The Legal Decision That Could Rewrite the Abortion Battle—Again

This week, abortion advocates and opponents alike have their eyes trained on Texas.

Mifepristone and misoprostol, the two drugs used in a medication abortion (Robyn Beck / AFP via Getty)

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At last night’s State of the Union address, the first one since the fall of Roe v. Wade, President Joe Biden pledged to continue working to protect access to reproductive health care amid more than a dozen extreme state-level bans. But as soon as this week, a legal decision over abortion pills could rewrite the terms of that battle.

First, here are three new stories from The Atlantic.

The Next Phase

Last night, President Biden declared, “If Congress passes a national abortion ban, I will veto it.”

As my colleague Ronald Brownstein noted in his article today, a nationwide abortion ban would have no chance of passing the majority-Democrat Senate anyway. And Congress can do very little to restore an ironclad federal right to abortion either. In other words, the abortion fight in Washington is at a standstill.

But in the courts, battles are raging on a near-constant basis. This week, abortion advocates and opponents alike have their eyes trained on Texas, where a federal court presided over by a Donald Trump–appointed judge could soon move to block the distribution of mifepristone, an FDA-approved medication used in first-trimester abortions. Mifepristerone is one of two medications used to induce a medication abortion; last month, the FDA issued guidance allowing certified retail pharmacies to distribute the drug for the first time.

A ban on mifepristone wouldn’t halt medication abortions entirely; some clinicians oversee the procedure using only misoprostol, the other medication used to induce miscarriage in early pregnancy. However, studies show that misoprostol-only terminations have a slightly higher failure rate than those that use the combination of both drugs, and many health-care providers prefer administering both medications to induce abortion.

If Texas Judge Matthew J. Kacsmaryk declares a nationwide injunction on mifepristone’s FDA approval—a decision that could come down by the end of this week—it could halt distribution of the drug across the country. “A national injunction would impact access to medication-abortion treatment in every state, including those where abortion rights are protected,” Shefali Luthra reported yesterday in The 19th. “But certain states would likely be hit harder than others,” such as Colorado, Pennsylvania, and New Mexico, which have seen a large number of out-of-state patients in the months since Roe v. Wade was overturned.

“The suit has been widely ridiculed by legal experts as rooted in baseless and debunked arguments,” Caroline Kitchener and Perry Stein wrote in The Washington Post on Sunday. “But in recent weeks, abortion rights advocates and some in the Biden administration have grown increasingly concerned that the case is likely to be decided entirely by conservative judges who might be eager for a chance to restrict abortion access even in Democrat-led states.”

Medication abortions now account for more than half of U.S. abortions—up from fewer than one-third less than a decade ago. For this reason, medication abortion could very well play a dominant role in the next presidential election. “George W. Bush and Donald Trump, the two Republicans who have held the presidency since the drugs were first approved under Democratic President Bill Clinton, in 2000, took virtually no steps to limit their availability,” Brownstein wrote last month. “But conservative activists are already signaling that they will press the Republican presidential candidates in 2024 for more forceful action.”

This puts Republican candidates in a bit of a tricky strategic spot, Brownstein noted:

The 2022 midterm elections sent an unmistakable signal of resistance to further abortion restrictions in almost all of the key swing states that tipped the 2020 presidential election and are likely to decide the 2024 contest. “Would you really want to be Ron DeSantis or Donald Trump running in a close election saying, ‘I’m going to ban all abortion pills in Michigan or Pennsylvania’ right now?” says Mary Ziegler, a law professor at UC Davis, who has written extensively on the history of the abortion debate.

As for President Biden, last month, he issued a presidential memorandum directing the secretary of Health and Human Services to consider ways to increase access to mifepristone. But the Texas ruling could undermine that effort. And the Biden administration may very well be at a loss for next steps to challenge red-state laws that have hindered its attempts to expand access. As the reproductive-law historian Mary Ziegler told Brownstein, “We don’t have a lot of answers … because, frankly, states have not tried to do this stuff in hundreds of years.”


Today’s News

  1. Turkish President Recep Tayyip Erdoğan made his visit to the disaster zone of Monday’s 7.8-magnitude earthquake in Turkey and Syria, which killed more than 12,000 people.
  2. President Joe Biden visited a labor-training center in the 2024 battleground state of Wisconsin, where he reiterated points from last night’s State of the Union address.
  3. In a six-hour Oversight Committee hearing, House Republicans questioned Twitter officials about the decision to censor a New York Post story on Hunter Biden’s laptop in 2020.


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Evening Read

Tyler Comrie / The Atlantic; Getty

The Most Important Job Skill of This Century

By Charlie Warzel

A product race is under way in the world of artificial intelligence. Just this week, Google announced plans to release Bard, a search chatbot based on its proprietary large language model; yesterday, Microsoft held an event unveiling a next-generation web browser with a supercharged Bing interface powered by ChatGPT. Though most big tech companies have been quietly developing their own generative-AI tools for years, these giants are scrambling to demonstrate their chops after the public release and runaway adoption of OpenAI’s ChatGPT, which has accumulated more than 30 million users in two months.

OpenAI’s success is an apparent signal to tech leaders that deep-learning networks are the next frontier of the commercial internet. AI evangelists will similarly tell you that generative AI is destined to become the overlay for not only search engines, but also creative work, busywork, memo writing, research, homework, sketching, outlining, storyboarding, and teaching. It will, in this telling, remake and reimagine the world. At present, sorting the hype from genuine enthusiasm is difficult, but given the billions of dollars being funneled into this technology, it’s worth asking, in ways large and small: What does the world look like if the evangelists are right? If this AI paradigm shift arrives, one vital skill of the 21st century could be effectively talking to machines. And for now, that process involves writing—or, in tech vernacular, engineering—prompts.

Read the full article.

More From The Atlantic

Culture Break

Phobymo / Universal Pictures

Watch. Knock at the Cabin (in theaters), the latest offering from the director M. Night Shyamalan, which injects horror with a dose of tenderness.

Listen. This Is Why, Paramore’s “tense and complex” new album.

Play our daily crossword.


Mary Ziegler’s work is a valuable resource for understanding the past, present, and future of the legal right to abortion. I’d recommend starting with her essay from last month on the gap between the fantasy and reality of Roe v. Wade. “The history of America’s fixation on Roe is a story not just about the power of the Supreme Court, but about how the Court alone does not—and should not—dictate what the Constitution says,” she writes.

— Isabel

Kelli María Korducki contributed to this newsletter.

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Isabel Fattal