Abortion access: Safer, but not safe

Opinion editor’s note: Editorials represent the opinions of the Star Tribune Editorial Board, which operates independently from the newsroom.

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A reprieve. Not a vindication.

For all who care about women’s health care and freedom, this guarded perspective is the appropriate response to the U.S. Supreme Court’s ruling Thursday involving mifepristone, a prescription medication that has been widely and safely used to induce abortions for 24 years.

The nine justices unanimously ruled against a little-known anti-abortion organization that took aim at the U.S. Food and Drug Administration’s approval of mifepristone as well as subsequent actions by the agency to ease patient access to it.

The decision is welcome, but it didn’t shut the door to future challenges to this drug or others typically used in combination with it for medication abortions, meaning abortions in which pills are taken in lieu of a surgical procedure. Legislation, such as the Protecting Access to Medication Abortion Act introduced in 2023 by Minnesota’s U.S. Sen. Tina Smith, is still urgently needed to safeguard access.

The reason: The nine justices didn’t decide on the case’s underlying questions about federal health officials’ approval of the drug or changes that have made it easier to access it. Instead, the decision focused on plaintiffs’ standing to bring the case.

“The plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them 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,“ wrote Justice Brett Kavanaugh, the decision’s chief author. “Under Article III of the Constitution, a plaintiff‘s desire to make a drug less available for others does not establish standing to sue.”

It’s a commendable rebuke of the little-known anti-abortion legal organization that brought the case: the Alliance for Hippocratic Medicine (AHM).

Last year, the Star Tribune Editorial Board sounded the alarm about this dubious legal challenge and warned that this organization had gone judge-shopping. It incorporated soon after the Supreme Court struck down Roe v. Wade, and just happened to do so in the district of a Texas judge known for his extreme anti-abortion views.

The strategy met with initial success, with U.S. District Court Judge Matthew Kacsmaryk issuing a preliminary decision in April 2023 that invalidated FDA approval of mifepristone. But on the same day, “a judge in Washington state issued a ruling in another case, which contradicted the Texas decision,” the New York Times reported at the time.

The conflicting rulings and high-profile issue made it likely the U.S. Supreme Court would hear the case, and the court did. While its decision this week is reassuring, it doesn’t help women in 14 states with sweeping abortion restrictions that went into effect after Roe’s fall. Anti-abortion organizations may also try again to restrict mifepristone access, this time remedying the issue of standing.

Smith, a Democrat who has served in the Senate since 2018, has noted another potential threat to abortion medications. During the oral arguments in this case, a 151-year-old law known as the Comstock Act came up three times, suggesting new interest in an old law.

The 1873 Comstock Act is a relic of Victorian-era prudishness. It criminalizes the mailing of virtually anything that could be construed as “obscene, lewd, lascivious, indecent, filthy or vile.”

While the law has long lain dormant, Smith warned in an interview Thursday that it could be resuscitated to restrict shipping of mifepristone or other drugs used with it to clinics and patients. And, to prosecute anyone involved.

There are several key reasons why it may be an attractive option for anti-abortion activists to pursue.

Sixty-three percent of abortions in the U.S. were induced through medication in 2023, according to the Guttmacher Institute. Limiting access to mifepristone, which is usually taken in combination with another drug and can also be used to manage miscarriages, would likely dramatically reduce the number of abortions.

Since the Comstock Act also remains on the books, there’d be no need to pass a new law for the pursuit. Instead, a future president could instruct the Department of Justice to start enforcing it again.

Smith, a former Planned Parenthood executive, issued this welcome statement on Thursday: “In the coming days, I’ll be introducing a bill to repeal the zombie Comstock Act and remove any tool Donald Trump and extremist Republicans would try to misuse to enforce a backdoor national abortion ban.”

Ideally, Congress would pass legislation codifying abortion protections. Until then, Smith’s Protecting Access to Mifepristone Act and her bill to repeal Comstock are partial solutions that merit support from her congressional colleagues and Minnesotans as well. It’s regrettable that federal protections like this are necessary so women can access essential care, but clearly such safeguards are required and urgent.