US Supreme Court hears arguments in abortion pill case

U.S. Supreme Court justices on Tuesday did not appear ready to limit access to the abortion pill mifepristone, in a case that could have far-reaching implications for millions of American women and for scores of drugs regulated by the Food and Drug Administration. 

It’s the first abortion-related case the court has taken since a majority of the current justices struck down the constitutional right to abortion in 2022.

A group of anti-abortion doctors had asked the court to restrict access to mifepristone and to limit when in a pregnancy it could be used. 

Key moments from the arguments:

The FDA approved mifepristone in 2000 as a safe and effective way to end early pregnancies. Last year the pill was used in more than six in 10 of the abortions in the U.S.

The central argument of the conservative group challenging mifepristone is that the Food and Drug Administration overlooked serious problems with the drug when it eased restrictions on the drug, including making it available via mail in 2021. 

Erin Hawley, who represented the doctors suing the agency, argued the FDA “failed to consider or explain … its wholesale removal of safeguards” on the pill.

Read moreThe long and winding history of the war on abortion drugs

But the FDA has long argued its decision to drop in-person appointments to get mifepristone, among other requirements, came after 20 years of monitoring its safety. In that period the agency reviewed dozens of studies in thousands of women in which serious problems — including hospitalization — occurred less than 0.3% of the time.

Hawley pointed out that FDA’s own prescribing label mentions that 2.9% to 4.6% of women taking the drug go to the emergency room. But Solicitor General Elizabeth Prelogar pointed to studies showing that half of women who go to the emergency room don’t get any treatment at all.

“Many women might go because they’re experiencing heavy bleeding, which mimics a miscarriage, and they might just need to know whether or not they’re having a complication, ” Prelogar said.

Because of the highly technical nature of reviewing drug data and research, courts have long deferred to FDA’s scientific judgements on safety and effectiveness.

Justice Ketanji Brown Jackson pressed Hawley on the legal basis for second-guessing the agency’s regulators.

“So what deference do we owe them at all with respect to their assessment that these studies establish what it is that they say they do about safety and efficacy?”

Hawley ran into questions as she argued that a nationwide rule curtailing mifepristone use was needed. 

She was repeatedly interrupted by Justice Neil Gorsuch, who voiced objections to such sweeping injunctions.

The case “seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule or any other federal government action,” said Gorsuch.

Normally when a court issues an injunction about a government policy it only applies to the individuals or groups in the case. But in recent years a growing number of justices on lower courts have issued “universal injunctions,” blocking federal regulations nationwide.

Gorsuch noted that there have been roughly 60 such rulings in the last four years.

Chief Justice John Roberts also seemed skeptical that a ruling reversing the FDA’s scientific judgments was necessary.

“Why can’t the court specify that this relief runs to precisely the parties before the court as opposed to looking to the agency in general and saying, ‘Agency, you can’t do this anywhere?’”

The Biden administration argued that the plaintiffs — a group called the Alliance for Hippocratic Medicine — didn’t have the right to challenge the FDA’s actions on mifepristone. 

The doctors who brought the suit argued that they might have to treat emergency room patients who experience serious complications after taking the drug. 

But Prelogar told the court that the doctors don’t have to prescribe mifepristone and they can abstain from treating patients who have taken the pill if they oppose abortion.

“They don’t prescribe mifepristone,” Prelogar said. “They don’t take mifepristone, obviously. The FDA is not requiring them to do or refrain from doing anything. They aren’t required to treat women who take mifepristone.”

Justice Samuel Alito, however, repeatedly pressed the government on who did have the right to sue over FDA’s decisions. 

“Is there anybody who can sue and get a judicial ruling on whether what FDA did was lawful?” Alito, who wrote the 2022 ruling that overturned Roe v. Wade, asked. 

Several justices pressed Hawley to provide real-life examples of doctors who oppose abortion being forced to treat patients who had suffered from abortion pill complications.

They also took issue with how many hypothetical problems Hawley raised in her argument against the FDA’s loosening of abortion pill restrictions.

“I don’t want to hypothesize,” Jackson said to Hawley, asking her to provide an example of a doctor who was unable to object to providing an abortion.

At one point, Justice Amy Coney Barrett also questioned an example one of the doctors provided of a colleague who had to perform a “dilation and curettage” procedure on a patient with complications. Barrett pointed out that those procedures are not just performed in cases of abortions but for miscarriages as well. 

Some of the justices also pointed out that doctors are already protected from performing abortions when they don’t want to by voicing conscience objection. 

Justice Brett Kavanaugh raised that point early on: “Under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?”

For more than a century, the FDA has had sole authority over assessing the safety of drugs and approving their sale in the U.S.

The agency first approved mifepristone in 2000 following a four-year review, including detailed safety studies submitted by the French manufacturer. In 2016, FDA loosened restrictions on the drug to allow it to be prescribed up to 10 weeks of pregnancy and allowed nurses and other medical professionals to prescribe it. In 2021, the agency said the drug could be sent through the mail, doing away with a longstanding requirement that women to pick the drug up in person.

Jessica Ellsworth, an attorney representing the New York-based Danco Laboratories, which makes mifepristone, asked the justices to consider how the case could upend the FDA’s decades-old system for regulating drugs, vaccines and other life-saving medicines.

“I think this court should think hard about the mischief it would invite if it allowed agencies to start taking action based on statutory responsibilities that Congress has assigned to other agencies,” she said.

U.S. District Judge Matthew Kacsmaryk’s decision last year marked the first time a court had issued a decision to revoke approval of a drug FDA had deemed safe. An open letter signed by nearly 300 biotech and pharmaceutical company leaders last year slammed the ruling as undermining Congress’ delegated authority to the FDA to approve and regulate drugs. If justices can unilaterally overturn drug approvals, they said “any medicine is at risk.”

(AP) 

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US Supreme Court unanimously rules Trump can remain on 2024 ballot

The US Supreme Court on Monday unanimously restored Donald Trump to 2024 presidential primary ballots, rejecting state attempts to hold the Republican former president accountable for the Capitol riot.

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4 min

The justices ruled a day before the Super Tuesday primaries that states cannot invoke a post-Civil War constitutional provision to keep presidential candidates from appearing on ballots. That power resides with Congress, the court wrote in an unsigned opinion.

Trump posted on his social media network shortly after the decision was released: “BIG WIN FOR AMERICA!!!”

The outcome ends efforts in Colorado, Illinois, Maine and elsewhere to kick Trump, the front-runner for his party’s nomination, off the ballot because of his attempts to undo his loss in the 2020 election to Democrat Joe Biden, culminating in the Jan. 6, 2021, attack on the Capitol.

Colorado Secretary of State Jena Griswold expressed disappointment in the court’s decision as she acknowledged that “Donald Trump is an eligible candidate on Colorado’s 2024 Presidential Primary.”

Trump’s case was the first at the Supreme Court dealing with a provision of the 14th Amendment that was adopted after the Civil War to prevent former officeholders who “engaged in insurrection” from holding office again.

Colorado’s Supreme Court, in a first-of-its-kind ruling, had decided that the provision, Section 3, could be applied to Trump, who that court found incited the Capitol attack. No court before had applied Section 3 to a presidential candidate.

Some election observers have warned that a ruling requiring congressional action to implement Section 3 could leave the door open to a renewed fight over trying to use the provision to disqualify Trump in the event he wins the election. In one scenario, a Democratic-controlled Congress could try to reject certifying Trump’s election on Jan. 6, 2025, under the clause.

The issue then could return to the court, possibly in the midst of a full-blown constitutional crisis.

While all nine justices agreed that Trump should be on the ballot, there was sharp disagreement from the three liberal members of the court and a milder disagreement from conservative Justice Amy Coney Barrett that their colleagues went too far in determining what Congress must do to disqualify someone from federal office.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson said they agreed that allowing the Colorado decision to stand could create a “chaotic state by state patchwork” but said they disagreed with the majority’s finding a disqualification for insurrection can only happen when Congress enacts legislation. “In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment,” they wrote.

The court did not delve into the politically fraught issue of insurrection in its opinion Monday.

Both sides had requested fast work by the court, which heard arguments less than a month ago, on Feb. 8. The justices seemed poised then to rule in Trump ‘s favor.

Trump had been kicked off the ballots in Colorado, Maine and Illinois, but all three rulings were on hold awaiting the Supreme Court’s decision.

The case is the court’s most direct involvement in a presidential election since Bush v. Gore, a decision delivered a quarter-century ago that effectively handed the 2000 election to Republican George W. Bush. And it’s just one of several cases involving Trump directly or that could affect his chances of becoming president again, including a case scheduled for arguments in late April about whether he can be criminally prosecuted on election interference charges, including his role in the Jan. 6 Capitol attack. The timing of the high court’s intervention has raised questions about whether Trump will be tried before the November election.

The arguments in February were the first time the high court had heard a case involving Section 3. The two-sentence provision, intended to keep some Confederates from holding office again, says that those who violate oaths to support the Constitution are barred from various positions including congressional offices or serving as presidential electors. But it does not specifically mention the presidency.

Conservative and liberal justices questioned the case against Trump. Their main concern was whether Congress must act before states can invoke the 14th Amendment. There also were questions about whether the president is covered by the provision.

The lawyers for Republican and independent voters who sued to remove Trump’s name from the Colorado ballot had argued that there is ample evidence that the events of Jan. 6 constituted an insurrection and that it was incited by Trump, who had exhorted a crowd of his supporters at a rally outside the White House to “fight like hell.” They said it would be absurd to apply Section 3 to everything but the presidency or that Trump is somehow exempt. And the provision needs no enabling legislation, they argued.

Trump’s lawyers mounted several arguments for why the amendment can’t be used to keep him off the ballot. They contended the Jan. 6 riot wasn’t an insurrection and, even if it was, Trump did not go to the Capitol or join the rioters. The wording of the amendment also excludes the presidency and candidates running for president, they said. Even if all those arguments failed, they said, Congress must pass legislation to reinvigorate Section 3.

The case was decided by a court that includes three justices appointed by Trump when he was president. They have considered many Trump -related cases in recent years, declining to embrace his bogus claims of fraud in the 2020 election and refusing to shield tax records from Congress and prosecutors in New York.

The 5-4 decision in Bush v. Gore case more than 23 years ago was the last time the court was so deeply involved in presidential politics. Justice Clarence Thomas is the only member of the court who was on the bench then. Thomas has ignored calls by some Democratic lawmakers to step aside from the Trump case because his wife, Ginni, supported Trump’s effort to overturn the 2020 election results and attended the rally that preceded the storming of the Capitol by Trump supporters.

(AP)

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US Supreme Court to decide if Trump can be kept off ballots

The Supreme Court said Friday it will decide whether former President Donald Trump can be kept off the ballot because of his efforts to overturn his 2020 election loss, inserting the court squarely in the 2024 presidential campaign.

Issued on:

4 min

The justices acknowledged the need to reach a decision quickly, as voters will soon begin casting presidential primary ballots across the country. The court agreed to take up Trump’s appeal of a case from Colorado stemming from his role in the events that culminated in the Jan. 6, 2021 attack on the US Capitol.

Underscoring the urgency, arguments will be held on Feb. 8, during what is normally a nearly monthlong winter break for the justices. The compressed timeframe could allow the court to produce a decision before Super Tuesday on March 5, when the largest number of delegates are up for grabs in a single day, including in Colorado.

Trump, speaking at a campaign event in Iowa, said: “All I want is fair. I just hope that they’re going to be fair.”

The court will be considering for the first time the meaning and reach of a provision of the 14th Amendment barring some people who “engaged in insurrection” from holding public office. The amendment was adopted in 1868, following the Civil War. It has been so rarely used that the nation’s highest court had no previous occasion to interpret it.

Colorado’s Supreme Court, by a 4-3 vote, ruled last month that Trump should not be on the Republican primary ballot. The decision was the first time the 14th Amendment was used to bar a presidential contender from the ballot.

Trump is separately appealing to state court a ruling by Maine’s Democratic secretary of state, Shenna Bellows, that he was ineligible to appear on that state’s ballot over his role in the Capitol attack. Both the Colorado Supreme Court and the Maine secretary of state’s rulings are on hold until the appeals play out.

The high court’s decision to intervene, which both sides called for, is the most direct involvement in a presidential election since Bush v. Gore in 2000, when a conservative majority effectively decided the election for Republican George W. Bush. Only Justice Clarence Thomas remains from that court.

Three of the nine Supreme Court justices were appointed by Trump, though they have repeatedly ruled against him in 2020 election-related lawsuits, as well as his efforts to keep documents related to Jan. 6 and his tax returns from being turned over to congressional committees.

At the same time, Justices Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh have been in the majority of conservative-driven decisions that overturned the five-decade-old constitutional right to abortion, expanded gun rights and struck down affirmative action in college admissions. 

Some Democratic lawmakers have called on Thomas to step aside from the case because of his wife’s support for Trump’s effort to overturn the results of the election, which he lost to Democrat Joe Biden. Thomas is unlikely to agree, and there was every indication Friday that all the justices are participating. Thomas has recused himself from only one other case related to the 2020 election, involving former law clerk John Eastman, and so far the people trying to disqualify Trump haven’t asked him to recuse.

The 4-3 Colorado decision cites a ruling by Gorsuch when he was a federal judge in that state. That Gorsuch decision upheld Colorado’s move to strike a naturalised citizen from the state’s presidential ballot because he was born in Guyana and didn’t meet the constitutional requirements to run for office. The court found that Trump likewise doesn’t meet the qualifications due to his role in the U.S. Capitol attack on Jan. 6, 2021. That day, the Republican president had held a rally outside the White House and exhorted his supporters to “fight like hell” before they walked to the Capitol.

The two-sentence provision in Section 3 of the 14th Amendment states that anyone who swore an oath to uphold the constitution and then “engaged in insurrection” against it is no longer eligible for state or federal office. After Congress passed an amnesty for most of the former confederates the measure targeted in 1872, the provision fell into disuse until dozens of suits were filed to keep Trump off the ballot this year. Only the one in Colorado was successful.

Trump had asked the court to overturn the Colorado ruling without even hearing arguments. “The Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters in Colorado and likely be used as a template to disenfranchise tens of millions of voters nationwide,” Trump’s lawyers wrote.

They argue that Trump should win on many grounds, including that the events of Jan. 6 did not constitute an insurrection. Even if it did, they wrote, Trump himself had not engaged in insurrection. They also contend that the insurrection clause does not apply to the president and that Congress must act, not individual states.

Critics of the former president who sued in Colorado agreed that the justices should step in now and resolve the issue, as do many election law experts.

“This case is of utmost national importance. And given the upcoming presidential primary schedule, there is no time to wait for the issues to percolate further. The Court should resolve this case on an expedited timetable, so that voters in Colorado and elsewhere will know whether Trump is indeed constitutionally ineligible when they cast their primary ballots,” lawyers for the Colorado plaintiffs told the Supreme Court.

The issue of whether Trump can be on the ballot is not the only matter related to the former president or Jan. 6 that has reached the high court. The justices last month declined a request from special counsel Jack Smith to swiftly take up and rule on Trump’s claims that he is immune from prosecution in a case charging him with plotting to overturn the 2020 presidential election, though the issue could be back before the court soon depending on the ruling of a Washington-based appeals court.

And the court has said that it intends to hear an appeal that could upend hundreds of charges stemming from the Capitol riot, including against Trump.

(AP)

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US Supreme Court ruling on abortion pill could ‘tie the hands of every state’

The US Supreme Court is set to decide the fate of a pill essential for medical abortions. Access to mifepristone, once called the “pill of Cain” by the Vatican, may be heavily restricted across all states if the highest court upholds a lower-court ruling limiting access to the drug. Expert on abortion pills Dr. Sydney Calkin speaks to FRANCE 24 about what’s at stake.  

Issued on:

5 min

The ruling on mifepristone is the most important abortion case to reach the US Supreme Court since it struck down Roe vs Wade in June 2022, overturning the constitutional right to end a pregnancy.

Taking mifepristone in combination with another pill called misoprostol is the most effective way to have a medication abortion. And medication abortions account for more than half of all pregnancy terminations in the US.

On Wednesday, justices agreed they would make a decision on the restrictions on mifepristone set out in a ruling made by a three-judge panel of the New Orleans-based 5th Circuit Court of Appeals. The case stems from an earlier ruling by a conservative US District Court judge in Texas that would have banned mifepristone, but all restrictions have been frozen since late April

If these restrictions are passed, pregnant people would only have seven weeks instead of 10 to use the pill. Approval would also block mifepristone from being distributed by mail and would require the drug to be prescribed by a doctor, as opposed to other health care professionals like nurses or midwives.

Read moreThe long and winding history of the war on abortion drugs

Oral arguments on the abortion pill will be heard by the Supreme Court next year, and a decision is expected to be issued by the end of June 2024. It will come just four months before the US presidential election, when abortion will undoubtedly make headlines.

Until then, access to mifepristone will remain unchanged.

Dr. Sydney Calkin, a senior lecturer at Queen Mary University of London who has carried out extensive research on how abortion pills have transformed reproductive care, explains what is at stake.

Why is mifepristone being targeted in this ruling?

Dr. Sydney Calkin: The anti-abortion movement sees it as the next step after the 2022 ruling in Dobbs v. Jackson Women’s Health Organization overturned Roe and removed constitutional protections for abortion in the US.

That ruling didn’t make abortion illegal across the whole country, it just said that it’s a question for each state. What we’re seeing right now is that states can ban abortion if they want to, but they can also keep abortion if they want to. And obviously, the anti-abortion movement isn’t happy with that. They don’t want abortion to be legal anywhere in the US.

Anybody who thought that the Dobbs decision was the final word on abortion and anybody who thought it just meant states are free to do what they want, well… I think we can really see that was never the case. The Dobbs decision was just one step in the anti-abortion strategy, which counts on going much further.

Rules on what medicines are approved and how those medicines can be used are set at the federal level. If more restrictions are put on mifepristone at the federal level, that would tie the hands of every state. Even states that want to keep abortion legal.

This is really important because, before the Dobbs decision, medication abortion accounted for the majority of abortions in the US. It’s a method that’s both widely used and a lot easier for people to access.

What are the real-life consequences of restricting access to mifepristone?

If the Supreme Court passes the restrictions, the length of time the pill can be used would be reduced from ten to seven weeks. Pregnancy in the US is dated from the last menstrual period, not the date of conception. By the time somebody notices they’ve missed their period, they might already be four weeks pregnant, giving them only three weeks to carry out a medical abortion. That really narrows the window.

As it stands, there is a range of health care providers who can prescribe mifepristone. The restrictions would also limit the providers to physicians, meaning there are fewer people licensed to prescribe the drug. And there’s already a shortage of abortion providers across the country.

Under the 2016 Food and Drug Administration (FDA) revised regulations around mifepristone, it was decided that a lower dosage of the drug could be used than was previously agreed. The restrictions would remove that requirement, increasing the amount of mifepristone used and therefore making it more expensive.

The 2016 revision also allowed for people to use the pills at home and it stated that it wasn’t necessary for a patient to come back in person for a follow-up appointment with their doctor. That would be scrapped.

But most importantly, restrictions would prevent telemedicine abortion services and mail order abortion pill services from operating. In 2021, during Covid, the FDA made it easier to get the pills through the mail. Since then, many services have popped up to offer this solution in states where abortion is legal. Taking that away would really harm access.

If you live in Texas for example, you can’t just go online and order abortion pills from California or Massachusetts. It’s illegal to access medication abortion in states where abortion is illegal. But mail order and telemedicine services are really changing the landscape. Some operate out of states with shield laws for their doctors, meaning doctors are protected from prosecution if they provide abortion pills to people in states where it’s illegal. These services are really useful for people whose neighbouring state allows abortion. Someone living in Texas can drive to New Mexico and order abortion pills to a post box there and collect them later.

What solutions could people turn to?

Access to abortion has changed so dramatically thanks to the mobility of pills. These rulings matter because they will restrict access to some extent. But in another sense, they don’t really have as much impact as the anti-abortion movement thinks they will.

The availability of medication abortion online means that governments and courts have less control over the matter than they used to, when abortion was only a surgical procedure carried out in hospitals and clinics. Now, abortion pills are available online, manufactured across the world and relatively cheap.

Of course it would be really, really grave if the Supreme Court decides to impose all these restrictions, but there are already a lot of people who are accessing pills through other channels that won’t necessarily be impacted by the ruling.

People in the US get medication abortion pills from international organisations like Aid Access, which is affiliated with the Dutch group Women on Web. They get pills from online pharmacies. A group called Plan C in the US do a lot of work to look for those pharmacies and provide information about the price, reliability and speed by which the pills can be delivered. Cross-border networks between the US and Mexico have become more formalised.

Regardless of this case, people are still going to be getting abortion pills. But there is a risk of people being criminalised for getting those pills. 

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Retired U.S. Justice Sandra Day O’Connor, the first woman on the U.S. Supreme Court passes away at 93

Retired U.S. Supreme Court Justice Sandra Day O’Connor, an unwavering voice of moderate conservatism and the first woman to serve on the nation’s highest court, died on December 1. She was 93.

O’Connor died in Phoenix, of complications related to advanced dementia and a respiratory illness, the Supreme Court said in a news release.

Chief Justice John Roberts mourned her death. “A daughter of the American Southwest, Sandra Day O’Connor blazed an historic trail as our Nation’s first female Justice,” Roberts said in statement issued by the court. “She met that challenge with undaunted determination, indisputable ability, and engaging candor.”

In 2018, she announced that she had been diagnosed with “the beginning stages of dementia, probably Alzheimer’s disease.” Her husband, John O’Connor, died of complications of Alzheimer’s in 2009.

O’Connor’s nomination in 1981 by President Ronald Reagan and subsequent confirmation by the Senate ended 191 years of male exclusivity on the high court. A native of Arizona who grew up on her family’s sprawling ranch, O’Connor wasted little time building a reputation as a hard worker who wielded considerable political clout on the nine-member court.

The granddaughter of a pioneer who traveled west from Vermont and founded the family ranch some three decades before Arizona became a state, O’Connor had a tenacious, independent spirit that came naturally. As a child growing up in the remote outback, she learned early to ride horses, round up cattle and drive trucks and tractors.

“I didn’t do all the things the boys did,” she said in a 1981 Time magazine interview, “but I fixed windmills and repaired fences.”

On the bench, her influence could best be seen, and her legal thinking most closely scrutinized, in the court’s rulings on abortion, perhaps the most contentious and divisive issue the justices faced. O’Connor balked at letting states outlaw most abortions, refusing in 1989 to join four other justices who were ready to reverse the landmark 1973 Roe v. Wade decision that said women have a constitutional right to abortion.

Then, in 1992, she helped forge and lead a five-justice majority that reaffirmed the core holding of the 1973 ruling. “Some of us as individuals find abortion offensive to our most basic principles of morality, but that can’t control our decision,” O’Connor said in court, reading a summary of the decision in Planned Parenthood v. Casey. “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Thirty years after that decision, a more conservative court did overturn Roe and Casey, and the opinion was written by the man who took her high court seat, Justice Samuel Alito. He joined the court upon O’Connor’s retirement in 2006, chosen by President George W. Bush.

In 2000, O’Connor was part of the 5-4 majority that effectively resolved the disputed 2000 presidential election in favor of Bush, over Democrat Al Gore.

O’Connor was regarded with great fondness by many of her colleagues. When she retired, Justice Clarence Thomas, a consistent conservative, called her “an outstanding colleague, civil in dissent and gracious when in the majority.”

She could, nonetheless, express her views tartly. In one of her final actions as a justice, a dissent to a 5-4 ruling to allow local governments to condemn and seize personal property to allow private developers to build shopping plazas, office buildings and other facilities, she warned that the majority had unwisely ceded yet more power to the powerful. “The specter of condemnation hangs over all property,” O’Connor wrote. “Nothing is to prevent the state from replacing … any home with a shopping mall, or any farm with a factory.”

O’Connor, whom commentators had once called the nation’s most powerful woman, remained the court’s only woman until 1993, when, much to O’Connor’s delight and relief, President Bill Clinton nominated Justice Ruth Bader Ginsburg. The current court includes a record four women.

The enormity of the reaction to O’Connor’s appointment had surprised her. She received more than 60,000 letters in her first year, more than any one member in the court’s history. “I had no idea when I was appointed how much it would mean to many people around the country,” she once said. “It affected them in a very personal way. People saw it as a signal that there are virtually unlimited opportunities for women. It’s important to parents for their daughters, and to daughters for themselves.”

At times, the constant publicity was almost unbearable. “I had never expected or aspired to be a Supreme Court justice,” she said. “My first year on the court made me long at times for obscurity.”

Following her retirement, O’Connor expressed regret that a woman had not been chosen to replace her. O’Connor remained active in the government even after she retired from the court. She sat as a judge on several federal appeals courts, advocated for judicial independence and served on the Iraq Study Group. She also was appointed to the honorary post of chancellor at the College of William and Mary in Virginia.

O’Connor cited her husband’s struggle with Alzheimer’s disease as her primary reason for leaving the court. After moving into an assisted living center, John O’Connor struck up a romance with a fellow Alzheimer’s patient, a relationship experts say is not uncommon among people with dementia. The retired justice was relieved that he was comfortable and happy at the center, according to her son, Scott.

On the bench, O’Connor generally favored states in disputes with the federal government. She often sided with police when they faced claims of violating people’s rights. In 1985, she wrote for the court as it ruled that the confession of a criminal suspect first warned about his rights may be used as trial evidence, even if police violated the suspect’s rights in obtaining an earlier confession.

A 1991 decision written by O’Connor said police do not violate the Constitution’s ban against unreasonable searches and seizures when they board buses and randomly ask passengers to consent to being searched. In a 1994 decision, O’Connor said police officers need not stop questioning and seek clarification when a criminal suspect makes what might have been an ambiguous request for legal help.

O’Connor wrote for the court in 1992, when it said prison guards violate inmates’ rights by using unnecessary physical force even if no serious injuries result, and in 1993, when it ruled that employers may be guilty of illegal sexual harassment even in the absence of any psychological harm.

In 2004, O’Connor wrote the majority opinion that went against the Bush administration in ruling that an American citizen seized on the Afghanistan battlefield can challenge his detention in U.S. courts. “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens,” O’Connor wrote.

O’Connor once described herself and her eight fellow justices as nine firefighters: “When (someone) lights a fire, we invariably are asked to attend to the blaze. We may arrive at the scene a few years later.”

O’Connor announced her retirement in a one-sentence written statement. She cited her age, then 75, and said she “needs to spend time” with her family. Her official resignation letter to Bush was similarly succinct. “It has been a great privilege indeed to have served as a member of the court for 24 terms,” the justice wrote. “I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.”

“For an old ranching girl, you turned out pretty good,” Bush told her in a private call not long after receiving her letter, an aide said. Then, in the Rose Garden outside the Oval Office, he praised her as “a discerning and conscientious judge and a public servant of complete integrity.”

O’Connor was 51 when she joined the court to replace the retired Potter Stewart. A virtual unknown on the national scene until her appointment, she had served as an Arizona state judge and before that as a member of her state’s Legislature.

The woman who climbed higher in the legal profession than had any other woman did not begin her career auspiciously. As a top-ranked graduate of Stanford’s prestigious law school, class of 1952, O’Connor discovered that most large law firms did not hire women.

One Los Angeles firm offered her a job as a secretary. Perhaps it was that early experience that shaped O’Connor’s professional tenacity. While workweeks typically stretched to 60 hours or more, she found time to play tennis and golf. Before her husband developed Alzheimer’s, they danced expertly and made frequent appearances on the Washington party circuit.

O’Connor’s survivors include her three sons, Scott, Brian and Jay, six grandchildren and a brother.

In late 1988, O’Connor was diagnosed as having breast cancer, and she underwent a mastectomy. She missed just two weeks of work. That same year, she had her appendix removed.

O’Connor was embarrassed in 1989 after conservative Republicans in Arizona used a letter she had sent to support their claim that the United States is a “Christian nation.” The 1988 letter, which prompted some harsh criticism of O’Connor by legal scholars, cited three Supreme Court rulings in which the nation’s Christian heritage was discussed.

O’Connor said she regretted the letter’s use in a political debate. “It was not my intention to express a personal view on the subject of the inquiry,” she said.

Funeral plans were not immediately available.

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Explained | The U.S. student loan crisis and Joe Biden’s new cancellation plan

The story so far: United States President Joe Biden has already released a new plan to cancel billions in student loan debt after the conservative majority Supreme Court of the U.S. (SCOTUS) in a 6-3 decision on June 30 blocked his ambitious plan to cancel $430 billion in debt.

Although Mr. Biden has said the alternative plan is consistent with the Supreme Court ruling, it could still face a legal challenge, while the fate of millions of American borrowers — who may have to start repaying their loans once a pause on repayment lifts — hangs in the balance.

How big is the U.S. student loan debt?

As per the latest Federal Reserve figures, more than 45 million Americans owe a total of $1.77 trillion in student debt to the U.S. government. As per the Congressional Research Service (CRS), approximately 63% of the U.S. population over the age of 25 has at some time enrolled in some level of higher education and roughly 17% of the country’s population aged 18 or above has federal student loans. Meanwhile, the median student loan debt is just above $17,000.

Research by the nonprofit College Board suggests that over the past three decades, the cost of higher education has risen sharply in the U.S., doubling at private four-year colleges and universities and rising even further at public four-year schools. Between 2006 and 2019, the outstanding balance of student loans has nearly quadrupled.

In the U.S., the federal government is the primary source of student loans, running several loan programmes to help students and their families finance higher education.

These loans are authorised under Title IV of the Higher Education Act of 1965 (HEA). Under primary loan programmes, the U.S. government makes loans using federal capital, meaning funds from the U.S. Treasury Department, after which the outstanding loans become assets of the federal government.

What are repayment options for borrowers?

Once a student borrows a federal loan, they enter into a contractual obligation to repay the loan with interest. They can sign up for specific repayment plans, with repayment periods spanning a decade or more. Under a standard 10-year repayment plan, a borrower has to make 120 equal payments of principal and interest spread over a decade.

Then there are Income-driven repayment (IDR) plans, the kind that President Biden wanted to alter in order to cancel student debt. Such plans cap the monthly payment installments at a share of the borrower’s discretionary income, say 10%- 15%; extend the repayment period over a span of 20 or 25 years, and forgive or write off any unpaid principal and interest remaining after that period.

What was Mr. Biden’s original student debt cancellation plan?

The plan, announced in August 2022, was supposed to cancel $10,000 in federal student loan debt for those making less than $125,000 a year or households making less than $250,000. The recipients of the government’s Pell Grant, who usually need more financial assistance, were to get an additional $10,000 worth of their debt forgiven.

College students qualified if their loans were disbursed before July 1. The plan made 43 million borrowers eligible for some debt forgiveness, with 20 million possibly having their debt erased entirely, according to the Biden administration.

The White House said 26 million people had applied for debt relief, and 16 million people already had their relief approved. As per the Congressional Budget Office, the program would cost about $400 billion over the next three decades.

The Education Department also proposed to improve the existing income-driven plan mentioned above, capping monthly payments for undergraduate loans at 5% of a borrower’s discretionary income, down from the current 10%. The administration claimed that the plan would mean lowering of the average annual student loan payment by more than $1,000 for both current and future borrowers.

Why did the plan run into trouble?

There were two legal challenges to the plan which landed in the Supreme Court—one involving six Republican-led States and the other filed by two students.

In the case filed by the students, they argued, among other things, that the Biden administration didn’t go through the proper process in enacting the plan. Texas-based U.S. District Judge Mark Pittman, appointed by former President Donald Trump, opined that Mr. Biden overstepped his authority. To cancel the debt, the Biden government relied on the Higher Education Relief Opportunities for Students Act, commonly known as the HEROES Act, which was enacted in the aftermath of the 9/11 attack and allows the Secretary of Education to waive or modify terms of federal student loans during times of war or national emergency. The White House cited the COVID-19 pandemic as a national emergency.

The ruling, however, argued that the HEROES Act did not accord the Secretary the authority for mass debt cancellation. The judge said it only granted flexibility during national emergencies, adding that it was unclear whether debt cancellation was a necessary response to the COVID-19 pandemic, which Mr. Biden had by then declared as over.

As for the suit by the six States— Arkansas, Iowa, Kansas, Missouri, Nebraska and South Carolina— a lower court dismissed it, ruling that the States could not challenge the programme as they were unable to show that they wereharmed by it.

However, the case went to a panel in the U.S. Court of Appeals for the 8th Circuit, where all judges Republican President appointees, which put the programme on hold the next day. After this, the Supreme Court agreed to weigh in.

On June 30, SCOTUS held that the administration needs Congress’ endorsement before undertaking such a costly programme. The majority rejected arguments that the bipartisan 2003 HEROES Act gave Mr. Biden the power he claimed.

“Six States sued, arguing that the HEROES Act does not authorize the loan cancellation plan. We agree,” Chief Justice John Roberts wrote for the court.

Justice Elena Kagan dissented, joined by the court’s two other liberal judges, writing that the majority of the court “overrides the combined judgment of the Legislative and Executive Branches, with the consequence of eliminating loan forgiveness for 43 million Americans.”

What is the Biden administration’s new plan and what’s next for borrowers?

The president announced on the day of the Court ruling that the Education Secretary had initiated a new rulemaking process for the alternative plan, this time using the Secretary’s authority under the Higher Education Act, 1965, the law governing most federal student loan programmes, as mentioned above.

“I’m announcing today a new path consistent with today’s ruling to provide student debt relief to as many borrowers as possible as quickly as possible,” Biden said. “We will ground this new approach in a different law than my original plan, with the so-called Higher Education Ac,” the President said. The plan is also going to take longer as the actual process of negotiated rule making could take as far as fall this year.

While the President contends the new path is consistent with the Court’s opinion, legal scrutiny could be expected. Meanwhile, advocate and legal scholar Luke Herrine, an assistant professor of law at the University of Alabama, wrote in a 2019 paper that the “compromise and settlement” authority, a clause in the HEA, empowers the Secretary of Education with the broad authority to “compromise, waive, or release’’ federal student debt.

Instead of the current Revised Pay as You Earn (REPAYE) plan, the income-driven plan Mr. Biden’s original programme sought to alter, the administration has proposed the new Saving on a Valuable Education (SAVE) plan. “This income-driven repayment plan will cut borrowers’ monthly payments in half, allow many borrowers to make $0 monthly payments, and save all other borrowers at least $1,000 per year,” says the factsheet on the plan. 

The specifics remain the same— requiring borrowers to pay half the current share of discretionary income at 5%. Instead of forgiving loan balances after 20 years of annual payments, this plan also forgivesoutstanding principal after 10 years. Additionally, the plan seeks to raise the amount of income that is considered non-discretionary and therefore is protected from repayment. As for borrowers currently facing uncertainty, the President says they will be able to enroll for SAVE later this summer, “before any monthly payments are due.” Borrowers who sign up or are already signed up for the REPAYE plan will be automatically enrolled.

Mr. Biden also announced an alternative to the pause on student loan repayments scheduled to restart at the end of the summer: a temporary 12-month “on-ramp” for repayment, from October 1, 2023 to September 30, 2024, during which missed loan payments will not harm borrowers’ credit and the threat of default will be temporarily removed.

What are the arguments for and against broad loan cancellation?

Numerous federal student loan repayment and forgiveness programmes providing targeted relief to individuals in certain circumstances currently exist. However, proposals for broader-scale student loan debt relief—including cancellation of all or a portion of federal student loan debt—have gained considerable attention in recent years.

As the cost of education increases while wages stagnate, it has become harder for students to pay off their loans. Studies also point out how federal grants and scholarships have not kept pace with the increasing cost of education and attendance.

President Biden has explained the need for loan cancellation by arguing that higher education “should be a ticket to a middle-class life, but for too many, the cost of borrowing for college is a lifelong burden that deprives them of that opportunity.” A White House factsheet notes that middle-class American borrowers struggle with high monthly payments and “ballooning balances that make it harder for them to build wealth, like buying homes, putting away money for retirement, and starting small businesses.”

CRS Research also points to the composition of borrowers, of which “black students were more likely to borrow Title IV” HEA loans for undergraduate and graduate education “relative to any other racial or ethnic subgroup”. It also finds that certain groups of borrowers (Black, American Indian, and lower-income borrowers) have made less progress in paying down the original principal of debt when compared with other borrowers.

The government also noted how student debt burden falls disproportionately on Black borrowers. “Twenty years after first enrolling in school, the typical Black borrower who started college in the 1995-96 school year still owed 95% of their original student debt,” the White House factsheet on student debt reads.

On the other hand, critics of broad-based cancellation of loans point out how one-time loan cancellation may fail to address the underlying causes of crushing loan debt. One major cause is the skyrocketing cost of education and the need for an overhaul of the system. Another factor flagged by studies is the increasing availability and utilization of loan repayment plans that allow borrowers to make monthly payments lower than the interest accruing on their loans, meaning negative amortization ​​which may result in a larger outstanding loan balance over time.

Analysts have highlighted that policies providing across-the-board loan cancellation may result in higher-income households receiving more cancellation benefits compared to lower-income households when the total dollar amounts cancelled or the savings in annual debt service payments are looked at. Besides, large cancellation plans may also significantly impact federal budgets and debt.

(With inputs from Reuters, Associated Press)

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Plucky Kids Sue Montana Over Climate Policies, THIS WHOLE COURT’S OUT OF ORDER!

In Montana, the Big Sky (when there’s not a wildfire) State, a group of 16 young people ranging in age from five to 22 are getting their day — or two weeks, more like — in court, in a first of its kind lawsuit against the state, claiming that Montana policies favoring fossil fuels have failed to provide the state constitution’s guarantee of a healthy environment “for present and future generations.” The trial in the case of Held v. State of Montanagot underway Monday, with expert testimony on the reality of climate change, as well as testimony from two of the plaintiffs on how the climate crisis has directly affected them and their families.

A lot of climate-related lawsuits have sought damages and injunctive relief against fossil fuel companies that knew damn well their products contributed to global warming; in the US, many such suits have so far been thrown out or are still working their way through early procedural stages. Happy news: An April US Supreme Court decision allowing such suits in state courts may help move a number of cases forward. Held v. Montana, filed in 2020, wasn’t affected either way, since the defendant is the state itself.

The lawsuit argues that the state’s energy policy violates the state constitution by promoting fossil fuel development and use. It also seeks to strike down a provision of the Montana Environmental Policy Act that flatly forbids the state from considering climate change when approving energy projects. Despite last minute attempts to get the state Supreme Court to throw out the case, it’s going forward this week in Lewis and Clark District Court, under Judge Kathy Seeley.


In opening arguments Monday, the Guardian reports,

Roger Sullivan, a lawyer for the plaintiffs, explained that climate change is fueling drought, wildfires, extreme heat and other environmental disasters throughout Montana, taking a major toll on the young plaintiffs’ health and wellbeing. There is a “scientific consensus”, he noted, that these changes can be traced back to the burning of fossil fuels.

He described how some plaintiffs have asthma that has been worsened by abundant wildfire smoke in recent years. Some love to hunt and fish but have seen stocks deteriorate. One plaintiff works as a ski instructor – a job threatened by warm winter temperatures and decreasing snowfall. And others are members of Indigenous tribes whose cultural practices are threatened by climate crisis-linked shifts in weather patterns, he said.

Montana is responsible for more planet-heating pollution than some countries, said Sullivan. Without urgent action, these climate consequences will only get worse.

Plaintiffs. Pic by the editrix’s dear best friend Susan Evans

The state, represented by assistant Attorney General Michael D. Russell, argued that since climate change is a global problem, nothing Montana does on its own can be proven to have made any difference one way or the other, aw shucks. He also claimed that the state no longer promotes fossil fuels since the state this year repealed its 30-year-old energy policy, so there’s nothing to sue over.

“This case as it currently exists is far more boring than the plaintiffs would make it out to be,” Russell told the court. “It’s simply a challenge to a discreet provision to a purely procedural statute.”

While it’s true that one bill passed this spring repealed the old climate policy, a bunch of others very specifically promote fossil fuels, like the measure prohibiting climate considerations in permitting, and other measures that will

loosen coal-mining regulations, prohibit local governments from adopting regulations to steer their communities toward cleaner energy sources, and make it harder and more expensive for environmental groups to delay or stop projects with litigation.

One bill even prohibits local building codes from “requiring solar panels, solar panel-ready wiring or electric vehicle charger-ready wiring in new construction,” and another forbids bans on methane gas hookups, because George Washington fought to secure a future for gas stoves. What we’re saying is, that guy’s a fucking liar.

Testimony began with Mae Nan Ellingson, who was a delegate to Montana’s constitutional convention in 1972, where she had advocated for the provision guaranteeing Montanans the right to a “clean and healthful environment.” This paragraph from the Montana Free Press sure makes us like her. When she moved to Missoula to attend the University of Montana in the ’60s, Ellingson testified, air pollution was

so bad that she couldn’t see Mount Sentinel, the iconic prominence that looms over the campus. She began phoning in reports to the local radio station and joined the group Gals Against Smog and Pollution (GASP), signaling her entrée to environmental activism.

No two ways about it: The Left has way more fun with acronyms.

The court also heard from Nikki Held, the lead plaintiff in the case, who grew up on a ranch in southeast Montana and in middle school helped gather data for a

U.S. Geological Survey (USGS) research project surveying cross sections of Montana’s Powder River, one of the longest undammed waterways in the West, which happens to pass through her family property. That research experience, along with learning about climate change in school, led Held to study environmental science at Colorado College, where she graduated with her bachelor’s degree just a few weeks ago.

Held testified that she had seen firsthand the effects of a changing climate on her family’s ranch, including “wildfires, drought, flooding, more extreme weather events such as windstorm and hail, changes in wildlife behavior,” and pointed out that her family ranch has seen drought and declining snowfall threaten its water supply. She started to discuss how the climate crisis has left her stressed out, but the state objected since that was “speculative,” and Judge Seeley sustained the objection since Held isn’t a climate expert or a psychologist.

The court also heard from expert witness Steven Running, a professor emeritus of ecosystem and conservation science at U of M, who explained the scientific consensus that climate change is real and caused by greenhouse gases, resulting in worldwide effects that include Montana, like, even if Republicans say it’s not allowed to.

“I think Montana and really everywhere else needs to, as rapidly as possible, quit burning fossil fuels,” said Running, who was a member of the Intergovernmental Panel on Climate Change, for which he won the Nobel Peace prize in 2007. “It’s quite straightforward.”

Weirdly, as Running answered questions about a report this year from the IPCC, Mark Stermitz, an attorney for the state, objected that the IPCC report was “hearsay” somehow, a complaint Seeley denied. When he cross-examined Running, Stermitz asked whether Montana can stop climate change all on its own, aha, gotcha! Running agreed that a single state can’t do that, but that Montana could indeed lead wider action:

“What has been shown in history over and over and over again is that when a significant social movement is needed, it’s often been started by one or two or three people,” Running said.

The Guardian did not note whether the state’s attorneys mocked Running by singing “Kumbaya” in falsetto, but you just know they wanted to.

The trial continues today and the rest of the week; you can even watch it online here when court is in session. Not like anything else of interest is going on.

Susan Evans

Also, don’t forget our Wonkette Book Club continues; We’re reading Kim Stanley Robinson’s 2020 climate epic The Ministry for the Future, which is about, among other things, building a legal case for keeping the planet habitable for young people, even the non-plucky ones.

[Guardian/ Montana Free Press / Guardian / Our Children’s Trust / Photo by Nikki Held, provided to Montana Free Press]

Yr Wonkette is funded entirely by reader donations. If you can, please give $5 or $10 monthly so we can keep you up to date on everything, including the young people trying to save humanity from itself.

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US Supreme Court ruling could turbocharge climate lawsuits

A US Supreme Court ruling this week is set to open the floodgates for climate lawsuits against fossil fuel companies that have been blocked for years by jurisdictional disputes. The decision comes on the heels of a bumper year for global climate litigation in 2022 and ahead of major climate rulings expected from international courts in coming months. As environmental disruption intensifies globally, is legal action an effective way to counter the climate crisis?

Justices at the US Supreme Court on Monday turned down appeals from five major oil companies, enabling municipalities to file lawsuits to hold energy companies accountable for climate change. The lawsuits must now be heard in state courts, a venue often seen as more favourable to plaintiffs than federal court

The decision was greeted as good news by environmentalists, after years of administrative wrangling over the cases brought in Rhode Island, California, Colorado, Hawaii and Maryland seeking climate-related damages against Exxon Mobil Corp, Suncor Energy Inc, Chevron Corp and others.

“These lawsuits have been bogged down in jurisdictional disputes because of the fossil fuel industry’s delay tactics,” said Richard Wiles, president of the Washington DC-based Center for Climate Integrity. “Now, thanks to the Supreme Court’s decision, there is a clear path forward. This was a major step forward for communities that have been fighting for years to put oil companies on trial.”

“The decision allows the more than two dozen cases filed in the US against the oil and gas industry to proceed in state courts, closer to where climate impacts are occurring,” added Nikki Reisch, Climate and Energy Program Director at the Center for International Environment Law (CIEL). “It clears the way for aggrieved communities to finally have their day in court.”

A rising tide

In recent years climate litigation has emerged as a new and promising battle ground for environmental protections. Cases in the US (home to the most climate lawsuits of any single nation) will now form part of a “rising tide” of climate litigation around the world, according to Reisch.   

Since 2015, the number of climate lawsuits brought globally has more than doubled. Roughly one-quarter of all climate cases ever brought were filed between 2020 and 2022.

“There is no sign of this trend slowing or stopping. To the contrary, it’s accelerating and expanding,” said Reisch. 

Recent cases have included some “remarkable wins in a very short period of time,” she added.

They include a 2017 lawsuit that saw the first case of a company facing legal charges on climate grounds when judges in Germany accepted a case brought by farmer and mountain guide Saúl Luciano Lliuya accusing German electricity provider, RWE, of causing a rise in greenhouse gases that could trigger devastating floods in his native Peru.

In 2021, judges for the first time ordered a company to emit less CO2 in a landmark ruling by Dutch courts against oil giant Shell.

>> Read more: Shell ordered to go further with carbon emissions cuts in landmark Dutch case

There is a sense that more boundary-pushing rulings are on the horizon. In the Shell case, for instance, judges ruled on the potential for future harm but not on the negative impact of past emissions.

2023: ‘A vanguard year’

The larger rulings help galvanise other, smaller cases and create a snowball effect. The more individual climate cases succeed in the courts, the more they set new legal precedents that allow other climate cases to succeed which the majority do. More than half (54%) of decided non-US cases had an outcome that is “favourable to climate action” a 2022 report from the Grantham Research Institute found.

The stage is set for climate lawsuits in 2023 to break new ground. “It will be a vanguard year for climate litigation, based on all the past successes in the past,” said Louise Fournier, legal counsel at Greenpeace International. “I think we’ll see more and more cases against corporations, not only in Europe or in the US, but also in the Global South.”

Previously, most climate lawsuits were brought before national legal systems, but a new avenue of litigation is opening international courts. In January 2023, Chile and Columbia successfully called for an advisory opinion on the scope of state obligations for responding to the climate emergency at the Inter American Court of Human Rights. In March, landmark cases were brought to the European Court of Human Rights.

Lawyers talk with members from a group of Swiss seniors who are taking their government to court to demand climate action, at the European Court of Human Rights in Strasbourg, France, on Wednesday, March 29, 2023. © Jean-Francois Badias, AP

 

The decisions made in these courts are likely to influence the highest international court. In March 2023, the International Court of Justice (ICJ), agreed to issue its own landmark advisory opinion on climate change obligations of nation states. Environmentalists hope it will contain guidance on “questions of loss, damage and finance and the consequences if you breach those obligations”, according to Fournier.

Such guidance would not only allow plaintiffs around the world to cite ICJ advice in their cases but also “definitely influence climate negotiations and national climate policies”, said Fournier. 

Pushing the boundaries

Increasingly, cases are not just being brought against major polluters, but also against other actors in the environmental sphere: the state, food and agriculture, transport, plastics and finance sectors. There is also an avenue for an increase in cases against individuals that could “create a sense of personal responsibility on decision makers” said Catherine Higham, policy fellow at the Grantham Research Institute on Climate Change and the Environment at the London School of Economics.

One such case has been brought by a group of law students against the board directors of oil multinational BP. Another accuses former Brazilian President Jair Bolsonaro of crimes against humanity for his alleged role in the destruction of the Amazon rainforest.

“Those cases are really pushing the boundaries of what we understand to be possible within existing legal systems,” said Higham. They may also have limited chance of courtroom success, she added, although they can be influential in other ways.

In many instances, climate lawsuit dynamics still have a David vs. Goliath feel. More than 70% of all climate cases are filed by NGOs and individuals often against multinational conglomerates with deep pockets. But the fact that such confrontations are possible – and increasingly successful – is meaningful.

“There is a sense of agency that individuals and groups of people have in bringing cases against major corporations,” said Fournier. “The fact that they can go to court and be on an equal balance-of-power is really monumental.”

Even by simply filing a case the plaintiffs make a statement. “Litigants can generate publicity around it, and they can force the defendants in the case and other stakeholders to engage with them,” explainned Higham. “That can have a real impact on the policy landscape, and how different stakeholders like companies and governments are understanding things like climate risk.”

Changing perceptions and encouraging systemic change is perhaps where climate litigation is most effective. But without long-term plans to tackle climate change caused by humans, legal victories can ring hollow.

“What lawsuits do is highlight gaps in regulatory action. And it is absolutely desirable, from all kinds of perspectives, that we see strong regulatory action coming from government, rather than relying on litigation in the courts,” said Higham. 

“It’s critical that climate cases be part of broader social movements,” added Reisch. “Litigation serves as an important deterrent and a lever to accelerate action, but no lawsuit will solve the climate crisis on its own.”

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These women ran an underground abortion network in the 1960s. Here’s what they fear might happen today | CNN



CNN
 — 

The voice on the phone in 1966 was gruff and abrupt: “Do you want the Chevy, the Cadillac or the Rolls Royce?”

A Chevy abortion would cost about $200, cash in hand, the voice explained. A Cadillac was around $500, and the Rolls Royce was $1,000.

“You can’t afford more than the Chevy? Fine,” the voice growled. “Go to this address at this time. Don’t be late and don’t forget the cash.” The voice disappeared.

Dorie Barron told CNN she recalls staring blankly at the phone in her hand, startled by the sudden empty tone. Then it hit her: She had just arranged an illegal abortion with the Chicago Mafia.

The motel Barron was sent to was in an unfamiliar part of Chicago, a scary “middle of nowhere,” she said. She was told to go to a specific room, sit on the bed and wait. Suddenly three men and a woman came in the door.

“I was petrified. They spoke all of three sentences to me the entire time: ‘Where’s the money?’ ‘Lie back and do as I tell you.’ And finally ‘Get in the bathroom,’” when the abortion was over, Barron said. “Then all of a sudden they were gone.”

Bleeding profusely, Barron managed to find a cab to take her home. When the bleeding didn’t stop, her bed-ridden mother made her go to the hospital.

At 24, Barron was taking care of her ailing mother and her 2-year-old daughter when she discovered she was pregnant. Her boyfriend, who had no job and lived with his parents, “freaked,” said Barron, who appears in a recent HBO documentary. The boyfriend suggested she get an abortion. She had never considered that option.

“But what was I to do? My mom was taking care of my daughter from her bed while I worked — they would read and play games until I got home,” Barron said.”How was either of us going to cope with a baby?

“Looking back, I realize I was taking my life in my hands,” said Barron, now an 81-year-old grandmother. “To this day it gives me chills. If I had died, what in God’s green earth would have happened to my mom and daughter?”

Women in the 1960s endured restrictions relatively unknown to women today. The so-called “fairer sex” could not serve on juries and often could not get an Ivy League education. Women earned about half as much as a man doing the same job and were seldom promoted.

Women could not get a credit card unless they were married — and then only if their husband co-signed. The same applied to birth control — only the married need apply. More experienced women shared a workaround with the uninitiated: “Go to Woolworth, buy a cheap wedding-type ring and wear it to your doctor’s appointment. And don’t forget to smile.”

Marital rape wasn’t legally considered rape. And, of course, women had no legal right to terminate a pregnancy until four states — Alaska, Hawaii, New York and Washington — legalized abortion in 1970, three years before Roe v. Wade became the law of the land.

Illinois had no such protection, said Heather Booth, a lifelong feminist activist and political strategist: “Three people discussing having an abortion in Chicago in 1965 was a conspiracy to commit felony murder.”

Despite that danger, a courageous band of young women — most in their 20’s, some in college, some married with children — banded together in Chicago to create an underground abortion network. The group was officially created in 1969 as the “Abortion Counseling Service of Women’s Liberation.”

But after running ads in an underground newspaper: “Pregnant? Don’t want to be? Call Jane,” each member of the group answered the phone as “Jane.”

Despite their youth, members of Jane managed to run an illegal abortion service dedicated to each woman's needs.
From left: Martha Scott, Jeanne Galatzer-Levy, Abby Pariser, Sheila Smith and Madeline Schwenk.

“We were co-conspirators with the women who called us,” said 75-year-old Laura Kaplan, who published a book about the service in 1997 entitled “The Story of Jane: The Legendary Underground Feminist Abortion Service.”

“We’ll protect you; we hope you’ll protect us,” Kaplan said. “We’ll take care of you; we hope you’ll take care of us.”

What started as referrals to legitimate abortion providers changed to personalized service when some members of Jane learned to safely do the abortions themselves. Between the late 1960s and 1973, the year that the Supreme Court decided Roe v. Wade, Jane had arranged or performed over 11,000 abortions.

“Our culture is always searching for heroes,” said Kaplan. “But you don’t have to be a hero to do extraordinary things. Jane was just ordinary people working together — and look what we could accomplish, which is amazing, right?”

Even after several members were caught and arrested, the group continued to provide abortions for women too poor to travel to states where abortion had been legalized.

“I prayed a lot. I didn’t want to go to jail,” said 80-year-old Marie Learner, who allowed the Janes to perform abortions at her apartment.

“Some of us had little children. Some were the sole breadwinners in their home,” Learner said. “It was fearlessness in the face of overwhelming odds.”

Marie Learner opened her home to women undergoing abortions. Her neighbors knew, she said, but did not tell police.

The story of Jane has been immortalized in Kaplan’s book, numerous print articles, a 2022 movie, “Call Jane,” starring Elizabeth Banks and Sigourney Weaver, and a documentary on HBO (which, like CNN, is owned by Warner Bros. Discovery).

Today the historical tale of Jane has taken on a new significance. After the 2022 Supreme Court reversal of Roe v. Wade and the mid-term takeover of the US House of Representatives by Republicans, emboldened conservative lawmakers and judges have acted on their anti-abortion beliefs.

Currently more than a dozen states have banned or imposed severe restrictions on abortion. Georgia has banned abortions after six weeks, even though women are typically unaware they are pregnant at that stage. In mid-April, Florida Governor Ron DeSantis signed a bill that would ban most abortions after six weeks. It won’t go into effect until the state Supreme Court overturns its previous precedent on abortion. Several other states are considering similar legislation. In other states, judicial battles are underway to protect abortion access.

“It’s a horrific situation right now. People will be harmed, some may even die,” said Booth, who helped birth the Jane movement while in college.

“Women without family support, without the information they need, may be isolated and either harm themselves looking to end an unwanted pregnancy or will be harmed because they went to an unscrupulous and illegal provider,” said Booth, now 77.

A key difference between the 60s and today is medication abortion, which 54% of people in the United States used to end a pregnancy in 2022. Available via prescription and through the mail, use of the drugs is two-fold: A person takes a first pill, mifepristone, to block the hormone needed for a pregnancy to continue.  A day or two later, the patient takes a second drug, misoprostol, which causes the uterus to contract, creating the cramping and bleeding of labor.

In early April a Texas judge, US District Judge Matthew Kacsmaryk – a Trump appointee who has been vocal about his anti-abortion stance — suspended the US Food and Drug Administration’s approval of mifepristone despite 23 years of data showing the drug is safe to use, safer even than penicillin or Viagra.

On Friday, the Supreme Court froze the ruling and a subsequent decision by the Fifth US Circuit Court of Appeals at the request of the Justice Department and the drug manufacturer. The action allows access to mifepristone in states where it’s legal until appeals play out over the months to come.

However, 15 states currently restrict access to medication abortion, even by mail.

The actions of anti-abortion activists, who have been accused of “judge shopping” to get the decisions they want, is “an unprecedented attack on democracy meant to undermine the will of the vast majority of Americans who want this pill — mifepristone — to remain legal and available,” Heather Booth told CNN.

“This is a further weaponization of the courts to brazenly advance the end goal of banning abortion entirely,” she added.

If women in her day could have had access to medications that could be used safely in their homes, they would not have been forced to risk their lives, said Dorie Barron, thinking back to her own terrifying abortion in a sketchy Chicago motel.

“I’m depressed as hell, watching stupid, indifferent men control and destroy women’s lives all over again,” she said. “I really fear getting an abortion could soon be like 1965.”

Chicago college student Heather Booth had just finished a summer working with civil rights activists in Mississippi when she was asked to help with a different kind of injustice.

Heather Booth, 18, with civil rights heroine Fannie Lou Hamer during

A girl in another dorm was considering suicide because she was pregnant. Booth, who excelled at both organization and chutzpah, found a local doctor and negotiated an abortion for the girl. Word spread quickly.

“There were about 100 women a week calling for help, much more than one person could handle,” Booth said. “I recruited about 12 other people and began training them how to do the counseling.”

Counseling was a key part of the new service. This was a time when people “barely spoke about sex, how women’s bodies functioned or even how people got pregnant,” Booth said. To help each woman understand what was going to happen to them, Booth quizzed the abortion provider about every aspect of the procedure.

“What do you do in advance? Will it be painful? How painful? Can you walk afterwards? Do you need someone to be with you to take you home?” The questions continued: “What amount of bleeding is expected, and can a woman handle it on their own? If there’s a problem is there an urgent number they can call?”

Armed with details few if any physicians provided, the counselors at Jane could fully inform each caller about the abortion experience. The group even published a flyer describing the procedure, long before the groundbreaking 1970 book “Our Bodies, Ourselves” began to educate women about their sexuality and health.

“I don’t particularly like doctors because I always feel dissatisfied with the experience,” said Marie Learner, who spoke to many of the women who underwent an abortion at her home.

“But after their abortion at Jane, women told me, ‘Wow, that was the best experience I’ve ever had with people helping me with a medical issue.’”

Eileen Smith, now 73, was one of those women. “Jane made you feel like you were part of this bigger picture, like we were all in this together,” she said. “They helped me do this illegal thing and then they’re calling to make sure I’m OK? Wow!

“For me, it helped battle the feeling that I was a bad person, that ‘What’s wrong with me? Why did I get pregnant? I should know better’ voice in my head,” said Smith. “It was priceless.”

Like many young women in the 60s, Heather Booth often protested for civil and women's rights.

Many of the women who joined Jane had never experienced an abortion. Some viewed the work as political, a part of the burgeoning feminist movement. Others considered the service as simply humanitarian health care. All saw the work as an opportunity to respect each woman’s choice.

“I was a stay-at-home mom with four kids,” said Martha Scott, who is now in her 80s. “We knew the woman needed to feel as though she was in control of what was happening to her. We were making it happen for her, but it was not about us. It was about her.”

Some volunteers, like Dorie Barron, experienced the Jane difference firsthand when she found herself pregnant a few years after her abortion at the hands of the Mafia.

“It was a 100% total reversal — I had never experienced such kindness,” Barron said. Not only did a Jane hold each woman’s hand and explain every step of the process, “they gave each of us a giant supply of maternity sanitary pads, and a nice big handful of antibiotics,” she said. “And for the next week, I got a phone call every other day to see how I was.”

Barron soon began volunteering for Jane by providing pregnancy testing for women in the back of a church in Chicago’s Hyde Park.

“It wasn’t just abortion,” Barron explained. “We also said, ‘You could consider adoption,’ and gave adoption referrals. And if the woman wanted to continue with her pregnancy, we said, ‘Fine, please by all that is holy make sure you get prenatal care, take your vitamins, and eat as best you can.’ It was women helping women with whatever they needed.”

Most of the women who contacted Jane were unable to support themselves, in unhealthy relationships, or already had children at home, so the service was a way of “helping them get back on track,” said Smith, who, like Barron, had begun working for Jane after her abortion.

“We were telling them ‘This isn’t the end of the world. You can continue to leave your boyfriend or your husband or continue to just take care of those kids you have.’ We were there to help them get through this,” said Smith, who later became a homecare nurse.

From left: Eileen Smith, Diane Stevens and Benita Greenfield were three of the dozens of women who volunteered for Jane.

Diane Stevens says she came to work for Jane after experiencing an abortion in 1968 at the age of 19. She was living in California at the time, which provided “therapeutic abortions” if approved in advance by physicians.

“I’d had a birth control failure, and I was coached by Planned Parenthood on how to do this,” said Stevens, now 74. “I had to see two psychiatrists and one doctor and tell them I was not able to go through with the pregnancy because it would a danger to both my physical and mental health.

“I was admitted to the psychiatric ward, although I didn’t really know that — I thought I was just in a hospital bed. But oh no, ‘I was mentally ill,’ so that’s where they put me,” said Stevens, who later went to nursing school with Smith. “Then they wheeled me off for the abortion. I had general anesthesia, was there for two days, and then I was discharged. Isn’t that crazy?”

Sakinah Ahad Shannon, now 75, was one of the few Black women who volunteered as a counselor at Jane. She joined after accompanying a friend who was charged a mere $50 for her abortion. At that time, Jane’s fee was between $1 and $100, based on what the woman could afford to pay, Shannon said.

“When I walked in, I said, ‘Oh my God, here we go again. It’s a room of White women, archangels who are going to save the world,’” said Shannon, a social worker and member of the Congress of Racial Equality, an interracial group of non-violent activists who pioneered “Freedom Rides” and helped organize the March on Washington in 1963.

What she heard and saw at her friend’s counseling session was so impressive it “changed my life,” Shannon said. She and her family later opened and operated three Chicago abortion clinics for over 25 years, all using the Jane philosophy of communication and respect.

“It was a profoundly amazing experience for me,” she said. “I call the Janes my sisters. The color line didn’t matter. We were all taking the same risk.”

Sakinah Ahad Shannon and her daughters went on to open and run three abortion clinics in Chicago.

It wasn’t long before the women discovered a “doctor” performing abortions for Jane had been lying about his credentials. There was no medical degree — in the HBO documentary, he admitted he had honed his skills by assisting an abortion provider.

The group imploded. A number of members quit in horror and dismay. For the women who stayed, it was an epiphany, said Martha Scott. Like her, several of the Janes had been assisting this fake doctor for years, learning the procedures step by step.

“You’d learn how to insert a speculum, then how to swap out the vagina with an antiseptic, then how to give numbing shots around the cervix and then how to dilate the cervix. You learned and mastered each step before you moved on to the next,” said Laura Kaplan, who chronicled the procedure in her book.

By now, several of the Janes were quite experienced and willing to do the work. Why not perform the abortions themselves?

“Clearly, this was an intense responsibility,” said Judith Acana, a 27-year-old high school teacher who joined Jane in 1970. She started her training by helping “long terms,” women who were four or five months along in the pregnancy.

“Remember, abortion was illegal (in Illinois) so it could take weeks for a woman to find help,” said Arcana, now 80. “Frequently women who wanted an abortion at 8 or 10 weeks wound up being 16 or 18 weeks or more by the time they found Jane.”

The miscarriage could happen quickly, but it rarely did, she said. It usually took anywhere from one to two days.

“Women who had no one to help them would come back when contractions started,” Arcana said. “One of my strongest memories is of a teenage girl who had an appointment to have her miscarriage on my living room floor.”

The group also paid two Janes to live in an apartment and be on call 24/7 to assist women who had no one to help them miscarry at home, said Arcana, a lifelong educator, author and poet. “But many women took care of it on their own, in very amazing and impressive and powerful ways,” she said.

Judith Arcana learned how to do abortions herself and wrote about the Jane experience in poems, stories, essays and books.

Any woman who had concerns or questions while miscarrying alone could always call Jane for advice any time of the day or night.

“People would call in a panic: ‘The bleeding won’t stop,’” Smith recalled. “I would tell them, ‘Get some ice, put it on your stomach, elevate your legs, relax.’ And they would say ‘Oh my gosh, thank you!’ because they were so scared.”

For women who were in their first trimester, Jane offered traditional D&C abortions — the same dilation and curettage used by hospitals then and today, said Scott, who performed many of the abortions for Jane. Later the group used vacuum aspiration, which was over in a mere five to 10 minutes.

“Vacuum aspiration was much easier to do, and I think it’s less difficult for the woman,” Scott said. “Abortion is exactly like any other medical procedure. It’s the decision that’s an issue — the doing is very straightforward. This was something a competent, trained person could do.”

It was May 3, 1972. Judith Arcana was the driver that day, responsible for relocating women waiting at what was called “the front” to a separate apartment or house where the abortions were done, known as “the place.”

On this day, a Wednesday, the “place” was a South Shore high-rise apartment. Arcana was escorting a woman who had completed her abortion when they were stopped by police at the elevator.

“They asked us, ‘Which apartment did you come out of?’ And the poor woman burst into tears and blurted out the apartment number,” Arcana said. “They took me downstairs, put cuffs on me and hooked me to a steel hook inside of the police van.”

Inside the apartment on the 11th floor, Martha Scott said she was setting up the bedroom for the next abortion when she heard a knock at the door, followed by screaming: “You can’t come in!”

“I shut the bedroom door and locked it,” Scott said, then hid the instruments and sat on the bed to wait. It wasn’t long until a cop kicked the door in and made her join the other women in the living room.

“We tell this joke about how the cops came in, saw all these women and said, ‘Where’s the abortionist?’ You know, assuming that it would be a man,” Scott said.

By day’s end, seven members of Jane were behind bars: Martha Scott, Diane Stevens, Judy Arcana, Jeanne Galatzer-Levy, Abby Pariser, Sheila Smith and Madeleine Schwenk. Suddenly what had been an underground effort for years was front page headlines.

“Had we not gotten arrested, I think no one would ever have known about Jane other than the women we served,” Scott said.

Top: Sheila Smith and Martha Scott.
Bottom: Diane Stevens and Judith Arcana.

An emergency meeting of Jane was called. The turnout was massive — even women who had not been active in months showed up, anxious to know the extent of the police probe, according to the women with whom CNN spoke.

Despite widespread fear and worry, the group immediately began making alternate plans for women scheduled for abortions at Jane in the next few days to weeks. The group even paid for transportation to other cities where abortion had already been legalized, they said.

News reports over the next few days gave further details of the bust: There was no widespread investigation by the police. It was a single incident, triggered by a call from a sister-in-law who was upset with her relative’s decision to have an abortion, they said.

“It wasn’t long after I was arrested that I came back and worked for quite a few months,” said Scott, one of the few fully trained to do abortions.

“I like to think I was a good soldier,” Scott said. “I like to think what did made a difference not only to a whole bunch of people, but also to ourselves. It gave us a sense of empowerment that comes when you do something that is hard to do and also right.”

As paranoia eased, women began to come back to work at Jane, determined to carry on.

“After the bust, we had a meeting and were told ‘Everybody needs to start assisting and learn how to do abortions.’ I was like, ‘Whoa, whoa, whoa!’” said Eileen Smith, who had not been arrested. “But you felt like you really didn’t have much of a choice. We had to keep the service running.”

Laura Kaplan volunteered for the Janes, later immortalizing the group in her book,

The preliminary hearing for the arrested seven was in August. Several of the women in the apartment waiting for abortions the day of the arrest suddenly developed amnesia and refused to testify. According to Kaplan’s book, one of the women later said, “The cops tried to push me around, but f**k them. I wasn’t going to tell on you.”

It didn’t matter. Each Jane was charged with 11 counts of abortion and conspiracy to commit abortion, with a possible sentence of up to 110 years in prison.

As they waited for trial, the lawyer for the seven, Jo-Anne Wolfson, adopted delaying tactics, Kaplan said. A case representing a Texas woman, cited as “Jane Roe” to protect her privacy, was being considered by the US Supreme Court. If the Court ruled in Roe’s favor, the case against the Jane’s might be thrown out.

That’s exactly what happened. On March 9, 1973, three months after the Supreme Court had legalized abortion in the US, the case against the seven women was dropped and their arrest records were expunged.

Later that spring, a majority of Janes, burned out by the intensity of the work over the last few years, voted to close shop. An end of Jane party was held on May 20. According to Kaplan’s book, the invitation read:

“You are cordially invited to attend The First, Last and Only Curette Caper; the Grand Finale of the Abortion Counseling Service. RSVP: Call Jane.”

Today, most of the surviving members of Jane are in their 70s and 80s, shocked but somehow not surprised by the actions of abortion opponents.

“This is a country of ill-educated politicos who know nothing about women’s bodies, nor do they care,” said Dorie Barron. “It will take generations to even begin to undo the devastating harm to women’s rights.”

In the meantime, women should research all available options, keep that information confidential, seek support from groups working for abortion rights, and “share your education with as many women as you can,” Barron added.

As more and more reproductive freedoms have been rolled back over the past year, many of the Janes are angry and fearful for the future.

Abortion rights demonstrators walk across the Brooklyn Bridge in New York nearly two weeks after the leak of a draft Supreme Court opinion that would overturn Roe v. Wade.

“This is about the most intimate decision of our lives — when, whether and with whom we have a child. Everyone should have the ability to make decisions about our own lives, bodies, and futures without political interference,” said Heather Booth, who has spent her life after leaving Jane fighting for civil and women’s rights.

“We need to organize, raise our voices and our votes, and overturn this attack on our freedom and our lives. I have seen that when we take action and organize we can change the world.”

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U.S. Supreme Court temporarily blocks restrictions on abortion pill

The Supreme Court said on April 14 it was temporarily keeping in place federal rules for use of an abortion drug, while it takes time to more fully consider the issues raised in a court challenge.

In an order signed by Justice Samuel Alito, the court put a five-day pause on the fast-moving case so the justices can decide whether lower court rulings restricting the Food and Drug Administration’s approval of the drug, mifepristone, should be allowed to take effect in the short term.

The justices are being asked at this point only to determine what parts of an April 7 ruling by U.S. District Judge Matthew Kacsmaryk in Texas, as modified by an appellate ruling on Wednesday, can be in force while the case continues. The order expires late Wednesday, suggesting the court will decide that issue by then.

The court finds itself immersed in a new fight involving abortion less than a year after conservative justices reversed Roe v. Wade and allowed more than a dozen States to effectively ban abortion outright.

President Joe Biden’s administration and New York-based Danco Laboratories, the maker of the pill, asked the justices to intervene.

White House press secretary Karine Jean-Pierre said in a statement on Friday evening that the administration continues “to stand by FDA’s evidence-based approval of mifepristone, and we will continue to support the FDA’s independent, expert authority to review, approve, and regulate a wide range of prescription drugs”.

She added, “The stakes of this fight could not be higher in the face of ongoing attacks on women’s health, and we will continue to fight to restore the protections of Roe v. Wade.”

A flag that reads “my body, my choice,” flutters in the wind across the street from Florida Capitol where the House voted to ban abortions after six weeks on Thursday, April 13, 2023 in Tallahassee.
| Photo Credit:
AP

A lawyer for the anti-abortion doctors and medical organisations suing over mifepristone said the court’s action on Friday was “standard operating procedure” and urged the justices to allow the appeals court-ordered changes to take effect by the middle of next week.

The type of order issued by the court on Friday, an administrative stay, ordinarily is not an indication of what the justices will do going forward. It was signed by Justice Alito because he handles emergency filings from Texas. Justice Alito also is the author of last year’s opinion overturning Roe v. Wade.

The Justice Department and Danco both warned of “regulatory chaos” and harm to women if the high court doesn’t block the lower-court rulings that had the effect of tightening FDA rules under which the drug, mifepristone, can be prescribed and dispensed.

The new limits would have taken effect on Saturday if the court hadn’t acted.

“This application concerns unprecedented lower court orders countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone,” Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, wrote on Friday, less than two days after the appellate ruling.

The Biden administration and Danco now want a more lasting order that would keep the current rules in place as long as the legal fight over mifepristone continues. As a fallback, they asked the court to take up the issue, hear arguments and decide by early summer a legal challenge to mifepristone that anti-abortion doctors and medical organisations filed last year.


ALSO READ | A history of the discourse around abortion in the U.S. 

The court rarely acts so quickly to grant full review of cases before at least one appeals court has thoroughly examined the legal issues involved.

A ruling from the 5th U.S. Circuit Court of Appeals late on Wednesday would prevent the pill, used in the most common abortion method, from being mailed or prescribed without an in-person visit to a doctor. It also would withdraw the Food and Drug Administration’s approval of mifepristone for use beyond the seventh week of pregnancy. The FDA says it’s safe through 10 weeks.

Still, the appeals court did not entirely withdraw FDA approval of mifepristone while the fight over it continues. The 5th circuit narrowed an April 7 ruling by U.S. District Judge Matthew Kacsmaryk, whose far-reaching and virtually unprecedented order would have blocked FDA approval of the pill. He gave the administration a week to appeal.

“To the government’s knowledge, this is the first time any court has abrogated FDA’s conditions on a drug’s approval based on a disagreement with the agency’s judgment about safety — much less done so after those conditions have been in effect for years,” Ms. Prelogar wrote.

Erin Hawley, a lawyer for the challengers, said in a statement that the FDA has put politics ahead of health concerns in its actions on medication abortion.

“The 5th Circuit rightly required the agency to prioritize women’s health by restoring critical safeguards, and we’ll urge the Supreme Court to keep that accountability in place,” said Ms. Hawley, a senior counsel with Alliance Defending Freedom, a conservative legal group that also argued to overturn Roe v. Wade.

File photo of protestors, upset with the U.S. Supreme Court’s overturning of Roe v. Wade, gather on the Idaho Capitol steps, Friday, June 24, 2022 after marching through Downtown Boise.

File photo of protestors, upset with the U.S. Supreme Court’s overturning of Roe v. Wade, gather on the Idaho Capitol steps, Friday, June 24, 2022 after marching through Downtown Boise.
| Photo Credit:
AP

Mifepristone was approved by the FDA more than two decades ago and is used in combination with a second drug, misoprostol.

Adding to the uncertainty, a separate federal judge in Washington on Thursday clarified his own order from last week to make clear that the FDA is not to do anything that might block mifepristone’s availability in 17 Democrat-led States suing to keep it on the market.

It’s unclear how the FDA can comply with court orders in both cases, a situation that Ms. Prelogar described on Friday as untenable.

Health and Human Services Secretary Xavier Becerra, in a statement Friday night, said the April 7 ruling out of Texas poses “an existential threat to the FDA’s authority to review and approve a wide range of drugs. If it stands, no medicine approved by the FDA would be safe from these attacks”.

Use of medication abortion jumped significantly after the FDA’s 2016 rule expansion, according to data gathered by the Guttmacher Institute, a research group that supports abortion rights. In 2017, medication abortion accounted for 39% percent of abortions, but by 2020 it had increased to become the most common method, accounting for 53% of all abortions.

Experts have said the use of medication abortion has increased since the court overturned Roe.

When the drug was initially approved, the FDA limited its use to up to seven weeks of pregnancy. It also required three in-person office visits: the first to administer mifepristone, the next to administer the second drug, misoprostol, and the third to address any complications. It also required a doctor’s supervision and a reporting system for any serious consequences of the drug.

If the appeals court’s action stands, those would again be the terms under which mifepristone could be dispensed for now.

At the core of the Texas lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because the agency did not adequately review safety risks.

Mifepristone has been used by millions of women over the past 23 years. While less drastic than completely overturning the drug’s approval, the latest ruling still represents a stark challenge to the FDA’s authority overseeing how prescription drugs are used in the U.S. The ruling late Wednesday overturned multiple decisions made by FDA regulators after years of scientific review.

Common side effects with mifepristone include cramping, bleeding, nausea, headache and diarrhea. In rare cases, women can experience excess bleeding that requires surgery to stop.

Still, in loosening restrictions on mifepristone, FDA regulators cited “exceedingly low rates of serious adverse events.”

More than 5.6 million women in the U.S. had used the drug as of June 2022, according to the FDA. In that period, the agency received 4,200 reports of complications in women, or less than one tenth of 1% of women who took the drug.

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