Abortion Rights On The Line
Sara Tabatabaie of Vote Pro-Choice answers our questions about the critical ongoing fight over abortion rights.
In the almost two years since the Supreme Court overturned Roe v Wade, anti-choice forces have been working overtime to implement their true goal of a national abortion ban, despite Sam Alito’s claim that they merely sent the issue “back to the states.”
With yet another crucial abortion rights case in front of the Supreme Court this term and with a recent devastating decision out of Florida’s right-wing Supreme Court, we wanted to get some answers about the current state of abortion rights heading into the 2024 election, and we knew Sara Tabatabaie, executive director of Vote Pro-Choice, was the perfect person to ask. - Todd and Team Big Picture
Last week, The Supreme Court heard oral arguments in a case that challenged access to medication abortion, specifically the pill mifepristone, a widely used and safe method of abortion care. Can you give our readers a quick primer on mifepristone itself and the basics of the case the Court heard?
Mifepristone is a safe and effective medication that blocks progesterone. It’s one of two pills (the other is misoprostol) often prescribed together to end a pregnancy before 10 weeks gestation in the United States, though the World Health Organization suggests it’s safe for up to 12 weeks. It was approved by the FDA decades ago, and it’s been on the market for more than twenty years, used in the majority of US abortions with very few severe side effects.
The recent attacks on mifepristone began when anti-abortion groups decided to challenge its FDA approval in Amarillo, Texas – which is notably not where the FDA is headquartered, nor any abortion clinic – but it is where Trump-appointed U.S. District Judge Matthew Kacsmaryk hears more than 90% of cases filed. If you look up the background of this judge, you’ll see why anti-abortion groups cherry-picked him in particular to hear this case.
Unsurprisingly Judge Kacsmaryk ruled to suspend the FDA approval of mifepristone. While the 5th Circuit Court (a notoriously conservative court) threw out the part of his ruling that revoked approval, they did rule to effectively reinstate antiquated restrictions on access, which are out of line with current medical consensus.
The Supreme Court last week heard oral arguments to weigh in on the lower-court rulings to roll back access to mifepristone, as well as a district court nationwide ban. A decision is expected by this summer.
Importantly, mifepristone availability remains unchanged as this case moves through the court.
Many observers of the oral arguments were heartened by the apparent skepticism of a majority of justices that those who brought the case in the first place even have standing to do so. Can you explain that and why it could actually get thrown out on that basis alone?
The good news is that despite the coordinated attacks brought by Alliance Defending Freedom and Erin Hawley – an attorney who helped reverse Roe v. Wade and is married to MAGA Senator Josh Hawley – it appears as though the case could be dismissed on standing, meaning that the anti-abortion doctors who brought the case do not appear to have suffered moral injury as a result of mifepristone, and therefore don’t have sufficient legal grounds to have brought the lawsuit to begin with.
But it’s such a ridiculous case, it’s alarming that it even got to the Supreme Court at all. Because even if this case ends up being dismissed, there are several others on track to continue to attack reproductive freedom and body autonomy.
Was there a moment or two in the oral arguments that struck you as particularly notable?
A moment that struck me was when Justice Amy Coney Barrett suggested that mifepristone should not be available via telehealth. She appeared to advocate for requiring in-person appointments to receive mifepristone – a barrier that could demand time off work, travel, childcare, etc. – asking if telehealth appointments would “lead to mistakes in gestational aging.”
It was a reminder that no matter the outcome of this case, these anti-choice Justices have on occasion suggested that barriers to abortion are actually for the benefit of pregnant patients. The reality is that women and pregnant patients deserve the right to make these decisions for themselves with their healthcare providers.
The messaging around the Dobbs decision was that abortion policy was now going back to the states, but outlawing mifepristone would essentially amount to a national abortion ban since so many access care through telemedicine. Can you expand on their movement’s efforts to, under the radar, push for a national ban?
It’s important to note that no matter what the Supreme Court decides, there may be options for abortion patients to seek access to mifepristone, whether via mail or by funds to cover travel expenses or some other resource. Look for the helpers!
But yes—it’s absurd to think that this is a states’ rights issue. Our opponents are absolutely pushing to ban abortion nationally, to attack contraception, and to dismantle other foundational rights. This has always been about power and control.
Even if the Supreme Court does throw this case out, it appears the justices are laying the groundwork for a future fight over The Comstock Act, which could blow up access to medication abortion as well as contraception. Can you tell us about that zombie law still on the books and the implications of it for reproductive rights today?
The fact that Justices Clarence Thomas and Sam Alito both brought up the Comstock Act last week should set alarm bells off across the country. In fact, Justice Alito called it a “prominent” law, despite the fact that it’s been all-but-forgotten until recent years. And abortion rights advocates have been warning about Comstock since Roe was overturned.
Congress passed the Comstock Act in 1873 to criminalize the use of mail for any “obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion.” The goal of this law was to “suppress vice” in all of its forms; obscenity, abortion, and nearly anything involving sexual health or expression.
The Comstock Act may be the largest opportunity for anti-abortion activists to implement a national ban, and it’s urgent that our lawmakers work to repeal it ASAP.
As we think ahead to November when once again abortion rights will be on the ballot, can you update us on the ballot initiatives around the country that could drive turnout and perhaps even put more races in play in November?
Ballot initiative efforts are underway across the country, in all shapes and sizes, which will affect reproductive freedom. By the way, there are also ballot initiative efforts around issues like healthcare, minimum wage, and protecting democracy, which all also impact access to reproductive rights.
We’ve seen these initiatives boost turnout, but for that to translate to votes for Democratic candidates, those candidates and elected officials need to show that they’re champions on this issue. When the candidates on the ballot take meaningful action to protect and expand reproductive freedom, they can benefit from that turnout.
We just saw a major decision out of Florida, which will both allow Ron DeSantis' 6-week ban to go into effect but also allow an abortion rights initiative to appear on the November ballot. Can you speak to the impact this decision could have?
The six-week abortion ban in Florida is a tragedy. To be clear, all abortion bans are horrifying, but this development means that in 30 days, many more pregnant patients are going to suffer.
The folks organizing the ballot initiative effort work around the clock, and I’m sure that we’ll see the backlash to this 6-week ban at the ballot box in November.
I can’t speak to how that will impact the Presidential race, but certainly this gives the Senate race a new lens. Former Democratic Congresswoman Debbie Mucarsel-Powell is running against MAGA Republican Rick Scott, who said he would have signed the 6-week ban himself as governor.
There are also many critical municipal elections and races for criminal legal positions happening across the state and around the nation. Vote Pro-Choice endorses and supports candidates up and down the ballot, making recommendations in every race. In Florida—and in states across the country—pro-choice voters have the power to turn out and fight back against these attacks at the community, state, and federal levels.
Sara Tabatabaie is the Executive Director of Vote Pro-Choice with more than a decade of experience working in reproductive and voting rights spaces. As the daughter of a Middle Eastern immigrant, Sara’s lived experience paints her perspective on this moment. Sara has also shared her own abortion story, explaining that her decision to end an unintended pregnancy is what freed her to reclaim her life and ultimately become a mother almost exactly ten years later on her own terms.
Sara’s expertise has been featured in outlets like the New York Times, Axios, the Nation, and many others.
Anyone voting for a Republican candidate is voting for a national ban on both abortion and birth control. They will continue to push this anti-women agenda even though they are in the minority. Protect freedom.
Vote BLUE through and through! This right wing war has got to be stopped cold and eradicated from showing its ugly face ever again.