Dobbs is just the Beginning

And Eastern Washington is part of the new battleground

Last June the new, manufactured right wing on the U.S. Supreme Court overturned a half century of judicial precedent, rescinding a women’s right to make medical decisions about their own bodies. Justice Thomas threw a few more sticks on the fire with his concurrent opinion suggesting that the Court should go further and reconsider rights to contraception (Griswold), same sex marriage (Obergefell), and sexual privacy (Lawrence). At the time, many Republicans, like our own U.S. Rep. McMorris Rodgers (CD-5, eastern Washington), fearing blowback in the upcoming fall election, responded with, “Who? Not us. But we think that abortion is a States’ Rights issue that state voters ought to decide.” States’ Rights, whether McMorris Rodgers means it or not, is a dog whistle that harkens back to ‘States’ Rights’ to decide to maintain (or not) the ‘right’ to own slaves. The ‘States’ Rights’ trope still plays well among white supremacists.

Following Dobbs and Justice Thomas’ concurrent opinion, McMorris Rodgers and large majorities of Republican U.S. Representatives then twisted themselves into rhetorical knots to vote against legislation that would have federally codified the rights that Justice Thomas said the Court should revisit. 

Dobbs, for the moment, has fallen out of the news, but Republicans are not content to just leave outlawing a woman’s right to regulate her own body to Republican-dominated state legislatures. Now their efforts to meddle with women’s lives have moved back to the federal court system in the hope of using the courts to achieve nationwide restrictions. 

The new battleground is over access to mifepristone, a drug that, unbeknownst to many not in the medical profession, is now used in 50-60% of pregnancy terminations in the U.S. The battle over access to mifepristone is playing out in the courts under the radar of most of the media. Last Thursday, this battle was joined by Washington State Attorney General Bob Ferguson, a battle announced in the Spokesman with the title, “Washington, Bob Ferguson lead lawsuit against Biden administration demanding increased access to abortion drug”. If you are puzzled as to why Washington State’s Attorney General would sue the Biden administration you would not be alone. The suit is not directed at something the Biden administration did, but rather at a rule established by and followed by the Food and Drug Administration, a part of the Executive Branch of the federal government currently under President Biden, hence, a “lawsuit against the Biden administration”. 

Attorney General Bob Ferguson, along with officials in 10 other states, filed a complaint Thursday against the Biden administration, demanding that it abandon certain restrictions to prescribe one of two drugs taken to cause an abortion. The complaint argues that mifepristone, a drug that blocks a hormone necessary in carrying a pregnancy to term, is treated discriminatorily by the Food and Drug Administration, which continues to require women to have it prescribed by certain medical professionals along with completing forms that could fall into the hands of people targeting abortion providers with violence.

“The federal government has known for years that mifepristone is safe and effective,” Ferguson said in a statement announcing the filing Friday. “In the wake of the Supreme Court’s radical decision overturning Roe v. Wade, the FDA is now exposing doctors, pharmacists and patients to unnecessary risk. The FDA’s excessive restrictions on this important drug have no basis in medical science.”

The lawsuit was filed in the United States District Court for the Eastern District of Washington (rather than the Western District of Washington). According to the Spokesman:

The complaint was filed in Eastern Washington because of its location between the West Side, where abortion services are more plentiful, and Idaho, which has a state ban on most abortions that went into place after the Supreme Court ruling.

A hearing in the case is scheduled in March in the District Court in Yakima. 

The Texas Lawsuit

Meanwhile, the radical right is busy using the Federal Court system to outlaw this same drug, mifepristone, from use anywhere in the United States, not just the states that otherwise ban abortion. Mifepristone induced abortion is even safer than surgical abortion (both of which are safer than childbirth). Consequently, outlawing mifepristone would put women at risk in states where abortion is fully legal. 

The lawsuit, deceptively titled Alliance for Hippocratic Medicine v. FDA, will soon be decided by a carefully selected, radical right wing judge in the United States District Court for the Northern District of TexasMatthew J. Kacsmaryk. Given his priors, the likelihood of his ruling in favor of the plaintiff and against mifepristone is extremely high. (Kacsmaryk, along with five other judges in this District, were placed on this District’s bench during the Donald Trump/Mitch McConnell federal judge appointment blitz.) 

The basis for outlawing a drug generally considered safer and more effective than Tylenol is telling of the orientation of today’s Republican Party. The lawsuit is based on a 150 year old law, The Comstock Act, a holdover from an era (1873) when certain “Christian” busybodies used federal law to enforce their narrow view of sexual morality on everyone (rather like their modern day Iranian equivalent, the morality police). The Comstock Act gets around the claim of “States’ Rights!” by using the federal management of the Postal Service to outlawing the carriage of materials deemed “obscene” in the Act. It happens that the “obscene” material defined therein included “contraceptivesabortifacients, personal letters with any sexual content or information, or any information regarding the above items.” 

This may seem quaint to some, but Judge Kacsmaryk’s impending resurrection of the Comstock laws is a grave threat women’s control over their own bodies nationwide, even in states like Washington where abortion remains legal. So much for McMorris Rodgers’ and other Republicans lip service to “States’ Rights”… 

It is time to pay attention to these ongoing threats and vote accordingly. Whatever face any individual Republican like McMorris Rodgers wants to paint on and hide behind, not one of them would dare vote to repeal the still workable parts of the Comstock laws on which this Texas lawsuit depends. 

Support Washington Attorney General Ferguson’s efforts to support women in making their own medical decisions. Discuss the issue with friends and family—and remember what Republicans are willing to do to attack women’s rights when you vote this fall and in 2024. 

Keep to the high ground,


P.S. I was alerted to the Texas lawsuit, Alliance for Hippocratic Medicine v. FDA, by Judd Legum’s excellent coverage in Substack column “Popular Information”, specifically, his February 13 entry, “Inside the push for a nationwide ban on abortion medication”. Legum, an independent investigative journalist, is a terrific source of detailed, well-sourced information on corporate hypocrisy and right wing initiatives. I highly recommend adding his column to your reading list.