By Julianna Goldman / Bloomberg Opinion
Eight years ago, establishment Republicans stomached Donald Trump because he was the means to an end. As president, he followed through on his promise to appoint a conservative judiciary that achieved a decades-long goal of restricting access to abortion across the country.
The only problem is that the American public, by and large, does not share that goal. Now the Republicans’ political miscalculation is becoming clearer by the day. And Democrats shouldn’t distract from that with their own extreme rhetoric.
It was a major mistake for Sen. Ron Wyden, D-Ore.m to call on President Biden and the Food and Drug Administration to “ignore” the Texas judge who last week ruled against the FDA’s 2000 approval of the abortion pill mifepristone. New York Democratic Rep. Alexandria Ocasio-Cortez’s similar comments were no better. It doesn’t take a law degree to know that disregarding court rulings — even error-ridden and irresponsible ones — sets a dangerous precedent.
A federal appeals court on Wednesday partly granted the Biden administration’s request to put on Judge Matthew Kacsmaryk’s ruling on hold, but allowed some of it — including a ban on sending the drug through the mail — to stand. Those limits were to take effect Friday unless the Supreme Court intervenes.
But the FDA still has “enforcement discretion,” which it uses every day. It is currently exercising its discretion, for example, to allow foreign-made infant formula into the U.S. to help with the current shortage. And the FDA used its discretion with mifepristone, in 2021, to allow it to be dispensed without requiring an in-person visit (though the appeals court allowed a challenge to that decision to proceed).
None of this is to downplay the sensitivities, fears and passions aroused by reproductive rights, or the uncertainty brought about by Kacsmaryk’s ruling. The opinion shows that the pro-life movement doesn’t want to just leave abortion up to states; it wants to ban abortion nationwide.
If anyone “went rogue” here, it was not the FDA but a federal judge, says Rachel Rebouche, a law professor at Temple University who has written extensively about the litigation over medicated abortion. All the talk about ignoring a federal court emphasizes the notion that the FDA should be a rogue actor, instead of focusing on the fact that the judge already is.
In approving mifepristone more than 20 years ago, the FDA followed both procedure and science, and it has relied on extensive safety evidence. Medicated abortions are private, less invasive than surgical procedures, and used in more than half of all abortions in the U.S. as a two-pill regimen to end pregnancy in the first 10 weeks. Notably, that’s earlier than some of the more restrictive abortion bans that have gone into effect in conservative states.
The data underscores why the country doesn’t want to see the drug banned. According to the Public Religion Research Institute, 72 percent of Americans oppose laws that make it illegal to use or receive through the mail FDA-approved drugs for a medical abortion. A recent Ipsos poll found that 66 percent of Americans believe a federal judge should allow medication abortion to remain legal — including 49 percent of Republicans and 65 percent of independents.
Behind these numbers are the human costs — no longer hypothetical — of abortion bans. There are ripple effects beyond the health of women who are seeking abortions.
Women are being turned away from hospitals when they’re having life-threatening miscarriages. Students are deciding whether to apply to colleges based on whether they are in a state where abortion is banned or restricted. A recent survey from the Journal of General Internal Medicine found that 76 percent of current and future physicians won’t apply to work in states with legal restrictions for providing abortion care. More than 75 percent of employees under 40 — including majorities of Democrats and Republicans — want to work for a company that supports access to abortion.
It’s striking, notes Andrea Miller, president of the National Institute for Reproductive Health, how intensely people feel about abortion care nearly a year after the Dobbs decision. And the more the anti-abortion movement overreaches, the more intensity the issue will generate on the other side. Which may be exactly what Republicans are afraid of.
Julianna Goldman is a Bloomberg Opinion columnist who was formerly a Washington-based correspondent for CBS News and White House correspondent for Bloomberg News and Bloomberg Television.
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