Oriaku Njoku was outside the U.S. Supreme Court alongside a crowd of activists and advocates for abortion rights as the nine jurists inside heard oral arguments in a case that, depending on its outcome, could destroy access to abortion in Louisiana.
It was a crisp morning in early March, mere days before the coronavirus pandemic would see the country all but completely locked down. Njoku, one of the founders of Access Reproductive Care-Southeast, a nonprofit that provides assistance to individuals seeking abortion care across six states in the Deep South, was rallying outside the court with her sister. “There was so much energy,” she recalled.
It was nearly four years to the day since the last time Njoku had been in front of the high court. That morning, in early 2016, the court was considering the constitutionality of a set of abortion restrictions in Texas that had shuttered half the state’s clinics. At the time, there were just eight justices on the bench; Antonin Scalia had died several weeks earlier. In the end, Anthony Kennedy joined the four more liberal justices, including Ruth Bader Ginsburg, to strike down the restrictions, which included a requirement that abortion providers have admitting privileges at a local hospital. The court found no evidence that this was necessary to ensure patient safety.
Now, Njoku was back in the same space rallying for the same cause: The restriction at issue in the Louisiana case was identical to the admitting privileges requirement the court had invalidated in Texas. “It was a full-circle moment, where it was almost four years to the day; I’m back here again, literally fighting for … the same thing,” she said. “I was like, ‘They have to uphold this precedent.’”
By then, Kennedy had left the bench and President Donald Trump had installed two new conservative justices, Neil Gorsuch and Brett Kavanaugh, who were appointed precisely because of their hostility to abortion. In the end, the court did strike down the Louisiana law, with Chief Justice John Roberts casting the deciding vote — albeit with an opinion suggesting the court would be open to upholding additional restrictions in the future.
When the decision was announced, Njoku realized that it wasn’t exactly a game-changing victory. Anti-abortion lawmakers have passed more than 450 abortion restrictions over the last decade, many of which still stand, making access to abortion difficult, if not nearly impossible, for millions of people. This is especially true for people of color, LGBTQ people, poor and low-income people, and people in rural areas, who are routinely hit hardest by restrictions on reproductive care, as well as broader inequalities within the health care system. These inequalities have been widely exposed not only by the pandemic, but also through a summer of civil rights protests that have thrown new light on the country’s continuing legacy of racial oppression.
And with Ginsburg’s death in September, the fight for reproductive justice faces new threats as Republicans scramble to fill her seat with appeals court jurist Amy Coney Barrett, who in 2006 signed on to a call for Roe v. Wade to be overturned, which described its legacy as “barbaric.” According to the Center for Reproductive Rights, if that were to happen, 24 states would prohibit abortion altogether.
If Barrett is seated, not only is the future of legal abortion in jeopardy, but also access to the larger health care system; the Supreme Court is slated to hear yet another challenge to the Affordable Care Act on November 10. “Yes, this is a huge blow, but it doesn’t stop the fact that we still have to do work on the ground, as grassroots organizations, as people who are directly impacted by whatever this administration has done or that prior administrations have done,” Njoku said. “We have to continue fighting until we get to that future of reproductive justice where we’re able to access whatever health care that we need without any bias or barrier.”
The Shadow Docket
While Ginsburg’s seat is still vacant, the Trump administration has already offered the eight-member court an opportunity to restrict abortion access amid the pandemic.
At issue is how medication abortion is provided to people seeking to terminate a pregnancy in its earliest stages. Available through 10 weeks’ gestation, medication abortion is a two-drug regimen that has been available in the U.S. for 20 years and used by more than 4 million people. Medication abortion accounts for 60 percent of all early terminations and nearly 40 percent of all abortions, according to the Guttmacher Institute.
It works like this: Patients first take mifepristone, a drug that blocks progesterone, a hormone needed to maintain pregnancy; 24 to 48 hours later, the patient takes a second drug, misoprostol, which creates contractions in the uterus that expel its contents. According to the U.S. Food and Drug Administration, medication abortion is very safe and serious complications are extremely rare. Importantly, medication abortion allows patients the ability to terminate a pregnancy in the privacy of their own home or wherever they choose to be.
Nonetheless, access to medication abortion has been restricted in ways that are medically unnecessary. The needless barriers amid a pandemic place individuals at greater risk of contracting Covid-19, according to a federal lawsuit the American Civil Liberties Union filed against the Trump administration in May on behalf of several doctors’ organizations and a leading reproductive justice group.
Even as state and federal health officials have implored people to avail themselves of telemedicine, abortion patients have been singled out for disparate treatment.
Medication abortion is constrained by what the FDA calls a Risk Evaluation and Mitigation Strategy, a “drug safety” program designed to control the administration of “certain medications with serious safety concerns to help ensure the benefits of the medication outweigh its risks.” Where medication abortion is concerned, the REMS has several elements that are onerous in normal times and two that are particularly problematic amid a pandemic: that patients must be handed mifepristone by a medical provider in a clinical setting and that the clinician must collect a physical signature from the patient at the time the drug is dispensed.
While in-person dispensing is required, patients are still in charge of administering the protocol themselves at a time and place of their choosing. And any complications that may arise — such as excessive bleeding — wouldn’t occur until roughly two days later, after the patient ingests the second drug, misoprostol, which is not subject to the REMS. “Of the 20,000 drugs regulated by the FDA, mifepristone is the only one that patients must receive in person at a hospital, clinic, or medical office, yet may self-administer unsupervised,” reads the lawsuit.
So, even as state and federal health officials have implored people to avail themselves of telemedicine as much as possible, abortion patients have been singled out for disparate treatment, said Julia Kaye, a staff attorney with the ACLU’s Reproductive Freedom Project. “When you’re forcing patients to make unnecessary, in-person trips to a health center during a pandemic, that imposes Covid-19 risks, and there’s simply no justification for it,” she said, “particularly where the federal government has taken extraordinary action to suspend other kinds of in-person requirements.” The government has even suspended in-person requirements for controlled substances, including opioids. “And I think it’s important to note that the Covid-19 risks here are greatest for communities of color who make up a majority of impacted abortion patients and who are suffering severe illness and death from Covid-19 at vastly disproportionate rates,” Kaye added.
Indeed, back in April, as ARC-Southeast was working to help patients secure abortion access during the worsening pandemic, Njoku recalls reading about the staggering impact the virus was having on Black people; in Georgia alone, they accounted for 80 percent of those hospitalized with Covid-19. “I was like, y’all, this is the great unraveling that’s happening in our society,” she said.
In July, a district judge in Maryland agreed with the medical experts and issued a preliminary nationwide injunction blocking enforcement of the in-person requirements during the pendency of the case. The Trump administration balked and asked the 4th U.S. Circuit Court of Appeals to lift the stay; that request was denied.
But instead of allowing the case to play out, the Trump administration asked the Supreme Court to intervene. “Given that surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion … does not constitute a substantial obstacle to abortion access,” the administration’s petition reads, “even if the Covid-19 pandemic has made obtaining any method of abortion in person somewhat riskier.”
Attempts to truncate the normal course of litigation by running directly to the Supreme Court and forcing cases onto the so-called shadow docket has become a hallmark of the Trump administration, even though it is a move that is supposed to be reserved for extraordinary circumstances. In deciding these cases, the court often issues an order without the full facts before it, without hearing arguments, and without issuing opinions. “It typically offers no explanation for its reasoning, even when dissenting justices voice serious objections, and even when the court is effectively overturning the unanimous decisions of lower courts,” David Cole, the ACLU’s national legal director, wrote in the Washington Post. In the case of the medication abortion challenge, the court could effectively ensure a higher risk of viral transmission with the stroke of a pen.
After pending on the docket for about six weeks, the Supreme Court finally weighed in on October 8, allowing the stay to remain in effect — at least for now. In a short order, the court sent the question of whether the stay should be lifted back to the Maryland court for further consideration, essentially postponing any action until after the November election. Justice Samuel Alito, joined by Clarence Thomas, penned a dissent saying that the court should have granted the administration’s request.
Had the court granted that request, Kaye said, it would have sent a “chilling signal about what lies ahead” with a post-Ginsburg court. And though the court’s decision to “stay out of this particular abortion fight at this particular moment … is certainly a win for patients in the short term,” she added, “it’s hardly an indication that the right to abortion is secure.”
A Solution in Search of a Problem
As the pandemic raged this spring, Dr. Honor MacNaughton worried about her patients. MacNaughton, a plaintiff in the ACLU case, is a family physician working in a safety-net hospital system in the Boston area. Her patients are mostly lower-income and people of color, groups disproportionately impacted by the virus. “As our health care system was closing down to in-person visits, and we were trying to do everything we could to limit exposure to the virus, it seemed so wrong to require people to still come, in person, to pick up a medication,” she said.
She’d long known that the REMS was “problematic” and that two decades of data demonstrated the safety of mifepristone for pregnancy termination and miscarriage management. “I think from a medical standpoint, there’s enough evidence for us to feel really confident that the in-person visit isn’t required,” she said. Since the Maryland court issued its injunction, providers across the country have, for the first time, been able to provide the medication without that constraint. “Being able to provide this care since the injunction has been a ray of hope,” MacNaughton said. “It’s given me a glimpse into what more equitable or stigma-free care could look like.”
Kirsten Moore, head of Expanding Medication Abortion Access, which was created in part to push for the REMS to be rescinded, has long known that medication abortion is burdened by unnecessary restrictions. She was formerly head of the Reproductive Health Technologies Project, which was founded in 1988 to help bring medication abortion to the U.S. and later successfully pushed for emergency contraception, also known as the morning-after pill, to be made available over the counter.
When medication abortion was approved by the FDA in 2000, Moore said that advocates assumed the restrictions would be revisited as safety data developed. That has not happened. “We’re still jumping through the same hoops today that we had to when it was first approved,” she said. “That doesn’t make sense, right?”
“Yes, Roe v. Wade is a great gift. It made abortion legal, but the reality is that it did not make it accessible.”
For both Moore and MacNaughton, the disconnect between science and public policy demonstrates that the REMS is about something else altogether — a solution in search of a problem.
Of course, the same could be said about most restrictions on abortion access. Lawmakers often peddle these restrictions, like the hospital admitting privileges requirement, as a way to ensure patient safety, even though the alleged benefits fail to materialize. Forty-four states have passed one or more restrictions on abortion access. Twenty-six states mandate delays for patients seeking care; in South Dakota, the 72-hour waiting period doesn’t include weekends or state holidays, so a patient could end up having to wait a week before being seen. Thirty states mandate pre-abortion counseling and many incorporate junk science, including, for example, that abortion leads to a greater risk of breast cancer. Several states require providers to counsel patients that medication abortion can be reversed, even though there is no sound science to back up this claim. Taken together, these restrictions have made abortion all but inaccessible across a wide swath of the country, often forcing women to travel long distances across state lines to receive care.
For those who live in the six states served by ARC-Southeast — Alabama, Florida, Georgia, Mississippi, South Carolina, and Tennessee — these struggles are common. “Every single one of those states experiences some level of reproductive oppression, whether it comes from the legislature or just ideas of shame, stigma, and fear around abortion,” Njoku said. She notes that her clients face obstacles to accessing all kinds of basic health care services. None of the states has had any sort of Medicaid expansion; roughly half of Georgia’s 159 counties are without an OB-GYN. “These are all the things that we’ve always had to navigate,” she said. “Yes, Roe v. Wade is a great gift. It made abortion legal, but the reality is that it did not make it accessible.”
And since Trump took office, lawmakers in states hostile to abortion rights have taken more direct aim at the heart of Roe and its promise of the right to pre-viability abortion.
In 2019 alone, Georgia, Kentucky, Louisiana, Mississippi, and Ohio all banned abortion beginning at six weeks — the point at which fetal cardiac activity can be detected and long before many people even know they’re pregnant. Alabama went a step further, passing a law that would ban nearly all abortion. Missouri passed a law to ban abortion at eight weeks, while both Arkansas and Utah have banned abortion at 18 weeks.
Other states have passed bans that interrogate a person’s reason for seeking an abortion and would bar access if it’s based on the sex or race of the fetus or on a diagnosis of Down syndrome or other fetal abnormality. A district court in Missouri has blocked that state’s “anti-discrimination” law banning abortion based on a Down syndrome diagnosis, but on September 24, the state’s solicitor general told a panel of the 8th U.S. Circuit Court of Appeals that the law should be allowed to go into effect in part because individuals with Down syndrome are on the “brink of complete elimination.”
“Since 1973, in Roe v. Wade, the court has given the right to the individual to decide whether or not they want to choose to become a parent at that point in time,” said Helene Krasnoff, vice president of public policy litigation and law at Planned Parenthood Federation of America. These laws “literally fly in the face of that,” she said. They represent another way in which the Supreme Court “can really undermine the protections that we have enjoyed, and that Ruth Bader Ginsburg upheld for so many years, without actually outright overruling Roe.”
Currently, there are 17 abortion-related challenges to various state restrictions pending in federal appeals courts or before the Supreme Court.
The Future We’re Fighting For
Nothing about the growing storm around reproductive rights is new to Njoku. “A lot of folks have been talking about this post-Roe reality,” she said. “That’s an actual lived reality in states like Texas and Mississippi and really the states we work in in the Southeast. … We’ve been preparing for things like this because we’ve been living in this context.”
ARC-Southeast has received nearly 16,500 requests for support since they began operations in the summer of 2016. More than 60 percent of clients are already parents. From July 2019 through June 30, ARC-Southeast provided nearly $450,000 in abortion funding and “practical support.” As the pandemic has continued, jobs have been lost, and politicians across the country have tried to use the public health crisis as a pretext to further block abortion access, Njoku said the organization has provided funding not only for abortion, transportation, and lodging, but also for car repairs, food, and even masks. Njoku has seen patients from Texas, Louisiana, Kentucky, and West Virginia come to her region for care, and ARC-Southeast has helped patients to travel as far away as New Mexico, Colorado, and Maryland to get the care they need.
Njoku has been encouraged not only by the donations coming in to support ARC-Southeast’s work, but also with a seeming awakening among many that abortion rights have to be viewed within a larger framework — that a right without access means nothing, and that people of color are disproportionately impacted by lack of access to basic health care and the racism built into many of the nation’s social systems. “The future that we’re fighting for is more than just whether or not abortion is legal,” she said.
There’s no doubt that the nomination of Barrett presents a threat to that future. According to an analysis by the Center for Reproductive Rights, Barrett has signaled that she believes the Supreme Court should weigh in on the legality of banning abortion based on a patient’s reason for seeking it, and has suggested that abortion restrictions should be allowed to take effect while questions about their legality are sorted out in court. In Texas, the restrictions ultimately struck down by the Supreme Court were initially allowed to take effect, leading to widespread clinic closures; many never reopened.
And while the Affordable Care Act for the first time created gender parity in health coverage and opened access to maternity care and no-cost birth control, Barrett has expressed skepticism about the legality of the law. In 2012, she signed a letter opposing the ACA’s birth control mandate that called contraception and sterilization “gravely immoral and unjust” and incorrectly described the morning-after pill as an “abortion-inducing drug.”
Still, Njoku is steadfast in her determination to press forward. “Even in the midst of so much pain and so much trauma,” she said, “in the midst of all of this, we still have people who are willing to continue doing this fight no matter what.”