As Texas Judge Stalls, the Abortion Rights Movement Won’t Wait

Anti-abortion and abortion rights activists protest in front of the U.S. Supreme Court on Jan. 20, 2023, in Washington, D.C.

A week before U.S. District Judge Matthew Kacsmaryk was expected to order the Food and Drug Administration to revoke its approval of the abortifacient mifepristone — effectively banning one of the two pills used in half of all abortions — Sen. Ron Wyden, D-Ore., called on President Joe Biden to ignore the judge and keep the drug on the market.

The conservative press leapt on Wyden. The National Review called the senator’s floor speech a “vile attack on the federal judiciary.” The Wall Street Journal’s editorial board denounced Wyden’s “Nullification Doctrine.” An elected official defying the rule of law! Imagine that! No mention of the judge himself giving the law — the six-year statute of limitations on challenges to FDA decisions; the plaintiffs’ lack of standing; the Supreme Court’s decision in Dobbs v. Jackson returning abortion law to the states — the finger.

Meanwhile, from Wyden’s pro-choice allies, nothing. No congressional Democrat amplified his demand. The White House did not respond. And where were the feminists?

Otherwise occupied.

Since Dobbs, the reproductive justice movement has been transformed into a massive disaster relief agency: delivering pills to pregnant people in red states; transporting, housing, providing child care, and paying medical bills for those who travel to blue states for surgical abortions; and raising charitable donations to fund it all.

Maybe the antis didn’t intend for this to happen. They may have honestly believed, despite a literal world of evidence to the contrary, that once abortion was outlawed it would disappear. Of course, it didn’t. Still, without really trying, the right pushed the enemy hors de combat. The abortion rights movement is consumed with scamming together in some degraded form the already degraded abortion access the U.S. had before June 24, 2022.

There is no time, money, or brainpower left for politics.

The job of keeping abortion alive is greatly complicated by being quasi-legal. Clandestine pill distribution networks are buying drugs overseas, raising and spending money in cash, and fortifying communications and websites with cybersecurity measures, while advising patients on how to erase their own tracks and avoid arrest — and simply trying to figure out what the hell the law is.

PlanC, one of the main online sources of information on obtaining abortion pills, speaks in increasingly gnomic language, trying to keep to the right side of the law while advising users to act legally and illegally at the same time. The newly launched Abortion Defense Network — a collaborative of “values-aligned” attorneys, nonprofits, and legal expense funds — offers and coordinates legal assistance to providers and patients menaced by criminalization.

Meanwhile, aboveground funds are in overdrive financing both self-managed and surgical abortions, which have risen radically in cost, thanks to additional travel expenses and delays pushing procedures later into pregnancy. Donations are pouring in. During the week after the court’s decision in June, the National Network of Abortion Funds, or NNAF, comprising almost 100 local funds around the country, received more than $10 million, compared with $1.9 million from individual donors in all of 2020. But the engine needs more and more fuel, and it can run down. New York’s fund, which has helped women finance late-term abortions in its state for 22 years, has committed over $400,000 in the first seven weeks of 2023 alone; it projects a need of $3 million this year. This past fall, NNAF and five collaborating mid-Atlantic state funds were forced to abandon an ambitious infrastructure expansion called Operation Scale Up when the primary donor pulled out.

At this point, it’s unclear what Kacsmaryk will do next — schedule a hearing, rule on the merits — or when he’ll do it. But, aside from a momentary reprieve, there’s nothing to be optimistic about. The judge is ferociously hostile to abortion, contraception, and LGBTQ+ and immigrant rights. If he decides in favor of the plaintiffs, the hyper-conservative 5th U.S. Circuit Court of Appeals, which upheld Texas’s six-week ban in 2021, is likely to do the same with this ruling, and the Supreme Court is not expected to overrule the Fifth Circuit. There’s no saying how long appeals will take or when, if ever, the Supreme Court will hear the case.

Some lawyers argue that the situation is less dire than the press presents it to be. The FDA is not legally required to enforce the judge’s ruling. If the FDA does comply, Danco Labs, the manufacturer of brand-name mifepristone Mifeprex, could reapply for FDA approval; a fast-track process could wrap up in 60 days. But during all that time, Mifeprex will be unavailable. Distribution will be illegal. And once Kacsmaryk whacks mifepristone, what’s to keep the antis from handing him another lawsuit to take out misoprostol, the other half of the abortion pill combo?

If that happens, feminist abortion networks — until now operating largely from the relative safety of blue states — will be outlaws throughout the U.S.

They will be outlaws in a legal landscape where the road signs point every which-way and the GPS reception is spotty. Justice Samuel Alito was either naïve or disingenuous when he claimed that removing abortion from federal constitutional protection and returning it to the “people and their elected officials” would douse debate and heal divisions. In fact, Dobbs instantly cast the states into a maelstrom of primitive federalism, with red states threatening to go after blue-state docs who write abortion prescriptions across state lines and blue states passing laws shielding providers from red-state prosecutors.

Dobbs instantly cast the states into a maelstrom of primitive federalism.

Maybe chaos is part of the plan — or at least an unexpected gift to the disruptors of the right. In opposing the Texas suit, pharma company Danco argued that it is not just an attack on the company’s own medication, but also “a direct challenge to the FDA approval process for all pharmaceutical products.” Yet isn’t destabilizing regulatory agencies — at the same time as they regulate personal life and privatize public institutions — at the heart of the far right’s agenda?

A peaceable kingdom of little local democracies was never the end game either. No sooner had the Supreme Court delivered control of every uterus-bearing resident of the U.S. to those elected-by-gerrymander state officials did conservative lawyers march to the courtroom of an unelected federal judge to demand action by an unelected federal agency to complete the mission of a shrinking minority: ban abortion nationwide.

Bottles of the drug misoprostol sit on a table at the West Alabama Women’s Center on March 15, 2022, in Tuscaloosa, Ala.

Wyden is no insurrectionist. He didn’t ask the president to ignore the abortion pill ruling forever — just until the Supreme Court resolves the case. And while waiting for Kacsmaryk to drop his bomb, some of Wyden’s colleagues are going through the proper channels to mitigate the worst fallout. A group of Democratic senators are urging Danco to apply to the FDA to add miscarriage treatment to mifepristone’s on-label uses — in fact, a miscarriage is not discernible from an induced abortion. The label change would not disguise the pill’s identity as an abortifacient but could confuse law enforcement as to what it was prescribed for.

Twelve state attorneys general have sued the FDA for imposing on mifepristone the “burdensome” prescribing and dispensing restrictions of the agency’s “risk evaluation and mitigation strategy,” or REMS — adding a drug less risky than Tylenol to a list of potential killers like oxycodone and fentanyl. The lawsuit may be a jab at the Biden administration, which in January showcased its commitment to promoting abortion access by allowing retail pharmacies to dispense the pill directly with a prescription, no longer requiring patients to procure and take it under a provider’s supervision. Then it quietly tacked on the REMS designation.

In May, after the draft of Dobbs was leaked and blue-state clinics anticipated hordes of new patients lining up at their doors, some legislatures loosened the rules to allow midwives, nurses, and other non-MDs to provide abortions. To reassure and keep serving patients, providers are preparing to prescribe misoprostol, an ulcer drug, alone, though it is less effective and has more side effects — including severe nausea, cramping, and bleeding — than the two-drug protocol.

As for the abortion advocacy mainstream, it is (as usual) waiting to react. “People are trying to think creatively based on potential scenarios,” Lorie Chaiten, an American Civil Liberties Union senior staff attorney, told the Washington Post. “They’re looking at ways to make that happen within the law. But again, without knowing what the ruling will be … it’s really hard to plan.”

All this decorous law-abiding is more than frustrating. It seems simply blind to reality.

All this decorous law-abiding is more than frustrating. It seems simply blind to reality. The Supreme Court’s precedent-shredding ruling in Dobbs didn’t only make potential felons of millions of people doing nothing more than minding their own bodies’ business. It also pushed us one step closer to a far-right vision of law and order: a country where teachers are fearful of breaking the law by teaching, doctors face imprisonment for practicing medicine, and voters are arrested for voting. Where order is kept by snitches and mercenaries and an increasingly powerful carceral state, overseen by judges who select the laws they want to enforce. Where, as judicial decrees lose public confidence, states both blue and red declare themselves sanctuaries from what they see as the resultant injustice. Some may shelter immigrants or welcome abortion-seekers. Others will flout public health edicts. If one Kentucky Republican has his way, his state will become a “Second Amendment sanctuary,” where all federal gun control laws are nullified.

Perhaps it is not so surprising, in this libertarianism-authoritarian climate, that the movement for reproductive justice would become a criminal operation.

As the lawmakers go rogue, feminists are beginning to see the advantages of lawlessness.

No surgical procedure but abortion is directly regulated by any U.S. state or federal agency. We’ll always want trained professionals for complex abortions. But if non-MDs can do the routine ones, why not nonprofessionals? From 1969 to 1973, the Jane Collective’s faux doc Mike and then the Janes themselves, all amateurs, performed over 11,000 abortions and didn’t lose a patient. In the 1970s, feminist self-help collectives taught women the “home-care” technique of “menstrual extraction”: an early pregnancy termination by vacuum aspirator just like you get at a clinic, but without the clinic or staff. The group figured that extracting a couple of unwanted pregnancies a year might do less harm than an IUD or the high-estrogen birth control pill.

You don’t need a doctor for a self-managed abortion. The drugs are safe, easy to use, nonaddictive, and effective. People in other countries take them without medical surveillance. Extralegal pill abortions are cheaper than those overseen by health care providers. The median U.S. medication abortion cost $560 in 2020. Underground networks can purchase generics made in India —a combo pack of mifepristone and misoprostol for $1 to $3 — and give them to patients for free.

Unlike the pre-Roe era, when abortion was often a shame-laden, lonely, and terrifying affair, younger organizers, raised in activist cultures of mutual aid, are training and certifying abortion doulas to “accompany” anyone who wants help while self-managing her abortion. Like the Janes, who charged on a sliding scale down to nothing and cultivated an ethos of egalitarian respect and compassion, today’s citizens abortionists preemptively freeze out any black marketeer who considers horning in.

Some activists are indicating that we won’t go back, not just to the days of the coat hanger, but also to the legal status quo ante-Dobbs. In announcing the demise of Operation Scale Up, NNAF put on a happyish face. “Building and designing the OSU pilot has been an opportunity to plan for an expansive future for abortion seekers,” its statement read. “Together, we are bold — even audacious — to work toward a reality where, even as we witness the evisceration of Roe v. Wade, abortion access could come with more ease for people.” Are they suggesting we give up on legalization?

No-law, after all, was the ideal from the start: not to legalize and regulate abortion but to free it from government interference altogether. An absence of interference is not the same as an absence of responsibility, however. A widely scattered thousand-points-of-light volunteer brigade serving those who can find it — and that is dogged by surveillance and threatened by criminal charges as serious as homicide — cannot replace what we need and deserve: a well-resourced welfare state that provides a full range of affordable, high-quality reproductive health care to everything. Nor should we get hooked on the adventure of rescue.

For now, we have a maze of volunteer services, under and aboveground. It can be confusing for activists and, for abortion-seekers in crisis, overwhelming. The systems will rationalize, as these things tend to do. And while we keep them operating, we also have to get back to the streets — to build power, mobilize the grassroots, and make a lot of loud, public noise. We’re busy but we are not paralyzed.

Times of reaction are never dormant, my late friend the feminist activist and intellectual Ann Snitow used to say. You’re never back to zero. You just have to find the place to enter and get to work there. It may not be the usual doorway.

Since Dobbs, veterans of the bad old days alongside women and girls brought up to assume that their bodies are their own have figured out how to deliver what 50 years of advocacy did not. These eight grief-stricken, desperate months have reminded us of what we want — and shown us that it is possible: free abortion on demand and without apology.