This blog originally appeared at CNN NEWS.

When the Supreme Court Overturned Roe v. Wade: The Impact Unleashed – Opening the Floodgates for Abortion-Related Lawsuits and Legal Turbulence.

On Tuesday, the Supreme Court is set to review its inaugural abortion case following the 2022 overturning of Roe v. Wade, marking a significant shift in reproductive rights in America.

The impact of the justices’ ruling is palpable across the nation:

Fourteen states have implemented complete bans on abortion, while seven others have enacted significant limitations on abortion access.

Certain states prohibiting abortion are actively preventing the transportation of abortion medication across their borders. Additionally, they are endeavoring to thwart a federal statute permitting emergency room doctors to terminate pregnancies when medically warranted.

A decision by the Alabama Supreme Court affecting in vitro fertilization—a method aimed at initiating rather than terminating pregnancy—has been criticized by opponents, including President Joe Biden, who attribute it to the Supreme Court’s erosion of women’s privacy rights following the overturning of Roe v. Wade.

Abortion has surged to the forefront of election-year debates, with Democrats banking on continued public concern over restrictions to bolster their candidates. Meanwhile, Republican presidential contender Donald Trump has floated the idea of a nationwide abortion ban at 15 weeks of pregnancy.

Simultaneously, public trust in the Supreme Court has deteriorated.

This culturally charged atmosphere will set the stage as the justices deliberate on Tuesday regarding the controversy surrounding Food and Drug Administration (FDA) regulations for accessing the abortion pill mifepristone. A faction of anti-abortion physicians has filed a lawsuit against the FDA, contesting the agency’s safety assessment of the drug and alleging the improper removal of “critical safeguards” for its usage.

The group aims to restrict women’s access to the pill, which forms part of a two-drug regimen for terminating early-stage pregnancies and has become the most prevalent method of abortion in America. Key points of contention include a 2016 provision extending the drug’s usage window to 10 weeks of pregnancy from seven, and a 2021 change allowing women to obtain their prescription via mail rather than in-person.

Since the Dobbs v. Jackson Women’s Health Organization case, which overturned Roe v. Wade, medication-induced abortion has led to an unexpected increase in abortions. Last year saw over 1 million abortions performed in the US, marking the highest rate in over a decade and a 10% rise from 2020.

In its defense of the FDA, the Biden administration strategically avoids mentioning the Dobbs decision in its written brief for the new case, perhaps to sidestep constitutional contention and emphasize broader concerns regarding federal regulation and expertise. Instead, the focus remains on the drug approval process.

“The government acknowledges that this case represents the first instance in which any court has curtailed access to an FDA-approved drug by questioning the FDA’s expert judgment regarding the necessary conditions for ensuring its safe use,” stated Solicitor General Elizabeth Prelogar to the justices, referencing a federal appellate court’s 2023 ruling against the FDA.

Prelogar further noted that since mifepristone was first approved for market in 2000, over 5 million American women have utilized it to terminate their pregnancies.

However, various groups submitting “friend of the court” briefs invoke the Dobbs case and its aftermath in America since the Supreme Court dismantled nearly fifty years of abortion rights precedent.

Backing the FDA, New York, along with 22 states and the District of Columbia, underscore the broader disruption to reproductive healthcare since Dobbs, highlighting a significant surge in telemedicine-based medication abortion in the first year post-Dobbs.

On the opposing side, the Susan B. Anthony Pro-Life America and the United States Conference of Catholic Bishops draw from the Dobbs opinion to bolster their arguments against the FDA, citing the Dobbs majority’s assertion that “Abortion is a unique act.”

The lawyers representing the anti-abortion groups informed the justices, citing previous court decisions, that “This Court acknowledges that ‘(a)bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.'”

Expect more abortion debates at the Supreme Court, retired Justice Breyer says

Since June 24, 2022, when it nullified the constitutional right enshrined in the 1973 Roe v. Wade decision, the composition of the court slated to hear the mifepristone case has seen minimal change.

Following the retirement of Justice Stephen Breyer a few months after the ruling, Justice Ketanji Brown Jackson succeeded him, becoming the first Black woman to serve on the high court. The succession of these two liberal, Democratic-appointed justices preserved the 6-3 conservative-liberal majority that has been reshaping American law.

In the year following the Dobbs ruling, the justices overturned yet another pivotal decision, a 1978 ruling regarding racial affirmative action in higher education institutions.

Meanwhile, Justice Samuel Alito, author of the Dobbs opinion, and other justices have expressed skepticism towards various social milestones, including the 2015 Obergefell v. Hodges decision affirming the right to same-sex marriage.

The ideological divide within the court mirrors political rifts: all six conservative justices were appointed by Republican presidents, with three nominated by Trump, who has boasted about his influence on the Dobbs decision; the remaining three liberal justices were appointed by Democrats.

Breyer, a dissenter in the Dobbs case, criticized the majority in his recent book, published on Tuesday, for suggesting that court cases concerning abortion could be brought to an end.

“The Dobbs majority’s expectation that legislatures, not courts, will address the abortion issue will not come to fruition. Different states will enact varying laws and enforce them differently,” Breyer wrote, outlining numerous potential issues that could reach the Supreme Court in the coming years.

He further stated, “Whether the Constitution guarantees a woman’s right to an abortion necessary for her life, physical health, or mental health; whether it provides abortion rights for victims of rape or incest; whether states can prohibit the mailing of abortion-inducing medications; whether states can prosecute individuals within their borders aiding or abetting out-of-state abortions; and other abortion-related queries may result in further court cases, not solely legislative determinations (many of which may also be subject to judicial review).”

How the case got to the Supreme Court

The upcoming Supreme Court case scheduled for Tuesday has spurred planned protests, setting the stage for a scene reminiscent of traditional abortion rights cases outside the marble-columned court. However, FDA v. Alliance for Hippocratic Medicine carries broader implications that could impact the regulation and accessibility of all drugs.

Last year, US District Judge Matthew Kacsmaryk ruled in favor of the Alliance in its lawsuit against the initial FDA approval of mifepristone in 2000 and subsequent regulations that expanded women’s access to the drug.

Although the 5th US Circuit Court of Appeals reversed Kacsmaryk’s decision regarding the 2000 approval, deeming it untimely, it concurred that the FDA’s relaxation of requirements in 2016 and 2021 lacked sufficient justification.

The 2016 changes included extending the gestational age limit to 10 weeks of pregnancy, reducing the mandatory number of in-person medical visits, and permitting non-physician healthcare providers to prescribe the drug. In 2021, the FDA determined that the in-person dispensing requirement was no longer necessary, allowing prescriptions to be obtained via mail.

As the case heads to appeal, Justice Department lawyers representing the FDA argue that the changes were based on extensive studies and scientific review over the years. Regarding the 2021 decision to eliminate the in-person dispensing requirement, they stated, “The agency concluded, based in part on actual experience during the pandemic, that the requirement was no longer necessary to ensure mifepristone’s safe use.”

A key contention in the case is whether the anti-abortion physicians challenging the FDA have legal “standing” to bring the case. The FDA argues that these physicians, who do not prescribe mifepristone, lack sufficient injury to establish standing.

However, the challengers argue that as they handle emergency room duties, they would be compelled to care for women experiencing complications from medication abortion. They assert that the loosening of restrictions in 2016 and 2021 has increased the likelihood of dangerous conditions such as ectopic pregnancies.

Erin Hawley, lead lawyer for the Alliance for Hippocratic Medicine, argued in a court filing, “In removing crucial safeguards for the use of abortion drugs, FDA expressly counted on OB/GYN hospitalists and emergency-room doctors to manage abortion-drug complications. When faced with these emergencies, (the doctors) have no choice but to provide immediate treatment, even though this kind of participation in an elective abortion harms their consciences and injures them in other ways.”

The Department of Justice counters these arguments, stating that hypothetical scenarios cannot establish imminent injury required for legal standing and that the challengers have not provided evidence of any instances where their members were forced to provide such care.

This blog originally appeared at BBC.

The recent Texas abortion pill ruling not only sets a precedent for reproductive rights but also raises concerns about the broader implications for medication access. This decision has ignited discussions about the potential threats it poses to various drugs beyond reproductive health, signaling a pivotal moment in the ongoing debate over healthcare policy

Experts warn that a recent Texas court ruling on abortion pills could jeopardize the approval process for nearly every drug in the United States, posing a significant threat to the country’s regulatory framework.

On Friday, a Texas judge nullified the Food and Drug Administration’s authorization of mifepristone, one of the two drugs employed in medication abortions. This action has sparked concerns among legal experts regarding potential challenges to other approved medications in the United States and the potential dampening effect on the development of future drugs.

According to Lawrence Gostin, a professor of global health law at Georgetown University, “This could have precedential value that could extend beyond abortion medication to encompass standard drugs regularly under FDA review.”

In response, the Justice Department has lodged an appeal against the ruling, with officials from the Biden Administration cautioning that it could disrupt the entire FDA approval process.

On April 8th, Texas Judge Matthew Kacsmaryk issued a ruling ordering the removal of mifepristone from the market within seven days, asserting that the FDA had violated federal regulations allowing accelerated approval for certain drugs. The order is scheduled to come into effect on Friday.

In his 67-page opinion, the judge stated, “FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions.”

Opponents of mifepristone’s FDA approval, primarily anti-abortion activists, have alleged that the agency’s decision was politically motivated and failed to adhere to proper protocols.

Legal analysts have criticized the Texas ruling, denouncing it as deeply flawed for cherry-picking evidence and incorporating partisan language, such as referring to “unborn humans” instead of “fetus.”

“I perceive the decision more as an ideological or religious manifesto posing as a legal opinion,” remarked Scott Lassman, a lawyer with over three decades of experience in FDA law and policy.

Under the Food, Drug, and Cosmetic Act of 1938, the FDA is empowered to assess the safety and efficacy of drugs, and traditionally, courts have deferred to the agency in matters concerning scientific and medical judgments, noted Mr. Lassman.

Regarding mifepristone specifically, Lawrence Gostin of Georgetown University emphasized its “impeccable” health and safety track record, having undergone thorough evaluation by the FDA.

Experts point out that common medical procedures like colonoscopies, as well as drugs like penicillin and Viagra, carry higher complication and mortality rates.

However, Judge Kacsmaryk’s ruling establishes a precedent wherein any individual lacking medical expertise could contest such scientific evidence, according to experts.

“Attempting to undermine the scientific judgments made by seasoned FDA scientists sets a dangerous precedent,” cautioned Mr. Gostin.

This week, over 300 pharmaceutical executives have urged for the reversal of the Texas decision, asserting its disregard for scientific evidence.

The pharmaceutical industry may now be apprehensive about facing further legal challenges to their products, especially those that have become politicized issues in the United States, such as gender-affirming care and Covid-19 vaccines, noted I. Glenn Cohen, a professor at Harvard Law School.

“There’s a possibility in any domain, but … it’s likely to have the most severe repercussions for medications that are sometimes vital for marginalized groups,” he remarked.

Experts suggest that those seeking to contest politically contentious treatments may consider filing lawsuits once more in Judge Kacsmaryk’s district in Amarillo, Texas.

“From what it seems, this judge holds notably strong ideological and religious convictions, which could position him as a prime venue for challenging more politically charged drug approvals,” commented Mr. Lassman.

Legal experts caution that the ramifications may not be limited to the FDA alone; they could also impact the ability of other US regulatory bodies, such as the Environmental Protection Agency and the Centers for Disease Control and Prevention, to make scientifically sound decisions safeguarding public health.

“If these agencies are hindered in utilizing the most robust scientific evidence available, it could greatly compromise the safety and well-being of Americans,” remarked Mr. Gostin.

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This blog originally appeared at BBC.

Anti-abortion activists are strategizing a covert approach aimed at potentially enacting a nationwide ban on abortion in the United States. Their backdoor strategy poses significant implications for reproductive rights and legal precedents, prompting heightened scrutiny and debate over the future of abortion access in the country

Anti-abortion activists in the United States, including allies of former President Donald Trump, are pursuing a strategy to institute a nationwide abortion ban. This plan circumvents Congressional approval and public opinion, relying instead on Mr. Trump’s potential re-election in November and the utilization of an obscure 19th-century law.

During this year’s annual “Pro-Life Summit” held on January 20th, attendees were treated to a keynote address delivered by Marjorie Dannenfelser, the head of Susan B. Anthony Pro-Life America, one of the nation’s most influential anti-abortion organizations.

Ms. Dannenfelser is widely recognized for persuading Donald Trump to nominate three anti-abortion justices to the Supreme Court during his presidency. In June 2022, these appointees played a pivotal role in overturning Roe v. Wade, effectively revoking the nationwide right to abortion.

The overturning of Roe v. Wade marked a significant triumph for the anti-abortion movement, with activists heralding it as a generational victory that paved the way for an abortion-free future. However, in the nearly two years since, their efforts have encountered notable obstacles. Despite concerted efforts, public opinion in America has consistently favored maintaining access to abortion, even in traditionally conservative states.

The movement’s ultimate objective—a federal abortion ban—has proven elusive, a formidable challenge in a politically divided Congress that struggles to find consensus on legislative priorities.

This political reality hasn’t escaped the notice of anti-abortion advocates. Speaking to a captivated audience in the grand ballroom of a Washington DC hotel, comprised of the movement’s most ardent supporters, Ms. Dannenfelser devoted a significant portion of her speech to instilling hope.

“It’s not lost on any of us, right? That it’s been difficult,” she acknowledged. “We’re all aware.”

However, anti-abortion activists may possess a trump card. Conservative leaders, including allies of Mr. Trump, have devised a new strategy to criminalize abortion. Experts suggest that this plan could succeed if the former president returns to the White House.

“If Trump wins, there’s potential for a de facto nationwide ban he could seek to enforce immediately,” explained Mary Ziegler, a prominent law professor specializing in the US abortion discourse at the University of California, Davis. “It’s rooted in the Comstock Act.”

A 150-year-old law

Enacted in 1873, the Comstock Act, spearheaded by anti-vice advocate Anthony Comstock, criminalized the transmission or receipt of materials deemed “obscene, lewd, or lascivious.” Notably, the statute explicitly addressed birth control and abortion, prohibiting materials intended for “the prevention of conception or procuring of abortion.”

Over the ensuing century, judicial interpretations gradually narrowed the law’s application. In 1971, Congress substantially relaxed Comstock’s restrictions on contraceptives, and two years later, the Supreme Court affirmed a constitutional right to abortion through Roe v. Wade. Consequently, the act was largely perceived as an unenforceable relic, lying dormant for five decades.

However, the Comstock Act is now experiencing a resurgence within conservative circles.

Without the protections of Roe v. Wade ensuring abortion access, the reasoning is clear. Under an expansive interpretation of the law, the mailing of any abortion-related materials—whether through the United States Postal Service or private carriers like UPS and FedEx—would constitute a violation.

By obstructing the delivery of medications and tools essential for the procedure to hospitals and clinics, the Comstock Act could effectively impede abortions without the need for Congress to enact new legislation.

“Its language is remarkably broad,” explained Rachel Rebouché, dean and professor of law at Temple University Law School and a noted authority in reproductive health law. “If interpreted literally, the Comstock Act could indirectly impose a ban on abortion, as all supplies for abortion clinics are typically delivered by mail.”

The conservative strategy

Anti-abortion activists and prominent conservative organizations are gearing up for this tactic, formulating legal arguments and political maneuvers to reinterpret the Comstock Act as a viable tool for enforcing an abortion ban.

Josh Craddock, a lawyer and scholar affiliated with the conservative James Wilson Institute, has been vocal in his opposition to abortion. He noted that fellow anti-abortion activists have rallied around the Comstock Act, hailing it as “one of the most promising avenues for advancing the pro-life agenda in America today.”

“It doesn’t hinge on Congress taking action or the Supreme Court making a ruling; there’s existing federal law safeguarding unborn life,” he asserted. “It’s quite straightforward.”

This week, the Comstock Act will be brought before the Supreme Court as part of arguments presented by a coalition of anti-abortion activists and medical professionals seeking the withdrawal of federal approval for the abortion medication mifepristone.

Furthermore, the conservative Heritage Foundation has specifically referenced the Comstock Act in its strategic blueprint for the upcoming Republican administration, known as Project 2025.

In light of the Supreme Court’s decision to overturn Roe v. Wade, the Foundation asserts that there are no longer any barriers to enforcing this statute. “The Department of Justice in the next conservative Administration should therefore announce its intent to enforce federal law against providers and distributors of such pills,” it stated, referring to abortion pills.

The abortion segment of Project 2025 was developed by former Trump administration official Roger Severino, who declined to comment when contacted by the BBC. Notably, the project boasts the participation of leading anti-abortion organizations on its advisory board, including SBA Pro-Life America led by Ms. Dannenfelser and Students for Life headed by Kristan Hawkins.

Can it work?

Anti-abortion activists find the legal framework of the Comstock strategy compelling. However, translating it into action hinges on a federal government’s willingness to enforce the law after years of dormancy.

Nevertheless, experts argue that this is not only feasible but also probable, especially with Mr. Trump in the White House.

“All it requires is an administrative determination from the Department of Justice to pursue individuals for breaching the Comstock Act,” explained David Cohen, a law professor at Drexel University specializing in abortion law. “The barriers to implementation are minimal, apart from securing an electoral victory.”

Enforcing the Comstock Act in this manner would likely trigger a flurry of legal disputes, potentially culminating in a Supreme Court review. A federal ban on abortion would have far-reaching consequences and could face significant public opposition. A recent Gallup poll indicates that approximately 69% of voters believe abortion should be legal during the first three months of pregnancy, which is when the majority of abortions occur.

A political liability

Some critics argue that anti-abortion activists have deliberately kept their Comstock strategy under wraps.

“They [Republicans] understand that this approach is unpopular,” remarked Ryan Stitzlein, vice president of government relations at the pro-choice organization Reproductive Freedom for All (formerly NARAL). “Therefore, they resort to methods of obfuscation or concealment.”

In New Mexico, where efforts to establish abortion-free “sanctuary cities” have invoked the Comstock Act, activists primarily reference its statute numbers—18 USC 1461 and 1462.

Similarly, in Project 2025, while the law is directly quoted, the term “Comstock” is conspicuously absent from the 920-page document, with only the statute numbers being cited.

Jonathan Mitchell, an anti-abortion attorney who has been an advocate for the Comstock strategy, recently advised anti-abortion groups to maintain a low profile until the election, according to reports from the New York Times.

Reportedly, Mitchell, who has previously represented Mr. Trump, expressed a desire for the former president to remain unaware of the Comstock strategy, stating, “because I just don’t want him to shoot off his mouth.” Despite attempts to contact him, Mitchell did not provide a response to the BBC’s request for comment.

All eyes on the White House

If Mr. Trump returns to the White House next year, his endorsement of the Comstock Act will be crucial for any significant enforcement of the law.

Thus far, he has made no public remarks regarding the statute, and his stance on abortion more broadly remains somewhat ambiguous.

While Mr. Trump previously declared himself “the most pro-life president ever,” he has recently displayed public frustration with stringent abortion restrictions, expressing a desire for compromise on legislation.

In a September interview on NBC’s Meet the Press, he remarked, “It could be state, or it could be federal. I don’t, frankly, care.”

However, last week, Mr. Trump indicated support for a federal ban on abortions after 15 weeks of pregnancy, with exceptions for rape, incest, and the life of the mother.

Experts suggest that if re-elected, Mr. Trump is likely to approach abortion policy in a manner similar to his first term, deferring to conservative activists in his circle.

“The past approach has been that Trump delegates responsibility to individuals who are very conservative,” explained Mary Ziegler of the University of California.

Those advocating for the Comstock strategy are not fringe figures but rather former Trump administration officials and other allies of the former president.

According to the Heritage Foundation, the first Trump administration heavily relied on its policy agenda, embracing nearly two-thirds of its proposals within a year in office.

“While it doesn’t guarantee Trump’s support, it does lend credibility to those asserting it,” Ms. Ziegler noted. “These are individuals deeply embedded in Trump’s circle who have his ear.”