The New Mifepristone Case Argues that Teen Pregnancy Is Good for States  

This commentary is a repost from “Sex on Wednesdays” by Martha Kempner on Substack. Find her other articles on The Queen Zone here.

The latest attempt to use the courts to get rid of mifepristone comes with the most stunningly asinine anti-abortion argument we may ever hear. In an amended lawsuit against the FDA, the attorneys general of Idaho, Kansas, and Missouri argue that access to mifepristone is bad for the states’ populations, economies, and political representation because it keeps the birth rate among 15–19-year-olds low.

You read that right. The AGs are arguing that mifepristone is bad because teen pregnancy is good.

This about-face on teen birth—all three of these states spent millions on far right abstinence-only programs in the name of preventing teen pregnancy—requires a kind of mental gymnastics that is hard to follow. Perhaps it will help to review how we got here.

(Spoiler alert: it won’t help. One has to stick one’s head so far up their own ass to concoct this pro-teen-pregnancy rationale that no amount of explaining will make it make sense. But allow me to try.)

Faux Group Files Case

The case was first brought by a group calling themselves the Alliance for Hippocratic Medicine. This loose affiliation of far-right doctors claimed they were harmed by the very existence of mifepristone because someday one of them just might have to treat a woman who had taken the abortion medication and was experiencing complications. (Mind you, this was all hypothetical as none of them could point to a case in which this had happened.)  

Much of that original filing was based on the false premise that mifepristone was unsafe, and that the FDA had failed to properly vet the medication. Portions of it seemed to suggest a Clinton-era conspiracy to approve the drug.

The case asked the court to rescind the FDA’s 20-plus-year-old approval and overturn Biden Administration rules that made the drug easier to get. It was strategically filed in Amarillo, Texas because rules in that district make it easy for conservative groups to ensure that they come in front of Judge Matthew Kacsmaryk. The Trump appointee and former “religious liberty lawyer” seems primed to overlook little things like legal standing and medical science.

Kacsmaryk agreed that the FDA’s approval of mifepristone should be overturned. He also said that allowing people to get mail-order mifepristone violated the Comstock Act of 1873 which prevented people from accessing porn, contraception, and abortion. 

The case was immediately appealed to the Fifth Circuit Court of Appeals (which is known to be nearly as cuckoo-bananas Kacsmaryk). It ruled that it was too late to overturn the FDA’s approval of mifepristone, but agreed that Biden’s new rules should be overturned because they violated the Comstock Act. (The 150+ year-old-act remains on the books but hasn’t been acted upon in multiple decades.)

SCOTUS Punts 

The Supreme Court took the case and issued a purely procedural decision saying that Alliance for Hippocratic Medicine did not have standing to bring the suit in the first place. Technically our legal system requires someone to prove that they’ve been personally hurt by a law before they sue to overturn said law. Kacsmaryk has never much cared for that rule (as evidenced by the parental consent case against Texas’s Title X program in which he allowed a father to sue the program because he had children who might possibly someday ask a clinic in the state for contraception).

SCOTUS cared. Justice Brett Kavanaugh wrote a decision that touched on none of the issues at hand—like whether mifepristone was safe, or the Comstock Act could still apply. It simply said Alliance for Hippocratic Medicine didn’t have standing to sue leaving the door wide-open for another plaintiff to revive the case.

Those plaintiffs—or Plaintiff States as they’re called in the brief—were already poised to step in just in case. Before the Supreme Court decision was handed down, Judge Kacsmaryk granted the three states permission to intervene in the case. States have been found to have an interest in regulating abortion in the past, so this could be an easier sell if the case ever makes it back to SCOTUS.

New Case, Same Stupid S**t

As expected, the three attorneys general filed an amended lawsuit earlier this month. Given the Fifth Circuit’s decision, this version does not ask to overturn the FDA’s original approval of mifepristone. Instead, it focuses on rolling back the newer rules. If successful, Mifepristone would only be approved through seven weeks of pregnancy (as opposed to 10), would not be available through the mail, and women would once again be required to have three in-person visits with a provider.

The lawsuit includes the same old bogus arguments about the drug’s safety. In truth, mifepristone has been proven to be safer than many medications on the market including Viagra and Tylenol. Moreover, two of the studies cited in the original brief have since been retracted by the publisher.

As for standing, the AGs argue that their states’ sovereign laws which prevent or strictly regulate abortion are undermined by the availability of mail order abortion pills. If a woman isn’t forced to get her abortion in person in Idaho, for example, she can’t receive Idaho’s mandatory written material that falsely tells her medication abortions can be reversed. Similarly, if she gets it from a provider outside of Missouri, she won’t be subjected to the state’s patriarchal “are-you-really-sure-little-lady?” 24-hour waiting period. According to the suit, the three states have, therefore, “suffered injury to their sovereign interests in enacting and enforcing their laws.”

I think their laws are terrible, and I want someone to interfere in their sovereign interests to enforce them, but I can at least follow this logic. It goes downhill from there.

And Some Even Stupider S**t

The states argue that their Medicaid expenditures will go up because of the cost of caring for women who take this drug that’s safer than Tylenol. (Remember, SCOTUS ruled that the original conservative doctor plaintiffs didn’t have standing, in part, because none of them could point to a single instance in which they had to treat a patient suffering complications.) Then they throw in the cost of paying for mental health care for all those women suffering from their Mifepristone abortion. (C. Everett Koop, who staunchly opposed to abortion but was unwilling to lie, told us that post-abortion stress disorder didn’t exist way back in the Reagan administration. It still doesn’t.) And then they hit the motherlode (word choice intended) of ridiculousness, arguing that the state suffers economically and politically when pregnant teens don’t give birth.

The explanation starts off simple: every abortion represents a potential loss of population, making mifepristone easier to get means more abortions, more abortions mean fewer Idahoans, Kansans, and Missourians, and fewer Idahoans, Kansans, and Missourians means less federal money and less representation in Congress. I can follow this logic. I don’t agree with it, but I get it. Hell, back in the day I could probably have turned it into a proof (as I’ve mentioned before, I loved my symbolic logic class in college).

Where they lose me, is when—or more importantly why—they start focusing on abortions among teens 15-19. It seems to have something to do with research on post-Dobbs birth rates, young people’s willingness to drive further for in-person abortions, and the likelihood that young people are more comfortable getting mifepristone through online sources than older women.

Essentially, the lawsuit blames mail-order mifepristone for “depressing the expected birth rates for teenaged mothers in Plaintiff States” and goes on to say:

A loss of potential population causes further injuries as well: the States subsequent “diminishment of political representation” and “loss of federal funds,” such as potentially “losing a seat in Congress or qualifying for less federal funding if their populations are” reduced or their increase diminished.  

As I said, I stopped following their logic a while back, but it certainly appears that they’re arguing in favor 15- to 19-year-olds having babies. Arguing that more births is good for the states is one thing, arguing that more births among teenagers is good for the states is another, especially because states have spent decades vilifying teen moms for being a drain on the welfare system.

Decades of Hypocrisy

Back in the late 1990s and early 2000s, the three Plaintiff states were among those who spent a lot of money (their own and the federal government’s) on programs telling teens that pre-marital sex was bad. The programs were based on conservative ideology and barely concealed their religious undertones, but they were presented as teen pregnancy prevention.

In fact, the original Title V federal funding stream for abstinence-only-until-marriage programs was part of the 1996 Welfare Reform Act. It was sold as saving states money by preventing young and poor women—and especially young, poor women—from having babies that the states would have to support. (For those who don’t remember, the debate over that law was as racist and misogynistic as you’d imagine it would be.)

Which is it? Is teen birth bad or necessary? Are teen moms draining welfare systems or boosting political power?  

Before you say that it’s a legitimate change of opinion over 30 years. Idaho and Missouri still get Title V abstinence money, though it has been rebranded Sexual Risk Avoidance Education. Schools in Idaho don’t have to teach sex education, but if they do, they must encourage abstinence and include instruction on the “consequences of sexual activity.” (Hint: teen pregnancy is high on that list.) In Missouri kids must learn that “abstinence is the preferred behavior.” (They don’t say preferred by whom, but I’m guessing that teenagers themselves were not asked to weigh in.)

The amended lawsuit does not represent a radical change of heart. Rest assured the AGs will be quick to vilify teen parents the next time it’s political convenient. I think this comes down to throwing all conceivable (word choice again intended) arguments as to why these states have standing to get rid of mifepristone against the wall, and seeing which one will stick.

Let’s Keep Them Knocked Up

In the court of public opinion this argument rightfully plays as bats**t crazy.  It has spawned some pretty fun headlines from “Republican Attorneys General to Court: We Demand More Pregnant Teens” to “These red states say teens should be forced to have babies so the states don’t lose congressional seats,” to “GOP AGs Argue States Have Compelling Interest In Getting Teen Girls Pregnant!”  

But this amended filing wasn’t meant for the public, it was meant for Judge Matthew Kacsmaryk, and he’s proven himself to be the most bat sh**t of all.

You May Want To Read:

• The Cost of Restrictive Abortion Laws: Women Are Dying After Being Denied Medical Care
• Resources for Women and LGBTQ+ People in Uncertain Times
• Why ‘Just Say No’ Isn’t Working When It Comes To Sex Ed
• Taking Control: Proov Helps Women Navigate Fertility and Perimenopause On Our Own Terms
• Over-The-Counter Birth Control Pill Becomes Available For The First Time
• The Hidden Risks: 20-plus Foods and Supplements That Threaten Birth Control Safety

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