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Republicans Just Renewed Their Attack On Abortion Pills

Republicans on Wednesday renewed their nationwide attack on abortion pills in a new complaint filed against the Food and Drug Administration.

The amended complaint, filed by attorneys general from Kansas, Missouri and Idaho, is a follow-up to the FDA v. Alliance for Hippocratic Medicine case that the Supreme Court ruled on this summer. The state attorneys general, as well as previous plaintiffs, seek to significantly roll back access to mifepristone, one of the two drugs that’s been widely and safely used in medication abortion since the FDA first approved it in 2000.

Although the Supreme Court rejected the previous plaintiffs on standing, the high court remanded the case back to a Texas federal court overseen by one of the most notorious anti-abortion judges in the country. The ruling was a relief for abortion rights advocates at the time, but the decision effectively punted the issue of whether mifepristone access should be left as is or further restricted. The move signaled to the country that the conservative-majority Supreme Court is open to litigating future attacks on abortion pills — and this week’s amended complaint is the future assault many legal experts warned about this summer.

“What the court could have done, if it were not such a politicized court, was reached a decision that also included the fact that mifepristone has been known to be safe and is safer than Tylenol or Viagra and various other things that don’t come under these same kinds of regulatory protocols,” said Michele Goodwin, an expert in reproductive health law and Georgetown University law professor. “But the court didn’t do that.”

The state attorneys general argue that the FDA acted “unlawfully” when the agency removed its in-person requirements to access mifepristone, claiming that the drug is “dangerous” and poses a “high risk” to patients. The suit also seeks to ban mifepristone for minors and only make the pill available until seven weeks of pregnancy instead of 10. All of this is argued with brazen anti-abortion rhetoric and very little scientific evidence to back up the claims that they are “protecting” women’s health. Several of the studies cited in the complaint have actually been retracted for using misleading data and having close ties to anti-abortion groups.

The Republican officials’ main goal in the amended complaint is to ban the shipping of medication abortion by invoking the Comstock Act, a 150-year-old law that criminalizes sending “obscene” materials in the mail, including anything “intended for producing abortion.”

Conservative Justices Samuel Alito and Clarence Thomas brought up the Comstock Act several times during oral arguments in FDA v. Alliance for Hippocratic Medicine. Their insistence signaled, at the very least, that they’re willing to engage with the argument and, at most, indicates that they agree Comstock should be enforced. Their questions at the time foreshadowed that they may side with future plaintiffs who make this argument with better standing.

The amended complaint is similar to the original lawsuit in many ways, including that there are no plaintiffs who were directly harmed by mifepristone (a key component to filing a lawsuit), which got the original case rejected for lack of standing. But the power of three state attorneys general making this argument — rather than the private citizens who originally filed the suit in FDA v. Alliance for Hippocratic Medicine — could make a difference.

“Here you have state attorneys general who are articulating that they have a responsibility to protect the health and safety of people who live in their states,” Goodwin said, referencing officials’ claim that mifepristone is dangerous. “That may be an argument that’s palatable to this court, at least enough to recognize that perhaps they have standing.”

The other difference is timing. The country is less than three weeks away from a consequential election that could change the already-dire landscape of abortion access. Republican presidential candidate Donald Trump has allied with some of the most extreme anti-abortion advocates who outlined a policy plan in Project 2025 that conjures images of “The Handmaid’s Tale.” A Trump Justice Department could stop defending the FDA in the way the Biden administration has done in the last few years.

“In an election where Americans have made it so clear where they are on abortion, these extremists continue to go against the will of the people. Whether through the Courts or the White House, MAGA Republicans are hell-bent on banning abortion,” Mini Timmaraju, president of Reproductive Freedom for All, said in a press release. “This is a five-alarm fire and we need to elect Kamala Harris as our next president and reproductive freedom majorities in the U.S. Congress to stop it.”

By piggybacking onto the original lawsuit, the Republican officials are able to file their complaint in Judge Matthew Kacsmaryk’s Texas courtroom. Kacsmaryk, a far-right Trump appointee well known for his anti-abortion views, is the federal judge who ruled last year that the FDA unlawfully approved mifepristone when it first went to market over two decades ago. Both Kacsmaryk and the 5th U.S. Circuit Court of Appeals are likely to side with the anti-abortion Republican officials.

Despite the attorneys general being from Kansas, Missouri and Idaho, a ruling in this case would impact the entire country.

There are many outlandish statements included in the 199-page complaint, including claims that medication abortion “starves the baby to death in the womb.” As highlighted by feminist writer Jessica Valenti, the first to report the amended complaint, one of the most bizarre claims the Republican officials include is that medication abortion is so terrifying that the sight of blood in a toilet will give women post-traumatic stress disorder. “Women who choose chemical abortion are more likely to continue associating their homes, or the bathroom, with abortion. The home may become a trigger for uncomfortable emotions rather than a refuge,” the suit claims.

Despite anti-abortion claims, mifepristone and misoprostol are more than 95% effective and pose fewer risks than Tylenol. Over 100 studies have corroborated their safety and effectiveness. Medication abortion accounts for 63% of abortion care in the U.S., according to a study from the reproductive rights group the Guttmacher Institute. In addition to abortion and miscarriage care, mifepristone is also used to treat other medical conditions, including Cushing’s syndrome and hyperglycemia, or high blood glucose.