14:12] – National ambitions of the anti-abortion movement post-Roe
• [15:30] – Fetal personhood, IVF, and contraception implications
• [16:28] – Potential government responses if FDA loses
• [17:25] – The role of the presidential election in shaping federal abortion policy

Conclusion

This episode provides a thorough, nuanced look at the Supreme Court's mifepristone case, revealing the ongoing complexity and high stakes of reproductive rights battles in the U.S. Through Shefali Luthra’s expert analysis, listeners gain insights into legal, political, and practical realities—from the intricacies of Supreme Court standing to potential nationwide shifts in abortion access. The conversation makes clear that the landscape for reproductive rights is rapidly evolving, highly politicized, and deeply consequential for millions of Americans.