We are at a crucial crossroads in 2024— nearly two years after the overturn of Roe. Abortion is front and center at both the federal and state levels.

The anticipation of the pro-abortion and pro-life sides of new laws is frenzied. The legal developments change daily and over just the past several weeks take our breath away.

Mifepristone: The Abortion Pill Case
SCOTUS Hears Oral Arguments March 26 

CFL has kept you apprised and requested your prayers in one of the most closely watched, consequential U.S. Supreme Court cases of the term. Alliance Defending Freedom originally filed the lawsuit in 2022 on behalf of a group of doctors and pro-life organizations.

The outcome of this case is critical as it could significantly limit the availability of the chemical abortion drug Mifepristone which would save countless babies from death and mothers from the harm of abortion.

Last Fall, SCOTUS granted certiorari in the dual petitions of U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine. The High Court is considering the Fifth Circuit U.S. Court of Appeal’s ruling that the FDA violated the law by removing safeguards in 2016 and 2021 necessary to protect the health of women relating to the use of Mifepristone.

The abortion pill is the game changer since the overturn of Roe. Even in states like Texas where abortion is banned, women can easily access abortion pills online. Chemical abortions now account for more than 80% of all abortions in the U.S. 

(i) SCOTUS focuses on “Standing”

U.S. Solicitor General Elizabeth Prelogar argues on behalf of the FDA. (William Hennessy)

 

On March 26, SCOTUS heard oral arguments. (Read transcript HERE and listen to oral arguments HERE) But before even turning to the merits, the Justices were largely fixated on the question of whether the doctors who brought the case against the FDA had standing under Article III of the U.S. Constitution: Have the doctors suffered or will they imminently suffer harm that is traceable to the allegedly unlawful actions of the FDA entitling them to have a court rule favorably upon the merits?

Representing the FDA, Department of Justice Solicitor General Elizabeth Prelogar asserted at the outset of oral arguments that the doctors lack standing. She argued that there was no “imminent harm” faced by the doctors asserting “conscience injuries” and their “theories [of harm] rest on a long chain of remote contingencies” with “no basis to conclude that any of that would be traceable to the incremental changes that the FDA made in 2016 and 2021” and “are too attenuated as a matter of law.”

Alliance Defending Freedom Attorney Erin Hawley argued on behalf of the doctors that their standing is grounded in their constitutional rights not to be coerced into participating in abortion. Because Mifepristone often leads to dangerous complications requiring medical intervention, many women arrive in an emergency room with excessive bleeding and an incomplete abortion. The doctors are then forced to manage the “abortion drug harm,” therefore “violating their conscience.”

(ii) The Comstock Act

There was also discussion during oral arguments about another issue central to this case dealing with interstate commerce— the applicability of the Comstock Act. The Comstock Act is an 1873 federal law intended to encourage moral virtue that prohibits the mailing of “[e]very article or thing designed, adapted, or intended for producing abortion…”

ADF Attorney Hawley asserted that the plain text of the Comstock Act clearly prohibits the mailing of chemical abortion pills. She concluded the FDA had therefore violated federal law when in 2021 it lifted the Risk Evaluation and Mitigation Strategy (REMS) requirement that providers dispense the drug in person, allowing it to be delivered by mail. Solicitor General Prelogar argued the irrelevancy of the Comstock Act because the FDA is only permitted to consider safety and efficacy concerns for REMS restrictions.

(iii) Where From Here?

In the aftermath of oral arguments, legal commentators concluded that a majority of Justices seem to be strongly leaning in their belief that the doctors did not have standing and therefore the Court will never even rule on the abortion pill and the FDA’s responsibility. (See SCOTUS Blog article HERE) and Albert Mohler – The Briefing HERE)

We will have to wait likely until this June for a ruling from SCOTUS.


In Huge Win for Life, Florida Supreme Court Rules Against Planned Parenthood Resulting in 6-Week Abortion Ban

But in Simultaneous Major Set Back, the Court Allows a Constitutional Challenge to Abortion
on the November Ballot

Two weeks ago, the Florida Supreme Court ruled in a case brought by Planned Parenthood that the privacy protections in their State Constitution do not extend to abortion. (See Florida Supreme Court’s Opinion HERE) As a result of the ruling, a Florida law prohibiting abortion after 15 weeks gestation can take effect which in turn triggered a law prohibiting abortion after six weeks gestation to take effect.

However, in a simultaneous, separate decision the Justices ruled that an initiative to codify abortion as a state constitutional right “before viability” can be placed on the November ballot. (See Florida Supreme Court’s Opinion HERE)

The proposed constitutional amendment is sponsored by Floridians Protecting Freedom, a political committee supported by the Florida Alliance of Planned Parenthood Affiliates, the American Civil Liberties Union and other extreme abortion rights groups.

Florida Attorney General Ashley Moody and other pro-life officials have criticized the amendment language as misleading and confusing to voters because it does not define terms such as “viability,” “health” or “healthcare provider.” A healthcare provider could be broadly defined as any abortion clinic worker or even a mental health counselor.

“No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.” (See Amendment HERE)

A 60% supermajority of voters is required for the amendment to pass.

(See Washington Post article HERE, Florida’s Voice article HERE, New York Times article HERE and Live Action article HERE)

President Biden Reacts to Florida Supreme Court Ruling Immediately 

The day after the Florida Supreme Court upheld the state’s abortion ban laws, President Biden released a statement against the ruling (See White House Statement HERE) and launched a 30-second television ad on abortion to be aired in Florida and across the country (See Florida Phoenix article HERE and television ad below)


Arizona Supreme Court Decision Another Pro-Life Victory Last Week

Last Tuesday, one week after the Florida Supreme Court’s decision, the Arizona Supreme Court upheld a 160 year-old abortion ban law in another lawsuit brought by Planned Parenthood. The 1864 law had been blocked since the U.S. Supreme Court’s 1973 Roe v. Wade decision creating a federal constitutional right to abortion nationwide. The court ruled to lift a stay on the law, and it will go into effect in 14 days. (See Arizona Supreme Court Opinion HERE and USA Today article HERE)

The Biden campaign swiftly responded last Thursday to the Arizona decision by launching another new ad campaign on the abortion issue. Watch the 30-second, multi-million dollar “Power Back” blitz ad below.

A third ad was created featuring the testimony of Amanda Zurawski, the Texas woman who sued the State of Texas claiming she was denied care under the state’s abortion ban following a miscarriage. (See Council for Life News article HERE and The Hill article HERE)

Vice President Kamala Harris traveled to Arizona last Friday to speak on reproductive rights. (See CNN article HERE)


2024 State Abortion Ballot Measures 

Ballot measures are being proposed to enshrine or restrict abortion access in state constitutions across the country. (See Guardian article HERE and Washington Post article HERE)

Seven states voted resoundingly to protect or restore access to abortion in 2023. (See AP article HERE and New York Times article HERE) The map below reflects that in 2024, abortion is in play in at least 13 state constitutions:

  • New York, Maryland and Florida have ballot measures to protect abortion access.
  • Montana, South Dakota, Nevada, Arizona, Missouri and Arkansas possibly will have measures to protect abortion access.
  • Pennsylvania and Iowa possibly will have measures to restrict abortion access.
  • Colorado and Nebraska possibly will have measures to restrict AND protect abortion access.


Thank You for Joining Us in Prayer

Thank you for joining Council for Life in our continued prayers for our Beneficiaries who boldly and bravely support the protection of women and unborn babies.

We pray for the transformation of our culture to welcome, cherish and defend God’s most precious gift of life.