Mifepristone Wins, I.V.F. Loses

[ Posted Thursday, June 13th, 2024 – 15:13 UTC ]

There was significant news today on reproductive rights, from two separate directions. The Supreme Court unanimously (!) overturned a case that challenged the F.D.A.'s approval of mifepristone, one of the two most commonly used abortion pills in the country. The unanimity was possible because the high court essentially punted on the legal question and instead ruled that the plaintiffs had no legal standing to bring their case. Meanwhile, in the Senate, a bill to create a federal right to in-vitro fertilization failed, mostly on party lines. Last week a bill that would have given federal protections to contraceptives also failed. Both will be used in campaign advertising by Democrats to paint Republicans as being against both contraception rights and I.V.F.

First, the abortion ruling. Mifepristone is one of a two-drug regimen that most medication abortions in this country use. A group of doctors in Texas sued to essentially have mifepristone taken off the market entirely. They filed their suit in a court district with only one federal judge -- one who is virulently antiabortion himself. The case wound its way upward through the appellate courts and arrived at the Supreme Court this year. But while both the trial judge and the appellate court had decided to restrict the drug while the case was being heard, the Supreme Court tossed the case out entirely, determining that the doctors simply had no standing to sue:

Writing for the court, Justice Brett M. Kavanaugh said the antiabortion doctors who brought the case do not prescribe or use mifepristone, and the FDA's relaxed regulation of the medication does not require those doctors to do or refrain from doing anything.

"Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain," Kavanaugh wrote. Under the Constitution, he added, a group's "desire to make a drug less available for others does not establish standing to sue."

. . .

"We recognize that many citizens, including the plaintiff doctors here, have sincere concerns about and objections to others using mifepristone and obtaining abortions. But citizens and doctors do not have standing to sue simply because others are allowed to engage in certain activities," Kavanaugh wrote.

In the American judicial system, you must show actual harm (as opposed to some theoretical scenario that might or might not actually happen in the future), and these doctors could not show any harm at all. So their case was chucked out.

This does not solve the legal problem at the heart of the case, however. Others are waiting in the wings to bring similar challenges to the F.D.A.'s approval of and regulations for abortion pills. So the Supreme Court may revisit this whole issue in another couple of years or so. And when they do tackle the basic issue of whether someone can sue to overturn the F.D.A.'s scientific decisions about what drugs to allow on the market, it's a pretty safe bet it won't be a unanimous ruling.

But for now, medication abortions will continue as before. That's a clear victory no matter what legal reasoning the court used to get there.

On the I.V.F. front, things are slowly heating up. The concept of "fetal personhood" has not gone away, and the hardest core of the antiabortion activists want laws changed to reflect their religious beliefs. According to the absolutist position of many of them, once a sperm cell fertilizes an egg cell, a "person" is created -- complete with all the constitutional rights any other person enjoys. Doing anything to that collection of a few cells that doesn't result in a woman giving birth to a baby is tantamount to murder, to them. I.V.F., as it is practiced today, falls afoul of this absolutist position. Many embryos are created, and most of them wind up being discarded in one way or another.

This week, before the Senate acted, the largest Protestant denomination in the country, the Southern Baptist Convention, voted to condemn I.V.F. This is the first time a large evangelical group has taken such a stand, and as such can be seen as an indication that the "fetal personhood" movement is growing in importance for Republican politicians.

The problem for them on this particular issue is that much more than abortion rights, the fetal personhood concept is not a popular one. Over 80 percent of Americans approve of I.V.F., and there are millions of families out there that have used it -- of all political stripes.

Republicans realized this earlier, when the Alabama supreme court handed down a ruling that effectively ended I.V.F. treatments in their state. Republicans were horrified at the result, because the backlash was so fierce. So the state legislature hastily passed a new law that allowed I.V.F. treatments to continue in the state, and the Republican governor quickly signed it. But it was still a large warning signal to the rest of the country: Yes, this can happen. This is the direct result of those fetal personhood laws. This is exactly what they mean.

Senate Majority Leader Chuck Schumer teed up a vote on a bill this week that would overrule any restrictive state law and equally guarantee I.V.F. services to every woman in America. You'd think this wouldn't be a contentious thing, since Republicans have been falling all over themselves after the Alabama court ruling to convince voters how much they support I.V.F. But talk is cheap. When the vote was held today, only two Republicans (Senators Lisa Murkowski and Susan Collins) voted for it. This left it far short of the 60 votes it needed to advance.

The problem for these Republicans is that they have to have things both ways, or they will suffer politically. They have to give lip service to I.V.F. but stop short of actually guaranteeing it as a right by federal law. This allows each state to pass fetal personhood bills and do whatever they want on regulating (or banning) I.V.F. If the Republicans did support the bill, they'd pay a price from the hardliner antiabortion part of their base, but they also know that I.V.F. is overwhelmingly popular with most voters. So their best option is to try to avoid the issue entirely. They gave several rather unbelievable reasons why they couldn't support the bill today, but the real reason was sheer political cowardice.

Schumer was right to force the issue. As mentioned, he forced another issue last week, bringing a bill that would have guaranteed all American women the right to access contraception, which was also shot down by Republicans who were terrified of segments of their own base. This leaves the field open for Democratic ads in all the Senate races this cycle to paint the Republicans as hypocrites. Oh sure, they say they're not coming for your birth control or I.V.F., but when it is put to the test they vote against guaranteeing these rights. I fully expect a flood of ads highlighting the votes on these two bills, all the way up to Election Day.

It all neatly fits into the larger message that Democrats are fighting hard for women's freedoms, while Republicans are trying to figure out new and creative ways to take away those freedoms. Republicans scoff at Democrats trying to guarantee these rights, saying that it is unnecessary since they have no plans to restrict them, but that's what everyone believed about Roe v. Wade too -- that it wasn't that big a worry because it was established law. Once the right to an abortion fell, rights for all sorts of things were suddenly at risk -- contraception, I.V.F., gay marriage, L.G.B.T.Q. rights, and whatever else the religious hardliners don't approve of. Which makes the political messaging rather simple. Democrats are for freedoms and rights, while Republicans want to take them away. If this weren't true, Republicans would have joined with Democrats to enshrine these rights into federal law.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


One Comment on “Mifepristone Wins, I.V.F. Loses”

  1. [1] 
    dsws wrote:

    The voters have already decided to enact what passes for a constitutional amendment these days, by a vote of 62,984,828 in favor to 65,853,514 opposed, that no state is going to be allowed to have a homicide statute unless it classifies all zygoticide as murder. It just hasn't taken effect yet.

    Democrats aren't going to pack the Court. Neither disease nor assassination is going to intervene, nor will there be a surprise outbreak of sanity among the members of the Majority. And we certainly aren't going to elect Democratic two-thirds supermajorities in both houses of Congress.

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