On Wednesday, a Texas judge heard arguments in a case brought by anti-abortion extremists asking the court to effectively ban the abortion pill nationwide. At the hearing, the judge announced he would issue a decision “as soon as possible,” but he hardly needs to.
The case, brought by the Alliance for Hippocratic Medicine, is already doing significant damage to abortion access. Its anticipated outcomes are sowing confusion among abortion providers and patients alike and frightening many into wondering how to comply with a ruling that’s likely to be legally incoherent and subject to further challenge.
It is throwing the already tumultuous landscape around abortion rights further into chaos. Whatever happens, the losing side is certain to appeal, leading ultimately to the Supreme Court, with the potential of leaving the legal status of these drugs in limbo for months or longer. And for the extremist anti-abortion activists behind it, that is exactly the point.
The plaintiffs in Alliance for Hippocratic Medicine v. FDA aren’t making principled legal arguments to advance their goals. This lawsuit has numerous defects, any of which would be fatal in a normal world—though, according to observers, the judge seemed receptive to the plaintiffs’ unprecedented ask that the court rescind the FDA’s approval of mifepristone. Rather, they filed a meritless case in the hopes of injecting more fear, chaos, and uncertainty into the post-Roe legal landscape.
The goal of this strategy? To create a climate so rife with legal risk, including criminal convictions that carry heavy prison sentences, that providers decide they simply cannot continue to offer their patients mifepristone—a medication the FDA has deemed safe multiple times over the course of more than two decades. People who need abortion care, and their supporters, too, will be afraid to seek it out. The aim is to chill access to medication abortion care everywhere, even in states where access is protected by state law—regardless of whether one district court judge in Texas actually wields this power.
This is by design. Don’t believe me? Look no further than the chilling effect abortion bans have had on providers when their patients needed urgent, lifesaving care, and clearly qualified under even the narrowest exception. Just last week in Texas, five women sued the state after being denied abortions despite their potentially deadly pregnancy complications. Each woman was forced to flee the state—or wait until their condition deteriorated to where they were at the brink of death—in order to receive lifesaving care.
A Louisiana woman was forced to travel to New York to obtain an abortion after doctors discovered her fetus didn’t have a skull. The author of Louisiana’s abortion ban herself said this situation should have been covered by the ban’s exceptions, yet has taken no steps to clarify the law’s language.
And in Tennessee, the state’s felony abortion ban contains no exceptions at all. Instead, the law only allows physicians to raise an affirmative defense that the abortion was necessary to prevent the pregnant person’s death or “substantial and irreversible impairment of a major bodily function,” effectively forcing physicians to make emergency medical decisions while wondering whether they can prove to a jury that a defense applied. While the legislature is considering amending the law to provide an explicit exception for life endangerment, an anti-abortion lobbyist urged lawmakers to ensure that any changes spare only patients on death’s door, leaving no room for medical discretion. By tying doctors’ hands in these ways, anti-abortion policymakers have created a climate where fear of prosecution is so ubiquitous, it’s no wonder patients are being turned away.
People who need miscarriage management are also in the crosshairs. In Ohio, a woman who miscarried and was filling diapers with blood in the hospital was offered no treatment and told she needed to “prove there was no fetal development” before its staff would treat her. Attempts to ban the drugs used in medication abortion—which is the exact same treatment used to medically manage a miscarriage—will only lead to more patients being denied evidence-based care.
These scare tactics have already had far-reaching impacts. Look to the recent decision by Walgreens not to dispense mifepristone in 20 states, even in states where abortion remains legal, in response to a threatening letter sent by anti-abortion state attorneys general. Several of these states’ laws pose no barriers to dispensing this drug, yet anti-abortion politicians succeeded in bullying Walgreens into pre-compliance with their baseless view of the law.
We are seeing this strategy of muddying the legal waters around abortion access play out in real time in the AHM case. Even if the court orders the FDA to withdraw its approval of mifepristone, it’s possible that these drugs will continue to be legally available in the days, weeks, and even months after the opinion comes down. But that may offer little comfort to providers who are bullied, harassed, or threatened by the anti-abortion extremists in and outside government who will feel further empowered by a decision in their favor. During Wednesday’s hearing, the court indicated openness to what it might bill as a middle road approach—reinstating some of mifepristone’s previous restrictions, such as the requirement that the drug be dispensed in person—while not fully exercising the nuclear option. This type of ruling, too, may not have an immediate impact, but anti-abortion extremists may seize upon it to take baseless actions against telemedicine abortion providers.
The very real and terrifying situations already facing providers and patients illustrate the breathtaking inhumanity of intentionally injecting legal uncertainty in an already fraught landscape. Providers already feel their hands are tied—that their life’s work and even their freedom are on the line. Pregnant people have suffered—and will continue to suffer—due to anti-abortion laws both enacted and merely threatened. These are features, not bugs, of the forced pregnancy movement’s strategy for ending safe and legal abortion everywhere, for everyone, without exceptions and at all costs.
The uncertainty and fear are the point.
