After the U.S. Supreme Court’s extremist right-wing majority overturned the 1973 Roe v. Wade ruling legalizing abortion in June 2022, women’s reproductive rights have been under assault across the country. Anti-abortion groups targeting mifepristone, one of two drugs used in a majority of medication abortions in the U.S., challenged changes made by the FDA in 2016 and 2021 that permitted the drug to be prescribed via telehealth without an in-person physician visit.
When the Supreme Court heard oral arguments in the case on March 26, the majority of justices appeared likely to preserve access to mifepristone because the challengers in the case lacked legal standing, leaving the door open to future lawsuits seeking to restrict access to the drug.
When the Alabama Supreme Court issued a ruling on Feb. 16 declaring that embryos created through in vitro fertilization (or IVF) should be legally protected as children, a new battle over reproductive rights was joined. While Republican-controlled state legislatures continue to restrict reproductive rights, pro-choice activists have succeeded in establishing abortion rights in all seven statewide referendums votes held since Roe v. Wade was overturned. Between The Lines’ Scott Harris spoke with Dr. Kristyn Brandi, an obstetrician-gynecologist who provides abortion care in New Jersey, and is a former board chair of the group Physicians for Reproductive Health. Here Dr. Brandi examines the recent Supreme Court hearing on mifepristone and the crucial battle for reproductive rights that will be on the ballot in the 2024 presidential and congressional election this November.
DR. KRYSTIN BRANDI: The Supreme Court heard a case to try to overturn the approval of a medication called mifespristone, which is the first of two medications that people use for medication abortion, as well as a couple of other things which we can talk about. Generally, my very non-lawyer read of the case was that the Supreme Court was very concerned about the issue of standing, meaning that the people that were suing to try to get this medication out of approval didn’t really have a leg to stand on because they were people that don’t provide medication abortion and were suing to try to not be able to take care of these patients, which, first of all, is really hard to hear as a physician, to think about doctors that are refusing care for people that come into their doors.
But overall, I still was worried that I was about the Dobbs decision. But I’m very cautious nowadays knowing that the Dobbs decision can happen, that this could also mean that we lose this medication or becomes very restricted in the way that we use it.
One thing that we’ve seen recently is that 63 percent of all abortion is now medication abortion and the number of people seeking it through telehealth is going up and up and up every year. And part of this ruling could mean that we can’t use this medication through telehealth, which would make it really hard for people that are trying to access this medication in states where bans exist and can’t travel, that this medication essentially won’t exist for them.
So there’s a lot of concerns about what’s this case going to show and how it’s going to impact our ability to take care of patients. And it’s really just creating chaos and confusion right now for the people that need the care today.
SCOTT HARRIS: And as you said, the Supreme Court justices appeared to focus on the standing of the plaintiffs that brought the case to the Supreme Court rather than the merits of their argument. There are many observers who looked at the questioning of the justices and concluded that the conservative majority on the court is really trying to keep the door open for future challenges to the distribution and access to mifepristone.
What is your concern about that, which may be the next shoe to drop?
DR. KRYSTIN BRANDI: Right. I think when I heard about this case initially and after listening to the arguments, my thought is always what’s next? And something that came up in the legal conversation was this issue around the Comstock Act, which for people that haven’t heard that before, essentially it’s a very, very, very old law that prohibits anything that is deemed obscene — and abortion considered was considered part of that — but things like contraceptives, things like pornography were kind of all part of that conversation.
This is something that is unprecedented. We’ve never seen an organization try to overturn FDA’s ability to approve a medicine. And so obviously, if this is something that goes through and they do either overturn it or severely restrict it again, my thought is like, well, what’s what’s the next medication that will go through this process?
Will it be other medications used in abortion? I worry about really anything that has any type of social implication. Things like birth control, things like gender affirming care, HIV care or even anything really — diabetes medicine, blood pressure medication. It’s very unclear kind of what the line is. If outside agencies can question the FDA’s authority to approve medications that we use safely and effectively.
SCOTT HARRIS: Dr. Brandi, every referendum held, even in some very conservative and Republican-controlled states like Kansas, for instance, in Ohio, large margins have supported abortion rights in those states. I think just today, the Supreme Court of Florida allowed a referendum to go forward in that state where Ron DeSantis, the conservative governor of that state and former presidential candidate, passed a law in the state legislature to restrict abortions to six weeks, I believe.
Donald Trump, the candidate for president in the Republican party, has been talking about a nationwide abortion ban. And that, of course, is on the agenda of many Republicans across the country. It seems that abortion will indeed be on the ballot in this November presidential and congressional election. Tell us about some of your thoughts on that and how to best communicate what’s at stake when people go to the polls in November?
DR. KRYSTIN BRANDI: I think you said it quite well that abortion is on the ballot and it’s going to be on the ballot for a long time until we have nationwide laws that protect this care.
You’re right. We just saw that just today that Florida has now backtracked. They had a 15-week ban and now they’re going to 6 weeks. That’s effective in 30 days from now.
It’s really scary to think about how states are chipping away one by one. Florida was a big access state in the South with a lot of its neighboring states having bans. The Florida was a refuge for some people to get care, and I worry now, what happens in such a large state is no longer able to provide that care.
But that’s the state of things right now that we’re going to continue to chip away, state by state until we pass nationwide legislation. And we’re not going to be able to do that unless we have legislators that understand how important this is and take it seriously.
I think a lot of it is just politics that they think that abortion is a topic that will get them votes and are kind of touting an abortion ban, not really understanding all of the impact that it’s going to have with people for patients care. Particularly, a 15-week ban is very arbitrary.
There’s nothing special about 15 weeks that makes a ban necessary, and it actually will probably harm patients versus saving lives. So it’s really scary to think about how our health care is going to depend on your zip code and your health care is going to depend on your vote. But that’s the reality we’re in right now that we need to be voting and supporting abortion access, including electing local and nationwide politicians that will help be able to protect this care instead of take it away from people.
For more information, visit Physicians for Reproductive Health at PRH.org.
Listen to Scott Harris’ in-depth interview with Dr. Kristyn Brandi (26:57). More articles and opinion pieces are found in the Related Links section of this page.
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