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Abortion Defenders Decry 'Baseless' Attack on Mifepristone as SCOTUS Hears Case
"The overturn of Roe was just the first step in the far right's relentless campaign to restrict women's reproductive freedom," said one advocate. "We always knew they would come for medication abortion, too."
Mar 26, 2024
As the U.S. Supreme Court heard oral arguments Tuesday in a case brought by right-wing activists seeking to sharply limit access to a commonly used abortion pill, reproductive rights advocates renewed warnings that Republicans' endgame isn't just making abortion a states' rights issue, but rather forcing a nationwide ban on all forms of the medical procedure.
Thehigh court justices—including six conservatives, half of them appointed by former President Donald Trump, the presumptive 2024 GOP presidential nominee—are hearing oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine, a case brought by the right-wing Alliance Defending Freedom on behalf of anti-abortion doctors. The case involves the abortion pill known by the generic name mifepristone, which was first approved by the FDA in 2000 as part of a two-drug protocol to terminate early-stage pregnancies.
"If the Supreme Court refuses to follow the evidence and imposes medically unnecessary restrictions on mifepristone, it will be just another stepping stone in the anti-abortion movement's end goal of a nationwide ban on abortion."
"Mifepristone has been used by millions of women over the last 20 years, and its safety and effectiveness have been well-documented," said Jamila Taylor, president and CEO of the Institute for Women's Policy Research. "The drug has taken on even greater importance for women's health since the Supreme Court overturned Roe v. Wade, and the far right has moved to block women's access to healthcare at every turn."
In a dubious practice known as "judge shopping," the plaintiffs filed their complaint in Amarillo, Texas, where Matthew Kacsmaryk, the sole federal district judge and a Trump appointee, ruled last April that the FDA's approval of mifepristone was illegal. Shortly after Kacsmaryk's ruling, a federal judge in Washington state issued a contradictory decision that blocked the FDA from removing mifepristone from the market. The U.S. Department of Justice subsequently appealed Kacsmaryk's ruling.
Later in April 2023, the Supreme Court issued a temporary order that allowed mifepristone to remain widely available while legal challenges continued. A three-judge panel of the right-wing 5th U.S. Circuit Court of Appeals ruled last August that the FDA's 2016 move to allow mifepristone to be taken later in pregnancy, mailed directly to patients, and prescribed by healthcare professionals other than doctors, was likely illegal. However, the court also allowed the pill to remain on the market pending the outcome of litigation.
In an analysis of the case published Tuesday, jurist Amy Howe explained:
There are three separate questions before the justices on Tuesday. The first one is whether the challengers have a legal right to sue, known as standing, at all. The FDA maintains that they do not, because the individual doctors do not prescribe mifepristone and are not obligated to do anything as a result of the FDA's decision to allow other doctors to prescribe the drug.
The court of appeals held that the medical groups have standing because of the prospect that one of the groups' members might have to treat women who had been prescribed mifepristone and then suffered complications—which, the FDA stresses, are "exceedingly rare"—requiring emergency care. But the correct test, the FDA and [mifepristone maker] Danco maintain, is not whether the groups' members will suffer a possible injury, but an imminent injury.
Destiny Lopez, acting co-CEO of the Guttmacher Institute, called the plaintiffs' claims "baseless."
"If the Supreme Court refuses to follow the evidence and imposes medically unnecessary restrictions on mifepristone, it will be just another stepping stone in the anti-abortion movement's end goal of a nationwide ban on abortion," she said on Tuesday. "As the court weighs its decision, let's be clear that the only outcome that respects facts and science is maintaining full access to mifepristone."
As more than 20 states have banned or restricted abortion since the Supreme Court's June 2022 Dobbs v. Jackson Women's Health Organization ruling overturnedRoe v. Wade and voided half a century of federal abortion rights, people have increasingly turned to medication abortion to terminate unwanted pregnancies. And while Republicans have often claimed that overturning Roe was not meant to ban all abortions but merely to leave the issue up to the states, GOP-authored forced pregnancy bills and statements by Republican lawmakers and candidates including Trump—who last week endorsed a 15-week national ban—belie conservatives' goal of nationwide prohibition.
Project 2025, a coalition of more than 100 right-wing groups including Susan B. Anthony Pro-Life America and other anti-abortion organizations, wants to require the FDA to ban drugs used for medication abortions, protect employers who refuse to include contraceptive coverage in insurance plans, and increase surveillance of abortion and maternal mortality reporting. The coalition is reportedly drafting executive orders through which Trump, if reelected, could roll back Biden administration policies aimed at protecting and expanding abortion access.
"The overturn of Roe was just the first step in the far right's relentless campaign to restrict women's reproductive freedom. We always knew they would come for medication abortion, too," Taylor said. "But conservatives seeking to block access to mifepristone are not concerned about women's safety; they want to block all abortion options for women and prevent them from making their own reproductive decisions, even in their own homes."
Right-wing groups including the Heritage Foundation have been pressing Trump to invoke the Comstock laws, a series of anti-obscenity statutes passed in 1873 during the Ulysses S. Grant administration. One of the laws outlawed using the U.S. Postal Service to send contraceptives and punished offenders with up to five years' hard labor. Named after Victorian-era anti-vice crusader and U.S. postal inspector Anthony Comstock, the laws were condemned by progressives of the day, with one syndicated newspaper editorial accusing Comstock of striking "a dastard's blow at liberty and law in the United States."
Slate senior writer Mark Joseph Stern said Tuesday that far-right Justices Clarence Thomas and Samuel Alito—who wrote the majority opinion in Dobbs—"are clearly eager to revive the Comstock Act as a nationwide ban on medication abortion, and maybe procedural abortion, too."
"That would subject abortion providers in all 50 states to prosecution and imprisonment," he added. "No congressional action needed."
Progressive U.S. lawmakers joined reproductive rights advocates in rallying outside the Supreme Court on Tuesday.
"Mifepristone is safe and effective and has been used in our country for decades," said Rep. Rashida Tlaib (D-Mich.). "These far-right justices need to stop legislating from the bench."
Rep. Ayanna Pressley (D-Mass.) asserted that "medication abortion is safe, effective, and routine healthcare."
"Over half of U.S. abortions are done this way and we have decades of scientific evidence to back up its safety," she added. "SCOTUS must protect access to mifepristone and we must affirm abortion care as the human right that it is."
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Post-Dobbs Abortion Pill Surge Highlights Stakes of Looming Supreme Court Case
"Next week as we hear oral arguments in the FDA v. Alliance for Hippocratic Medicine case, remember who will be impacted," said one group.
Mar 20, 2024
As abortion bans and restrictions have taken hold in at least 21 states since the right-wing majority on the U.S. Supreme Court voted to overturn Roe v. Wade nearly two years ago, Americans' reliance on medication abortion became increasingly clear—with the use of abortion pills reported in 63% of all abortions that took place within the formal healthcare system in 2023.
Medication abortion represented 53% of all abortions in the U.S. in 2020, signifying a substantial increase since the court ruled in Dobbs v. Jackson Women's Health Organization.
The Guttmacher Institute released the results of its Monthly Abortion Provision Study on Tuesday, a week before the Supreme Court is set to hear oral arguments in Food and Drug Administration, et al., Applicants v. Alliance For Hippocratic Medicine, et al., a case brought by the right-wing Alliance Defending Freedom on behalf of anti-abortion doctors.
The group filed the case aiming to revoke the FDA's approval of mifepristone, one of two drugs used in medication abortions, more than two decades after it was approved following years of research.
"As our latest data emphasize, more than 3 out of 5 abortion patients in the United States use medication abortion," said Amy Friedrich-Karnik, director of federal policy for Guttmacher. "Reinstating outdated and medically unnecessary restrictions on the provision of mifepristone would negatively impact people's lives and decrease abortion access across the country."
Right-wing Judge Matthew Kacsmaryk ruled last year in the U.S. District Court for the Northern District of Texas that mifepristone's registration should be invalidated, a decision that was quickly put on hold by the Supreme Court.
Next week, the Supreme Court will hear the U.S. Department of Justice's appeal of Kacsmaryk's decision with a focus on two issues: whether the Alliance of Hippocratic Medicine has legal standing and whether the FDA did adequate research before it expanded access to mifepristone in 2016 and 2021. A ruling is expected this summer.
Guttmacher's research showed a 10% increase in all abortions in the U.S. between 2020-23, with a rate of 15.7 abortions per 1,000 women of reproductive age last year—the highest rate and number of abortions in more than a decade.
States without total abortion bans saw a 25% rise in abortion care compared to 2020, and the increase was even sharper in states bordering those with bans—37% between 2020-23.
"Next week as we hear oral arguments in the FDA v. Alliance for Hippocratic Medicine case, remember who will be impacted," said Whole Women's Health, which runs reproductive health clinics in several states.
Rachel Jones, principal research scientist for Guttmacher, said the group's findings show that "as abortion restrictions proliferate post-Dobbs, medication abortion may be the most viable option—or the only option—for some people, even if they would have preferred in-person procedural care."
Reproductive rights advocates and medical experts including the American College of Obstetricians and Gynecologists have long warned that restrictions on mifepristone—adopted by the FDA under pressure from the pro-forced pregnancy movement—are medically unnecessary and aim only to stop people from receiving care.
Advocates fear that the Supreme Court could rule that the FDA's 2021 decision to allow mifepristone to be dispensed via telemedicine and the mail violates the Comstock Act, a law that dates back to 1873 and prohibited the distribution of "obscene" materials through the mail.
"The modern anti-abortion movement wants to reinvent the Comstock Act as an abortion ban," University of California, Davis, law professor Mary Ziegler toldMs. magazine on Tuesday.
If healthcare providers can no longer dispense mifepristone via telemedicine, people seeking abortions would be forced to go in person to get care, "exposing them not only to delays and increased costs but also to harassment, threats, and other types of violence from anti-abortion extremism, which has increased dramatically since the fall of Roe," reported Ms.
Ahead of the Supreme Court's hearing in the Alliance for Hippocratic Medicine's "groundless case challenging FDA approval of mifepristone," said Guttmacher, "mifepristone is available and the facts remain clear: medication abortion is safe, effective, widely used, and critical to bodily autonomy for all."
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Jesus Didn’t Teach Hate, But the Group Behind the ‘He Gets Us’ Super Bowl Ads Funds It
Over the last five years the Servant Foundation has become the main identifiable source of funding for Alliance Defending Freedom, described as an anti-LGBTIQ hate group by the Southern Poverty Law Center.
Feb 13, 2024
A U.S. nonprofit that aired two ads during Sunday’s Super Bowl attempting to rebrand Jesus for Gen Z is also the main funder of a designated hate group opposing abortion and LGBTIQ rights, openDemocracy can reveal.
The Servant Foundation has plunged millions of dollars into its “He Gets Us” ads, which paint Jesus as an “influencer” who was “cancelled” for standing up for his beliefs. The controversial adverts were shown at the Super Bowl for the second year running and have been plastered across billboards in the United States over the last year.
But analysis of financial accounts by openDemocracy shows over the last five years the Servant Foundation has also grown to become the main identifiable source of funding for Alliance Defending Freedom (ADF), described as an anti-LGBTIQ hate group by the Southern Poverty Law Center (SPLC)—an allegation it denies.
In total Servant gave the group $65.9 million from 2018 to 2021—an average of more than $16 million a year. As a result, ADF’s grant income rose from $55 million in 2017 to $96.8 million in 2021.
Servant’s boom coincides with its split from the National Christian Foundation (NCF), of which it was an affiliate from its launch in 2000 through to 2017. During this time, it would hand out an average $1.3 million a year and receive around $4 million. But after the split with NCF, Servant pocketed more than $1 billion in contributions—a large chunk of which actually came from the NCF.
NCF and Servant Foundation are among 12 DAF operators that from 2017 to 2020 gave $272 million to 36 American groups that work to restrict the rights of women and LGBTIQ people in the U.S. and abroad.
The NCF is considered the biggest U.S. charity for Christian causes and has been accused of channeling millions of dollars to hate groups. Almost immediately after the split with Servant, it gave the group $307 million, followed by another $11 million in 2019. It also received more than $222 million from Servant between 2018 and 2021, showing a mutual flow of money that, according to experts, “adds a layer of secrecy” to donations they make on behalf of clients.
This type of money transfer from one donor-advised fund (DAF) operator to another grew by 409% between 2015 and 2019, and hit $1 billion only in 2019, according to an analysis by the Institute for Policy Studies published in 2021. That study only focused on the biggest commercial DAF operatorsthose nonprofit branches of financial companies, thus excluding DAF operators like Servant and NCF.
“Wealthy people give to intermediaries, such as private foundations and DAF operators, which in 2021 received almost a third of all donations,” Chuck Collins, director for the Program on Inequality and the Common Good at the Institute for Policy Studies, told openDemocracy. “When these donor-controlled intermediaries pass money back and forth, they can add layers of secrecy so the public doesn’t know where the funds are ending up.”
Stephanie Peng, research manager with the National Committee for Responsive Philanthropy (NCRP), which supports marginalized communities, told openDemocracy: “Anonymity is really dangerous, because you don’t know who is really behind all that money; who is controlling massive, massive amounts of money; and necessarily where that funding is going.”
The Servant Foundation was set up in Kansas by evangelical lawyer Bill High. Its partnership with the NCF included the NCF performing “accounting and other back-room tasks” for Servant. High ended the relationship in 2017, reportedly to offer lower fees to clients, and also changed Servant’s public-facing name to The Signatry.
Servant made headlines with its Super Bowl ads, which were part of the $300 million He Gets Us campaign hoping to fuel conservative evangelical goals.
NCF and Servant Foundation are among 12 DAF operators that from 2017 to 2020 gave $272 million to 36 American groups that work to restrict the rights of women and LGBTIQ people in the U.S. and abroad, an openDemocracy investigation revealed earlier this year. Servant donated a fifth of that sum and the NCF almost a half.
Hobby Lobby Money
By the time Servant split from the NCF, High had forged a crucial relationship with David Green, until then a substantial client of NCF whose retail giant Hobby Lobby plays a prominent role in battles against sexual and reproductive rights.
In 2014, Hobby Lobby won a big case when the Supreme Court ruled that corporations could deny contraception coverage under their workers’ health insurance policies, if doing so would violate their “sincerely held religious beliefs.” The NCF had given millions of dollars to the law groups litigating this case—ADF and the Becket Fund for Religious Liberty, a law firm that has represented the Greens since 2012.
High, who retired as Servant CEO in January, and Green have co-authored several books about Christian charitable giving. Green also appeared in a 2020 promotional video for Servant.
Among other beneficiaries of money channeled through Servant are at least seven U.S. organizations well-known for their attacks against equal rights: ADF, the Fellowship Foundation, Focus on the Family, American Center for Law and Justice, Family Research Council, Heartbeat International, and the Heritage Foundation.
Analysis of donation flows suggests cash from Green that once moved through the NCF could now be getting channeled through Servant. Since 2018, Servant has given big money to two groups focused on international evangelism and distribution of Christian literature that are also listed on the Hobby Lobby donation webpage. They rank second and third in money received from Servant from 2018 to 2021—Every Home for Christ ($181 million) and OneHope ($107 million). Meanwhile, the NCF, which had given $47 million to Every Home for Christ and $25 million to OneHope in 2017, has drastically reduced its contributions to these organizations since then. Green was also reportedly a major donor for the He Gets Us campaign. Both Hobby Lobby and Green did not respond to questions about whether they had stopped donating cash via the NCF and instead donated it via Servant.
The Museum of the Bible, founded by the Green family in 2017 at a cost of $500 million—and marred by scandals for buying looted and smuggled archaeological artifacts and exhibiting “modern forgeries” of Dead Sea Scroll fragments—is another big grantee of the Servant Foundation. It was given more than $3.2 million between 2018 and 2021 and before that had received hundreds of millions from the NCF since 2013.
Funding Hate and Misinformation
Among other beneficiaries of money channeled through Servant are at least seven U.S. organizations well-known for their attacks against equal rights: ADF, the Fellowship Foundation, Focus on the Family, American Center for Law and Justice, Family Research Council, Heartbeat International, and the Heritage Foundation.
ADF won a Supreme Court case this year that allows businesses to discriminate against gay couples on free speech grounds, and was one of the groups that masterminded the strategy to overturn the constitutionally protected right to abortion in the U.S. It has defended the sterilization of trans people in Europe and fought the decriminalization of gay sex in Belize. It also launched efforts to ban transgender students’ access to bathrooms and locker rooms consistent with their gender identity.
Also a SPLC-designated hate group, Family Research Council makes false claims about LGBTIQ people, and has been involved in funding and promoting harmful conversion therapies against LGBTIQ people, as well as opposing U.S. local bans to these activities.
The exchange of money between DAF operators as Servant and NCF is a model extending internationally.
In 2021, openDemocracyrevealed how Focus on the Family, another organization funded by Servant, had platforms for the provision of conversion therapies in the U.S. and Costa Rica.
openDemocracy requested interviews with all the organizations and individuals named in this investigation. Only the NCF answered through a short written statement signed by its communications vice president, Steve Chapman.
“The NCF does not develop or implement strategies about which charities or causes to support [and] does not rely on third-party designations or labels in our grantmaking process,” Chapman said. “All grants are initiated by the recommendations of our givers.”
In the statement, the DAF operator claimed to serve “over 25,000 givers that use Giving Funds [donor-advised funds] to individually support their favorite causes and charities,” and to have given more than $14 billion since 1982 to more than 70,000 charities that “are providing clean water to the thirsty, rescuing victims of human trafficking, translating the Bible into new languages, and much more.”
A Global Model
The exchange of money between DAF operators as Servant and NCF is a model extending internationally. The NCF, for example, partnered with TrustBridge Global, a charitable giving vehicle that declares itself as the first truly global DAF operator. Registered in 2016 in Florida and Switzerland, its CEO is a former NCF employee. TrustBridge has set up affiliate foundations around the world and claims to have 70,000 nonprofits vetted to receive DAFs. The list includes the ADF branch in the U.K. TrustBridge has also received millions of dollars from Servant.
Servant presents itself as a “global community” that has given $4 billion in “transformational grants for nonprofits around the world,” and supports projects in Africa, Asia, and Latin America. The fund also claims to have given $2 million in 150 grants for emergency relief in Ukraine, and over $1 million “for supporting missionaries around the globe, fueling the spread of the gospel in at least 43 countries,” especially in Africa.
Its website says it gave out over $470 million in grants in 2021, while receiving $899 million in contributions. As a DAF operator, it is able to accept other assets beyond cash, such as property, cryptocurrency, stocks, and mutual funds, as well as life insurance payouts.
“We want donors to be accountable to who they’re giving money to.”
When clients “give” assets other than money to these funds, they can write off the total amount the gifts are worth. This way, donors can bypass capital gains taxes from these gifts, which they would have to pay if they converted them into cash holdings.
Some DAF operators even have estate-planning options to bypass estate taxes and continue charitable giving after a donor dies.
For the NCRP, this is troubling.
“We want donors to be accountable to who they’re giving money to. So if donors are putting all of this money into a DAF, but that money sits there for years and years, and there are no beneficiaries, if the donor made a commitment and that commitment doesn’t make its way down to the recipient organisation, then that’s a problem,” NCRP’s Stephanie Peng said.
Legislative efforts to establish “reasonable timeframes” for paying out assets have so far failed.
High, Servant’s founder, has argued against any effort to make DAFs more accountable. “A hallmark of American charity has always been a right to privacy. We should not take away that privacy right. On the contrary, donor-advised funds have done much to democratize giving, as witnessed by their rapid rise,” he wrote in a Forbes article.
His foundation continues to court new donors. Its website even has a calculator for prospective customers to see how much in taxes they could save by donating.
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