Were skeptical

Justices were skeptical of abortion pills arguments. Anti-abortion groups have backup plans.

Supreme Court case is one of many tools elected officials and activists are using to try to cut off access to the drugs.

By ALICE MIRANDA OLLSTEIN

Anti-abortion activists and elected officials have a backup plan should the Supreme Court reject their arguments for nationwide restrictions on the abortion pill mifepristone. In fact, they have several.

The lawsuit that went before the high court Tuesday challenging federal regulation of abortion pills is just one piece of the movement’s strategy to curb access to the drugs — a conservative goal since before Roe fell and the medication gained popularity. The sprawling and loosely-coordinated tactics include other legal challenges in state and federal courts, state and federal legislation, executive orders, pressure campaigns against pharmacies that dispense the pills, and the use of environmental and wildlife laws.

These strategies are likely to take on greater importance after the Supreme Court’s skeptical reception of a challenge to FDA decisions loosening access to abortion pills. During oral arguments, Justices Neil Gorsuch and Amy Coney Barrett — two pivotal votes in the case — expressed doubts about the harms anti-abortion physicians claimed they’ve faced when treating patients who have taken abortion pills and needed follow-up care. The two justices also questioned whether curtailing access to the drug nationwide would be an overly broad remedy.

“We’re not putting all our chips on this one case,” said Jesse Southerland, the federal policy director for Americans United for Life. “Since chemical abortion is making up the majority of abortions, it has to be a priority.”

Some of the movement’s other plans depend on former President Donald Trump returning to the White House in 2025. Others depend on Republicans winning majorities in the House and Senate. But some can advance regardless of the outcome in November — leaning on GOP state attorneys general, right-leaning judges and the grassroots pressure that abortion opponents credit for gradually eroding Roe’s protections over the last 50 years.

On Tuesday, for example, the anti-abortion group Students for Life of America held simultaneous protests outside the Supreme Court and outside the headquarters of Walgreens in Chicago — part of a bigger campaign to boycott and picket the pharmacy chains that have agreed to dispense mifepristone in some states. The group is also trying to use wastewater, endangered species and other environmental laws to argue for restrictions on mifepristone and have petitioned the EPA to investigate the impact of people taking the pills at home and flushing their abortions down the toilet. If the agency rejects or ignores the petitions, and it is expected to do so, Students for Life will sue.

“The Supreme Court case is not the hook that we’re hanging our whole strategy on,” said Kristi Hamrick, the spokesperson for Students for Life of America. “Clearly chemical abortion is the wave of the future, and it’s a tidal wave destroying so much life.”

2025 and beyond

Students for Life is also part of a coalition of more than 100 conservative organizations, led by the Heritage Foundation, preparing executive actions for a potential second Trump administration.

Heritage’s Project 2025 manifesto suggests many ways to “institutionalize the post-Dobbs environment,” including directing the FDA to rescind its two-decade old approval of mifepristone. Should there be delays on that front, the coalition urges the interim step of moving to “eliminate dangerous tele-abortion and abortion-by-mail distribution” — essentially having a potential Trump administration do what the Supreme Court might not.

The document also alludes to but doesn’t name the 150-year-old Comstock Act — a long dormant federal law that bans mail delivery of any “lewd or lascivious material,” including any “instrument, substance, drug, medicine, or thing” that could be used for an abortion. Though Project 2025 calls only for the enforcement of “long-standing federal laws that prohibit the mailing and interstate carriage of abortion drugs,” legal experts say the policy would also cut off access to medical equipment used for both surgical abortions and other medical procedures — creating not only a de facto national ban but also potential disruptions for routine care.

Democrats and abortion-rights activists see Comstock and the other executive actions outlined in Project 2025 as some of the biggest looming threats, and are working to make the plans a leading example of the stakes in the November election.

“Trump’s close advisers and allies have publicly released a comprehensive strategy to rip away access to reproductive health care, including banning medication abortion and restricting access to contraception, without the help of Congress,” Biden campaign manager Julie Chavez Rodriguez told reporters on Monday. “They have a literal blueprint to expand the chaos and cruelty he’s already created nationwide — even in states where abortion remains legal.”

The Trump campaign did not respond to a request for comment, and while the former president has recently angered anti-abortion groups pledging to compromise with Democrats on the issue if elected, he has also boasted about appointing the justices who overturned Roe and floated support for a national ban at 15 or 16 weeks of pregnancy.

Action in Congress and state capitals

Whether Trump wins in November, anti-abortion groups are also pursuing state-level restrictions on the pills through both legislation and legal action by GOP attorneys general.

Fourteen states have near-total bans on abortion — including medication abortion — and a dozen more ban telehealth prescriptions of the pills or place other restrictions on their use. Americans United for Life and other anti-abortion groups are drafting model legislation for additional states they hope will join those ranks, including policies like ultrasound requirements, mandatory waiting periods, and specific scripts doctors are required to read to patients seeking the pills.

“It is clear the States can no longer rely on the FDA to regulate chemical abortions,” argued one policy paper AUL developed along with Students for Life, Susan B. Anthony Pro-Life America and other influential groups. “Thus, lawmakers must incorporate safeguards into state law.”

The Republican members of Congress who urged the Supreme Court to impose restrictions on the drugs in an amicus brief also hope to take matters into their own hands should they hold the House majority and flip the Senate in November.

One GOP bill endorsed by AUL and several other anti-abortion groups would force the FDA to do what challengers asked of the Supreme Court — reimpose the original restrictions on mifepristone and ban mail delivery and telemedicine prescription of the drug. It would also go further by barring the FDA from approving abortion pills developed in the future.

Another bill would prohibit public colleges and universities from stocking mifepristone — a rebuke to California and other states that require the pills be available to students on those campuses — and another would simply ban the pills nationwide.

Even without a filibuster-proof majority, Republicans could try to push these policies by attaching them to must-pass spending bills. That strategy failed this year with President Joe Biden in the White House, but it could have more luck in a second Trump administration, especially if Republicans control the Senate.

“We need to be doing more,” Rep. Chris Smith (R-N.J.), who leads the House’s Pro-Life Caucus, told POLITICO. “Dobbs, in my opinion, began the national debate on abortion. It didn’t end it.”

Democrats and abortion-rights advocates, well aware of conservatives’ efforts to target abortion pills, are making contingency plans.

A growing number of blue states are passing “shield laws” protecting doctors from prosecution or subpoenas if they prescribe mifepristone to a patient in a red state via telemedicine, and several have also stockpiled misoprostol — the second drug in the two-pill regimen in case mifepristone is cut off. Studies show misoprostol is effective for ending pregnancies when taken alone, though it comes with a higher risk of complications and side effects than when the two drugs are taken together.

“It’s effectively an insurance plan,” said Julia Spiegel, the senior adviser and deputy legal affairs secretary for California Gov. Gavin Newsom, who secured 250,000 misoprostol pills and negotiated the purchase of up to two million additional doses. “We want our residents to know that whatever the Supreme Court does, abortion medication will be available to them.”

Underground activist networks that source mifepristone from outside the U.S. and mail it in discreet packaging to people who live in states with bans have also greatly expanded since Roe was overturned.

A group of 18 Democratic attorneys generals is also suing the FDA, arguing that the agency should drop all remaining restrictions on mifepristone and allow the drug to be prescribed and dispensed like any other prescription medication. Oregon Attorney General Ellen Rosenblum, one of the leaders of that effort, said in an interview in Washington, D.C., following Tuesday’s Supreme Court arguments that their case could potentially shield member states from whatever restrictions on abortion pills the Supreme Court orders.

“We’ve created kind of a safe space,” she said. And if the Supreme Court sides with the FDA and upholds the current rules for the pills, they can keep fighting for broader access.

Still, she said progressives need to remain vigilant.

“It’s scary because you know that tomorrow there’s going to be some other newfangled theory that changes things up, so we just have to be ready,” said Rosenblum. “We’re always thinking: What’s next? When’s the next shoe going to drop?”