The Supreme Court’s slippery slope

The Supreme Court waded into the abortion debate on Friday night, effectively preserving access to the abortion pill, mifepristone — for now. More legal challenges are expected.

At stake in the abortion battle is no longer just reproductive rights for women. This fight is now over everything from how drugs are tested and prescribed to issues that seemingly have nothing to do with abortion like gender identity, religious freedom and states’ rights.

The justices considered a decision by the U.S. Court of Appeals for the 5^th Circuit that rolled back the Federal Drug Administration’s (FDA) liberalization of access to mifepristone so that patients could get the drug through the mail, get prescriptions by doctor assistants and use it up to 10 weeks into a pregnancy.

It followed a dramatic action by a Texas court seeking to essentially ban from sale the abortion pill. The Supreme Court put a “stay” on that.

Here are the dangers:

First is the challenge to the FDA, which has approved drugs for medical abortion for 20 years. If the court can reverse the agency’s guidelines for abortion, what’s next? The Texas ruling to revoke the approval of mifepristone — a medication that is safer than penicillin or Viagra — poses the first major challenge to governmental regulatory authority.

Second is the notion that what one judge or nine judges think can override what voters think. Abortion is an issue that should be decided at the polls, not on the bench. The Supreme Court is now contributing to a chaotic cascade of conflicting rules leaving states scrambling to interpret vague laws. This will lower confidence in the rule of law in America.

Third, and most worrisome, is that the abortion issue may become tied up with other issues like gender, the medical profession and even the U.S. Postal Service.

Think back to the Texas decision that set this chaos into motion. Prior to that decision, a major article appeared in the Texas Review of Law and Politics, allegedly authored by Judge Matthew Kacsmaryk — the same judge who issued that controversial ruling in Texas. According to The Washington Post, Kacsmaryk, upon learning of a potential judgeship, had his name removed from the Texas Review article, which was in turn published by colleagues.

It is important to look at what that Texas law article said.

Titled “The Jurisprudence of the Body: Conscience Rights in the Use of the Sword, Scalpel, and Syringe,” it puts sex, religion, gender identity and abortion into one interconnected argument to protect so-called “religious physicians” from performing sex change operations or abortions.

The article challenges legal protections in the Affordable Care Act for transgender people and those seeking abortions because these “religious physicians” might be uncomfortable as they “cannot use their scalpels to make female what God created male,” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

It marks the slippery slope many of us fear.

Democracies work because people can have different opinions. But when justices deliver opinions that affect an entire state, with implications for an entire nation, we assume they are doing what is in the best interests of all, not a few.

We are also throwing doctors into the chaos.

The medical profession will be challenged now by confusion in the states. Medical recruiting firms are reporting that obstetrician-gynecologists are turning down positions in red states because of abortion laws. Patients don’t know where to go — already, Colorado is seeing twice the number of women coming to the state for abortions than the previous year. 

You could not design a bigger mess for America. Our citizens are being left alone to navigate these complex issues. Public messaging is key to how citizens understand their rights and responsibilities in a nation. The United States of America needs to be more than a collection of individuals. A county cannot steer itself without clarity and vision, and right now there is only fog.

Tara D. Sonenshine teaches public diplomacy at the Fletcher School of Law and Diplomacy at Tufts University.