The abortion battle gets even hotter
BY ROBERT L. TSAI
Robert L. Tsai is professor of law at Boston University and the author of Practical Equality: Forging Justice in a Divided Nation.
For the moment, access to mifepristone to terminate pregnancy is unchanged. But imagine that the GOP-dominated Supreme Court upholds the Fifth Circuit’s ruling, rolling back access to mifepristone that’s been available for years. Since 2016, the FDA has allowed online ordering, mail delivery and receipt, and pharmacists to dispense the drug. Medication abortion now apparently accounts for nearly half of all terminated pregnancies in the U.S. — mostly in the comfort and safety of a person’s home.
Additionally, what if there were five votes to go with Judge James Ho’s more strident concurring opinion where he insisted federal law already bans “mail-order abortion?” Ho asserted that shipping mifepristone across state lines violates the Comstock Act, an anti-vice law from 1873 once used to ban mail-order contraception nationwide as “obscene.” (His colleagues on the panel didn’t go that far, striking down the FDA’s actions as “arbitrary” and refusing to defer to the FDA’s views about drug safety.) Because there is no longer a federal right to terminate one’s pregnancy after Dobbs, such a ruling would seem to immediately revive that 19th century law and potentially bar federal action to protect abortion access in other ways.
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