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Mifepristone SCOTUS preview: Anti-abortion movement’s biggest fear.

LawMifepristone SCOTUS preview: Anti-abortion movement's biggest fear.

On Tuesday, the Supreme Court is scheduled to hear oral arguments in FDA v. Alliance for Hippocratic Medicine, a case that could determine national access to mifepristone, one of two pills used as part of medication abortion. In this week’s episode of Amicus, Dahlia Lithwick spoke with Carrie N. Baker, whose book, History and Politics of Abortion Pills in the United States, is being published by Amherst College Press this year.

Lithwick and Baker discussed the anti-abortion movement’s decadeslong efforts to target the abortion pill, how those efforts hampered FDA approval of the medication in the first place, and how having easier access to reproductive care through a pill that can be sent in the mail and taken at home fundamentally threatens the strategy of those seeking to dismantle abortion rights in this country. The following transcript has been edited for length and clarity.

To listen to the full episode of Amicus, join Slate Plus.

Dahlia Lithwick: This case has been styled, unfortunately, as just a straight-up abortion case; a kind of natural outgrowth of the reversal of Roe in Dobbs from two terms ago. But it’s actually, in very specific ways, an abortion pills case.

I would love for you to just set the table for us by helping me understand how this is different from the kind of surgical abortion fight we were having leading into Dobbs. And how this is kind of a consequence of Dobbs, but also a very different conversation.

Carrie N. Baker: Abortion pills are today 63 percent of the way that people access abortion health care in the country, and it’s probably much higher.

Just a few days ago, the Guttmacher Institute released a study showing that the number of abortions in 2023 topped 1 million, which is more than the last 10 years. The last time it was over a million was 2012, and a major reason why abortion access has increased, despite Dobbs, is because of two things: Abortion pills being more accessible and people being able to access abortion pills through telemedicine.

That happened recently. It happened in 2020 and 2021 as a result of COVID, as everybody began to access health care through telemedicine. Advocates filed a lawsuit to force the FDA to allow people to get abortion pills through telemedicine. Historically, they had not been able to do that, and so people living in rural areas, people even living in states where there are abortion bans, now are able to access abortion pills through telemedicine from doctors in states that still allow abortion health care.

Abortion pills are really the present and the future of abortion, and that’s why they’re being targeted in this case. The anti-abortion movement is very aware that abortion pills are the crux to controlling women’s access to abortion, and so they’re going after it.

The thrust of what you’ve written in your book and in some of your recent pieces in Ms. is that anybody who thinks that the mifepristone case emerges fully formed in the wake of Dobbs actually wasn’t paying attention, because there has been a decadeslong effort by pro-life advocates to churn up doubt and uncertainty about abortion pills, their efficacy, their safety, and that actually this has set the United States way behind the rest of the world, long before Dobbs—all of this “medical uncertainty,” and “the dangers,” and the sort of chumming up of the debate with fake facts and fake claims.

Just for comparison, in France, mifepristone was developed there in the 1980s. It was approved in 1988. This is not the path taken in the United States. And I think your point is, anyone who’s now looking at this debate and saying, “Huh, these are alarming studies, maybe this was an irregular process that the FDA [took],” doesn’t understand that the point was to have an irregular process at the FDA.

Mifepristone was developed in 1980 in France, and the French government approved it in 1988. American anti-abortion activists were over in France trying to interfere with that process and trying to prevent the company, Roussel-Uclaf, from bringing the medication to market. And they used many of the techniques that we’re familiar with today and for the last several decades in the United States, which is terrorizing the executives at the corporation and the medical researchers who were developing the drug. Calling them, standing outside their offices, screaming at them, calling their family members, terrorizing them at their homes—and it didn’t work. The drug was approved.

But then the U.S. anti-abortion movement turned to the U.S. and tried to block it from being approved by the FDA, and they used all these same techniques. And they also targeted the activists who were trying to get it approved and the pharmaceutical companies that might try to get it approved.

Through the anti-abortion work, they prevented Roussel-Uclaf from trying to gain approval for the pill in the United States. They also dissuaded any mainstream pharmaceutical company from taking on mifepristone and trying to get it approved. So eventually what happened is an organization called the Population Council, which was a nonprofit organization that worked on access to contraception around the world, took on the medication and took on the process of doing the clinical trials and applying to the FDA for approval. The Population Council also had to find a distributor for the medication. And so basically a group of private investors created a company called Danco and applied to the FDA to get it approved, got it approved, and then found a manufacturer. All of that process was fraught because of anti-abortion interference. So it took over 12 years after France approved it to get mifepristone approved in the U.S. And the FDA was terrified. The FDA officials were very nervous because they, too, were being targeted.

I’ve interviewed for my book a lot of the activists who were involved in the process, and it was a very irregular process, not because it was done quickly or in any sort of slipshod way. They had belts and suspenders. They were very nervous. They knew they had a target on their back, and they were being not only targeted by anti-abortion activists, but by anti-abortion members of Congress who were threatening their funding. They were under a microscope.

So they were very careful throughout the process of approving the drug. And the lawsuit filed in the Supreme Court case says, Oh, this was done too quickly. It was fast-tracked. They didn’t have adequate evidence. They had voluminous evidence at the time, and in fact, when the FDA approved the drug, they put in place very unusual and medically unnecessary restrictions on medication abortion. For instance, they required that doctors register with a drug manufacturer. They prohibited pharmacies from dispensing the drug. Normally when a drug is approved, the doctor prescribes it, and a pharmacy dispenses it. But what the FDA required in the case of mifepristone is that the doctors themselves order the drug, store the drug, label the drug, and dispense the drug in person to the patients. It’s highly irregular that kind of thing happens. It happens only with really super dangerous drugs. Mifepristone is not a super dangerous drug. It’s actually safer than Tylenol. It actually should be over the counter. We know that now.

They didn’t know that back then, but the people at the FDA wanted it to go smoothly. They didn’t want any complications. So the people at the FDA were not actually hostile to the abortion pill, but they wanted to make sure that there were no problems. And then they were like, “in a few years we’ll remove some of these restrictions.” Well, then Bush got elected in 2000, the same year mifepristone was approved, and of course, once Bush was in power, he was not going to allow the FDA to loosen the restrictions. It wasn’t until 16 years later that eventually the FDA began to loosen some of these restrictions under the Obama administration.

I just think this is such a scales-falling-from-the-eyes moment because if you come into this conversation in Judge Matthew Kacsmaryk’s courtroom, the FDA’s behavior is hard to explain. It looks wildly overregulated, with these mincing steps away from overregulation. It’s still overregulation. And what you’re saying is: You’re the FDA and you are under attack from Day 1 by a concerted—and quite menacing and financially costly—effort to make you practice defensive regulation. This is the necessary result. 

This week, Marjorie Taylor Greene said at a pro-life symposium, “We will repeal the FACE Act if we get the opportunity.” And that’s a reference to the 1994 law that was intended to protect abortion providers, health care providers, and patients from the kinds of intimidation and violence they were experiencing just walking into a clinic. And I should note that Rep. Chip Roy of Texas has authored legislation that would repeal the FACE Act. He has 39 co-sponsors. The Senate’s companion bill, which is authored by Sen. Mike Lee of Utah, signed on by Josh Hawley, has five co-sponsors.

I just want to be really clear that the Justice Department’s list of pro-life activists who they worry about include people who throw Molotov cocktails and concrete bricks into clinics, who block access to clinics and harass clinics, and commit mass shootings. So this is serious protection. Lets go back to what you said at the very beginning, which is that so much of the playbook in the anti-abortion movement was about surgical abortions and clinics and terrorizing and intimidating people seeking access to a clinic for an abortion. Is the workaround here that you can’t protest someone’s mailbox yet? I think it’s so important because this was your initial point, which is that this movement that is born in terrorizing people, in shouting them down, in flooding them with monetary and physical threats, has no footing in the medication abortion context unless they are able to do the thing they’re trying to do in this case: Stop all abortion pills.

If doctors can prescribe abortion pills by telemedicine and send them by mail, then the central tactic of the anti-abortion movement—which is to basically restrict abortion to an identifiable limited number of clinics, and then terrorize those clinics—that strategy is undermined. They really are very frustrated by the fact that people don’t have to physically go to clinics anymore and cross protest lines, often multiple times, in order to get abortion pills or procedural abortion.

Their strategy all along has been to restrict the number of locations where people can get an abortion and then target those locations by blocking access—and that was what led to the FACE Act—or by terrorizing doctors, following doctors home, protesting in front of doctors’ houses.

If the doctors can’t be identified because they don’t have a brick-and-mortar clinic, if they’re located in a location where they don’t know where they are, well then what? I mean, these telemedicine providers are entirely virtual. They don’t have brick-and-mortar clinics. All they have is a website. And you know, they might go after the website, but they can’t locate the doctors. They can’t locate the patients, they can’t scream to the patients, “You’re murdering your baby.” And that fundamentally undermines their strategy.

Their strategy has been to close down clinics—you bomb a clinic, you bankrupt a clinic. The number of clinics has shrunk significantly. Another major strategy of the anti-abortion movement is to create fake clinics, crisis pregnancy centers that look like clinics. They’re often next door to real clinics and they try to divert patients going to get care by pretending to be the clinic the patient is going to. And then once the patient gets in there, they bombard them with misinformation about abortion—that it causes cancer, that it causes infertility, that it causes depression, none of which is true, all of which has been disproven by leading medical authorities and the vast majority of research.

By having the ability to mail abortion pills to people, their central strategy is undermined. So I think that’s why they’ve invested so much in this lawsuit and in the effort to go after abortion pills—even though it’s a real stretch. What they’re arguing, that the FDA didn’t have enough evidence or that abortion pills are dangerous, it’s completely fictional. But I think really that is their only strategy. And in a way it’s the indignity. It’s all about stigmatizing abortion and making people feel like it’s unsafe.

That’s what the abortion movement has done so well. They’re fighting for the law, yes, but they’re also fighting for our hearts and minds. They want to try to make us feel that abortion is wrong, that it’s dangerous, that it’s immoral. By filing this lawsuit and getting headlines, that “abortion pills are dangerous,” however, I think it’s having an unintended consequence. Before Dobbs, only about 15 percent of the population even knew what abortion pills are. Now many people know what abortion pills are because it’s in the headlines all the time. They’re seeing that, Oh, there’s a medication you can take. And the fact of the matter is all the research shows that people really like them. They don’t want to lay on a table with their feet in stirrups, particularly if they’re survivors of violence. We know that 25 to 30 percent of women are survivors of sexual violence. They don’t want to have to go in, they’d rather be at home, take a pill, do it in the privacy of their home, with their friends nearby.

So, many people prefer abortion pills, but again, people need options. It needs to all be legal and it needs to all be accessible. Once the FDA allowed pharmacies to distribute the medication, it means that your average doctor can now prescribe abortion, like your general practitioner, the person you’ve been going to your whole life, your pediatrician— say you’re 16 and you get pregnant—your pediatrician can prescribe you abortion pills without having to stock them. Then you can get it through the mail or you can get it at a local pharmacy.

It means that more doctors can provide abortion. They don’t have to be abortion doctors and clinics. It can be family care providers. And there’s a whole movement trying to get family care providers to provide abortion—not just pills, but also manual vacuum aspiration—but pills in particular because it’s so easy. Not only doctors, but nurses and physicians’ assistants can also prescribe abortion pills. So it’s creating more access, and that’s what the anti-abortion movement wants to stop.

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