Melissa: Welcome back to The Takeaway. I'm Melissa Harris-Perry. Anti-Abortion activists are continuing their efforts to restrict access to abortion care, even in states where abortion is legal. The latest target, the Food and Drug Administration. It's all an attempt to bar access to abortion medication.

Susan: There is research showing that in 2020 medication abortion actually made up more than half of abortions in medical settings. It was actually 54%. This is a large chunk of the abortions done in the United States. I am Susan Rinkunas a Senior Reporter at Jezebel.

Melissa: I asked Susan to help us understand abortion pills as part of abortion care.

Susan: Medication abortion is FDA approved for use up to 10 weeks in pregnancy, although the World Health Organization says it's safe and effective through 12 weeks. The Dobbs decision not only cut off access to procedures, but also these pills in clinics. Then what you're also seeing is people being concerned that maybe what you would call legally murky [laughs] efforts to get pills outside the medical system are also coming under scrutiny.

Melissa: What is an abortion pill?

Susan: The FDA-approved regimen is using two different drugs. First, a drug called Mifepristone, which stops a pregnancy from progressing, and then a second drug misoprostol, which induces uterine contractions that expel the early pregnancy. It's almost exactly like a miscarriage. In fact, a medical provider cannot tell the difference between using these pills and having a miscarriage on its own.

Melissa: Tell me a bit about why these pills have been an important part of access to healthcare and to abortion care.

Susan: It's helpful to have various options for people in how they want to end their pregnancy. A procedure in a clinic can be over quite fast, but depending on how close you live to said clinic, and that involves how many clinics have been shut down by trap laws and just where you live. If you're in a more rural area, it might be harder for you to get to a clinic, and pills if you live in a state that offers telemedicine, talking with a doctor or healthcare provider over video chat and then getting the pills sent via mail, that can be really game-changing for some people because it's just a lot more convenient than traveling to a clinic.

Then also some people would really prefer to have their pregnancy end at home versus in a clinic where they more often than not are going to be facing anti-choice protestors outside. Again, it is more for early pregnancies and there will be people who will need in-clinic care later in pregnancy and or just don't feel safe to have a miscarriage at home so they would want to go to a clinic.

Melissa: Now, what is it that's going on here? Activists are targeting the FDA to restrict these pills? Say more.

Susan: It's important to note that activists have been angry about abortion pills for as long as they've been approved even before they got approved. They are upset about the convenience and privacy that it can offer people. [Laughs[ as I just mentioned about the protestors. They want people to have to go through a gauntlet and feel some way about the messages those protestors are sending to them. This has been a long-term effort.

States have banned telemedicine of abortion pills even a decade ago. [chuckles] This is something that the movement has been working on, but then it has, I would say, shifted into overdrive since the Supreme Court took the case that overturned Roe and then the leak of the decision and then the actual decision. There are activists doing all things to try to limit access to pills all across the country not just in states with bans also in blue states.

The effort that you referenced is a lawsuit against, the very body that approved these pills back in the year 2000. I think it's really important to point out that this lawsuit was filed by the Alliance Defending Freedom, which is an organization that concocted the Mississippi ban that the Supreme Court used to overturn Roe v. Wade, and also ADF is the same organization that was just arguing at the Supreme Court, I think a week or two ago, defending the Colorado website designer who didn't want to serve gay clients for wedding websites.

Getting back to the lawsuit itself, ADF sued on behalf of some doctors and argued that the Food and Drug Administration was wrong to approve Mifepristone, that first drug more than 20 years ago, and was wrong to expand access to it based on scientific data. Initially, it was approved for seven weeks of pregnancy, and then the FDA said it was effective and safe through 10 weeks of pregnancy. This lawsuit is saying that was all garbage too. You shouldn't have done that. The scary thing here-- [crosstalk]

Melissa: Doesn't it actually say it's all garbage too, or the-- [laughs] I love that it could say that. [laughs]

Susan: No, it doesn't say that but it's legal nonsense. According to people who've read it, they're saying like, "What do you mean? The FDA had the authority to approve this and they were extremely careful." Pro-choice activists were saying they were too careful, they were extremely slow in approving and expanding access to this drug. It just seems like nonsense. The real scary part of it is it doesn't matter if the lawsuit is nonsense when you file it in a specific Texas district, where there is one judge.

This is judge Matthew Kacsmaryk is in the northern district of Texas and has gained a reputation for issuing nationwide injunctions, which he has no power to do, but he's doing anyway because he's basically unaccountable. Advocates are scared that this lawsuit being filed in that district in Texas could result in this judge issuing a nationwide injunction saying that the FDA was wrong and no medical provider can prescribe Mifepristone for abortion. That could affect us in New York. That could affect people in California, that could be a nationwide ruling. It's quite scary.

Melissa: All right, we're going to pause for a few moments here and The Takeaway continues our conversation about medication abortion right after this break. You're with The Takeaway where we're continuing our conversation with Susan Rinkunas, Senior Reporter at Jezebel about a federal lawsuit from Texas that could have implications for access to abortion pills in all 50 states.

Susan: Going after the FDA, rather than doing a state-by-state battle, also reminds me that on the day the Supreme Court overturned Roe, Attorney General Merrick Garland came out and did a press conference and said, "States cannot ban FDA-approved medications," and said that the Justice Department and the FDA would be looking into actions on how to ensure access. In the meantime, though, the anti-abortion activists, maybe they heard Merrick Garland say that, and in fact thought, "Fine, we'll go [chuckles] national then, we're not even going to worry about the states."

Melissa: Let me ask you, how is this connected to the Comstock Act?

Susan: That's another really scary thing that's buried in the Texas lawsuit. Not only does the Alliance Defending Freedom argue that the FDA was wrong to approve this drug and expand access to it, they also say the Comstock Act of 1873, which says that both birth control and abortive patients are not only illegal themselves, but it's illegal to distribute information about them.

This is an argument that we're seeing bubble up in various places, but as a law professor told me, if this Trump judge or any other judge decides that the Comstock Act is currently in effect, it would ban abortion nationwide. [chuckles] It's not something that people know much about because who's talking about this 150-year-old law, but it's really a Trojan horse buried in this lawsuit and other lawsuits. If abortion clinics can't get supplies they need through the mail, then they're not going to be able to offer abortions at all. If that law is found to be active, it could shut down abortion clinics in New York, in California, in Colorado. It's a really terrifying aspect of the Texas lawsuit.

Melissa: Sue, talking about the Texas lawsuit and we're talking about activists and you frame for us how many of these are players that we're seeing in other critical legal cases, and at the same time wasn't one of the takeaways of the 2022 midterms that Republicans had gone too far. Why are we seeing an expansion of this effort rather than a rolling back of it right now?

Susan: It's a fantastic question. [chuckles] You would think that people in the anti-abortion space would say to themselves, "We are on the losing side of this issue." Unfortunately for us, unfortunately for them, gerrymandering and voter suppression are still extremely widespread in this country, and even though exit polls show that abortion rights was a number one issue for a lot of people. There's also the activists that are just true believers and want to ban abortion everywhere and do not care if the actual public opinion polls are not in their favor because this is their deeply held belief and they've worked for decades to rig the system, not just electorally, but also with the courts.

One thing I will say is that states that want to protect abortion rights are heartened by the results out of places like Kansas and Michigan with the abortion ballot measures. We're going to be seeing a lot of those in the coming years. The sad thing is that it will take time, months, even years for those efforts to be successful. People need abortion access now.

Melissa: Susan Rinkunas is Senior Reporter for Jezebel. Susan, thanks so much for your time today.

Susan: Thanks, Melissa.

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