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Kousha Navidar: This is All Of It. I'm Kousha Navidar. Allison Stewart is on medical leave. Thanks for spending part of your Tuesday with us. I'm grateful you're here. Later in the show, we're going to talk with photographer, Clifford Prince King, about his new public art exhibit. We'll also speak with movie poster designer, Dawn Bailey, about how she created iconic movie posters for films like Dirty Dancing and Silence of the Lambs, and we'll hear some music that's been submitted to our public song project. That's next hour. Coming up, let's get things started with a conversation about women's reproductive rights and what happened this morning in the Supreme Court.

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Kousha Navidar: Earlier today, the Supreme Court heard arguments over whether to restrict access to Mifepristone. You may have heard it mentioned in the NPR newscast just a couple of minutes ago. It's a medication used in nearly two-thirds of all abortions nationally. Depending on what happens, if the court rules against the government, access to medication abortion could be severely restricted, even in states that have taken legal steps to women's reproductive rights. Here now to talk about this is Shefali Luthra. She's the healthcare reporter for the website, The 19th. She was listening in on the court's arguments this morning. She'll tell us what she heard and lay out what's at stake.

Shefali, welcome back to WNYC.

Shefali Luthra: Thank you so much for having me.

Kousha Navidar: Absolutely. Just a couple of hours ago, the court heard arguments in a case called FDA versus Alliance for Hippocratic Medicine. This is about the agency's approval of Mifepristone. Who is the Alliance for Hippocratic Medicine, and what are they arguing?

Shefali Luthra: That is a great question. The Alliance for Hippocratic Medicine, formed after Roe v. Wade was overturned, represents a collection of anti-abortion doctors, and they really represent one of the major organizations trying to expand limitations to abortion, not only in states that already have bans, but across the country. They argued, in this particular case, that Mifepristone, one of two medications used in medication abortions, was improperly approved. When they first filed the case in Texas, they argued that the FDA aired going back to 2000 when they approved the drug for market in the US to begin with.

The court hasn't been receptive to that argument, and so instead, what we heard today were arguments about 2016 and 2021, the two more recent years in which the FDA expanded approval of Mifepristone, allowing it eventually to be dispensed through telemedicine so you could get a prescription from your doctor or healthcare provider on the phone or over the internet and have the pills mailed to you.

Kousha Navidar: You had mentioned the year 2000, the FDA approved Mifepristone 24 years ago at this point. Why is it coming up now?

Shefali Luthra: That's a great question. That's in large part because Mifepristone really does represent one of the greatest existential threats to the anti-abortion movement. In the year and a half since Roe v. Wade was overturned, what we've seen is in states with abortion bans in particular, people are still able to access abortions. Some of that comes from traveling out of state, but some of that also comes from having doctors in other states, states like New York, with these so-called shield laws in place meant to protect them from prosecution. Those doctors are prescribing and mailing medication abortion pills to people in a state like Texas, like Oklahoma, like Louisiana, or Mississippi. This is really frustrating for abortion opponents. They see it as undercutting the abortion bans they worked really hard to pass, and anything they can do to try and restrict access to Mifepristone and ultimately medication abortion altogether would be really helpful to them in putting a stop to this.

Kousha Navidar: You're saying this is about restricting access even nationally, places where the states have taken legal steps to have mail order, for instance, like you were suggesting. What did you hear this morning? How did the justices react?

Shefali Luthra: It's a great question. What we heard is from the standpoint of those arguing on behalf of the federal government, probably some of the best that they could hope for. We saw a lot of justices, including conservatives like Neil Gorsuch, expressing some skepticism that the Alliance for Hippocratic Medicine had standing to file this suit. What that means is the doctors in this organization hadn't proven that they themselves had been harmed by the FDA's actions, and if they can't prove that, then they cannot pursue legal remedy through the courts. If you don't have standing, this case would be dismissed. The idea that we have conservatives and liberals appearing to maybe coalesce around that is a great sign for the FDA.

That said, forecasting what the Supreme Court will or won't do is often a fool's errand, as we have learned time and time again.

Kousha Navidar: Yes. You had mentioned that this had come up through Texas. It went through an anti-abortion judge in Amarillo, right? How strong does this case seem? How did it get to the Supreme Court?

Shefali Luthra: It's a great question again. The standing issue in particular is one where we have seen a lot of criticism across the political spectrum. People do understand that ordinarily, this would not be the kind of case where you would hear it from the Supreme Court, but the initial federal judge who heard this case, Judge Matthew Kaczmarek, is known for being very opposed to abortion, very strong connections to the anti-abortion religious right movements. As a result, what we have seen in the past year and a half is for those who are trying to restrict access, not only to abortion but to IUDs, or contraception, or HIV prevention pills, they often take their cases through Matthew Kaczmarek's court, hoping and often getting a favorable ruling.

Kousha Navidar: Got it. Later in this hour, we're going to be talking about that idea of contraceptives and how women are finding difficulty accessing the care that they need. Going back to the standing element that you were talking about, it sounds like liberal and conservatives might be coalescing on this idea of demonstrating standing. On the other side of the argument, how did the FDA respond?

Shefali Luthra: The FDA, represented by the Solicitor General, Elizabeth Prelogar, came pretty aggressively to the question that standing has not been proven. They suggested that there isn't really any group that could prove that they have been harmed by the 2016 and 2021 expansions of Mifepristone. Their point was that the connections that would need to be drawn from this drug being proven and expanded for telemedicine for use at 10 weeks instead of 7 weeks, connecting that to being what these physicians are, which is emergency room doctors in Texas, and saying that, "Well, you might someday see a patient who experienced complications from Mifepristone prescribed and dispensed through this particular manner and that that would harm you," is incredibly tenuous, especially because complications from medication abortion are very, very rare. This is an incredibly safe, incredibly effective mechanism, and the idea that they would have the ability to prove harm just is a very tough cell. That is the emphasis of what we heard from the FDA.

Kousha Navidar: You talked about going back 24 years when the FDA first approved this drug. We can go back even further talking about the Comstock Act, which I know came into play here, too. You wrote in an article for The 19th that this case, "Signify something larger. It's a first stab by abortion opponents at curbing access nationwide and resurrecting the Comstock Act." For those who aren't familiar, that's an 1873 law that defined contraceptives as obscene and illicit, making it a federal offense to disseminate birth control through the mail or across state lines. Is this something that's still on the books? Explain that.

Shefali Luthra: The Comstock Act is still on the books. It hasn't been enforced in decades. Its anti-abortion provisions in particular were moot because of Roe v. Wade, but again, it's become this linchpin of the future of the anti-abortion movement. They are very hopeful that because the law was never repealed and because it prohibits mailing items that would be intended to be used for an abortion, that it could be used to ban mailing of Mifepristone, or that it could be used for a nationwide ban.

Again, this is a very new line of argumentation. It is one that the DOJ has rejected. They note that there are other things that Mifepristone can be used for. It's also a drug for miscarriage management, for instance, and so you can't prove that someone mailing it is trying to procure or induce an abortion. That said, we did hear interest in Comstock from two justices on the court today. They are the court's two most conservative members, arguably Justice Clarence Thomas and Justice Clarence Alito.

The takeaway that I'm hearing from legal experts is that this is probably not the case that would be used to bring a Comstock Act across the land, but it does show that there is interest in the far right, including at the highest levels of the far right, in using this as a tool to restrict access, again, nationwide. I should note that the Comstock Act, and using it to restrict medication abortion in particular, is part of the documents prepared by Donald Trump's advisors. His Project 2025 articulates this as something that could be done to limit access if he were reelected president.

Kousha Navidar: The Comstock Act was invoked. This might not be the time at which it is fully addressed, but there is definitely interest being shown, kind of the takeaway there.

Shefali Luthra: Absolutely. I would be very surprised if we don't see more cases down the line trying to bring back and rebuild more legal ground to enforce Comstock.

Kousha Navidar: Talking more about the drugs itself and medication abortion, there are two pills being used for medication abortion in the US. The second is misoprostol. Are there any legal challenges to that pill? What would happen if Mifepristone is struck down and women are only left with that second drug, misoprostol?

Shefali Luthra: A very good question. Again, misoprostol is not undergoing any legal challenges, and that's in part because technically it is not actually FDA approved for abortion, but it is used as part of the regimen. We can see a few different avenues taking place. One is that we would see more people getting medication abortions through misoprostol only, which works most of the time and is largely safe. It is often done that way in other parts of the world because Mifepristone is quite expensive.

That said, it is less effective than the two-medication combination. It is more painful. There is more bleeding. I've had doctors tell me that if we see a misoprostol only regimen take root in the US, they are concerned about higher rates of patient hemorrhages, for instance. We might also see more patients switch to surgical abortions instead, which don't require Mifepristone or misoprostol. Not all clinics that provide abortions are equipped at providing surgical ones. Many only do medication. Of course, you can't do surgical abortions across state lines. You can't provide those through the mail.

The other thing that is worth noting is some of these doctors I mentioned earlier, the ones who are prescribing and mailing abortion pills from their shield law states like New York or Massachusetts to states like Texas or Louisiana, have expressed interest in trying to keep doing that anyway, doing what they call civil disobedience. We'll see how much impact this restriction has and whether it adds more legal risk to patients or providers, and also at the same time, whether people continue trying to resist those changes anyway.

Kousha Navidar: Shefali, we're talking about states' rights now, and we have been previously in this conversation. It makes me think that the court overturned Roe two years ago. In theory, I think a lot of people thought this would return the decision to the state level, but it doesn't seem like it's playing out that way. Has undoing Roe emboldened the anti-abortion movement?

Shefali Luthra: There is no doubt that undoing Roe has emboldened the anti-abortion movement. They got something they had been working for 50 years, and many of them are frustrated that the number of abortions in the US hasn't gone down. It's actually gone up. They are now working, knowing that they have the blessing of a judiciary that opposed a federal abortion right, to try and build more restrictions across the country. We are seeing a much more aggressive, much more brazen anti-abortion movement than we arguably ever have.

The other thing that you mentioned, the idea that undoing Roe would send this to the states and end legal challenges, and that's something that the majority argued when they issued their opinion in Dobbs v. Jackson Women's Health Organization. A lot of us who cover this, people who study it, people I interview all the time, had a little, maybe not chuckle, but we knew that wouldn't be the case. When you undo 50 years of legal precedent, it opens a very, very large can of legal questions that will probably take decades for us to resolve.

Kousha Navidar: One of the legal questions that have come up recently at the state level was the Alabama Supreme Court that recently ruled frozen embryos have the same rights as children. They employed the notion of personhood. Is that related in any way to this case?

Shefali Luthra: Fetal personhood is one of the ultimate end goals of a very large sector of the anti-abortion movement. This same movement does oppose IVF for the reasons that came up in Alabama, the creation of embryos that aren't used to become pregnancies. They also oppose the use of IUDs. They oppose certain forms of contraception, such as the morning after pill.

If we do see, and if we are talking about this more emboldened anti-abortion movement, one of the things they are ultimately hoping for and working in pursuit of is fetal personhood. We even see after Alabama, despite the backlash to the restrictions on IVF, which have been ameliorated for now, states are still working to pass and enact fetal personhood laws. We can look at Iowa, this first state to pass one after the Alabama decision.

Kousha Navidar: Let's go back to this case here. If the FDA loses today's case, what are the agency's options?

Shefali Luthra: That is a really good question. The White House was asked this very question yesterday, what they would be considering if there was an adverse ruling to the FDA and to Mifepristone. They didn't give a lot of insight. In some ways, we don't really know because there is so little precedent for this. One thing I've heard from some folks is maybe they could try to launch a really large new study of the virtues and the scientific merits of mailing Mifepristone, and providers could maybe participate in that study. Again, we are entering quite uncharted territory, so what the government's options would be, I think a lot of people are just guessing right now.

Kousha Navidar: It makes me think about this year being an election year, is there anything the Biden administration may do to preserve access, or is there something, let's say hypothetically, Trump as the front runner for the Republican Party could do to limit it from the executive branch?

Shefali Luthra: Frankly, one really significant element is just that they are defending the FDA, to begin with. The government doesn't have to do that. You may recall that when Donald Trump was elected last time, we saw a change in how the federal government did or did not defend certain positions that had been taken up by the Obama administration. A Trump presidency could be far less interested in defending government agencies from anti-abortion lawsuits.

It could also be much more interested in enforcing the Comstock Act as discussed today. That would have really drastic implications for access to abortion. It's also something that we would not see from the Biden administration, given their interest and their campaign emphasis on protecting abortion rights and attempting to restore them.

Kousha Navidar: My guest has been Shefali Luthra, a health care reporter. You can read her reporting at 19thnews.org. It's been very helpful having you on here, Shefali. Thanks so much.

Shefali Luthra: Thank you for having me.

Kousha Navidar: Absolutely.

 

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