69 House Republicans have come out in support of the decision by a Texas federal judge, Matthew Kacsmaryk, to suspend the Food and Drug Administration’s approval of mifepristone, the first pill given in the vast majority of medical abortions in the United States. Kacsmaryk had also ruled that in approving the drug, the FDA had broken an 1873 law when it allowed abortion providers to mail abortion pills. That 1873 law has not been enforced in nearly a hundred years. This is important because, in the post-Dobbs world, demand for virtual-only abortion services has risen by 76%, according to #WeCount. These Republicans, in filing a brief urging the 5th Circuit Court of Appeals to uphold Kacsmaryk’s decision, argued that the FDA’s approval posed “grave risks” to women and girls, is “unlawful” and they echoed the judge in referring to “chemical abortions”. This action represents a deepening of Republican efforts to end access to abortion rights, not just in Republican states, but across the country.
Law-fare
Led by Rep. August Pfluger (R-Texas), this group of ant-choice Republicans includes Reps. Lauren Boebert (R-Col) and Jim Banks (R-Ind). They were joined by 11 Republican senators led by Sen. Cindy Hyde Smith (Miss.), and including Sens. Marco Rubio (Fla.), and Rick Scott (Fla.). As unbelievable as it may seem to some, Republicans have a very good chance of succeeding. In 2018, Senate Republican Leader Mitch McConnell (Ken.) addressed a gala of the Federalist Society, a four-decades old legal network that is the most important source of judicial appointments in America, describing his singular goal as being “to do everything we can, for as long as we can, to transform the federal judiciary, because everything else we do is transitory”, which, in other words, means he wants to pack courts with conservative judges. He has succeeded. Of the 798 current federal judges, 380 have been appointed by Republicans. Now, that’s 48% of federal judges, so it seems as though Democrats have the other upper hand, but a closer look shows that Republicans are in a better position. Trump alone appointed 229 judges, while President Biden has appointed just 113. Trump’s judicial picks will shape America for decades to come, and they are conservative, backward-looking, and profoundly shaped by the originalist philosophy of the Federalist Society. Republicans have seized the opportunity that their conservative supermajority in the Supreme Court, and their packing of federal courts with conservative judges, has given them. In many circuit courts, such as the 5th Circuit Court of Appeals where this appeal is being held, 12 of the 16 judges have been appointed by Republican presidents. Republicans know that in this period, more than any other, they can fight all the way to the Supreme Court and get key rights such as access to abortion, struck down.
The result of the law-fare that Republicans are waging is that access to virtual abortions may come to an end. Even though telehealth is transforming healthcare in America, this assault on abortion rights is likely to result in women having a critical aspect of their health care taken away from them.