“Not Even a Win”: The Malevolent and Misogynist Mifepristone Mess Moved to May

Too many liberals want to believe in the American legal and political system and its masters. They just don’t want to confront the full reality of what’s in front of them.

Take the readiness of so many liberals to celebrate last Friday’s (April 21) majority Christian Fascist Supreme Court’s ruling that put a semi-extended stay on a recent Fifth Circuit Court of Appeals panel ruling that put incredibly onerous restrictions on pregnant persons’ access to the nation’s safe and effective abortion pill mifepristone.

The restrictions in question – no prescriptions after seven weeks of pregnancy or without three trips to the doctor, no prescriptions by anyone but a doctor, and no sending of the drug by mail – amount to something close to an outright prohibition in states that haven’t already banned or severely restricted abortion in the wake of last year’s Dobbs v Jackson decision.  Most women don’t even know they are pregnant at seven weeks.

Last Friday’s ruling means that the case will be heard by the Fifth Circuit in New Orleans, where a full hearing will commence on May 17th.  Whichever way the ruling there goes, and the odds favor the imposing of severe restrictions, the case will be appealed to the High Handmaids Court, where a substantive and “final” decision on the constitutionality of the restrictions could come later this year or next year, if SCOTUS agrees to hear the case at all.

Under the Court’s “shadow docket” ruling Friday, the restrictions are stayed (not in place) until the case makes its way through the courts, or until litigation resolves the issues.

Here in super-liberal Iowa City over the last two days, I’ve heard at least five “pro-choice” Democrats say that “we won.”

Not so fast!  Is this a reprieve for abortion rights? Obviously, yes.

Is it a victory for abortion rights?  Not really.

The mifepristone case only exists because women-hating Christian fascist fetal personhood activists went shopping for and found a far-right federal district judge willing to take the drug off the nation’s shelves.  The Amarillo, Texas-based jurist Matthew Kacsmaryk’s demented order purporting to undo the Federal Drug Administration’s (FDA) approval of the pill – a ruling issued on Good Friday, by no mere  Christian coincidence –is where this whole malevolent and misogynist mifepristone mess started.

The case should never have been heard in a court of law in the first place. The plaintiffs – a small group of right-to-“life” doctors  – have no legitimate standing. Their argument against mifepristone’s safety is based on transparently fake science. The notion of rogue judges empowered to cancel access to safe and effective medications across the nation is a lethal threat to public health: imagine if a group of demented anti-vaxxer physicians had found a maniacal pandemo-fascist district judge to rule against Covid-19 vaccines!  And the attempt to essentially ban a key abortion medication nationwide through federal court rulings stands in direct conflict with the declared (if disingenuous) federalism of the Dobbs ruling, which purported to send abortion policy back to the states and “to the people.”

The Supreme Court could and should have simply shot the case down on standing alone: the plaintiffs suing for the restriction cannot legitimately claim to be harmed by an abortion drug they don’t prescribe for their patients. The Fifth Circuit ruling on behalf of the plaintiffs opens a lethal Pandora’s Box enabling the national cancellation of any number of needed medicines.

The fact that the case is still alive and may return to the Supreme Court is horrific.  The Court’s “7-2” decision to keep the stay was on procedure, not a ruling on the substance of the case, and there is every reason to worry that it will rule substantially and “constitutionally” for the onerous restrictions or worse in the end.  This is the far-right Court that was specifically crafted to end women’s half-century constitutional right to abortion, and which did precisely that exactly ten months ago.  If you read the Dobbs v Jackson decision with any care, you will see that its author (the far-right so-called justice Sam Alito) believes in the theocratic doctrine of fetal personhood, which elevates the supposed human and civil rights of small cell clusters over those of full formed female human sentient beings.

The notion that the Court’s five fetal fascists, one of whom is a literal Handmaid in a male-supremacist religious cult, don’t share the “right to life” movement’s desire to ban abortion nationwide is absurd.  It’s always been what a recent Rise Up for Abortion Rights (RU4AR) slogan suggests: “red state, blue state, we can’t hide; the war on abortion is nationwide.”

As a leading Chicago Rise Up for Abortion Rights (RU4AR) activist, Jay Becker, told a local radio reporter last Saturday:

“It’s actually very ominous that the Supreme Court is even considering this case. What they decided last night was merely a temporary hold.  Its good news that mifepristone is still available where it’s legal. But there are 23 million women and girls who do not have legal access and do not have legal access to any abortion. And that number is growing. Just this week, North Carolina is considering a ban on abortion. Florida passed a six week ban on abortion.  When both of those become law, that will be the complete criminalization of abortion across the entire US South.  It is growing, and these same anti-abortion forces are going after birth control.  This whole lawsuit to try to prevent the prescription of mifepristone should be a wake-up call to everyone across this country that the real aim of the Supreme Court with Dobbs and the Christian fascist movement behind it was to ban abortion nationwide…[Yesterday’s decision] is not even a win. It’s a hold, that’s all it is, a hold.  We know what the super-majority on the Supreme Court thinks.  They are opposed to abortion. They recognize fetal personhood. That is at the heart of the Kacsmaryk decision and it’s at the heart of the Fifth Circuit decision.”

The brief order announcing the stay was written by far-right women-hater Sam Alito, who included positive references to Medieval Christian punishment for abortion in his Dobbs opinion. It is loaded with preposterous nonsense including the claim that the onerous restrictions would cause “no irreparable harm.”

There is one interesting and promising aspect to Alito’s stay order.  As law professor Greer Donley told Jessica Valenti, Alito said something very interesting about enforcement discretion: “He agrees that the FDA can choose not to enforce this so there is no irreparable harm. I didn’t expect that, it’s an interesting affirmation,” Donley added.

Indeed it is.  Serious abortion rights advocates have been saying that the Biden administration should and can in fact quite legally ignore rulings from women-hating Christian fascist judges who falsely claim jurisdiction over what drugs the FDA can approve or ban.   Alito appears to agree, ironically enough.

That puts a focus on the deeply conservative neoliberal imperialist Joe Biden.  What will he have the FDA do when, as seems likely, the Handmaid Supremes rule on mifepristone in accord with their fetal fascist faith? There is little reason to expect him to do the right thing – to act in accord with the US majority’s longstanding support for women’s right to abortion by ignoring a ruling banning or severely restricting mifepristone access across the country.  He is a devout member of the Catholic Church, which has poured many millions of dollars into the campaign to kill abortion. As he undertook his recent narcissistic “roots” and “homecoming” tour across Ireland, including a trip to a Catholic cathedral one of his ancestors helped build, his not-so “liberal” (the Republi-fascists ludicrously say “radical left”) administration signaled that defying the judiciary on mifepristone would be “a  dangerous precedent.”  Never mind that Trump regularly thumbed his nose at court rulings he opposed and that the current federal courts system from the Supremes on down is stocked with Christian fascist Federalist Society ideologues from Hell.

It will likely take mass pressure modelled on the Green Wave social movement that has recently won abortion rights in Latin America to compel such action in the interests of women and majority opinion on Biden’s part. And that’s precisely the kind of thing the Dems always try to keep the lid on, reflecting their determination to channel popular anger into the killing confines of the reigning political and legal order.

As nobody but RU4AR seemed to want to point out last year, Biden could have responded to the draconian Dobbs ruling by issuing an executive order declaring the women-hating right-wing war on abortion a public health emergency, by opening up federal lands across the country for abortion providers to open clinics, and by ordering the safe and protected delivery of medical abortion pills to the entire country via the federal postal system.

This was the obvious demand on Biden last summer.  It was never made by the establishment, Democratic Party-captive “choice” and “repro” organizations, who chose instead to raise money off Dobbs, to play along with the state-by-state divide-and-conquer game, and to join the Democrats in cynically turning the ruling into a way for the Democrats to win the 2022 mid-term elections.

How did that work out for the millions of women and girls who now live in jurisdictions under the rule of patriarchal fetal fascism?  The abortion horror stories in these states, the number of which is growing, ought to be an international disgrace for a Superpower that calls itself the pinnacle of democratic civilization and liberty – a nation that regulates women’s bodies to impose the female enslavement of forced motherhood but can’ regulate the guns that are now the leading cause of death for its children, the “babies” for whom the Christian Fascists claim so passionately to care. Contrary to nauseating Democratic claims to have prevailed in “Roevember,” the women-hating Republi-fascists took back the US House.  They have a very good shot at taking back the US Senate and the US presidency in 2024-25, something that makes a full-on national abortion ban likely (a Republi-fascist majority in the absurdly mal-apportioned Senate would certainly repeal the filibuster long enough to bring that about).

“Power,” as Frederick Douglass once said, “never concedes without a fight.”  The fascists fight all the time, by any and all means they can muster both within and beyond the reigning legal and political structure, which is badly tilted in their favor.  The Democrats and their liberal base, by contrast, are dedicated to mass pacification, to keeping people off the streets and out of the public squares – to dismal demobilization reflecting a dysfunctional dedication to a fading bourgeois democracy that is crumbling before our very eyes. “We’ll show ‘em at the ballot box,” they say even as the right moves to restrict voting rights yet more and more in an electoral and policy system that is already tilted well to the right of majority opinion by rampant gerrymandering, Senate malapportionment, the Electoral College, the lifetime-appointed federal judiciary, plutocratic campaign finance and media rules, and more. “We’ll beat ‘em in court,” they say even as the judicial system is jammed up with Christian white nationalists far to the right of the populace on one issue after another – abortion, guns, environmental regulation and so much more.

The only real way to get the assholes atop this shithole system to honor women’s right to an abortion or really to honor any other basic human right is to make it clear to them that millions of us will go Mario Savio on them – put our bodies on the gears of the machine and grind it to a halt – if they refuse.  Don’t let anyone tell you that people power in the streets and public squares is of no use and that the only politics that matters is about electing the right rulers.  Howard Zinn said it very well in March of 2008, as liberal “election mad” Obamania was peaking:

“The Democratic Party has broken with its historic conservatism, its pandering to the rich, its predilection for war, only when it has encountered rebellion from below, as in the Thirties and the Sixties…Historically, government, whether in the hands of Republicans or Democrats, conservatives or liberals, has failed its responsibilities, until forced to by direct action: sit-ins and Freedom Rides for the rights of black people, strikes and boycotts for the rights of workers, mutinies and desertions of soldiers in order to stop a war…Voting is easy and marginally useful, but it is a poor substitute for democracy, which requires direct action by concerned citizens.”

That, by the way, is how abortion rights were won in the first place in the US, fifty years ago.

For what it’s worth, a recent “P”BS documentary, “The Movement and the Madman,” reveals that Richard Nixon and Henry Kissinger would very likely have ordered the nuclear bombing of Vietnam but for their reasonable calculation that the domestic US antiwar mobilization would have shut the country down in the event of such an egregious war crime.

That’s called “checks and balances” from the bottom up.

This essay originally appeared on The Paul Street Report last Monday

Paul Street’s latest book is This Happened Here: Amerikaners, Neoliberals, and the Trumping of America (London: Routledge, 2022).