Here we do but strut about the stage, captives of a performative system which casts its spell of subjugation among the countless eyes which watch from the darkness and reflect us as distorted images like those of funhouse mirrors into vast chasms of abyssal nothingness. As Shakespeare teaches us in MacBeth, Act five, scene five;
“Tomorrow, and tomorrow, and tomorrow,
Creeps in this petty pace from day to day
To the last syllable of recorded time,
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more. It is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.
Our elections provide the illusion of change and control, “manufacture consent to be governed” as Chomsky phrased it, create tribes and divisions, and entertain us with gladiatorial spectacles; political parties are a development of the sports fandoms of the Blues and the Greens, chariot racing teams of the Byzantine Empire a thousand years ago.
Democracy is always hostage to wealth and power, which seduces us with the lie that we are co-owners of the state in a free society of equals when we are slaves of elite hegemonies of wealth, power, and privilege.
The most vicious and insidious kind of power is not the atrocities of war and the brutal repression of dissent by police terror, but secret power, all-devouring and invisible to its beneficiaries as systems of oppression and thought control, a Wilderness of Mirrors as Atherton called it, lies, illusions, propaganda, conspiracy theories, alternate realities in which we wander lost and become cyphers of ourselves and the raw material of other’s power through falsification, commodification, and dehumanization.
Always pay attention to the man behind the curtain. As Dorothy says of Oz, he’s “just an old humbug.”
So we come to the events which have birthed such thoughts; the Arizona abortion ban, a triumph of theocratic patriarchy and sexual terror intended by its Republican authors and conspirators as enslavement of women and theft of meaningful citizenship and bodily autonomy, legislative state terror designed to produce abjection, despair, and learned helplessness; but instead has provoked a united front of resistance and caused the Republicans to disavow their own ideological primary goal of dehumanizing women as chattel slaves.
Tyrants and those who would enslave us believe only in the use of force and the centralization of power to authority, and fail to understand the balance of forces in the Calculus of Fear which is politics; for the use of social force, especially by the state as embodied violence, obeys Newton’s Third Law of Motion and creates its own Resistance.
The Republican anti-abortion crusade is nothing more or less than a strategy of divide and conquer and of the subversion of democracy by forces of theocratic patriarchy and sexual terror; it is also a reaction against the whole of modernity, civilization, and the values and ideals of the Enlightenment.
A terrible future looms; the Fall of America, of democracy globally, and of our civilization. Worse, this is a future wherein we are no longer human beings, but things to be owned.
To this and to state ownership of women’s bodies in abortion bans, gateway to an Age of Tyrants, I swear war to the knife, for who respects no laws of our universal human rights and our parallel and interdependent rights as citizens in a free society of equals, and no limits in the social use of force, may hide behind none.
With this issue as a lever the tide of history may be changed and our liberty restored, for our enemies know it is a losing issue for them in our elections, and we must hammer this message relentlessly into our national consciousness and narratives.
As written by Edwin Markham in the poem Preparedness;
“For all your days prepare,
And meet them ever alike:
When you are the anvil, bear–
When you are the hammer, strike.”
And if we do this in solidarity of action as a united front, I have no doubt that we will turn back the tide of theocracy and patriarchy.
For we are many, we are watching, and we are the future.
Pregnant Arizona lawmaker shares fight to get abortion, highlighting ‘cruel’ laws
A mail order abortion drug for home use which is safer than many non prescription drugs and decades of use after hundreds of FDA clinical trials, has been challenged in our Supreme Court by a radical and fractional shadow organization of anti-abortion radicals who wish to subvert democracy, the equality and rights of bodily autonomy and reproduction of women, the principle that medical decisions are between a doctor and patient, and the institution of the FDA in approving pharmaceuticals as safe for human use; a broad attack across American values and our social and institutional spheres.
This assault on the public good and the citizenship and liberty of all women through multiple legislative and judicial fronts of action foregrounds and hinges on abortion and includes the vote and citizenship of women, but does not end there. Our rights as citizen and as human beings are parallel and interdependent and designed to reinforce each other; if rights of bodily autonomy and reproduction are lost, women become dehumanized chattel slaves, and this is the end goal of the Republican Party as an organization of patriarchal sexual terror and theocratic tyranny.
Abortion is the key issue which will secure the next election for a Democratic Party President, because it is one we can win. The overwhelming majority of Republicans, both women and men, also favor a woman’s right to choose; if well played this will become a lever of change within the Republican Party which may one day liberate it from capture by Christian Identity fundamentalists who seized it in 1980 and from the Fourth Reich who in the Stolen Election of 2016 used it to capture our nation under the figurehead of a rapist President.
What would such a world be like to live in? Margaret Atwood has given us a vision of our future under a patriarchal theocracy in The Handmaid’s Tale.
The Handmaid’s Tale gives a voice to Bilhah, the Biblical Handmaid, revisions Little Red Riding Hood as an extension of Angela Carter’s The Company of Wolves, and tells the story of the Christian disempowerment of the Goddess and the dawn of the age of patriarchal theocracy as presented in the great film The Red Shoes.
Margaret Atwood’s parodies of Grimm operate on three levels; thematic, images and motifs, and narrative structure. In The Handmaid’s Tale, we have themes of family and especially female-female conflict, gender and sexual power asymmetries, and the initiation and heroic journey. Motifs and images include dismemberment, cannibalism, fertility, labyrinths and paths, and all manner of disturbing sexual violence. Plot devices include a variety of character foils, doppelgangers, disguises and trickery of stolen and falsified identity.
Among Margaret Atwood’s Great Books, The Handmaid’s Tale is a universally known reference both because it has been taught for over a generation in every high school in America as a standard text and because of the extraordinary television series, arguably the most important series ever filmed. We teach it for the same reasons the show is popular; a visceral and gripping drama with unforgettable characters, a mesmerizing plot, and an immediate and accessible story which interrogates a universal system of oppression and also empowers resistance and illuminates our autonomy and self-ownership.
It depicts the brooding evil and vicious misogyny of Christianity and Fascism as two sides of the dynamic malaise of authority as patriarchy and tyranny, sexual and racial terror institutionalized as religion and state, as drawn directly from Arthur Miller’s The Crucible and Hawthorne’s Scarlet Letter, but also from contemporary culture as it contains satires of identifiable public figures, organizations, and events. Serena is based on Phyllis Schlafly, and Gideon is the nation of Pat Robertson and the fundamentalists who seized control of the Republican Party in 1980 around the time of the novel’s writing; Margaret Atwood’s motive in part was to sound an alarm at the dawn of the Fourth Reich and its threat to global democracy.
It remains to be seen whether the forces of tyranny or of liberty will prevail in the end. Each of our lives is a contest between these forces, our private struggles reflected in the society and human civilization we share.
And this is the great lesson and insight of Margaret Atwood; each of us is both a Handmaid and a Serena, trapped within the skin of the other. She locates the primary conflict within ourselves, and transposes the Jungian conflict with the Shadow in terms of sex, gender, and power, while interrogating those same universal systems of oppression in our society and political institutions.
Whence comes this madness?
As written by Jordan Smith in The Intercept, in an article entitled The Shadow Medical Community Behind the Attempt to Ban Medication Abortion; THE ALLIANCE FOR HIPPOCRATIC MEDICINE, a new anti-abortion umbrella group that is spearheading a sweeping federal challenge to medication abortion, incorporated in Texas just months before filing suit. The incorporation documents, obtained from the Texas secretary of state, provide further evidence that the plaintiffs cherry-picked a court they believed would be amenable to their arguments, an act of forum shopping that was orchestrated to land the case before Judge Matthew Kacsmaryk, a Trump-appointed darling of the far right.
The Alliance incorporated in Amarillo in August 2022, bringing together five out-of-state anti-abortion groups: the Catholic Medical Association, the Coptic Medical Association of North America, the American College of Pediatricians, the Christian Medical & Dental Associations, and the American Association of Pro-Life Obstetricians and Gynecologists. Three months later, the lawsuit was filed in the same Texas Panhandle city where Kacsmaryk hears all federal civil cases.
The lawsuit alleges that in 2000, the Food and Drug Administration, or FDA, wrongly approved mifepristone, the first of two drugs that make up the standard medication abortion protocol. The groups also argue that sending abortion medications through the mail violates federal criminal law. To advance their argument, the plaintiffs have assembled a raft of dubious evidence to allege that the FDA is anti-science and mifepristone is a wildly dangerous drug, despite decades of scientific research and hundreds of medical studies that demonstrate otherwise. They have dished it all up for a federal judge who, in just a short time on the bench, has developed a reputation for factitious legal opinions. A ruling in their favor could see medication abortion all but banned across the U.S., sparking a new round of chaos after the fall of Roe v. Wade and laying the groundwork for the dispute to land before the U.S. Supreme Court.
Suspect Assertions
Medication abortion is a two-drug protocol designed for use in early pregnancy termination. The first drug, mifepristone, blocks progesterone (a hormone needed to maintain pregnancy) and softens the uterine lining; the second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy.
The regimen was developed in France in the late 1980s, but it wasn’t until 2000 that the FDA finally approved it for use in the United States. Medication abortion accounted for just 5 percent of abortions in 2001 but has steadily grown in popularity; today, medication abortion accounts for more than half of all pregnancy terminations in the country. The protocol is also commonly used for miscarriage management.
The FDA has enforced a slew of restrictions tied to mifepristone that advocates and providers have long argued are medically unnecessary — including a rule that it must be dispensed in person, even though misoprostol is not taken until later at a place of the patient’s choosing. During the pandemic, the in-person dispensing rule was blocked, and in December 2021, the FDA announced that it was permanently lifting the requirement. The agency has since taken additional steps to expand access to medication abortion by allowing mail-order and brick-and-mortar pharmacies to dispense it to patients with prescriptions in states where abortion is legal.
It was against this backdrop that the Alliance for Hippocratic Medicine, its partner organizations, and several individual doctors — represented by lawyers with the Christian-right Alliance Defending Freedom — filed suit in Texas, arguing that the FDA never should have approved mifepristone in the first place, let alone expand its use or loosen dispensing requirements.
The filing is a jumbled mess of suspect assertions, cloaked in inflammatory and medically inaccurate language. The filing refers to medication abortion as “chemical” abortion and claims that mifepristone “starves the baby to death.” It alleges that medication abortion is far riskier than procedural abortion or carrying a pregnancy to term, which the plaintiffs argue “rarely” leads to threatening complications. They call mifepristone an “endocrine disrupter” that could threaten the normal development of adolescents who take it. And they assert that individuals suffering complications from medication abortion could “overwhelm” the health care system, leading to a flood of blood transfusions that “exacerbates the current critical national blood shortage.”
These allegations are baseless. An endocrine disrupter is a chemical that mimics or interferes with the body’s hormones, such as PFAS, a class of toxic “forever” chemicals found in dozens of common products that has been linked to cancer and other illnesses. The notion that mifepristone — taken in a single dose — falls into this camp because it “briefly blocks progesterone receptors in the uterus is completely unfounded,” according to an amicus brief filed in the case by the American College of Obstetricians and Gynecologists, the American Medical Association, the American Academy of Family Physicians, and eight other leading U.S. medical groups. “There is no reason to think, nor is there evidence to show, that preventing the absorption of progesterone for a brief window would have any effects on adolescent development,” the brief states.
The assertion that medication abortion is a risky and understudied endeavor recklessly approved by the FDA is equally spurious. To date, mifepristone has been used in more than 630 published clinical trials, including more than 420 randomized, controlled studies, which the amicus brief notes are the “gold standard of research design.” At less than 1 percent, the risk of serious complications is exceedingly low. The likelihood of any complication at all is about 5 percent; the most common is an incomplete expulsion, which may require a procedural abortion to complete. Meanwhile, the risk of death associated with carrying a pregnancy to term is 14 times higher than the risk associated with abortion.
“Mifepristone’s safety profile is on par with common painkillers like ibuprofen and acetaminophen, which more than 30 million Americans take in any given day,” according to the amicus brief. Procedures like wisdom teeth removal, colonoscopy, and plastic surgery have higher complication and death rates, as does the use of Viagra. “Put simply,” the brief states, “medication abortion is among the safest medical interventions in any category — related to pregnancy or not.”
Behind the Scenes
The fight over abortion has long featured a shadow medical community that exists to promote counterfactual narratives about risks associated with the procedure. To Mary Ziegler, a law professor and legal historian at the University of California, Davis, the fact that the Alliance for Hippocratic Medicine was established to go after medication abortion isn’t surprising.
“There’s a tradition of groups like this forming,” Ziegler said. Back in the 1990s, for example, a group called the Physicians Ad Hoc Committee for Truth sprang up for the purposes of advocating for a ban on dilation and extraction abortion, which anti-abortion forces dubbed “partial-birth abortion.” Once Congress passed the ban, the committee disappeared.
While the Alliance for Hippocratic Medicine itself is a new entity, presumably incorporated to bolster the pending lawsuit, the groups organized under it have been around for a long time. The American Association of Pro-Life Obstetricians and Gynecologists, known as AAPLOG, formed in the wake of the 1973 Roe decision, initially as an affinity group of anti-abortion physicians who belonged to the American College of Obstetricians and Gynecologists, or ACOG, the country’s leading professional membership organization for OB-GYNs.
Over time, AAPLOG began to push back against the medical and scientific establishment, developing a narrative that abortion was not only immoral, but also dangerous. The group focused more on disputing the “factual premises of things ACOG was saying, rather than just disputing the morality or ethics of those decisions,” Ziegler said. “Medical arguments against abortion bans were effective enough that they needed to be met with medical arguments for abortion bans,” she explained. “There’s an appetite for these organizations to have their own narratives.”
AAPLOG has since split from ACOG and now has roughly 7,000 members compared to ACOG’s more than 60,000 (anyone can join the former, while the latter’s membership is limited to medical professionals). Despite its size, AAPLOG has successfully pressed its counternarrative in legislative and legal crusades to restrict or ban abortion, even when the scientific underpinning for its position is shaky.
Take the work of George Delgado, one of the named plaintiffs in the Alliance for Hippocratic Medicine lawsuit. A doctor in Southern California, Delgado developed so-called abortion pill reversal: the notion that a person who changes their mind about going through with a medication abortion after taking mifepristone (but before taking misoprostol) can interrupt the process by taking a large dose of prescription progesterone to reestablish the pregnancy. There is no evidence that the protocol is safe or effective; the only controlled study designed to interrogate it was halted based on “safety concerns” after three of 12 participants hemorrhaged and were taken to the hospital. Still, AAPLOG has deemed medication abortion reversal a “medically sound choice” and supported state efforts to mandate counseling on reversal for anyone seeking abortion.
“When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising.”
While the alternate narratives pushed by groups like AAPLOG may be politically powerful, they are also dangerous, offering the imprimatur of science without sound foundational support. “When you have arguments about science that are not based that much in evidence, not only is it confusing and obviously can lead to really bad outcomes, but it’s also disenfranchising,” Ziegler said. “Because normal people don’t know anything about these topics, right? They don’t know about the relative rate of complications of mifepristone. And so if what’s really going on here is a struggle over constitutional values and ethics and so on, we should be telling the truth about that.”
The shadow medical community’s efforts to legitimize various abortion restrictions have been effective — like a requirement that abortion doctors maintain hospital admitting privileges, which groups including AAPLOG claimed was a best practice designed to ensure patient safety. Broadly speaking, such efforts worked in front of state lawmakers but typically failed at the Supreme Court.
Now, with Roe in the rearview mirror and no immediately obvious need to keep pressing such pseudoscience, Ziegler suspects that groups like AAPLOG are still leaning into these arguments because their real aims — like establishing fetal personhood rights — “are still not popular,” she said. Anti-abortion ballot measures have repeatedly failed with voters, and a significant majority of Americans say abortion should be legal in all or most cases. “And so they’re having to take their claims to courts and to judges like Judge Kacsmaryk … and they’re having to rely on weird interpretations of FDA regulations.” This is “not a window into what they think is the most important,” she said, but “what they think will work.”
A Slippery Slope
Before being tapped to serve as the federal district court judge in Amarillo, Kacsmaryk worked at the religious-right First Liberty Institute, which, among other things, opposes the separation of church and state. Kacsmaryk has been vocal about his disdain for gay marriage, reproductive rights, and transgender people. In 2016, he signed onto a letter that called being transgender an “irrational … delusion” (the Catholic Medical Association, which is a party in the mifepristone lawsuit, was also a signatory). And he’s written that the sexual revolution was destructive, seeking “public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”
While on the bench, Kacsmaryk has made a string of controversial rulings: He declared Biden administration protections for transgender workers unlawful; twice ordered the administration to enforce the Trump-era “Remain in Mexico” policy; and attacked Title X, the only federal program designed to provide birth control to low-income and uninsured people.
In the Title X case, Deanda v. Becerra, Kacsmaryk sided with Texas father Alexander Deanda, who was challenging the program based on its guarantee of patient confidentiality. Deanda claimed that the program violated his rights as a parent raising his daughters according to “Christian teaching on matters of sexuality.” With Title X in place, he argued, he had no assurance that his daughters would be “unable to access … contraception” and other services that “facilitate sexual promiscuity.”
Among the criticisms leveled at Kacsmaryk in the wake of his ruling in favor of Deanda was that he lacked power to consider the case in the first place. To bring a federal lawsuit, a plaintiff must show they’ve been injured by the law they’re challenging, but Deanda — who never alleged that his children attempted to avail themselves of Title X services — hadn’t been harmed. Deanda had no standing to bring the suit, in other words, and Kacsmaryk had no cause to hear it. Nonetheless, Kacsmaryk ruled that the Title X program as administered violated the “constitutional right of parents to direct the upbringing of their children.”
In response to the pending mifepristone lawsuit, the federal government has argued that the FDA’s approval of the drug in 2000 was based on years of solid research, that the statute of limitations to challenge that approval has since run out, and that, like Deanda, the plaintiffs have no standing.
The FDA argues that neither the medical associations nor the individual doctors bringing the suit have suffered any injury related to the drug’s approval. And indeed, the plaintiffs’ claims of injury are tenuous. While the doctors who are party to the lawsuit don’t provide medication abortion, they argue that they may one day find themselves in a situation where a person allegedly harmed by mifepristone comes to them for treatment, thus drawing their attention away from existing patients. And they say that these impaired patients may present with an incomplete abortion, which would conscript the doctors into providing services that violate their conscience. Meanwhile, the organizations argue that the approval of mifepristone has forced them to divert time and energy away from other priorities, like advocating for fetal personhood, forcing them to focus instead on “educating” their members about the dangers of medication abortion.
To the FDA, this theory of legal injury is nonsense — and a slippery slope: Allowing the case to go forward would greenlight other baseless legal complaints, it argues in response to the Alliance lawsuit. “If FDA approved a new heart medicine, emergency physicians would have standing to challenge the approval on the theory that some patients would experience adverse events under the new treatment; in contrast, cardiologists would have standing to challenge the approval on the theory that some patients would no longer require their services.”
A Zombie Law
In a response filed in early February, the Alliance Defending Freedom lawyers brushed off the government’s arguments about standing — the doctors and organizations bringing the suit had “standing six ways from Sunday,” they asserted. They doubled down on their fearmongering, arguing that medication abortion had never been studied under “real-world conditions,” and that the doctors bringing the suit actually “treat and care for countless victims of this dangerous drug regimen.”
The plaintiffs also leaned into allegations that allowing medication abortion to be mailed to patients violates the 19th-century law known as the Comstock Act, which outlawed sending anything considered “obscene, lewd, lascivious, indecent, filthy or vile” through the mail, including contraceptives and “every article or thing” that could be used for abortion. Over the years, judicial and congressional actions have largely neutered the act, and in late December, the Department of Justice penned an opinion noting that the law does not apply where abortion is legal or when the sender doesn’t intend that the recipient would use the drugs illegally. But the Comstock Act is still on the books, a zombie law that the Alliance plaintiffs are trying to raise from the dead.
The End of Roe
If Kacsmaryk agrees that the Comstock Act applies to medication abortion, the impact could be far-reaching. The act forbids the mailing of any device that may be used for abortion, which would include countless medications and routine gynecological instruments. It could also impact the availability of misoprostol, which absent mifepristone, can be used alone to accomplish an abortion. It is not as effective as the two-drug regimen but has for decades been used safely for that purpose; the Alliance lawsuit does not attack FDA approval of misoprostol.
A hearing in the case has yet to be scheduled. Meanwhile, a coalition of 12 states, led by Washington and Oregon, filed their own lawsuit last week asking another federal judge to rule that mifepristone is safe and effective and that its FDA approval is “lawful and valid.” The states are asking the judge to eliminate all remaining FDA-imposed restrictions on mifepristone, which they argue impermissibly impede access to the drug.
On February 24, Vice President Kamala Harris met with reproductive rights advocates and medical experts, including from ACOG and the American Academy of Family Physicians. The Alliance lawsuit is not just an attack on “women’s fundamental freedoms,” she warned. “It is an attack on the very foundation of our public health system.”
“Those who would attack … the ability of the FDA to make a decision” about approving a drug like mifepristone “ought to look in their own medicine cabinets to figure out whether they’re prepared to say those medications … should no longer be available to them,” she said. “Because that is what we are talking about.”
Where are we in this fight now?
As written by Moira Donegan in The Guardian, in an article entitled Even the US supreme court was baffled by conservatives’ attack on abortion pills; “It is a testament to how weak the plaintiffs’ case is that the justices seemed so skeptical. Erin Hawley, a lawyer for the far-right antifeminist litigation shop Alliance Defending Freedom and the spouse of the conservative US senator Josh Hawley, usually gets a much warmer reception at One First Street. But in Tuesday’s oral arguments in Alliance for Hippocratic Medicine v FDA – a lawsuit which seeks to challenge FDA approval of the abortion drug mifepristone, and specifically to reverse regulatory changes that made the drug more easily accessible – she was on the defensive.
The three Democratic appointees, along with the Republican justices Gorsuch, Kavanaugh and Roberts, all signaled at least some skepticism of her clients’ claims to legal standing. Amy Coney Barrett, the Trump appointee known for her maximalist religious commitments, struggled to help Hawley establish a convincing merits case to restrict access to the drug. And the far-right extremists Samuel Alito and Clarence Thomas spent their question time signalling their support for the Comstock Act, a long-obscure and once-forgotten 1871 statute that some anti-choice lawyers say could be used to ban abortion nationwide by executive order.
Alliance for Hippocratic Medicine has always been a strange case, one whose path to the court was marked by controversy, strained argument and dramatically lowered legal standards. For one thing, the plaintiffs, a group of anti-abortion doctors who make outlandish and empirically disproven claims about the supposed dangers of mifepristone, hand-picked their own trial judge. They filed their lawsuit in the northern district of Texas, a federal court in Amarillo that has only one judge: Matthew Kacsmaryk, a young Trump appointee with a history of militant anti-choice activism who has become famous for his extreme deference to anti-abortion litigants.
Kacsmaryk ignored the fact that the physician plaintiffs could not show any injury that would entitle them to sue, and promptly issued a national injunction revoking FDA approval of the drug – an unprecedented judicial intervention that threatened to end access to a medication that is used in more than half of US abortions.
Above him, the far-right fifth circuit, in an opinion authored by the aspiring supreme court nominee James Ho, upheld the FDA’s initial approval of the drug but ruled that interventions in 2016 and 2021 that had made it more accessible were illegal, a move that would have made the pills dramatically more difficult to get in a post-Dobbs world. In his opinion, Ho not only bypassed the case’s initial standing problems, but made bizarre arguments justifying the right of virtually anyone to sue over abortion medication – including for what he called “aesthetic injuries” – that is, the harm allegedly done by abortion medication to people who are deprived of the opportunity to look at more babies.
At the supreme court, it was the FDA’s post-2016 moves to lower barriers of access to mifepristone that were supposedly at issue. And in theory, this should have been catnip to the revanchist supreme court, which has in recent years enthusiastically taken up legal challenges meant to erode abortion access, curtail civil rights, and weaken federal agencies like the FDA. But with the court’s approval at an all-time low in the wake of Dobbs, and with a looming November election to be determined in a large part by public outrage over women’s rights, even the court’s most enthusiastic enemies of abortion access and federal regulation found themselves with limited appetite to allow plaintiffs to limit access to a safe and popular drug nationwide.
And so it was that on Tuesday, the supreme court rediscovered an area of the law that it has recently been content to ignore: standing doctrine. The minor, inconvenient fact that the plaintiffs have experienced no injury and have no legal right to sue had been hand-waved away in the district court and at the fifth circuit, but it became an issue of prolonged attention in the oral arguments at the supreme court.
Elena Kagan noted that the plaintiff’s theory of standing was “highly probabilistic”, meaning that it relied on a series of hypotheticals and contingencies about potential harms that might happen, somehow, at some indeterminate point in the future, to someone, somewhere.
Ketanji Brown Jackson issued some of her most pointed questions since joining the court – a high bar – over the asymmetry between the plaintiff’s stated injury of a hypothetical future conscience harm and their proposed remedy for that injury – a nationwide restriction on the way all American women can use the drug. Jackson was joined in this line of thought by the Trump appointee Neil Gorsuch, her sometimes odd-couple ally, who asked the anti-abortion camp why they had filed such a broad petition, instead of a narrow one, in a tone I can only describe as scolding.
Roberts signaled a preoccupation with the standing question; even Kavanaugh, a justice with little skill in making a point, asked a question that seemed aimed at getting a fact of established law on the record: don’t these physicians already have a legal right to decline to perform abortions? Hawley answered in the affirmative.
The court seems poised to throw out the case on standing grounds; if the opinion is written by a conservative, it will likely operate as something of an instruction manual, describing the kind of case that the conservative legal movement could bring that would successfully overturn the FDA’s approval of mifepristone. A future case – just not this one.
But oral arguments on Tuesday did make news: they signaled the first time that the anti-choice movement’s preferred strategy for banning abortion nationwide has cheerleaders on the supreme court. The case that the court heard on Tuesday was specifically not supposed to concern the federal Comstock Act, a long-unenforced law left over from the Victorian era that imposed a ban on sending contraception or abortion implements through the mail or trading them via interstate commerce. But both Samuel Alito and Clarence Thomas brought up the act, which plaintiffs mentioned in their briefs and which was the focus of several amici curiae who submitted in the case.
Since Dobbs, anti-abortion litigants have been advancing a novel, never-before-enforced idea that the Comstock Act could be interpreted broadly to functionally ban all abortions nationwide – as well as several kinds of birth control and possibly implements that are also used in other kinds of routine gynecological care, like speculums and curettes. Alito signaled with his questions that he felt the act applied to the FDA, who had failed to heed its prohibitions when they approved the drug; Thomas suggested that mifepristone’s manufacturer had violated it when selling and advertising abortion medication.
These interpretations will likely not be controlling opinion in this lawsuit. But they signal how this court may rule under a future Republican administration. After all, if Republicans want to enforce the Comstock Act as a nationwide total abortion ban, they don’t need to win control of Congress. All they need is the White House.”
Why is this important, and what is this like in the lives of women?
As written by Clea Skopeliti in The Guardian, in an article entitled Women who used abortion pills on US supreme court mifepristone case: ‘It’s maddening’; “Mercy’s periods had always been very regular, so when she missed one in 2016, she immediately took a pregnancy test. It was positive, and she managed to get an appointment at an abortion clinic the next day.
Despite being able to act quickly, she was in her seventh week of pregnancy by the time she could take abortion pills in Ohio – a state that was, at the time, debating banning abortion from the moment embryonic cardiac activity is detected (usually around six weeks). Ohio has since enshrined abortion rights in its state constitution following a referendum.
After the supreme court heard oral arguments this week in its first abortion case since it overturned Roe v Wade almost two years ago, Mercy reflected on her experience of accessing a medical abortion. There have been fears that the case – the US Food and Drug Administration v Alliance for Hippocratic Medicine – could curtail access to medication abortions, though legal experts say it does not appear to be going well for anti-abortion doctors.
When she arrived at the clinic, Mercy, 22 at the time, faced harassment. “There were protesters outside the building. They had signs and a billboard with a chopped-up baby on it. They screamed at me as I entered the building. It felt very threatening and judgmental – I would bundle myself up in hoodies to obscure my identity.”
During a follow-up appointment, she arrived just before the clinic had opened, and hid behind nearby bushes to dodge the protesters. “I was terrified,” she said. “I felt like a sitting duck.”
Despite facing intimidation from protesters, Mercy, now 29, knew she was not ready to be a parent.
“I wanted it, but it wasn’t planned,” she said. “I wasn’t able to have a kid at the time – I was a student and had trouble affording things. There’s no way I could have supported a baby.”
Amid debates about “heartbeat” bills, Mercy had been aware there were unavoidable delays. At her first appointment, the providers at the abortion clinic were unable to find the embryo with ultrasound and the appointment was rescheduled for a week later. Mercy was then required to wait 24 hours between seeing the ultrasound and obtaining the abortion, but due to her class schedule and clinic opening times, she had to wait another week.
The staff at the clinic were compassionate and non-judgmental, she remembers, saying: “They were fantastic to me. It was one of the most empowering experiences I’ve ever had. They reassured me it wasn’t my fault, I’d taken precautions and things happened.”
Her experience taking abortion pills in her seventh week went smoothly. She took the mifepristone in the clinic, and misoprostol later, along with a single dose of an antibiotic, which the doctor told her might make her drowsy. She said: “I just curled up on my bed and went straight to sleep. I don’t know how bad the cramping might have been, but by the time I woke up the next morning it was like I was having a heavy period.”
She described her experience as being “really straightforward and non-traumatic”.
“I was glad to be in a place that I considered safe, without others’ judgment and to be able to process it,” she said.
Caitlin, 35, underwent a medical abortion at a hospital in California the day after the news leaked that the supreme court would be overturning Roe v Wade in 2022.
“It was a very somber experience, and the doctor prescribing me the medication was clearly incredibly upset,” she remembers.
“My nervousness about the abortion was overshadowed by the leak. In some ways it helped with nervousness – like we were all in this experience together – but it was emotionally painful. I realised that in California, it was going to affect me much less than people in other parts of the country – but depending on who’s in power in the US, it could turn into a country-wide thing. I wondered: is this the last time I have this operation? I may never want or need it again, but I want to have the option,” she said.
Following an ultrasound, which she declined to see, Caitlin took the mifepristone pill in the hospital, and the misoprostol at home. She was nine weeks pregnant. “It was pretty painful,” she said. “It’s a lot for your body to go through. I thought, no one’s doing this because they want to.” But she was glad to be at home with support from her partner and roommate.
She said she had been “manically refreshing” the news for updates on the supreme court mifepristone case.
“I’m really nervous about the outcome. I really appreciate the ingenuity of the providers who send medication to the states where abortion is illegal. We’ve been forced to get creative. I’m not surprised conservatives are trying to reverse the work’s that been done,” she said. “I see the anti-abortion movement here to be another way to subjugate people in poverty.”
Kelly, 46, has had three medication abortions over the years. Her first was in early 2001, shortly after mifepristone had been authorized for use by the FDA in 2000. After unsuccessfully trying to access the morning-after pill in Salem, Oregon, she went to a Planned Parenthood clinic in Portland, where staff confirmed she was pregnant. “It was an accidental pregnancy at 23, I didn’t have a permanent job – and I knew from a young age I didn’t want children,” she said.
Her experience in 2001 – and 2016 and 2017 – of accessing mifepristone at Planned Parenthood in Portland was straightforward, with “very clear instructions” from the clinic. She was prescribed a painkiller to help with the heavy cramping that accompanies the second pill, misoprostol.
Kelly felt that being able to take abortion pills at home made the process easier. “Medical settings give me a lot of anxiety – to do it at home felt more comfortable. My partner made me food, I got to sit on the couch and be in my own bathroom,” she said.
“In my later two abortions, I was very settled in my career, but again didn’t want kids. I’ve never had any regrets, never any mental health issues as a result. I’ve been set on not having children.”
Reflecting on the supreme court case, Kelly said: “As a lifelong feminist, I am shocked that were in this level in the US. We’re just at a point where access to abortion has been turned on its head in the US. Mifepristone is completely safe. Thankfully, it looks like they’re not going to rule in favour [of restricting access] – but the fact it could be [restricted] is maddening.”
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Women who used abortion pills on US supreme court mifepristone case: ‘It’s maddening’: Three women share their stories of getting medication abortions, and their thoughts on that access being curtailed
The Party of Treason, White Supremacist terror, and theocratic-patriarchal sexual terror has yet again set us sliding down Willy Wonka’s garbage shoot with a stupefyingly cruel and idiotic law banning IVF fertilization, using arguments copied from insurrectionist and white supremacist Josh Hawley’s legislation campaign to outlaw abortion and contraception.
If nothing else, the case of the IVF ban illustrates for us all the true difference between Democrats and Republicans; theocratic-patriarchal sexual terror.
In this year of our elections, when America chooses between futures of liberty or tyranny, I hope the whole world is watching how this unfolds in questions of women’s bodily autonomy, citizenship, agency, and the power of the vote.
As written by Arwa Mahdawi in The Guardian, in an article entitled Anti-abortion extremists in the US are waging a holy war against women: Republicans aren’t content with just forcing women to give birth, they are intent on controlling all facets of reproductive healthcare, as we’re seeing in Alabama;
“The holy war on IVF
Friends, Romans, frozen extrauterine children, lend me your ears. Except for the extrauterine children, that is – they obviously don’t have ears. Nor do they have fully formed brains, nervous systems or organs. Nevertheless, according to Alabama’s supreme court – in a decision which has which paved the way for two wrongful death suits to proceed against a fertility clinic – frozen embryos are “children” and should be treated as such.
So what does this mean? Well, in the immediate term it means that if you’re going through fertility treatments in Alabama your life just got upended. Numerous embryos tend to be created and then frozen during the IVF process because it maximizes the chances of success, is more cost-effective and reduces the health risks of the procedure. Surplus embryos are then disposed of or donated. If every frozen embryo is suddenly deemed a child, it means that disposing of the embryo – or having a machine malfunction and accidentally ruin an embryo – would be a criminal act. It even throws into question the standard practice of freezing embryos. After all, you wouldn’t stick a child in a freezer, would you?
In short, a handful of Republican judges in Alabama have effectively made IVF too legally dangerous to practice in the state. Already at least three fertility providers in Alabama have said that they are pausing IVF because of the risks. This is unbelievably cruel to people currently going through fertility treatments that, even in the best of times, can take a major emotional, physical and financial toll.
While the Alabama decision is unprecedented and shocking, it’s far from surprising. It has been clear for a while now that IVF could be at real risk because of anti-abortion extremists. Several “personhood” bills, which define life as beginning at the moment of fertilization have been introduced across the US, resulting in a mess of thorny legal questions about what it means to treat fertilized eggs, embryos and fetuses as people. For example: can you claim a fetus as a dependent on your tax return? In Georgia, which has a fetal personhood law, you can! Pregnant people can also drive in the high-occupancy lane, which requires two or more passengers, to be in the car. The Alabama ruling is a major victory for the growing fetal personhood movement: expect IVF to come under scrutiny in many more states.
But hang on a minute, you might say. I thought all these anti-abortion activists wanted more kids in the world. Why would they force people who don’t want children to give birth and then also try and strip fertility treatments from people who desperately want children?
There are a lot of answers to this question. The politest one is that many of the people arguing that embryos are people have zero understanding of reproductive medicine. Certainly the Alabama supreme court justices seem more concerned with theology than biology. Their ruling seems to have been heavily influenced by the Bible and repeatedly references God and biblical scholars. Chief Justice Thomas Parker, for example, wrote: “Human life cannot be wrongfully destroyed without incurring the wrath of a holy God … even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.” (If this is true, by the way, then God must have incurred a lot of wrath towards Alabama: the state has one of the highest execution rates in the US and recently made headlines for executing a prisoner with nitrogen gas, an untested method that the UN has condemned as cruel.)
While IVF care in Alabama is currently in a state of turmoil, there is some good news. A few prominent Republicans, spooked by the fallout from the Alabama ruling have gone into damage control mode and are trying to get the law’s impact on IVF clarified. Even Donald Trump has stepped in to say he supports IVF. The Alabama attorney general’s office has also said it won’t prosecute IVF families or providers. Still, that’s little comfort when you look at the bigger picture: Republicans aren’t content with just forcing women to give birth, they are intent on controlling all facets of reproductive healthcare. Bill by bill, ruling after ruling, the anti-abortion movement in America is chipping away at everything from access to fertility treatments to birth control. There may be a lot of uncertainty around the ruling in Alabama but one thing is very clear: anti-abortion extremists in the US are waging a holy war against women.
The weird way Alabama’s embryo ruling takes on artificial wombs
The Alabama ruling specifies that an embryo is a child “regardless of its location”. As the MIT Technology Review notes: “This could have implications for future technologies in development, such as artificial wombs or synthetic embryos made from stem cells.” The ruling doesn’t just threaten current fertility treatment, it threatens the future of reproductive technology.”
As written in an editorial in The Guardian entitled John Oliver on Alabama’s IVF ruling: ‘It is chaos’: Last Week Tonight host speaks about ‘seismic’ decision defining embryos as ‘children’ and Republicans pushing for it; “ John Oliver has criticised the past week’s ruling in Alabama that classified frozen embryos as children, referring to the situation as “chaos”.
On Last Week Tonight, he said that those within the state were “reeling after a major decision” which saw a court put those intending to use IVF in jeopardy.
He said that referring to frozen embryos as people was “wrong for a bunch of reasons – mainly if you freeze an embryo it’s fine, if you freeze a person, you have some explaining to do”.
In the US, about 2% of babies are born via IVF and the ruling has led to multiple fertility clinics pausing treatment, but Oliver said “you can’t just hit pause and wait out a court case”, referring to it as “a seismic decision”.
It all goes back to the case of a patient who destroyed a number of frozen embryos in a clinic, which is now being sued for wrongful death, and while Oliver admitted that it’s a “genuinely horrible” story it “just isn’t murder” and “if anything, it sounds like the script for a pretty tasteless Mr Bean sequel but that is it”.
He continued: “The reason clinics are pausing treatment right now is that nobody quite knows what it means for an embryo to be the legal equivalent of a person going forward. What happens if an embryo is stored improperly? What if they’re, as inevitably happens, left over or destroyed in the implantation process? What about genetic testing, which can reduce the risk of miscarriage but does carry a slight risk of damaging embryos? Would that now be considered a wrongful death? It is chaos.”
Other states are reportedly considering a similar ruling but “none of this should be that surprising” as “this ruling is a natural outgrowth of the concept of fetal personhood”.
Oliver spoke about the far-right groups who have been influencing politicians who are now scrambling to defend and explain the latest decision. He said that Republicans were in “a tough spot right now trying to hold on to hardline anti-abortion forces while not alienating the majority of Americans”.
Donald Trump has come out in support of IVF yet has also been behind a push for a 16-week abortion ban.
If he wins this year’s election then Republicans are allegedly hoping to use his presidency as a way to bring back the Comstock Act, an 1873 law that criminalises the shipping of anything aiding abortion.
It’s already been referenced by Lindsey Graham, leading Oliver to joke: “It’s old and it’s there basically sums up Lindsey Graham.”
It would mean that the decision, which would ban all forms of abortion medication being shipped, could be brought into law without going through Congress, an “alarming” eventuality.
But while allies have been pushing it behind closed doors, they are also keen for Trump and his public-facing cronies to avoid talking about it as it could deter voters as a result of its extremity. “Whenever they don’t want you to talk about something, it’s probably worth you knowing about it,” Oliver said.
It comes from Anthony Comstock, who was an anti-sex crusader and a chronic masturbator who called for a ban of obscene materials, including anything aiding abortion. Oliver called it a “wild law pushed for a deeply weird, dangerously horny man”.
He said that Republicans were now “desperately trying to distance themselves from extreme policies they have enabled”.
As written by Moira Donegan in The Guardian, in an article entitled Alabama is using the notion that embryos are people to surveil and harass women: Even before the court ruled in favor of this vulgar fiction, state authorities relied on the concept to intimidate and jail women; “Something that’s important to remember about last week’s ruling by the Alabama supreme court, which held that frozen embryos were persons under state law, is that the very absurdity of the claim is itself a demonstration of power. That a frozen embryo – a microscopic bit of biological information that can’t even be called tissue, a flick laden with the hopes of aspiring parents but fulfilling none of them – is equivalent in any way to a child is the sort of thing you can only say if no one has the power to laugh at you. The Alabama supreme court is the final court of review in that state. It cannot be appealed. For the foreseeable future, frozen cells in Alabama have the same legal status there as you or I do. Is this an absurd elevation of the status of an embryo, or an obscene degradation of human beings? The answer, of course, is both.
The decision immediately halted almost all IVF procedures in Alabama. Aspiring parents there – including women who had undergone rounds of injected hormone treatments and the invasive, gruelingly painful egg retrieval process in order to create the embryos – will now be unable to have the material implanted in an attempt to create a pregnancy. Hundreds of other frozen embryos – those that are not viable, or not needed by families that are already complete – can now not be destroyed as is typical IVF practice. They need to be continually stored in freezers, or what the Alabama supreme court refers to, in Orwellian style, as “cryogenic nurseries”, a term you almost have to admire for the sheer audacity of its creepiness.
But the concept of embryonic personhood, now inscribed in Alabama law, poses dangers well beyond the cruelty it has imposed on the hopeful couples who were pursuing IVF in Alabama, before their state supreme court made that impossible. If embryos and fetuses are people, as Alabama now says they are, then whole swaths of women’s daily lives come under the purview of state scrutiny.
Forget about abortion, which would automatically be banned as murder in any situation where fetuses are considered persons – Alabama already has a total abortion ban, without exceptions for rape, incest or health. Embryonic personhood would also ban many kinds of birth control, such as Plan B, IUDs, and some hormonal birth control pills, which courts have said can be interpreted as working by preventing the implantation of a fertilized egg. (In fact these methods work primarily by preventing ovulation, but facts are of dwindling relevance in the kind of anti-abortion litigation that comes before Republican-controlled courts.)
Further, if embryos and fetuses are children, then the state may have an interest in protecting their lives that extends to controlling even more of women’s daily conduct. Could a woman who is pregnant, or could be pregnant, have a right to do things that might endanger her embryo in a situation where an embryo is her legal equal, with a claim on state protection? Could she risk this embryo’s health and life by, say, eating sushi, or having some soft cheese? Forget about the wine. Could she be charged with child endangerment for speeding? For going on a jog?
These scenarios might sound hyperbolic, but they are not entirely hypothetical. Even before the Alabama court began enforcing the vulgar fiction that a frozen embryo is a person, authorities there had long used the notion of fetal personhood to harass, intimidate and jail women – often those suspected of using drugs during pregnancies – under the state’s “chemical endangerment of a child” law, using the theory that women’s bodies are environments that they have an obligation to keep free of “chemicals” that could harm a fetus or infringe upon its rights.
Using this logic, police in Alabama, and particularly in rural Etowah county, north-east of Birmingham, have repeatedly jailed women for allegedly using drugs ranging from marijuana to meth while pregnant – including women who have claimed that they did not use drugs, and women who turned out not to be pregnant. In 2021, Kim Blalock, a mother of six, was arrested on felony charges after filling a doctor’s prescription during a pregnancy; the state of Alabama decided that it knew better than her doctor, and they could criminalize her for following medical advice.
Remember that Samuel Alito’s majority opinion in Dobbs referred repeatedly to ‘unborn human beings’
This is not an extreme example: it is the logical conclusion of fetal personhood’s legalization – the surveillance, jailing and draconian monitoring of pregnant women, an exercise in voyeuristic sadism justified by the flimsy pretext that it’s all being done for the good of children. Except there are no children. Lest this seem like an idea that will necessarily be corrected by political response, or by the ultimate intervention of a federal court on the question, remember that Samuel Alito’s majority opinion in Dobbs referred repeatedly to “unborn human beings”.
There are several ways this supreme court could ban abortion nationwide, and they do not need to enforce fetal personhood to do so – many rightwing organizations, for instance, are encouraging federal courts to revive the long-dormant Comstock Act, from the 1870s, to ban all abortions. Nor will the ultimate national abortion ban necessarily even come from the courts. Any future Republican president will be under enormous pressure to enact a national abortion ban, and they will have many means at their disposal to do so even without congressional cooperation, be it through the justice department or through the FDA. Donald Trump, the Republican nominee in all but name, has floated the idea of a 16-week national ban – a huge restriction on women’s rights nationwide that would undoubtably be just the opening salvo for even further rollbacks. Meanwhile, his nominal rival, Nikki Haley, responded to the news of the Alabama court ruling by voicing approval of fetal personhood. “Embryos, to me, are babies.”
Let’s be clear: they are not. An embryo is not a child. Neither is a fetus. Treating them as such is a legal absurdity that degrades human life and insults the reality of parenthood. But most importantly: there is no notion of when personhood begins that is compatible with women’s citizenship other than birth. If personhood begins while a pregnancy is ongoing – if a person, that is, can be someone enclosed entirely inside another person’s body – then the competition of rights will be humiliatingly, violently, brutally one-sided. None of the opportunities, freedoms or responsibilities of citizenship are available to someone whose body is constantly surveilled, commandeered and colonized by the state like that. No citizenship worth its name can belong to someone who cannot even wield within the bounds of her own skin.
It is humiliating to even have to say this: that women matter more than fetuses or embryos, that a frozen cell in a petri dish is not a human being, but we are. It is an absurdity to make this argument, an exhausting waste of our time, a degradation. That, too, is part of the point.”
Down the Garbage Shoot song from the film Charlie and the Chocolate Factory; doesn’t Willy Wonka seem sane compared to Republicans?
Anti-abortion extremists in the US are waging a holy war against women | Arwa Mahdawi
Torch of Liberty 