On Friday night, in an unprecedented ruling, U.S. District Judge Matthew Kacsmaryk suspended the Food and Drug Administration’s approval of mifepristone, one of two drugs used in medication abortions. A competing opinion from U.S. District Judge Thomas Rice — who ordered the FDA to preserve the status quo regarding mifepristone — created uncertainty as the Biden administration moved swiftly to appeal Kacsmaryk’s ruling.
Strikingly, Kacsmaryk used the language of the antiabortion movement throughout his opinion, including claiming that mifepristone “starves” the gestating being “to death.” Kacsmaryk also refused to use the word “fetus” because it refers to only one of several stages of development during pregnancy, and instead employed “unborn human” and “unborn child.”
The judge cited scientifically dubious claims about the potential for side effects and trauma for those who use mifepristone for abortions. Yet, Kacsmaryk emphasized the rights of those “unborn humans” and the interests and perspectives of physicians, while generally shunting the lives — and especially the preferences — of those who might be pregnant to the margins of his reasoning. This focus fits into an increasingly prominent theme in abortion politics since the Supreme Court revoked the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.
The debate over abortion has returned to the assumptions that guided it before the Supreme Court’s 1973 decision in Roe v. Wade recognized the right to abortion. In that pre-Roe period, both sides often ignored women and focused on the rights of medical professionals. Justice Harry Blackmun’s opinion in Roe reoriented the focus of debate to emphasize pregnant women and their lives. But Dobbs has returned us to the past. Studying how women and their advocates fought their way onto center stage, and the immediate pushback they engendered, help clarify what’s at stake in today’s erasures — and how proponents of abortion rights can redirect the conversation once again.
Before the late 1960s, abortion litigation primarily consisted of criminal defense work for professionals charged with performing or abetting abortions. That all changed due to activists in the grass roots women’s movement, who treated abortion restrictions as proof of sex-based discrimination. Their thinking spurred social-change-oriented lawyers to see the potential for an affirmative litigation strategy that went beyond defending doctors charged with abortion-related crimes and instead asserted the constitutional rights of abortion seekers. In 1969, advocates filed the first federal court case — Abramowicz v. Lefkowitz — in which they claimed that the right to have an abortion was a crucial component of equal rights for women.
Feminist attorney Nancy Stearns and four co-counsels argued that New York’s highly restrictive abortion law violated the rights of female citizens. The plaintiffs were women from all walks of life — married and unmarried, parenting and childless, those who had had abortions in the United States or abroad and those who had not had abortions when they wanted or felt they needed them.
The legal team in Abramowicz had to address the issue of “standing” — that is, whether women as women were legitimate parties to the suit. To surmount this legal barrier, the attorneys presented a novel claim: No one had “a greater personal stake” in access to abortion than a woman who could get pregnant, they argued, because of the ways an unwanted pregnancy, or an unsafe or illegal abortion, could shape her life. The plaintiffs also had standing because of their vulnerability to legal enforcement: “[E]very woman,” the attorneys claimed, was “in the position of a criminal for the very fact of attempting to control her own body.” The lawyers’ arguments focused not on doctors but on women and their lives.
The judges hearing the case did allow some antiabortion advocates to intervene and argue for the “welfare of the child in utero.” These advocates claimed that “the unborn child” needed “protection against all adversaries — including,” or especially, “its mother.” The judges, however, rejected an attempt by an antiabortion advocate named George Eaton to go further. Eaton petitioned the court to name him as a stand-in for the interests of the fetus. He argued that “the unborn infant [was] a person entitled to the same rights, privileges and protections … as are afforded to people already born.”
Crucially, none of the arguments made by the antiabortion forces considered the rights or perspective of the mother at all. As far as they were concerned, the fetus was the only one whose rights needed safeguarding.
In 1970, New York liberalized its abortion laws, and the Abramowicz case became moot. Immediately, antiabortion advocates went to court to try to undo what was now the nation’s most liberal abortion law. Law professor Robert Byrn, who would soon draft a brief for the National Right to Life Committee in Roe, adopted the same arguments pushed by Eaton and his attorney. He completely ignored women and argued for the citizenship rights for embryos or fetuses between four and 24 weeks of gestation. In fact, as Stearns observed, his claims sounded as if they were “virtually the same argument word for word” that she and her colleagues had made on behalf of women’s rights in Abramowicz, with one striking difference — the antiabortion lawyers claimed “a fetus has those rights.”
This kind of argument, however, became legally untenable in 1973 because Blackmun’s opinion in Roe permitted states to regulate abortion access in the second portion of a pregnancy (approximately weeks 12 to 24) — but only to the extent that such restrictions were “reasonably related to maternal health.” This language forced legal and policy advocates to center claims about pregnant women’s health in debates over abortion because that was the key metric for the courts as they assessed abortion restrictions.
But that didn’t change the thinking of antiabortion advocates. During congressional debate over a potential Human Life Amendment to the U.S. Constitution in the 1980s, they resurrected their earlier claims, with one man even testifying that “the fetus is an astronaut in a uterine spaceship”— a metaphor that erased the adult in whose body the uterus and the fetus resided. This prompted activist Sarah Schulman and other feminists in the chamber to rise and shout, “A woman’s life is a human life,” which led to contempt-of-Congress convictions and fines. Still, thanks in part to protests like this one, the Human Life Amendment did not pass Congress.
That forced antiabortion activists to change their strategy — even if their convictions remained the same. They, too, began to place arguments about maternal health at center stage. They increasingly pushed for laws that treated physicians as the enemy and posed the antiabortion movement as the savior of abortion patients who were their victims.
In 1992, in Planned Parenthood v. Casey, the Supreme Court introduced a new balancing test for evaluating abortion regulations that compelled litigants to place pregnant women in the middle of their analysis when they argued about how much of a “burden” a restriction on abortion access imposed versus how much of a “benefit” it might bestow. The court reaffirmed such a test in Whole Woman’s Health v. Hellerstedt (2016), before dramatically reversing course in Dobbs.
The medication abortion case, and Kacsmaryk’s opinion in it, have exposed how Dobbs not only revoked a right, but also enabled a return to the language of pre-Roe abortion fights. The doctors who brought the case argued, as Kacsmaryk explained, that they were entitled to challenge FDA approval of mifepristone because “adverse events” from it “can overwhelm the medical system” (though they never had) and because complications from a medication abortion might compel them to be “complicit in abortion,” which would impose potential “pressure and stress.”
Kacsmaryk accepted these arguments, explaining away the absence of actual abortion patients in the case. Antiabortion doctors, he wrote, were appropriate surrogate plaintiffs. He insisted that, unlike doctors who provide access to mifepristone, the antiabortion doctors had no conflict of interest because they received no income for opposing abortion.
Kacsmaryk’s ruling also reveals that the changed focus of the abortion debate makes it easier to restrict access to abortion and to dehumanize women. The lesson of Abramowicz and the battle against the Human Life Amendment is that undoing this change is crucial to success in safeguarding access to abortion. By forcing women as agents into the center of the debate, grass roots activists and lawyers were able to beat back claims of doctors’ interests and fetal rights — and to insist on women’s rights to choose whether to carry a pregnancy to term.