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  • Brian Fishbach

Was Roe v. Wade the Middle Ground on Abortion?

Today on NBC's "Meet the Press," Chuck Todd asked a United States Senator one of the most important questions on addressing abortion laws:

Did it turn out that Roe v. Wade was the uncomfortable middle ground for America?

—Chuck Todd, NBC

This comes after an April 7th ruling by U.S. District Judge in the Northern District of Texas, Matthew Kacsmaryk, that the Food and Drug Administration must suspend approval of abortion drug mifepristone. This would make mifepristone sales illegal while the case is being considered.

Todd posed the question about the "uncomfortable middle ground" on abortion to U.S. Senator Bill Cassidy, a Republican from Louisiana and the ranking member on the Senate Health and Education Committee.

"I think Dobbs is the uncomfortable middle ground where people will confront that there is a diversity of opinion and no one group has their ability to impose their will upon the other."

Senator Cassidy answered.

Senator Cassidy was referring to Dobbs. v. Jackson Women's Health Organization (2022), a United States Supreme Court decision that reversed Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992)—effectively eliminating abortion rights in several states, and eroding them in others. In the Dobbs ruling, the Court broke on ideological lines, 6-3.

In the Majority opinion last year, Justice Samuel Alito wrote, "For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one."

In the Roe decision 50 years ago, Justice Harry Blackmun wrote that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy."

Judge Kacsmaryk is not without controversy himself either.

The Washington Post reported on April 15 that Judge Kacsmaryk had his name removed from an anti-LGBT and anti-abortion rights law review article he allegedly authored in 2017. The removal of his name happened prior to his official appointment to the bench by President Trump, but after he had already spoken about the potential appointment with Senators Ted Cruz and John Cornyn. Kacsmaryk neglected to disclose that law review article, The Jurisprudence of the Body," to the Senate Judiciary Committee as required by law.

Senator Cassidy and Judge Kacsmaryk are on record fervently against abortion rights nationwide.

But on Friday April 14, U.S. District Judge Thomas O. Rice of the Eastern District of Washington state issued an injunction that "barred the Food & Drug Administration (FDA) from doing anything to reduce the availability of the medication abortion drug mifepristone in Washington, 16 other states and the District of Columbia."

Washington state Attorney General Bob Ferguson and Oregon Attorney General Ellen Rosenblum are "co-leading the lawsuit filed in February" on the issue. A press release on the Ferguson's website states that he is co-leading "multistate federal lawsuit against the Food & Drug Administration (FDA) accusing it of singling out one of the two drugs used for medication abortions for excessively burdensome regulation, despite ample evidence that the drug is safer than Tylenol."

This is what the FDA website currently has to say about the safety of mifepristone:

Mifepristone is safe when used as indicated and directed and consistent with the Mifepristone Risk Evaluation and Mitigation Strategy (REMS) Program. The FDA approved Mifeprex more than 20 years ago based on a thorough and comprehensive review of the scientific evidence presented and determined that it was safe and effective for its indicated use. As of 2016, it can be used for medical termination of pregnancy up to 70 days of gestation. The FDA’s periodic reviews of the postmarketing data for Mifeprex and its approved generic have not identified any new safety concerns with the use of mifepristone for medical termination of pregnancy through 70 days gestation. As with all drugs, the FDA continues to closely monitor the postmarketing safety data on mifepristone for the medical termination of pregnancy.

The FDA's site was last updated on January 3, 2023.

Photo from and Danco.

Back in Washington, D.C., the U.S. Supreme Court is considering emergency appeals.

Contrary to Senator Cassidy's anti-abortion stance, U.S. Senator Tammy Baldwin, a Democrat from Wisconsin, also spoke on Meet the Press.

"What we have in Texas is a judge who is not guided by science, but is part of an extreme Republican concerted effort to ban abortion nationwide. And we do not need judges, politicians or government telling women about what sort of healthcare they can have. It is an issue that is not only playing out in the court in Texas but in the state of Florida, with the governor signing a near six-week ban, Idaho forbidding travel out of state for minors, Wisconsin where we’ve gone back to literally 1849. That is the date our criminal abortion ban was passed and that’s 174 years ago."

Speaking from Milwaukee, Senator Baldwin sees that the Roe decision is much more than just an uncomfortable middle ground.

"We don't know what the ruling [by the Supreme Court] is going to be," Senator Baldwin continued on Meet the Press. "We know that [mifepristone] is a drug that was proven safe and effective back in 2000, we know there have been further FDA regulations and the drug has been made available now in a recent ruling over the counter. And I don't think that there should be second guessing of the scientific-based process that FDA does— it has such repercussions beyond the drug mifepristone."

Baldwin also spoke about her own plans to stand up for reproductive health rights.

"We’re going to keep on fighting to pass my Women’s Health Protection Act, which would restore Roe v. Wade as the law of the land in federal statutes but also tell states that they cannot limit and restrict that right, as states like Wisconsin, and Texas, and now Florida, and Idaho and many, many others have," Senator Baldwin said.

Baldwin reintroduced the Women's Health Protection Act of 2023 (S.701) in the U.S. Senate on March 9, 2023. It currently has 48 co-sponsors—45 Democrats, three Independents and zero republicans.


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