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The Atlantic
The Atlantic
8 Apr 2023
Patrick T. Brown

NextImg:I’m Pro-Life. I Worry That the Abortion-Pill Ruling Could Backfire.

Pro-life activists across the country are celebrating the decision by a federal district-court judge in Texas to force mifepristone, a drug used in self-induced abortions, off the market. This response makes sense: If, as pro-lifers like myself believe, the embryo developing in a mother’s womb is a human life, it is therefore worthy of both legal protection and social support. Steps that make it harder for women to have an abortion are welcome.

The drug’s ultimate legal status is uncertain. The Texas ruling would go into effect after a seven-day window, allowing the federal government to appeal or seek an emergency stay from a higher court (minutes after the Texas ruling, a federal judge in Washington State issued a ruling prohibiting the FDA from pulling the drug from the market, increasing the odds that the matter makes it way to the Supreme Court).

No matter how the case ends up, this victory for the pro-life movement may prove precarious. Forcing mifepristone off the market is a short-term win. But if left unaccompanied by broader policy changes, it could lengthen the odds of creating a legal and cultural climate in which abortion is both less accessible and less sought-after.

Mifepristone is taken as part of the most common kind of self-induced abortion. It blocks the delivery of the hormone progesterone to the uterus, which is necessary for an embryo to develop. A second drug, misoprostol, then induces uterine cramping and cervical softening, which leads to the expulsion of the embryo.

The Alliance for Hippocratic Medicine, an umbrella group of pro-life doctors and health-care professionals, sued the FDA over whether mifepristone should have been approved in the first place. In the waning months of the Clinton presidency, the FDA approved what was then referred to as RU-486, ultimately leading to the widespread use of self-induced abortion in the United States.

The plaintiffs noted that it took the FDA 14 years to dismiss an initial citizen petition raising concerns about the safety of the drug regime, and argued that expansions of access to mifepristone (both pre- and post-pandemic) necessitated their recent legal action against the FDA. Opponents of the lawsuit defended the drug’s efficacy and safety record; most researchers agree that complications are uncommon, but can involve hospitalization and surgery in rare cases.

Some worry that this ruling could lead to political interference with the scientific process. But as the FDA’s flawed response to COVID-19 vividly illustrated, there is no such thing as politics-free administration of medical authority (indeed, the initial approval of RU-486 was criticized at the time for being politicized). Even in the absence of questions about the drug’s safety, the FDA’s dramatic pandemic-era expansions of access to medical abortions would have deserved scrutiny. And as Roger Severino, the vice president of domestic policy at the Heritage Foundation, has noted, simply finding that a given medication is “effective” sidesteps the question of what it is effective at: “It’s effective at ending a human life, and that goes contrary to [the FDA’s] mission to guarantee the safety of drugs.”

Still, for a federal judge in Texas to be seen as having found a kind of legal cheat code to prevent access to abortion medication nationwide will inspire new levels of backlash. It will undoubtedly galvanize efforts to expand abortion access at the state level. (Washington State, for example, spent $1.3 million in taxpayer money to create a three-year state stockpile of mifepristone in advance of the ruling.) Pro-abortion-rights activists will note that women seeking self-induced abortion may now choose riskier methods instead. And this momentum will underscore the need for the pro-life movement to recommit to the work of changing hearts and minds to render that access less desirable.

No one involved in this legal case believes pro-lifers would be satisfied if the drugs used for medical abortions were proved to have no side effects. Being honest about the stakes involved—the moral weight of the decision to end a developing life—requires forthrightness and public persuasion in a way that looking for procedural work-arounds does not.

The aggressive legal tactics are far from one-sided. In just the past year, abortion-rights advocates in North Dakota, Oklahoma, and South Carolina have persuaded state supreme courts to find various “rights to abortion” in state constitutions. These maneuverings will require talented lawyers to take appropriate legal action to combat. But the pro-life movement cannot rely on legal wins to save itself from the need to make a politically convincing case that abortion is not only immoral but unnecessary.

Pro-life intellectuals and activists have long espoused the ultimate goal of making abortion “not just illegal, but unthinkable.” That requires a newfound commitment to building a culture that supports women and children, even if it flies in the face of some limited-government principles that conservatives have tended to favor.

The movement to overturn Roe v. Wade required finding new allies and building a popular movement to elect politicians who pledged to appoint originalist judges. But in the months that followed that hard-won success, the conservative movement has been beset by a mix of paralysis and overexuberance that has left aside all questions of strategy or prudence.

Too many elected Republican members of Congress spent the months after the Dobbs v. Jackson Women’s Health Organization decision awkwardly avoiding the issue, contributing to an air of confusion that arguably cost the party seats in the midterms. Meanwhile, purists in places like my home state of South Carolina eschewed compromise for bills that were not only political long shots, but in fact detrimental to the cause (if not immoral), such as the infamous legislation that would have made women who procure an abortion eligible for the death penalty.

Those missteps suggest a movement still finding its bearings. But the clock is ticking—abortion-rights ballot amendments won a clean sweep last year, and advocates are looking to press their advantage in key states such as Ohio. Relying on wins in court battles like the mifepristone case may instill a false sense of confidence, or worse, encourage a search for judicial shortcuts, rather than a clear-eyed recognition of the enormity of the task ahead.

When it comes to slowing demand for abortion and curbing the supply of drugs and procedures that accomplish it, pro-life activists can walk and chew gum at the same time. But they need to ensure that voters know their seriousness about setting out clear exemptions when it comes to the life of the mother and moving public policy in a more pro-woman, pro-family direction. Otherwise, all of the debates will continue to focus on the difficult edge cases that keep anti-abortion forces on the back foot.

This doesn’t mean abandoning conservative principles. Establishing a culture in which pregnant women and mothers are supported and unborn children are protected doesn’t require a Scandinavian welfare-state-style agenda, and takes more commitment than public-policy changes alone. But some new government action is necessary to take seriously the economic and social costs of parenthood that drive many women toward abortion.

Some pro-life voices are starting to move in this direction. Erin Hawley, a prominent legal mind behind the mifepristone case and other anti-abortion lawsuits, told the House Oversight and Reform Committee that anti-abortion-rights groups “need to come alongside women and support them. We need to provide them with the resources that are necessary for them and their children to survive. The Dobbs decision is not only a legal victory, but it is a rallying cry: We must become a culture that values life, that values women’s lives.” But elsewhere, the movement to back mothers in deed as well as word has been a challenge.

The pro-life movement has always been fractious and diverse, and some organizations will rightfully keep their eye on the various legal maneuverings making their way through the courts. But undermining the narrative that says women need to rely on abortion to ensure full participation in society or to maintain their physical or mental health will require a meaningful political and rhetorical pivot from many more who want to see abortion reduced or eliminated.

And in an America that is still sorting out its legal landscape in the aftermath of the Dobbs decision last summer, self-induced abortion seems likely to play an even larger role going forward. CDC data suggest that medical abortions made up half of legal abortions in the U.S. in 2020, up from 19 percent in 2011. Online groups have started to provide pills to women seeking a self-induced abortion, potentially contravening federal law in the name of preserving women’s health and autonomy.

Medical professionals say that without access to mifepristone, the standard treatment for self-induced abortion will be to rely on a single dose of misoprostol instead of the two-medication sequence (a regime that the drug’s manufacturer admits can lead to abortions that are “incomplete,” meaning some pieces of the embryo or other tissue remain in the uterus).

Women facing an undesired pregnancy will continue to want those pills. Pro-lifers must be able to confidently counter the narrative that casts the abortion pill as another way of saving a mother’s life—as helping her avoid poverty, loss of income, the dangers of a high-risk pregnancy, a career demotion, the stress and cares of another mouth to feed.

That’s hard work. But activists who fought for half a century to overturn Roe know a thing or two about long-shot battles. If they’re serious about preserving that unlikely victory, they’ll need to shift the bulk of their time and attention away from courtroom battles and toward the court of public opinion and arena of meaningful public-policy supports.