The Supreme Court is considering a lawsuit meant to reverse the Food and Drug Administration’s approval of the abortion pill mifepristone. The case has major ramifications for abortion access, given that a majority of abortions are now performed via medication. It also could reshape the 2024 elections, in which abortion is expected to be a significant consideration for voters. The Washington Examiner is featuring a series of articles providing an in-depth look at the case and its implications. Previous entries included the basic facts of the case and the science of the abortion pill. This entry is a report on the political ramifications of the Supreme Court’s decision.
The Supreme Court’s impending judgment on the Food and Drug Administration’s changes to the approval of the abortion pill mifepristone is expected to loom large over the 2024 election between President Joe Biden and former President Donald Trump.
On Tuesday, the court heard oral arguments in a case, FDA v. Alliance for Hippocratic Medicine, that centers on whether the limited deregulation of mifepristone violated the Administrative Procedures Act.
Of critical matter is whether the court will uphold the decision from the U.S. Court of Appeals for the 5th Circuit to revoke the FDA’s 2021 approval of mifepristone to be prescribed without seeing a doctor, which opened access to chemical abortions via telemedicine consultations and shipment of mifepristone in the mail.
The final decision, anticipated for June, is likely to have sizable effects on the outcome of the presidential and congressional elections this fall.
Abortion politics post-Roe
Abortion access upended electoral politics following the court’s overturning of Roe v. Wade in June 2022. Democrats beat back dire predicted losses during the 2022 midterm elections by running on protecting abortion access following the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe.
Several states held ballot initiatives on abortion access that mainly resulted in the enshrinement of abortion rights in state constitutions. Ohio, California, Kansas, Kentucky, Michigan, Montana, and Vermont have all passed measures to protect access to abortion or blocked attempts to restrict abortion.
Abortion rights amendments are on the ballot in at least eight other states heading into the 2024 elections, bringing the topic to the forefront of voters’ minds in key swing states such as Arizona and Florida.
Amanda Roberti, professor of political science at San Francisco State University, said the mifepristone case likely will have some effect on voters heading into the 2024 elections but that it is not likely to be of the same magnitude as the aftershock from the Dobbs decision.
“I would say probably people are following it a little bit less than maybe the Dobbs decision,” Roberti told the Washington Examiner. “If we get a decision sometime in the summer, that’s going to be on people’s minds, and it’s close to the election. It’s just as close as Dobbs was, so I think that you’re going to see people’s attention turned to that issue.”
Mifepristone by the numbers
One in 8 voters say abortion is the most important topic motivating their voting behavior heading into 2024, according to a survey this month from health policy think tank KFF. A total of 52% of voters say that abortion access is “important but not the most important” when they cast their vote.
A Gallup poll from June 2023 showed 63% of voters favor having mifepristone available via prescription, while 35% of voters oppose medication abortion. The survey, however, did not specify whether respondents supported access to the pills without a physical examination by a doctor to both determine the gestational age of the pregnancy and to rule out dangerous complications, such as an ectopic pregnancy.
Nearly two-thirds of respondents to the KFF survey had not heard much about the mifepristone case, including the questions about its safety and efficacy.
Medication abortions, typically conducted with both mifepristone and misoprostol, constituted over 63% of the over 1 million abortions in the United States in 2023, according to the Planned Parenthood-supported think tank the Guttmacher Institute.
The FDA’s warning label on mifepristone estimates that between 2.9% and 4.6% of women who self-administer an abortion will require emergency medical treatment for sustained heavy bleeding or rare bacterial infections. This means that approximately 20,000 women of the nearly 643,000 chemical abortion patients likely sought emergency medical care following taking mifepristone.
Democratic messaging fills the vacuum of Republican silence
Democratic political strategist Brad Bannon told the Washington Examiner that although the medical harms to women may be the GOP’s strongest argument against mifepristone, he still believes abortion is a winning matter for Democrats.
“It’s a great help to Democratic candidates, and the more Republicans talk about the issue, the better it gets for Democrats,” Bannon said. “Anytime reproductive rights comes up, whether it was in Alabama or former President Trump talking about it, it just reminds voters, especially swing voters in suburbs, that Republicans are determined to end choice.”
Rep. Richard Hudson (R-NC), chairman of the National Republican Congressional Committee, sent a memo earlier this month to his colleagues saying that House Republicans need to be clear on their stances on abortion and not shy away from the topic.
Hudson’s take is that because Republicans have declined to talk about abortion, Democrats have been able to dominate the narrative.
Several strategists and leaders pushing for abortion restrictions echoed that sentiment while talking with the Washington Examiner.
“I 100% agree that this is a messaging issue,” said Emily Benavides, a Republican strategist who worked on the super PAC supporting Gov. Doug Burgum’s (R-ND) 2024 presidential campaign. “This is a branding problem. We have, for far too long, been afraid to explicitly explain where we stand on this issue. And thus, we’ve let ourselves be defined by Democrats, who are going to go ahead and use the most extreme position to define us, which may not be actually reflective of the candidate.”
“We really try to be very respectful of these complex situations, but also still principled in our kind of bedrock stances that we do believe that every life is valuable,” said Timothy Head, executive director of the Faith and Freedom Coalition. “Some pro-life groups can be divisive, there are definitely plenty of pro-choice groups that will be very divisive, but we try to do everything we can to make this as healing a process as possible.”
Head cited the example of Nevada Republican Senate candidate Sam Brown, whose wife, Amy Brown, opened up about her abortion and the grueling healing process that followed as an example of the compassion needed over the abortion debate.
“I actually think that there are compassionate ways to talk about this story without being either dogmatic or didactic,” Head said. “And so that’s our preferred approach from a messaging standpoint.”
A fledgling Republican consensus
Complicating the matter is that Republicans have not agreed on where exactly the party stands on gestational age limits for abortion, how to handle contraceptives, and how to counteract Democratic messaging.
Republican presidential candidates were split during the early primary period between six-week and 15-week abortion bans, with anti-abortion groups such as SBA Pro-Life America initially supporting candidates who touted the earlier standard.
Trump indicated last week that he was thinking of supporting a 15-week gestation national abortion restriction, which he characterized as “very reasonable.” His position in recent weeks has emphasized his role as a mediator in determining a middle ground for the hotly contested topic.
Trump campaign national press secretary Karoline Leavitt said in a statement in February that the presumptive Republican nominee would “sit down with both sides and negotiate a deal that everyone will be happy with.”
Public opinion polls suggest that, although voters say they favor abortion access, there also could be broad support for gestational age limits on the procedure.
A Gallup poll from July 2023 found that while 69% of respondents said that abortion should be legal in the first trimester, only 37% said that it should be legal during the second trimester. Pre-Dobbs polling on the topic found that 48% of voters supported 15-week limitations.
Abortion as healthcare
Sarah Chamberlain, president and CEO of the Republican Main Street Partnership, said she hopes the Supreme Court will not overturn the approval of mifepristone, in consideration of the impact it will have on the 2024 elections.
“I’m hoping that they choose not to outlaw it because if they do, I think it will be very bad on the 2024 election,” Chamberlain said. “We need to be very cautious moving forward in 2024 in the November elections. The Supreme Court, I mean, we don’t know what they’re going to do.”
Democrats are banking that public sentiment on abortion could boost a weakened Biden over Trump in their presidential rematch. They argue that this could only be strengthened by continued debates within the Republican Party over how the position of life beginning at conception might shape other policy decisions relating to contraception and in vitro fertilization, or IVF.
Chamberlain cautioned that, though she does not have data to back up Democrats’ arguments, the GOP should not assume that abortion will not be of critical importance in 2024, in addition to voters’ economic concerns.
“This is a big issue for women and we as the party cannot underestimate that,” Chamberlain said of abortion and related policy considerations. “We do not have to be pro-choice by any matter, but we have to be consistent in our pro-life, and that includes allowing IVF and contraception and women to get the medical care that they need. This is a healthcare issue for women.”
Herbie Newell, president and executive director of the evangelical child welfare and adoption agency Lifeline Children’s Services, rejected treating abortion as a healthcare argument.
“Part of the reason I’m pro-life is because I don’t believe abortion is good for women first, and then obviously, it’s not good for children,” Newell said. “I don’t believe it’s healthcare.”
Strengthening the Democratic position
Democrats are expected to campaign on abortion medication even if the Supreme Court rules to allow mifepristone to continue being prescribed by mail.
“Democrats 100% having a party platform of abortion on demand are going to see this as a win, and they’re going to use that to carry momentum with their base,” Newell continued.
Roberti, the political scientist at San Francisco State, pointed to the high levels of support for access to mifepristone, the backlash during the 2022 midterm elections, and the abortion ballot initiatives as warning signs for the GOP.
“People do want access to reproductive healthcare and abortion and all sorts of areas of reproductive healthcare, and so they don’t want to see the access reduced in any kind of way,” she said. “I think we’ve seen the negative impact for Republicans at least.”
Democrats have tended to argue that abortion access is best left up to women and their doctors. Biden’s reelection campaign began pouncing on Trump’s abortion comments even before he became the GOP’s presumptive presidential nominee, and it has continued its attacks after the former president expressed interest in a 15-week abortion ban.
The Biden campaign sent out a statement from Amanda Zurawski, a woman who sued Texas after suffering from severe pregnancy complications at 17 weeks gestation and receiving limited care from her doctors due to confusion over the state’s total abortion ban.
“My family has been forever altered by the nightmare that Donald Trump created by overturning Roe,” Zurawski said. “I nearly died because my doctor could not give me the care I needed — and my ability to have children in the future has been forever compromised by the damage that was caused.”
The Supreme Court’s ruling on mifepristone could once again activate women to Democrats’ aid unless the GOP coalesces around a winning counterstrategy.
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In a press call with reporters on Monday, Biden campaign manager Julie Chavez Rodriguez reiterated the president’s stance on protecting abortion access.
“If Congress sends a national abortion ban to his desk, President Biden will veto it,” Chavez Rodriguez said. “The president and vice president are the only candidates who believed that reproductive healthcare decisions belong to women and their doctors not politicians or the government.”
