Although I’ve heard every argument about abortion, pro and con, over the years, the anti-abortion case made by three Republican-led states in a recent Federal District Court filing stopped me in my tracks.
The attorneys general of Idaho, Kansas and Missouri, seeking to establish the states’ standing to challenge the federal government’s liberalized rules for medication abortion, claim that expanded access to the abortion pills is “causing a loss in potential population or potential population increase,” and that “decreased births” were inflicting “a sovereign injury to the state itself.” This remarkable assertion comes on Page 189 of the states’ 199-page complaint, as astonishing a legal document as I have ever read.
Beyond this bold pronatalist argument, there is much to say about the states’ complaint, which seeks to reignite a lawsuit against the U.S. Food and Drug Administration that the Supreme Court unanimously threw out five months ago. The suit’s primary challenge is to the F.D.A.’s repeal of the requirement for in-person dispensing of mifepristone, one component of medication abortion’s two-pill regimen, in a clinic, medical office or hospital, by or under the supervision of a doctor. This has enabled women to terminate their pregnancies at home after receiving the pills in the mail.
The states’ complaint is larded with provocative and irrelevant photographs: someone carrying shopping bags said to contain abortion pills; a pile of empty pill vials; a picture of an embryo, in reality not more than an inch long, blown up to huge baby-like proportions. The states claim that the F.D.A.’s actions have caused “immeasurable pain and suffering” and has harmed “many women,” assertions refuted by the facts on the ground. Serious complications have been rare with the two-pill regime of mifepristone and misoprostol, which now accounts for nearly two-thirds of abortions.
The F.D.A. was initially sued by a group of anti-abortion organizations and doctors who did not perform abortions themselves but who claimed “conscience injury” from the widespread availability of the medication. That claim failed the Supreme Court’s strict test for standing, which requires an actual injury — “injury in fact” is the operative phrase — suffered by a plaintiff and redressable by a court. So the three states are now trying to show that unlike the doctors, they do have a concrete injury, an injury to their sovereignty by the F.D.A.’s enabling of a “50-state mail-order abortion drug economy” that permits women, with ease, to have fewer babies.
My surprise at the pronatalist argument against abortion is not because I haven’t heard it before. To the contrary, it is because I have. While I never expected to see it emerge in a legal document in 2024, the argument is inextricably linked to the history of abortion in the United States.