In addition to the U.S. Supreme Court’s terrible and anti-democratic ruling that nearly mooted the last remaining bulwark of the Voting Rights Act, a lower federal court last week ruled anti-democratically and devastatingly against reproductive rights—a ruling that would make medication abortion inaccessible via telehealth, despite a complete lack of data to support this move.
In a less well-reported case, a state appellate court in Pennsylvania held that the state’s ban on Medicaid funding for abortion services violated the state constitution—because it violated the Pennsylvania Equal Rights Amendment, i.e., constituted a form of sex discrimination, and because it violated the state’s Equal Protection Clause, treating people with health insurance through the Medicaid program who sought abortions differently people with Medicaid-based insurance who sought medical services other than abortion. This latter argument worked because the majority of judges on the Pennsylvania Commonwealth Court also found that there was a fundamental right to reproductive autonomy under the state constitution.
This is the latest chapter in a long-running and, for repro advocates, must-watch drama of evolving legal doctrine and reproductive politics in Pennsylvania. (See my earlier writing from the New York Review of Books.)
While the dust settles on the Pennsylvania court decision, and the leading company that produces the drug mifepristone, used in medication abortion, appeals to the Supreme Court to stay the Fifth Circuit’s ruling that will otherwise make the drug dramatically less accessible than it is today [UPDATE: The Court did grant a temporary stay], I thought it was a good time to add some historical perspective on the issues here.
FIRST, FOR ANYONE WHO DOESN’T YET KNOW, mifepristone is itself something of a blast from the past—and in a saner world, I think the debate over it would lie in the dustbin of history. French researchers developed the drug, under the name RU-486, in the middle 1980s. It, in combination with a second drug, misoprostol, was approved for use in France in 1988 (under the Socialist Mitterrand government).
The United States could have followed the French path. Our predecessors could have transformed the politics of reproductive health care, not to say the politics of health care in general. They could have done what the Mitterrand government did and supported research into the efficacy and safety of these new drugs, and then made them available at low or no cost to people who had come to conclude that they wanted or needed to end their pregnancies—with whatever medical supervision would make this a safe alternative.
