How Biden is bringing aggressive legal muscle to the reproductive freedom battle: attorney

05 January 2023

Abortion proved to be a strong issue for Democrats in the 2022 midterms, helping them win statewide gubernatorial and/or U.S. races in Pennsylvania, Michigan, Arizona and other swing states. Michigan Gov. Gretchen Whitmer, Pennsylvania Gov. Josh Shapiro, Arizona Gov. Katie Hobbs and Sen. John Fetterman of Pennsylvania were among the Democrats who campaigned on abortion rights in 2022 and won.

For the Biden Administration, one of the big takeaways of 2022 is that reproductive rights are important to Democratic voters, swing voters and even some Republican voters. In deep red Kansas, centrist pro-choice Democratic Gov. Laura Kelly was reelected; that victory came three months after Kansas voters rejected an anti-abortion measure by 18 percent.

In an article published by The Nation on January 5, liberal/progressive attorney Elie Mystal offers legal analysis of the Biden Administration’s efforts in favor of reproductive rights. And Mystal, who is often featured as a legal expert on MSNBC, argues that Biden and his allies are being quite proactive when it comes to making abortion pills easier to obtain.

“The Biden Administration has finally taken steps to make abortion pills at least as accessible as erectile dysfunction pills,” Mystal explains. “All it took was the Supreme Court’s revocation of an established constitutional right for the first time in U.S. history — in the form of Dobbs v. Jackson Women’s Health — and the culmination of the Republicans’ decades-long war on reproductive freedom to get them to do what Democrats should have done years ago. This week, the Food & Drug Administration made a small legal change in its classification of the drug mifepristone, and the Department of Justice confirmed that the drug can be sent through the mail.”

Mystal adds, “Mifepristone is a drug that can be used for the treatment of high blood sugar, but it can also be used off-label to inhibit the hormone progesterone, which is necessary for maintaining pregnancies. Along with another drug, misoprostol, which causes contractions, it can be used to medically induce abortions. The mifepristone-misoprostol combination is already used in over half of abortions performed in the United States, with demand only increasing since the Supreme Court adopted Christian fundamentalist theory crafting and revoked the right to abortion last June.”

The attorney notes, however, that in “forced-birth states,” the “bans targeting abortion providers also prohibit the use of abortion drugs like mifepristone.” And Mystal warns that far-right extremists who have a history of “intimidating, stalking, and murdering abortion providers” angrily oppose the use of “abortion drugs.”

“Part of the agreement with the drug’s manufacturers includes pharmacies’ not publishing the names of doctors who prescribe the medication to protect those doctors’ safety,” Mystal observes. “But that also means that pharmacies cannot list the names of prescribing doctors in their nationwide databases, which they commonly do. And that doesn’t even get into the threats that these companies might face if they provide the medication, including in states where it is legal. It’s therefore likely that smaller, local pharmacies will be the early adopters of these new rules. This is where the new DOJ rule might be particularly helpful: It could make it easier to get abortion drugs from local pharmacies to people in states that deny reproductive rights.”

When the U.S. Supreme Court overturned Roe v. Wade with its Dobbs ruling in 2022, Justice Clarence Thomas argued that the Court should also “reconsider” Griswold v. Connecticut — a 1965 ruling that struck down a Connecticut ban on contraception for married couples and, by extension, similar laws all over the U.S. The language of the Warren Court in Griswold was employed by the Burger Court eight years later in Roe.

Griswold, according to Mystal, “defanged” the notorious Comstock Act of 1873.

“The Office of Legal Counsel issued a memo at the request of the DOJ saying that shipping abortion medication through the mail is legal, even after the Supreme Court’s ruling in Dobbs,” Mystal explains. “The memo related to a provision of the Comstock Act that prohibits the mailing of any ‘article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use’…. The Comstock Act was once used to prevent the distribution of birth control pills, but it was defanged by the Supreme Court case that recognized a right to privacy and a right to contraception: Griswold v. Connecticut.”

Mystal adds, “Roe v. Wade flowed from the Court’s decision in Griswold, and with Roe gone, there was some confusion as to whether the Comstock Act could once again prevent the distribution of reproductive medication through the mail. But the OLC memo says the Comstock Act can’t be used to punish a person who sends abortion medication through the mail ‘where the sender lacks the intent that the recipient of the drugs will use them unlawfully.’ That means that I, or a doctor, could send mifepristone to anyone, in any state, on the assumption that they would use the drug in compliance with whatever state laws apply to their jurisdiction. That’s a big deal, because many state abortion bans seek to punish the providers of reproductive services as well as the individuals of conscience who help people obtain reproductive services.”

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