Majority Opinions: Issue #4 – The Judicial Attack on Reproductive Freedom
Welcome back to Majority Opinions, a new resource from United for Democracy offering regular updates, analysis, and tools for the proceedings underway and the work ahead.
Tomorrow the Supreme Court will hear oral arguments on FDA v. Alliance for Hippocratic Medicine, another attempt by the MAGA justices to ban abortion care across the country – this time by going after mifepristone, a safe and effective medication that millions of Americans count on for abortion care.
There are few areas in which this broken and corrupt Supreme Court has impacted people’s lives more than their right to control their bodies, health care decisions, and access to reproductive care.
Thankfully there are incredible reproductive rights, health, and justice leaders who have been guiding and leading our communities through these ongoing attacks on abortion access and reproductive freedom.
Today’s issue of Majority Opinions features the thoughts and perspectives of just a few of those leaders. And we, at United for Democracy, are more energized than ever to stand by their side and make it clear to this Supreme Court and the politicians who enable them that we’re fighting back.
- Stasha Rhodes, Campaign Director of United For Democracy
The Mifepristone Case is About Control
By: Alexis McGill Johnson, President and CEO of Planned Parenthood Action Fund
Tomorrow, yet again, the U.S. Supreme Court will be asked to consider a case that will determine millions of people’s ability to control their own bodies and lives. The Court is hearing arguments in a case that could restrict access to mifepristone, one of two medications used in more than half of abortions in the U.S.
Mifepristone was approved by the FDA more than 20 years ago, and more than 5 million people have used it to safely and effectively end early pregnancies. Patients often choose medication abortion because it allows them to end their pregnancies early, on their own schedule, and in the privacy of their own home. When given information about all their options, nearly 70% of abortion patients at Planned Parenthood health centers choose medication abortion instead of in-clinic abortion.
And as some lawmakers succeed in putting up more barriers to abortion, mifepristone is essential to protecting access to care. In 19 states where abortion is still legal, Planned Parenthood affiliates provide medication abortion via telehealth, allowing people who live far from health centers in those states to get the care they need without taking the time and resources to travel. This also means more appointments are available in health centers for people who need or want in-clinic abortions — desperately needed since the Court’s Dobbs decision.
If the Court sides with the anti-abortion groups bringing these cases, and rolls back access to mifepristone, it will close these avenues for abortion care nationwide. As they have closed so many others. Women, trans and nonbinary people are running out of options. We need our leaders — in elected office, business, media, art, and culture — to understand the stakes of this case and others, like the EMTALA case about providing emergency care to pregnant people also at the Supreme Court this term. These are all fronts in the same fight for basic freedom.
We know, and the Court knows, that the American people do not want abortion to be banned. The anti-abortion groups trying to take mifepristone off the shelves know that the majority of Americans want it to stay available. And while some anti-abortion lawmakers and politicians claim they would be content to ban abortion at 15 or 16 weeks of pregnancy, these groups are trying to end access to the method used for the majority of abortions before 11 weeks. There is no line they won’t cross.
Absolutely nothing about the safety or effectiveness of mifepristone has changed in the more than two decades since the FDA approved it. In fact, there has since been additional research about its safety and efficacy, in telemedicine and otherwise. It’s under attack now only because of the control it gives people over their bodies. It’s under attack for the same reason that IVF, birth control, gender-affirming care, and preventive care at Planned Parenthood health centers are under attack — because this is how women, trans and nonbinary people take control of our bodies.
It’s not about health or safety. It’s about control. It always has been.
Reproductive Freedom is on SCOTUS’s Docket Again—and So Is Its Legitimacy
By: Mini Timmaraju, President and CEO of Reproductive Freedom For All
Over the next six weeks, the Supreme Court will hear two cases on abortion that could further block access to care nationwide.
As we call attention to the impact these decisions will have on our lives, rights, and futures, we also need to recognize we didn’t get here by accident. These latest attacks on reproductive freedom exemplify the right-wing strategy of rigging the game to advance their extreme, unpopular agenda through the courts—no matter the cost.
These cases landed before the Supreme Court following years of plotting from Trump and MAGA Republicans, who spent four years stacking the federal judiciary with ideologues to overturn Roe v. Wade and ensure that they maintained power. Their ploy was part of the GOP’s decades-long strategy to get their way—and it was an attack on our democracy, plain and simple.
Anti-abortion extremists never planned to stop after overturning Roe. Three months after the Supreme Court overturned the constitutional right to abortion, GOP operatives were eager to press their advantage. They formed the anti-abortion Alliance for Hippocratic Medicine (AHM), which filed lawsuits threatening access to mifepristone, one of two medications used in medication abortion.
AHM is, simply put, a sham organization comprised of discredited extremists hawking pseudoscience. It is a coalition of anti-abortion organizations that have received millions in funding from Leonard Leo—a well-known architect of the GOP’s co-opting of our judicial system. And the lawyers arguing on their defense are from the Alliance for Defending Freedom (ADF), a Southern Poverty Law Center-designated hate group that drafted and defended
Mississippi’s abortion ban in Dobbs—the case that ended the federal right to abortion.
ADF has perfected the tactic of manufacturing lawsuits, choosing to file in a court where it was practically guaranteed to go before a sympathetic judge—like Trump-appointee Matthew Kacsmaryk in the Fifth Circuit—and then watching as cases far outside the mainstream move all the way up to a sympathetic majority on the Supreme Court.
This baseless lawsuit seeking to block access to a safe and effective medication is a symptom of a larger problem. The Supreme Court’s anti-abortion supermajority has opened the floodgates to attacks on our fundamental rights, signaling to Trump-appointed judges and anti-abortion extremists that there is no legal strategy too extreme to pursue.
The Supreme Court’s decision in Dobbs already proved that its conservative justices cannot be trusted to hand down fair and impartial decisions. Far-right megadonors puppeteer its majority, even as scandal after scandal comes to light, exposing serious conflicts of interest among the justices.
Meanwhile, the American people continue to suffer the reckless and dangerous consequences of the Supreme Court’s actions as 21 states and counting have eliminated or restricted access because of abortion bans.
We can’t and we won’t allow extremists to continue manipulating the courts to impose their anti-abortion agenda on our country. We need Supreme Court reform, including Court expansion— full stop.
The Case for Imagination
By: Nourbese Flint, President of All* Above All
Not since the Jackson 5 era has abortion been so restricted, nor has the overall sense of dread been felt by communities across America. Ahead of a consequential election, it can feel hard to imagine what it means to create the conditions for all people to achieve their full potential, and even harder to weave into our hearts and minds how democracy and abortion access play a major part in that future. What I stress is that this is exactly the time we should be dreaming and then implementing strategies to push us closer to this world. To quote one of my favorite fantasy shows, “Chaos is a ladder, and all we can do is climb it.” We have a once-in-a-lifetime opportunity to not only define what we are against but to push toward a future that is inclusive of the communities that are left behind by our current systems. In the ashes of Roe v. Wade, and as we struggle to hold on to the last threads of our democracy, we are faced with a decision—do we build back what was, or lay out a new future?
Even with Roe, abortion access leading up to Dobbs was dodgy at best. Targeted Regulations of Abortion Providers, known as TRAP laws, coverage bans, forced waiting periods, so-called “fetal personhood,” criminalization of pregnancy loss, forced parental and spousal notifications, and other bans and restrictions have made abortion access impossible for some, extremely hard for many, and outright dangerous for others. Coupled with the Hyde Amendment, which since 1976 has denied insurance coverage of abortion care for people covered by the federal government, it’s clear that Roe was never enough. But because it was what we had, we worked with it, around it, and oftentimes despite it to ensure people could get the care that they needed and deserved. Now is the perfect time for us to reimagine what abortion care can and should be like.
Furthermore, what was once implicit about the link between abortion access and democracy is now explicit, something reproductive justice leaders have always connected.
My colleague Lourdes Rivera, President of Pregnancy Justice, laid it out plainly, “Abortion bans and fetal personhood seek to control women; to surveil, criminalize and further marginalize those who are deemed a threat to prevailing hierarchies; and diminish their ability to participate in public and civic life by establishing legal and constitutional protections for fetuses that are being denied to them — a threat to democracy as clear as day.”
Certainly, our once thriving democracy is hanging on by a thread. A recent Pew Research Center report shows that trust in government is at an all-time low. The majority of people are angered and frustrated, experiencing the government as not working for them. And in many ways, it’s not. Even with more money in the progressive movement, technological advancements, and a shifting cultural narrative, disparities remain for communities of color that move them further away from a thriving, equitable society rather than closer to it.
The powers that be want us to believe that the future just happens, that the systems we live in are intrinsic and there is not much we can do about it. Dr. Ruha Benjamin, a professor, writer, and activist at Princeton University, offers another frame, “I want us to take seriously the notion that there are, in fact, competing imaginaries that are fighting over our collective future. The incredible filmmaker, Alex Rivera, put it best: ‘The battle over real power tomorrow begins with the struggle over who gets to dream today.’”
In the wreckage of what was, we have an opportunity to design new systems that work for our communities. To galvanize people around what it means to live in a society where people have the rights and dignity to choose whether, if, when, how, and with whom they start a family. To live in a society that is supported by a truly representative government. This requires bold action to end the Hyde Amendment; support comprehensive solutions for abortion access like the Abortion Justice Act; pass comprehensive democracy reform, including removing the filibuster; invest in making access to voting easier; and, court reform.
There is no progress without vision, and all good visions start with imagination. Our communities are counting on us to imagine boldly. The urgency of this moment demands it.
April SCOTUS Coordinating Call. Join United For Democracy for our monthly, off-the-record Coordinating Call on Wednesday, April 17, at 12:30 pm ET to get the toplines on what’s moving at the Court and how you can engage.
Messaging the Moment:
In FDA v. Alliance for Hippocratic Medicine, the MAGA justices are once again in a position to ignore fact and precedent and could undermine access to safe, effective abortion medication.
This case never should have made it this far, and it didn’t happen by accident. As Donald Trump appointed three right-wing justices to the Supreme Court jammed the lower courts with MAGA judges, extreme right-wing megadonors and judicial activists got ready to move their extreme agenda through our judicial system — including by propping up sham organizations like Alliance for Hippocratic Medicine.
Now, from threatening access to mifepristone to using the lower courts to try to shut down Planned Parenthood in Texas, anti-abortion politicians and right-wing judicial activists are weaponizing our courts to push an agenda the vast majority of Americans reject, including restricting access to reproductive health care.
Tweeting the Moment: From threatening access to mifepristone to trying to shut down Planned Parenthood in TX, anti-abortion politicians & activists are weaponizing our courts to push their anti-abortion agenda. Reproductive freedom will remain under attack unless Congress reins in the Court.
Rally For Mifepristone. Tomorrow, Tuesday, March 26 from 9:00 am to 12:00 pm ET, as the justices hear oral arguments in FDA v. Alliance Health Medicine, join the ACLU, Center for Popular Democracy, Planned Parenthood Federation of America, and Reproductive Freedom For All outside the Supreme Court to rally for abortion access. RSVP here.
We Need Court Reform. Reproductive Freedom For All is circulating a ‘We Need Court Reform’ petition to protect reproductive freedom, safeguard our democracy, and restore trust in our courts. Add your voice here.
263 Members of Congress. ICYMI, U.S. Senator Patty Murray (WA) led 263 Members of Congress in submitting an amicus brief to the U.S. Supreme Court in the mifepristone case. Read more here and watch the Senators’ video amplifying their message here.
Far-Right Forces Behind Mifepristone Challenge. Accountable.US, Alliance for Justice, and the Lawyering Project hosted a press call to dissect the alarming tactics that Leonard-Leo backed legal group Alliance Defending Freedom employs in its tried and tested strategy of manufacturing lawsuits to advance its right-wing agenda — this time to severely restrict access to the widely-used abortion pill. Watch here.
In a Post-Dobbs America: The Senate Judiciary Committee recently held a hearing, “The Continued Assault on Reproductive Freedoms in a Post-Dobbs America,” which featured testimony from Pregnancy Justice President Lourdes A. Rivera, IVF Patient Jamie Heard from Alabama, and Texan OB-GYN Dr. Austin Dennard. Watch and read the testimony here.
Live Oral Arguments Coverage. As an OB/GYN, formerly at Jackson Women’s Health Center, Dr. Cheryl Hamlin knows that abortion is a critical part of healthcare. Tune in tomorrow, Tuesday, March 26 at 10:00 am ET of her speaking truth to power at SCOTUS for FDA v. Alliance, with Center For American Progress, Doctors For America, Planned Parenthood Federation of America, and ACLU. Follow along here.
Report Card. As the Court returns to abortion issues, rePROs Fight Back, an initiative of the nonprofit Population Institute, released its 50 State Report Card on Sexual and Reproductive Health and Rights. In the report card’s 12 year history, the number of failing states has skyrocketed—from nine in 2012 to 25 this year. Read here.
Threat to Access, Need For Expansion. Senator Elizabeth Warren (MA) and Representative Jasmine Crockett (TX-30) joined advocates fighting for abortion access and Supreme Court reform at Abortion Access Missouri, Reproductive Equity Now, and Take Back the Court for a press conference on the threat of the mifepristone case and why court expansion is essential to protect reproductive rights. Watch here.
READING LIST REFRESHER: Jodi Kantor and Adam Liptak, The New York Times, Dec. 15, 2023: “Behind the Scenes at the Dismantling of Roe v. Wade”
The Guardian, Carter Sherman, March 24, 2024: “‘Cruel’: the supreme court could send one-time abortion deserts like Hawaii back in time”
HuffPost, Sarah Boboltz, March 23, 2024: “How The Far Right Engineered An Assault On Abortion Access, Even In Blue States”
Politico, Heidi Przybyla, March 23, 2024: “What happens when an AG dares to investigate Leonard Leo’s network”
The Washington Post, Editorial Board, March 23, 2024: “The Supreme Court’s latest abortion case has an obvious answer”
The New York Times, Jamelle Bouie, March 22, 2024: “The Supreme Court Is Playing a Dangerous Game”
Vox, Ian Milhiser, March 21, 2024: “The Supreme Court’s abortion pills case, explained”
Slate, Paul R. Gugliuzza and J. Jonas Anderson, March 20, 2024: “The New Judge Shopping Fix Has Two Huge Loopholes”
The View, March 19, 2024: “Dr. Christine Blasey Ford opens up about Kavanaugh testimony in 1st live TV interview”