The New Abortion Challenge

KEVIN HARRIS: Bill, people know from listening to you that you have a real heart in this issue – the issue of the unborn, the issue of abortion. You comment on it from time to time. This is a New York Times article^[1] from earlier this month, and it throws a bucket of cold water on the celebration surrounding the overturning of Roe v. Wade. In other words, it's not time for pro-life people to relax.

The future of abortion — both the practice itself and the legal fight over it — will increasingly revolve around prescription drugs.

. . . that women can take at home or their doctor’s office to end their pregnancies. The Food and Drug Administration approved mifepristone in the year 2000. It has been used to terminate more than 5 million pregnancies, and it's going to be difficult to regulate and legislate as we'll see in this piece. Apparently the future of abortion will not be in clinics but in the drugstore.

DR. CRAIG: I think that pro-life people were well aware that this was coming when mifepristone was approved so many years ago because now the so-called “morning after pill” can be taken after sexual intercourse and you can cause a miscarriage without any difficulty of going to a clinic and having a surgical abortion. Before we get into the weeds talking about this, I just want to emphasize to our listeners once again that the ethical issue raised by abortion is the intrinsic moral value of human life. There are two questions here that need to be answered. Is the developing fetus a human being? And, do human beings have intrinsic moral value? It seems to me that the answer to both of those questions is fairly clearly “yes.” The developing fetus is clearly a human being in the earliest stage of its development. It's not canine. It's not feline. It is a human fetus. And it seems to be clear as well that human beings are endowed with intrinsic moral value and therefore have inherent human rights including the right to life. Therefore abortion is a form of homicide. It is killing an innocent human being, and that can only be done with some sort of overriding moral justification. For example, a homeowner who shoots an armed home invader or a policeman who shoots someone shooting up a grade school. In those cases, homicide is morally justified in order to save lives or for self-defense. But in the vast, vast majority of abortions that are performed in our country they are not done for such reasons but rather they are done for reasons of convenience and therefore are morally unjustified.

KEVIN HARRIS: This article will explain why “medication abortion” (as the practice is known) is growing rapidly, and what's likely to happen next.

. . . the dueling legal decisions last week about a commonly used abortion drug made it even clearer. In the end, the Supreme Court may need to resolve the dispute and decide whether the drug can continue to be used.

. . .

Medication abortion has become more common over the past decade and now accounts for more than half of legal abortions. Typically in the U.S., the treatment involves a combination of two drugs, mifepristone and misoprostol.

. . .

Since the Supreme Court overruled Roe v. Wade last year, 13 states have banned nearly all abortions, including medication abortions. But some women in those states have been able to get around the bans with a drug prescription. They can briefly travel to another state to receive the pills or can order them by mail (even illegally from an overseas provider, as some abortion-rights advocates have encouraged).

. . .

The treatment has become more popular partly because many women prefer it to surgical abortion. They can take the drugs at home rather than at a hospital or doctor’s office, and the drugs are both highly effective and safe.

This makes it more convenient to abort one's baby.

DR. CRAIG: It struck me when the article says, “the drugs are both effective and safe.” I thought, “I can think of at least one person for whom they are not safe.” In fact, they're lethal. These are killing drugs. They may be safe to take, but they are lethal for the developing fetus. And that's why they are abortifacient. So it's disingenuous, I think, to call them “safe.” But I always assumed that the ban on surgical abortions would not affect these medical abortions. I assumed that the pills would continue to be sold everywhere and that one could avail oneself of them. I'm rather surprised to learn that some states are actually banning the prescription of these abortifacients in the effort to protect unborn lives. The danger of doing that I think is political. I think that that is quite justified morally, but politically it threatens to create a situation rather like Prohibition during the 1920s and early 30s where you developed this massive illegal underground circuit of abortion drugs that are outlawed but nevertheless circulating privately and being sold and used. That would create enormous headaches for the government to enforce. So I wouldn't be surprised if it doesn't develop in a kind of mosaic fashion where some states will permit them, other states might outlaw them, and, as you said, for those living in states that outlaw them they can obtain them through the mail or by driving across state lines. So these things will probably always be available just as the medical surgical procedures will always be available.

KEVIN HARRIS: The article continues,

The rise of medication abortion explains why overall abortion rates have not declined as much post-Roe as some people expected. Nationwide, the number of legal abortions per month was 7 percent lower in the final three months of last year than in the months immediately before the Supreme Court ruling, according to a report issued yesterday by the Society of Family Planning. Because the data does not include illegal abortions, the actual decline was likely smaller . . .

Again, it looks like we still have our work cut out for us in the fight for life. I thought the decline would be greater. Seven percent doesn't seem like that much.

DR. CRAIG: I wouldn't minimize that, though. A seven percent decline in one month – that must translate into thousands and thousands of lives that have been saved through this legislation. So I think that's encouraging. But the point you make is a good one. I recently got a letter from our local First Care women's clinic in which the director of the clinic said, “My first thought when I heard that Roe v. Wade had been overturned was, ‘Now the battle really begins.’” Because now you have to continue to win the hearts and minds of people to influence those state legislatures and governors as well as in this case – to persuade women themselves not to go through with taking these drugs and killing their own baby. We've got to get them voluntarily to abandon this homicidal course of action.

KEVIN HARRIS: Continuing this article, it says,

Both abortion supporters and opponents understand how important medication abortion has become. “The fact that pills can be mailed is an existential crisis for the anti-abortion movement,” Rachel Rebouché, the dean of Temple University’s law school, told The Associated Press. “It’s hard to police. It’s hard to track. It’s difficult to enforce.”

There, like you said, will always be ways to circumvent legal restrictions. That's why we need to work to change hearts and culture, not just enforce laws.

DR. CRAIG: Absolutely. This is a call for us to be zealous and proactive in trying to build a culture of life in this country rather than a culture of death that depreciates the life of the unborn and treats them as less than human – as mere tissue – that can be discarded. But I would disagree with the woman you quoted that said the pills represent an existential crisis for the anti-abortion movement. No, no. It's not going to do away with the anti-abortion movement. That movement will continue to try to change hearts and minds and to try to influence state legislators and governors. It just is a tremendous, tremendous challenge for that movement.

KEVIN HARRIS: The article next says,

Conservative judges have become bolder in recent years about trying to strike down laws they do not like, and Friday’s [April 7, 2023] ruling against mifepristone was part of the trend. In it, Judge Matthew Kacsmaryk, a Donald Trump appointee in Texas, held that the F.D.A. had erred when it approved the drug in 2000.

Some of Kacsmaryk’s reasoning seemed plausible on its face: He noted that the agency used a process intended for serious illnesses and argued that pregnancy was not an illness. Other parts of his ruling seemed at odds with reality: He claimed the drug was unsafe.

Like you said about Prohibition, one thing to consider is some conservatives are opposed to this kind of legislation claiming that it makes judges into medical doctors. But, also like you said, there is a strong moral component to this – the abortion of pre-born babies.

DR. CRAIG: Yes, that's right. And there's a legal component as well. The New York Times article characterized these conservative justices as saying they try to strike down laws that they do not like – that this is a matter of their personal preference or subjective feelings – when in fact the justice quoted struck down the law on legal grounds, grounds that the New York Times deemed plausible on their face. He said that the agency used a process that was intended for serious illnesses and that pregnancy is not an illness. That's a pretty good argument. Then he claimed that the drug was unsafe. Well, that remains to be shown. You have to show that drugs are safe before they can be used. I don't know what would happen if a woman took these drugs in late pregnancy. My understanding is that they're intended to be taken very, very soon after sexual intercourse. What would happen if a woman began to take these late term? Would it cause birth defects or malformation? I don't know. But that is what the FDA would need to assess, to determine that they're safe. Because if you get these things through the mail or prescribed by your local pharmacy, you don't know when a woman is going to take these or what stage of the pregnancy. So they need to not inflict harm on her throughout the entire nine months of pregnancy. I don't know what the answer to that is, but the judge is certainly right to say that that needs to be investigated and demonstrated.

KEVIN HARRIS: Just to show you how we have dueling judges and judgments here, the article continues to say,

On the same day as Kacsmaryk’s decision, Thomas Rice — a federal judge in Washington State appointed by Barack Obama — issued an opposing ruling in a different case. Rice granted a request from the Democratic attorneys general of 17 states and Washington, D.C., that the F.D.A. not limit access to mifepristone in their jurisdictions. Rice’s ruling could effectively void Kacsmaryk’s ruling in those 18 states.

. . . but the New Orleans court isn’t likely to have the final word. The Supreme Court is.

And, as of this recording, the Supreme Court temporarily allowed access to mifepristone after that Texas ruling. Now we're waiting on a ruling from the Supreme Court that is allegedly supposed to be happening today. I've been checking the news; still no word on that. I suppose a future factor is whether conservative or liberal judges are appointed in the courts in the coming years.

DR. CRAIG: Yes. I'm afraid that's true. The courts have become very, very politicized, and we know that until recently the Supreme Court has been strongly leftist-leaning in making bad constitutional decisions exemplified by Roe v. Wade which had no constitutional basis at all. I would be surprised if this drug was simply banned nationwide. I would expect that it would be permitted in those states that still allow surgical abortions to go forward.

KEVIN HARRIS: Well, listen to this. A Catholic Health Care Clinic in Colorado filed a lawsuit last Friday from this recording challenging a state law that makes it illegal to offer women a hormone in an attempt to reverse the effects of the abortion pill if a woman regrets her decision to end her pregnancy.

In the lawsuit, filed after the bill was signed into law on Friday, BHW [Bella Health and Wellness Clink] asked the U.S. District Court in Colorado to strike down the law, arguing it targets clinics with a religious mission to provide "life affirming care." By enforcing this law, they argue women will be forced to go through with abortions even when they decide they want to continue their pregnancies after taking the abortion pill . . .^[2]

What they do at Bella Clinic is to offer a woman progesterone to save her pregnancy if she changes her mind after taking an abortion pill. What’s telling is that there is no legal restriction to give a woman progesterone to prevent a natural miscarriage but it is illegal to offer it to a woman who takes an abortion pill and then changes her mind.

DR. CRAIG: This is madness! This is an outrage that has been perpetrated by that Colorado legislature and governor. I hope our listeners understand what's been done here. Progesterone is a normal hormone that is easily obtainable, frequently prescribed for women's care. It has the remarkable effect of reversing the effects of this mifepristone – that it can prevent that abortifacient from working. If you imagine a woman who is pregnant. She's depressed about it, perhaps in despair, and decides to obtain mifepristone to terminate her pregnancy and she takes the pill. Then she regrets what she's done. She wants to keep the baby. She wants to go to full term. She doesn't want to kill the baby. This law prohibits her from getting a prescription for progesterone to save her baby's life. This is the epitome of anti-choice legislation. This is not pro-choice. This is anti-choice – a woman cannot choose to reverse the effects of this abortion pill that she's taken through taking progesterone. I think it is an outrage that this has been done. I hope that this will be struck down. I think what this epitomizes if nothing else is that this is not really a debate about choice as abortion advocates would claim. It is not about choice. It is about abortion. For some strange reason that is almost unfathomable to me, the progressive left has fastened upon abortion as the symbol and epitome of what their movement stands for. And they are fanatically pro-abortion even to the extent that a woman who wants to save the life of her child is prohibited from doing so, prohibited from making that choice because they are so pro-abortion in their fanatical devotion to this procedure.

KEVIN HARRIS: Here's how the article ends.

Abortion opponents understandably celebrated when the Supreme Court overruled Roe. But even in the new legal landscape, preventing abortion is more difficult than it was in 1973, when the court issued the Roe ruling. The U.S. courts have since made abortion less accessible, but scientific developments — namely the rise of abortion drugs — have pushed in the other direction.

What do we need to do in response to this drug threat to the pro-life position?

DR. CRAIG: What we need to do is to redouble our efforts to explain to people the reason that abortion is a form of homicide and therefore requires some kind of overriding moral justification that would permit one to take an innocent life. We must never tire of making that case to help especially young women see that this is not a matter of control over their own bodies. It is not a matter of medical procedure choices and things like that. This is a matter of the right to life of this unborn and developing human being.^[3]