The Pill That May Save Abortion Rights | Crooked Media
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March 30, 2024
What A Day
The Pill That May Save Abortion Rights

In This Episode

Mifepristone revolutionized abortion access in America, so much that, two years after the fall of Roe v. Wade, abortions in the United States are up. But now “Mife” is taking its turn in the crosshairs of the anti-abortion movement, facing a challenge before the Supreme Court that could cut off access to the drug. Can it survive this challenge? And, if so, would that mean the pro-choice movement is quietly winning the fight for abortion access in America. This week on “How We Got Here,” Hysteria’s Erin Ryan and Offline’s Max Fisher tell the story of how Mifepristone became the anti-abortion movement’s #1 enemy and the new lows that movement has had to go to get this challenge before the court.

Photo Credit: Jasmine Dean, URGE: Unite for Reproductive and Gender Equity

SOURCE NOTES

Cover Up: The Pill Plot

Timeline of the Supreme Court’s mifepristone abortion pill ruling | CNN Politics

One in Six Abortions Is Done With Pills Prescribed Online, Data Shows – The New York Times

Abortion Shield Laws: A New War Between the States – The New York Times

Challenging Abortion, Again – The New York Times

Despite State Bans, Legal Abortions Didn’t Fall Nationwide in Year After Dobbs

Abortion Bans Across the Country: Tracking Restrictions by State – The New York Times

Abortion Ruling Could Undermine the F.D.A.’s Drug-Approval Authority – The New York Times

The many lives of mifepristone: Multi-glandular exaptation of an endocrine molecule – PMC.

A Political History of RU-486

NYT Archive: DRUG MAKER STOPS ALL DISTRIBUTION OF ABORTION PILL

The long and winding history of the war on abortion drugs

The Complicated Life of the Abortion Pill | The New Yorker

 

TRANSCRIPT

 

Max Fisher: Erin. I saw something weird on the internet the other day. 

 

Erin Ryan: Max. I thought I told you that despite the cute name, that subreddit is a bad place. 

 

Max Fisher: No, no, I’m staying away. The weird thing I saw was a headline that said that in the two years since Roe v Wade was overturned, which was supposed to be like the big victory for the anti-abortion movement, and did lead to all these red state abortion bans. But despite all that, the number of abortions in the U.S. has actually gone up?

 

Erin Ryan: Ah yeah. You’re operating under the assumption that banning something makes people do it less. 

 

Max Fisher: Okay, well, usually that’s how it works. 

 

Erin Ryan: Yeah, well, you’re not wrong to be surprised. When the Supreme Court handed down their Dobbs decision in 2022, anti-abortion advocates celebrated what they hoped was the beginning of the end of abortion in America, a victory nearly 50 years in the making. 

 

[clip of unspecified anti-abortion advocates] We did it! [screaming and cheers]

 

Max Fisher: But what happened was not total antiabortion victory. Not at all. Because now the anti-choice side got another war to fight, one that they did not see coming, but might be even tougher for them than Roe, thanks to a drug called mifepristone. 

 

Erin Ryan: And we saw the first battle in that war at the Supreme Court just this week. [music break] I’m Erin Ryan. 

 

Max Fisher: I’m Max Fisher, and this is How We Got Here, a series where Erin and I explore a big question behind the week’s headlines and tell a story that answers that question. 

 

Erin Ryan: This week, how did mifepristone, aka RU486, become public enemy number one of the anti-abortion movement? And does its popularity mean that the pro-choice side is quietly winning? 

 

Max Fisher: That’s kind of what it sounds like. So I was surprised to learn that according to the Guttmacher Institute, which is a reproductive rights policy and research organization, nearly two thirds of abortions in the US last year were medication abortions, i.e., popping some pills. Like I had always pictured somebody needing to, you know, drive up to an abortion clinic, get escorted through protesters holding signs and shouting, go through a metal detector, sit in a waiting room surrounded by shatterproof glass. 

 

Erin Ryan: And that still happens. Surgical abortions are still a vital part of abortion care. That’s because medication abortion isn’t appropriate for all pregnancy terminations, like if you need an abortion in the second trimester or later, for example, or in some cases when patients would just prefer the surgical procedure to pills. But for millions of people, the option to have a self-managed abortion at home is huge. 

 

Max Fisher: Yeah. If given the choice between a minor surgical procedure and taking a few pills and binging Shogun on my couch, I’m going to choose the couch. Like, imagine if you could have wisdom teeth removed that way. 

 

Erin Ryan: Honestly, it would have saved me a very weird Uber ride in Brooklyn in 2013. [laughter] Medication abortions also provide access for people who would find it difficult to get to a clinic, like if you live in a rural area or a state with an abortion ban. 

 

Max Fisher: Oh yeah. 

 

Erin Ryan: Or maybe you face social or religious pressure against ending a pregnancy. Regardless, the availability of mifepristone has completely revolutionized abortion in America. 

 

Max Fisher: Okay, I see where this is going. So the reason that so many people are still able to have abortions in a country that is otherwise covered by a patchwork of abortion bans is they can just do it safely at home. 

 

Erin Ryan: Yeah, but it’s not just the US. And I’m not being hyperbolic when I say that medication abortion and specifically mifepristone has changed the course of world history. 

 

Max Fisher: Wow. 

 

Erin Ryan: And because of that, there’s more drama in the history of mifepristone than on the second to last season of Vanderpump Rules. 

 

Max Fisher: I will be as a huge Vanderpump stan, the judge of that. 

 

Erin Ryan: Okay. Buckle in. So, if this is a prestige TV limited series, the pilot is in Brazil, and I mean that in more ways than one. Here’s Kelly Baden, the VP for public policy at the Guttmacher Institute, on the very first abortion pill:

 

[clip of Kelly Baden] It is activists in Brazil in the ’80s who saw that the drug Cytotec, which was the brand name of misoprostol, um came onto the market there over-the-counter to handle GI issues, ulcers, and had very clear labeling that you should not take it if you were pregnant. And the brilliant activists decided that that was something that they could test out and see if it actually worked to safely end an abortion. And that is where the understanding of misoprostol, as a way to safely end a pregnancy came from. 

 

Max Fisher: Wait, so this is how people discovered that misoprostol was a way to safely end a pregnancy? These were some hardcore citizen scientists. 

 

Erin Ryan: I mean, look at the advances Brazil has brought to waxing and soccer. But yes, they figured out it’s safe. And it’s around this time that a French endocrinologist, Etienne-Emile Baulieu, develops a new drug. Today’s it girl, mifepristone.

 

Max Fisher: Right. That’s the one in the news this week. 

 

Erin Ryan: Yeah. He and a bunch of other doctors combine it with misoprostol. And this two drug course becomes the gold standard of medication abortion. RU486 was also found to be safer, less invasive and less expensive than surgical abortion for early pregnancy. 

 

Max Fisher: Wow. The 1980s were a huge decade for breakthroughs in new wave music and abortion. 

 

Erin Ryan: Sure were. Baulieu’s new drug goes to market in France and China in September of 1988, and by late October of that year, more than 10,000 women had taken the drug and it was on its way to being approved for use in the Netherlands. But then–

 

Max Fisher: Everyone was really chill about it, and women were able to get the health care they needed for the rest of time? 

 

Erin Ryan: Ugh. The least chill people of all time enter the picture. 

 

Max Fisher: Uh oh. 

 

Erin Ryan: The American Right to Life movement. 

 

Max Fisher: Yes, the American Right to Life movement, which had been growing more and more powerful during the Reagan years, started protesting RU486’s manufacturer in France, despite the fact that the company made it clear they had no plans to even try to enter the American market. 

 

Erin Ryan: Scary protests too. They accosted employees in parking garages. They threatened global boycotts of the company’s other drugs, which I think to executives, is scarier than actually getting accosted. [laughter] They were generally their intimidating and annoying selves. And to make matters worse, there was the Holocaust connection. 

 

Max Fisher: Sorry, did you say the Holocaust connection? 

 

Erin Ryan: Yeah. Doctor Baulieu developed mifepristone for a French pharmaceutical company, Roussel Uclaf. But Roussel Uclaf’s main stakeholder, was a German company that had just a few decades before helped manufacture the cyanide gas used in Nazi concentration camps. 

 

Max Fisher: Okay in fairness, that is a little bit uncomfortable. 

 

Erin Ryan: Yeah, so naturally, the anti-choice activists began comparing medical abortion to the Holocaust. Roussel Uclaf executives did what executives do and chickened out like, nope, we’re not dealing with this. And they pulled mifepristone off the market. But then after global outcry, the French government mounted a pressure campaign, with the health minister announcing, it is saying in this script that I should do this in a French accent. 

 

Max Fisher: I say I think you should have to do it in a French accent. 

 

Erin Ryan: From ze moment government, [laughter] I’m not doing this. From the moment government approval for the drug was granted, RU486 became the moral property of women, not just the property of ze drug company. 

 

Max Fisher: Finally, a government agency that puts women first. 

 

Erin Ryan: Yeah, well, they also held a stake in the company. 

 

Max Fisher: Wow. It’s a government agency?

 

Erin Ryan: The government of France held a stake in this pharmaceutical company, which is wild, but they could throw their weight around. And executives at Roussel Uclaf actually seemed relieved that the decision to make and distribute mifepristone was now technically out of their hands. They’re being forced to do it by the French government. 

 

Max Fisher: Okay, so that is what is happening with the first arrival of these pills in Europe back in the ’80s. But presumably it’s showing up in other places, too, right? 

 

Erin Ryan: Right. Well, China pirates a version of a mifepristone which it uses to enforce its one child policy. 

 

Max Fisher: Yikes. 

 

Erin Ryan: Meanwhile, Latin America begins cracking down on abortion pills, making even misoprostol hard to get. And mifepristone is banned here in the US. One of the first big public challenges of that ban comes in 1992, when a punk anarchist, Leona Benton, and abortion activist Larry Lader punk the US government. 

 

Max Fisher: How punk are we talking?

 

Erin Ryan: Like international drug smuggling punk. 

 

Max Fisher: That’s pretty punk. 

 

Erin Ryan: I talked to T.J. Raphael, the host of the podcast, Cover Up the Pill plot, to get a handle on this story of Larry and Leona’s scheme. 

 

[clip of T.J. Raphael] They had flown to London, where the pill was legal, secretly got some doses, and within 24 hours flew back to the States and yeah, sent a message, sent a fax to the US customs head telling her that, hey, we’re coming into the country with this banned substance. And uh, yeah, they got stopped and they brought it to the Supreme Court. 

 

Max Fisher: Damn, this is like an anarcho feminist Ocean’s 11 here. 

 

Erin Ryan: Yeah, this is the Ocean’s eight I would have preferred. So those activists get back to the U.S., their pills get confiscated. There’s a lot of press attention. It makes it to the Supreme Court, which in 1992 roundly rejects legalizing mifepristone.

 

Max Fisher: So where does that leave things? 

 

Erin Ryan: Well, Larry is a clever guy. Here’s T.J. again. 

 

[clip of T.J. Raphael] When he and Leona Benton had returned from London with the pills and they had been confiscated, unbeknownst to literally everyone, I actually asked Larry’s attorneys about this. He had secretly stashed away an extra dose of mifepristone. Nobody knew that he had it. And he decides that, you know, if the government, um won’t overturn the ban, maybe we can challenge the patent. There was this obscure New York state law that said, if a company, a drug maker won’t bring in a drug to the United States, but it can be produced in state in New York, then you can use it here. So Larry Lader goes full Breaking Bad. He decides to build a secret lab in a warehouse, and he hires some scientists. He’s able to confirm the exact chemical composition of mifepristone. So then Larry starts manufacturing the first ever made in America abortion pill. And he actually goes to the FDA and gets permission to start clinical trials. Some of the earliest clinical trials in the United States with this medication. 

 

Max Fisher: Okay. Change of plans. If I could take a pill to dissolve my wisdom teeth, I’m staying home and binging this show like sorry, Shogun. 

 

Erin Ryan: If you want to know more about the absolutely wild history of the abortion pill in the US, listen to TJ’s podcast, Cover Up the Pill Plot. We’ll link in our show notes because truly, what she shared is not half of it. 

 

Max Fisher: Okay, so that brings us up to the Clinton years. 

 

Erin Ryan: Yeah. Shortly after Bill Clinton took office in 1993, he directed the FDA to take steps to investigate unbanning mifepristone. 

 

Max Fisher: The first U.S. trial begins in 1994, and by 1996, an FDA panel had actually recommended that the drug be made available. But with approvals and everything that takes until September 2000, just a couple of months before Bush v Gore, mifepristone slides into legality like Chris Pratt escaping the raptor pen in a bad Jurassic Park movie. 

 

[clip of Chris Pratt] Stand down. Hey, hey, what did I just say? 

 

Erin Ryan: [laugh] Hey, Jurassic World was an enjoyable theatrical experience.

 

Max Fisher: If you say so. 

 

Erin Ryan: One thing that we hear parroted by people who want mifepristone taken off the market now, is that the drug isn’t safe. Or it was somehow rushed through the approval process, which just isn’t true. There were mountains of evidence showing that it was safe and effective across Europe, China, Israel, and in U.S. trials. Starting in September 2000, Americans began using it largely without complications. But then 11 years later, the FDA added it to a list of risky drugs to require patients to jump through several hoops to get it. 

 

Max Fisher: Oh, so like, did patients have to solve a series of riddles? 

 

Erin Ryan: That would have been kind of fun. No, it wasn’t fun. FDA rules required that RU486 be prescribed only by a doctor qualified to perform follow up care in the event that the drugs didn’t work. 

 

Max Fisher: But the likelihood that they would actually need to do a surgery after taking mifepristone was low, right? 

 

Erin Ryan: Yeah. The two drug combination taken early enough in pregnancy was shown to be upwards of 95% effective. 

 

Max Fisher: Wow. 

 

Erin Ryan: But just to make triple extra sure, the FDA also required the pill to be dispensed in person and for the patient to take the drug in front of the provider. 

 

Max Fisher: That kind of sounds like being in a psych ward or jail. 

 

Erin Ryan: Yeah, exactly. Well, and then 2016 happened. 

 

Max Fisher: Sorry, what happened in 2016? I went to the Eternal Sunshine of the Spotless Mind clinic and had my memory of that year completely wiped. 

 

Erin Ryan: I’m going to need you to tell me how to get to that clinic. 

 

Max Fisher: [laughing] Can’t remember. 

 

Erin Ryan: After we’re done recording. [laughing] I am jealous. So in 2016, the FDA removed mifepristone from the list of drugs requiring extra safety precautions. As all that red tape wasn’t making patients any safer. So now abortion drugs could be prescribed by other health care providers and without ultrasounds. Then in 2021, the Biden administration announced that it would no longer be requiring providers to dispense RU486 in person. 

 

Max Fisher: Oh, wow. 

 

Erin Ryan: Which opened it up to telemedicine. 

 

Max Fisher: Oh! 

 

Erin Ryan: And also that pharmacies could fill prescriptions for it as well. 

 

Max Fisher: Oh that’s huge. 

 

Erin Ryan: And then in June 2022, the Supreme Court overturned Roe v Wade. And shortly thereafter, a strange lawsuit cropped up in the Texas Panhandle. 

 

Max Fisher: So this is the case that we saw argued now before the Supreme Court just earlier this week. And I keep hearing court watchers talking about, like, how weird this whole thing is. 

 

Erin Ryan: Yeah. We’ve finally arrived at the Alliance for Hippocratic Medicine versus the FDA. A cynical attemptted legal rigging, that is yes, also deeply weird. The lawsuit was filed by a group of anti-abortion doctors that banded together to sue the FDA over the way that mifepristone is prescribed. The doctor’s group argued that the drug was dangerous, and that they were being forced against their conscience to treat patients suffering side effects of the medication. Here’s ACLU attorney Julia Kaye, who gave us some background on the plaintiffs. 

 

[clip of ACLU attorney Julia Kaye] Many of the members of these groups are not practicing at all. They are retired or they are dentists, or they practice in an area of medicine where there is absolutely zero chance that they would ever encounter one of the exceedingly, exceedingly rare circumstances of a complication from medication abortion. 

 

Erin Ryan: I hate it when my dentist refuses to help me with my abortion. 

 

Max Fisher: Dentist? So it’s just completely like a manufactured case because what do, dentists don’t have anything to do with this. 

 

Erin Ryan: No they don’t. They’re tooth doctors. [laughter]

 

Max Fisher: So they argued that the FDA had not done its due diligence, they claimed, in approving the drug, and were asking the court to mandate that the agency pull the drug from the market entirely, or at least reinstate those onerous pre 2016 prescription standards, like you had to take it in front of a doctor. 

 

Erin Ryan: Mm hmm. And the justices seemed skeptical that the alliance of offended doctors and dentists, some of whom again, were retired, had been harmed by mifepristone, considering they’re already granted exemptions from having to perform procedures that they object to. 

 

Max Fisher: Huh? 

 

Erin Ryan: Here’s Justice Ketanji Brown Jackson. 

 

[clip of Justice Ketanji Brown Jackson] So the obvious commonsense remedy would be to provide them with an exemption that they don’t have to participate, um in this procedure. And you say, and you said here several times that federal law already gives them that. 

 

Max Fisher: So this is wild moment in the arguments where Erin Hawley, who is the lead attorney for the plaintiffs who are bringing this suit, was not able to present a single concrete example of her client’s conscience rights being infringed upon by the existence of this drug. 

 

Erin Ryan: Oh, yes. But they were very much victimized in their imaginations. [laughter] But even conservative justices like Neil Gorsuch and Amy Coney Barrett seem skeptical of the plaintiffs standing in the case. So we won’t know until June how this will all shake out. Although most court watchers predict a loss for the anti-mifepristone crowd. But if we know anything about the anti-abortion movement, it’s that they play the long game. 

 

Max Fisher: Oh yeah. 

 

Erin Ryan: And we can be pretty sure that this isn’t going to be the last swing for the fences they make for mifepristone. [music break]

 

[AD BREAK] [music break]

 

Max Fisher: Well, let’s back up a bit. So this medication has been around for years. More and more people have been using it ever since the FDA relaxed those regulations back in 2016. So why are abortion opponents only going after it like this now? 

 

Erin Ryan: Well, for one, in 2016, when your memory was erased and those mifepristone restrictions were relaxed, overturning Roe seemed like a far away dream for the antis. 

 

Max Fisher: So they were still focused on overturning Roe back then. For all those years, even as mifepristone was growing in popularity. 

 

Erin Ryan: Yes, they were obsessed with overturning Roe. But then Roe fell in 2022, and the anti-abortion movement, once they got over their champagne hangover, looked around and realized the landscape had totally changed. 

 

Max Fisher: So, okay, for decades, they had focused everyone in the movement on this strategy, overturning Roe, their white whale. That made sense in the context of like the ’80s or ’90s, but not really in the era of mifepristone and telemedicine. 

 

Erin Ryan: But they figured it out pretty quickly. That Texas lawsuit challenging the FDA’s approval of mifepristone, the one at the center of this week’s Scotus arguments, got filed just five months after the Dobbs decision. 

 

Max Fisher: Oh okay, so because Roe fell in the Dobbs decision, 14 states banned abortion. A bunch more passed all these new restrictions. And yet nationwide abortions went up. 

 

Erin Ryan: Part of that was backlash to Dobbs. Some blue states expanded access to abortion, or started offering assistance to people traveling from nearby red states or shielding people within their borders from being prosecuted for helping Red state women get abortion care. Public awareness of abortion rights seems to have improved in response too. 

 

Max Fisher: Sure, but I’m still confused because all of this made it harder for many millions of people to access abortions, right? 

 

Erin Ryan: It made it harder for millions of people to access abortion clinics. 

 

Max Fisher: Oh. 

 

Erin Ryan: What the antis failed to anticipate, I think, is that women will continue to seek abortion care until the cost of having an abortion is greater to them than the cost of having a baby they don’t want. 

 

Max Fisher: Yeah. 

 

Erin Ryan: But regardless, in a lot of circumstances, even in red states, as long as you don’t medically require a clinic visit, it’s actually easier to access an abortion in the mifepristone era then it was under Roe. 

 

Max Fisher: Wow. 

 

Erin Ryan: And that’s what mostly drove the rise in abortions. It’s also important to note that the increase in abortions recorded by Guttmacher only tracks abortions that take place within the medical system. 

 

Max Fisher: Oh. 

 

Erin Ryan: So we don’t know how many women use pills by mail requested and sent through channels outside of medical establishment to terminate their pregnancies. This is a fairly common practice, especially in places like Texas. 

 

Max Fisher: Sure. 

 

Erin Ryan: So the number of abortions that actually occurred in the US, since Dobbs, is probably a lot higher than what’s been reported. 

 

Max Fisher: Wow. Okay, so it’s like if Roe v Wade was the castle wall protecting abortion rights in America, then the anti-abortion movement knocked it down, only to discover that immediately behind that wall was another equally sized wall called mifepristone. 

 

Erin Ryan: That sounds frustrating. Well, even if they did win this case, they would discover that there’s a third wall, misoprostol. 

 

Max Fisher: Okay, so that is the drug that is used in concert with mifepristone, right? 

 

Erin Ryan: Yeah. It’s also quite safe and effective when used on its own, which in a lot of the world it is. 

 

Max Fisher: So does that mean that they’re going to go after misoprostol now too? 

 

Erin Ryan: That would be pretty hard because misoprostol has a lot of other uses like treating ulcers and treating rheumatoid arthritis. 

 

Max Fisher: So we’re not worried that Justice Alito is about to discover that misoprostol violates the religious freedom of ulcers? 

 

Erin Ryan: Our lady of the Bleeding Stomach. For now, the anti-abortion movement is focused on mifepristone. That’s the focus of this suit. Maybe just because they think it’s a better place to start. 

 

Max Fisher: Well, but why are reproductive rights groups sounding the alarm over protecting mifepristone, if we have this other drug too, misoprostol?

 

Erin Ryan: They’re a bit more effective together. Misoprostol alone is 88% effective, but when you add Mifepristone, it becomes 95% plus effective. 

 

Max Fisher: Oh okay. 

 

Erin Ryan: Misoprostol on its own is also more painful. It can involve long hours of pain and bleeding and more side effects like nausea. Combining it with mifepristone counteracts that, and mifepristone is important for treating miscarriages, which is another big reason that reproductive rights activists want to protect it. Here’s Doctor Jennifer Conti, an Ob-Gyn and medical journalist. 

 

[clip of Dr. Jennifer Conti] A lot of times we use this medicine for managing miscarriages that haven’t been completed. It’s really common. It’s a lot less uncommon than you would think to um, to have a miscarriage in this way that just doesn’t completely um get recognized by your body and then get expelled. Miscarriage in general, we think, happens to like one in five pregnancies. And so a large chunk of those pregnancies are going to, you know, at some point in the process, maybe need help getting expelled, and that’s a huge use of mifepristone. So when we talk about taking it away, we’re not just talking about taking it away for the for the purpose that these asshats think that we’re taking it away for. It has other uses. 

 

Max Fisher: Boy, I can’t say I’m surprised to learn that the anti-abortion groups are really unbothered by the idea that banning mifeprostal [he meant mifepristone] will mean women having to face more dangerous and painful miscarriages. 

 

Erin Ryan: Yeah, health of the mother, not exactly a top priority.

 

Max Fisher: But still, I’m surprised they’re going this hard for mifepristone. If banning it wouldn’t even end medication abortion. Like, I take your point that maybe this is just step one, and there’s a file somewhere in a basement laying out a plan to target misoprostol, too. But it still seems really odd to me. 

 

Erin Ryan: Yeah, there’s a real throwing spaghetti at the wall quality to this entire legal strategy. 

 

Max Fisher: Well, if the spaghetti is weird, right wing lawsuits and the wall is the Supreme Court, then in fairness, this wall has proven pretty sticky. 

 

Erin Ryan: That metaphor got a little away from you. [laughter]

 

Max Fisher: Okay, yes, I guess what I mean is that this court’s conservative majority has used a lot of very flimsy legal cases to justify imposing conservative values like, say, overturning Roe. And this lawsuit also seems designed to appeal to this court’s love of gutting federal regulatory agencies like the FDA. 

 

Erin Ryan: That’s exactly why this slap down in oral arguments this week was so striking, it really revealed how weak the legal case is for banning mifepristone. And I’m not just saying that to dunk on the antis here. 

 

Max Fisher: Come on a little bit you are.

 

Erin Ryan: I mean, Erin Hawley really deserves it. Sure. It’s fun to revel in the humiliation of terrible, cruel people. I won’t deny it, but I do have a bigger point here, which is that the galling weakness of this case shows how hard this next stage of the abortion fight is going to be for the anti-movement. 

 

Max Fisher: You know, we talked earlier about one prong of their case, that administering mifepristone caused injury to a handful of doctors and I guess retired dentists. But there’s some other prongs to this too, right?

 

Erin Ryan: So the doctor thing is about proving legal standing that they have the right to bring this suit by showing someone who was injured by the FDA approving mifepristone.

 

Max Fisher: But their actual legal challenge is different. They say the FDA should never have approved mifepristone at all. 

 

Erin Ryan: Yeah, this is where it gets weird. The lawsuit argues, in part, that the FDA used basically the wrong regulation to approve mifepristone back in 2000. 

 

Max Fisher: Telling the government it filled out the wrong government form does have a certain appeal as someone who has been to the DMV, but that seems like a really weak case for banning an entire medication. 

 

Erin Ryan: Yeah. Why are you hitting yourself? Why are you hitting yourself? They’re also arguing, more dramatically that the FDA ruled incorrectly on the science when it approved mifepristone. Put aside whether or not they’re right.

 

Max Fisher: Which they’re not, I take it. 

 

Erin Ryan: No, no. But the point is that they’re asking the courts to overrule the FDA on the science. That would be a really radical change in how drug regulation works in this country. The way it’s always worked is that agencies like the FDA are the final authorities on scientific questions. 

 

Max Fisher: Well, they have the lab coats and the microscopes and the fancy degrees, after all. 

 

Erin Ryan: Yeah. So the courts might get involved if they think an agency like the FDA has exceeded its legal authority, but they’re not going to start second guessing whether government scientists got their calculations right. 

 

Max Fisher: Well, except this case is asking to do exactly that. 

 

Erin Ryan: Which is why they probably won’t. But if the Supreme Court were to comply, it would open the door to all sorts of politically motivated lawsuits aimed at getting judges to ban drugs or medical procedures for ideological reasons. 

 

Max Fisher: So if the Supreme Court broke down this firewall and how regulation has usually worked, you could have, like wack job activists soliciting red state judges to ban, you know, plan B or, I don’t know, birth control. 

 

Erin Ryan: Now you’re cooking with gas. I mean, it was barely a month ago that the Alabama State Supreme Court effectively banned IVF in the state. So these are not fringe scenarios. 

 

Max Fisher: And there’s another, even weirder and scarier argument in this lawsuit, too, right? 

 

Erin Ryan: Would you believe that they want the Supreme Court to consider abortion medication as equivalent to pornography? 

 

Max Fisher: I I would believe that, actually, yes, but please explain. 

 

Erin Ryan: The lawsuit argues the FDA, by permitting mifepristone to be sent in the mail, violated something called the Comstock Act. 

 

Max Fisher: I have never heard of this before. 

 

Erin Ryan: You are so lucky. Uh. It is a law from 1873, and it was bizarre and puritanical, even for its time. 

 

Max Fisher: Huh. 

 

Erin Ryan: It banned using the mail to deliver indecent or pornographic materials, which lawmakers at the time defined as including any material promoting abortion and even contraception. 

 

Max Fisher: Okay, the existence of Planned Parenthood mailers. And, you know, Playboy feels like evidence that this law is not really enforced. 

 

Erin Ryan: The lawsuit asks the Supreme Court to use the Comstock Act anyway, to basically create a federal ban on telemedicine abortion pills. 

 

Max Fisher: Oh. 

 

Erin Ryan: Yeah. Again, doesn’t appear that the court was receptive because that means an end to Viagra. 

 

Max Fisher: Oh yeah. 

 

Erin Ryan: Anything that your pharmacy would get in the mail that somehow deals with sexual health and wellness. No more toys in babeland boxes tastefully disguised. 

 

Max Fisher: Well, but right this is part of what’s important about this, right? Because it feels scary that these are now the sorts of demands that the anti-abortion movement is advancing, like 19th century anti-porn laws, or gutting the FDA, or no more Playboy?

 

Erin Ryan: I don’t know that they’re doing print anymore actually. 

 

Max Fisher: That’s fair.

 

Erin Ryan: The good news is that they’re going to these extremes because they have to because they’re realizing–

 

Max Fisher: Oh. 

 

Erin Ryan: –that for the large share of potential abortion seekers for whom pills like mifepristone are sufficient, the abortion rights movement has kind of won. 

 

Max Fisher: So, yes, they kind of have. But of course we shouldn’t gloat, because lots and lots of women do still need to visit a clinic for an abortion, especially for people suffering from medical emergencies and pregnancy complications. And if you are one of those people and you live in a red state, the post-Roe landscape is really bad. And the same goes for abortion providers in those states, too. So we’ve ended up at this like Post-Roe post mifepristone landscape. That is both a huge step backwards for some women who can’t rely on medication for abortions. Any big step forward for the larger number of women who can, at least for now? 

 

Erin Ryan: Yeah, it’s very much hanging in the balance, because if the FDA can change the way that abortion is accessed just by changing a rule about how something is prescribed, then a change in president who decides they want to throw their weight around could possibly bully the FDA into making changes again. 

 

Max Fisher: Oh right, right. 

 

Erin Ryan: You know, it’s easy to imagine all the ways that this can go sideways. 

 

Max Fisher: Yeah. 

 

Erin Ryan: But for now, as long as the FDA is not a political arm of the White House, the only way abortion foes are going to be able to stop abortion in the US is either ban the abortion pill, or convince the government to start messing around with interstate commerce and the mail. So both of these are kind of steep hills to climb, as we saw this week. But that’s my optimistic take. My Chicken Little take here is that the mifepristone case is only the beginning. Anti-choicers have made it clear they’re coming for things like IUDs and the morning after pill. There’s a couple states where they’ve already tried to make it not possible for people to use, like government insurance to get an IUD, which is pretty crazy. If they need to neuter the FDA and thereby endanger the safety of all other drugs in order to eliminate abortion. That’s a price they’re willing to pay. 

 

Max Fisher: Well, I’m crossing my fingers that the optimistic Erin is right, but Chicken Little Erin is probably a little right, too. 

 

Erin Ryan: I don’t know which one’s going to be right. And I want to find the Eternal Sunshine of the Spotless Mind clinic and erase my memory of the Trump years. And hopefully on the other side of that, we’re in a better future. 

 

Max Fisher: I’m going to ask the FDA to approve telemedicine, eternal sunshine. [laughter] [music break] How We Got Here is written and hosted by me, Max Fisher and Erin Ryan. 

 

Erin Ryan: Our producer is Austin Fischer. Emma Illick-Frank is our associate producer. 

 

Max Fisher: Evan Sutton mixes and masters the show. 

 

Erin Ryan: Jordan Cantor sound engineers the show, audio support from Kyle Seglin, Charlotte Landes, and Vasilis Fotopoulos.

 

Max Fisher: Production support from Leo Duran, Raven Yamamoto, Natalie Bettendorf and Adriene Hill. 

 

Erin Ryan: And a special thanks to What a Day’s wonderful hosts Tre’vell Anderson, Priyanka Aribindi, Josie  Duffy Rice, and Juanita Tolliver for welcoming us to the family. If you didn’t Know, What a Day is also a nightly newsletter, check it out and subscribe at Crooked.com/subscribe. Don’t forget to follow us at @CrookedMedia on Instagram, TikTok and Twitter for more original content, host takeovers and other community events. And if you enjoyed this episode of What a Day, consider dropping us a review on your favorite podcast app. 

 

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