Judge Bans Abortion Pill – Latest Legal Attack on Abortion Rights; Judicial Activism, SC Bill, Plus Fetal Personhood, Fetal Estate Lawsuits, And More
Judge Blocks FDA Approval Of Abortion Pill
WASHINGTON, D.C. (April 7, 2023) – Matthew J. Kacsmaryk, a federal judge in Texas with long-held anti-abortion views, has blocked FDA approval of mifepristone, a key abortion pill first cleared from use in the U.S. in 2000.
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This is only the latest legal attack on abortion rights, says public interest law professor John Banzhaf, who has won over 100 cases protecting women's rights. Here are some examples.
A bill introduced by almost two dozen South Carolina legislators would redefine “person” under the state’s criminal law to include a human fertilized egg, with the result that a pregnant woman who underwent an abortion - as well as those who performed it or otherwise assisted - could (although there are limited exceptions) be charged with murder and possibly even face the death penalty.
The proposed Prenatal Equal Protection Act of 2023 [H. 3549] would establish that the word “person” includes an unborn child at every stage of development from fertilization until birth, and the word “fertilization” would mean the fusion of a human spermatozoon with a human ovum.
Since the state's homicide law already includes a crime “that causes the death of, or bodily injury to, a child who is in utero at the time that the violent crime was committed,” it would make the killing of a fertilized egg, a zygote, or a fetus - whether through a surgical abortion or by ingesting pills - the equivalent of killing a live human being.
Indeed, the bill’s title indicates that its purpose is to treat fertilized embryos on par with living human beings.
This is only one of several new and emerging legal strategies to eliminate - or at least severely limit - abortions, including even in states where such procedures are legal, notes public interest law professor John Banzhaf, who has predicted and chronicled these new strategies.
For example, just days ago activists sued three friends who helped a woman obtain abortion pills to end her pregnancy. The theory of this lawsuit, filed in Texas, is that abortion constitutes murder under an abortion ban, so that a father can bring a civil wrongful death action against anyone who aided his ex-wife to cause her own abortion by taking pills.
Such a civil action does not require the cooperation of a prosecuting attorney or other government official.
If successful, such lawsuits could slash abortions in states where abortions are now prohibited but women avoid the ban by using pills, says Banzhaf, noting that there are several other novel lawsuits also being brought by anti-abortion activists which have largely avoided attention by pro-choice advocates. As the Washington Post reported about the Texas case:
"The lawsuit could signal a new phase in antiabortion strategy, with conservatives scrambling to crack down on growing abortion pill networks that have helped pregnant people access medication abortion in states where the procedure is banned. . . [Marcus] Silva’s civil case could result in the women being forced to pay over $1 million in damages."
New Legal Threats
With so much effort and attention now being focused on blocking proposed legislation which would severely restrict abortions, it's not surprising that abortion rights advocates have largely not yet focused on three other new emerging legal threats to reproductive freedom and the rights of women, says lawyer John Banzhaf, who has won over 100 legal actions battling discrimination against women.
For this reason, Banzhaf has authored an analysis of these new legal threats:
(1) fetal personhood laws and bills,
(2) lawsuits brought on behalf of the estates of fetuses which were aborted, and
(3) lawsuits purporting to be on behalf of a living fetus against the still-pregnant woman
Fetal personhood laws - already in effect in Alabama, Arizona, Georgia, Kansas and Missouri - regulate pregnancy and affect pregnant women much more broadly than anti-abortion laws, and are "the next battleground in the fight over abortion rights in the US" according to the Washington Post, since they grant a fetus the same legal rights (including to life) as a person.
The Boston Globe warns that these laws could "upend the meaning of equality under the law," and deny states "the authority to allow abortions in cases of rape or incest."
Potentially even more threatening, says Banzhaf, are law suits - at least two of which have already been filed - brought on behalf of the estates of fetuses which were aborted.
For example, a doctor sued by a husband, simply for prescribing abortion pills to his wife four years earlier, had her annual medical malpractice insurance rate more than double from $32,000 to $67,000 simply as a result of the lawsuit's filing.
The final threats are lawsuits being brought by husbands, ex-husbands, boyfriends, or others to protect the rights of a still living fetus to prevent it from being aborted - even in states which do not criminalize such abortions - or even to prevent pregnant women for engaging in activities which might pose an unreasonable risk of harm to the fetus.
These latter two types of legal actions present a major threat to abortion rights because, unlike fetal parenthood laws, they do not require convincing legislators to act. On the contrary, they can be brought even in abortion-friendly states.
They can also be brought and be successful even if government officials such as prosecuting district attorneys refuse to take any actions; e.g., to enforce laws which criminalize most abortions, warns Banzhaf. As the Washington Post reported:
"These growing pill pipelines have presented a major challenge for the antiabortion movement. Many prosecutors don’t want to charge people for abortion-related crimes, while others have struggled to find cases."
All of this is explained and analyzed in a comprehensive legal report by Professor Banzhaf published on Law&Crime entitled:
How Fetal Personhood and Fetal Estate Lawsuits Threaten Abortion Rights
