A Lawsuit Against The Abortion Pill States That The Declining Teen Birth Rate Is A Bad Thing

A new lawsuit hoping to curtail abortion access seeks to return to more restrictive access of mifepristone, a drug used in abortions and in post-miscarriage care. Among its arguments? More abortions means a lower state population, and that hurts states. The suit specifically highlights lower birth rates for teenaged mothers between the ages of 15 and 19.

Medical abortions (e.g. abortions obtained via pills) use a combination of two drugs to work: mifepristone and misoprostol. Mifepristone is administered first, which halts the progression of a pregnancy by blocking the hormone progesterone in the uterus. One to two days later, misoprostol is taken afterwards to expel uterine contents and complete the process. While misoprostol alone can be used to induce abortion, a regimen of the two drugs is the current standard of care. Currently, those seeking a medical an abortion can obtain the pills through telehealth services, even in states with strict abortion laws. The medications are approved for use to terminate a pregnancy through 12 weeks or the first trimester.

Earlier this year, the Supreme Court threw out a 2022 lawsuit Food and Drug Administration v. Alliance for Hippocratic Medicine, which sought to roll back access to mifepristone, which is used in two-thirds of abortions in the United States. In a rare unanimous decision — authored by Brett Kavanaugh — SCOTUS ruled that Alliance lacked standing to bring forth the suit, though court-watchers at the time noted that the language of the opinion left room for anti-abortion plaintiffs to move forward with a similar suit moving forward. And now, months after the ruling, a new suit has indeed been filed in a court friendly to anti-abortion cases. If successful, the move would significantly affect access to mifepristone.

On October 11, Missouri, Kansas and Idaho filed the revised suit in the Northern district of Texas — a federal court district with a single judge, Matthew Kacsmaryk. Kacsmaryk has not only openly expressed fervent support of anti-abortion activism but ruled in favor of the 2022 lawsuit.

From categorizing abortion pills as “dangerous” — a claim not supported by governing medical bodies, including the American College of Obstetrics and Gynecology (ACOG) — to challenging the FDA’s 2016 and 2021 decisions to make the drug more accessible, the suit lobs myriad arguments in its nearly 200 page argument against mifepristone. It seeks to reverse many of those loosened restrictions. These include the ability to obtain the drug without meeting prescribers, curtailing who could prescribe the drug, and reversing the agency’s approval of a generic form of the drug among other actions.

One of its arguments, outlined in section XXIII of the suit, is “Sovereign Injuries to Plaintiffs’ Population Interests.” Remote dispensation of abortion medications they say,

“...causing a loss in potential population or potential population increase,” before continuing, “Defendants’ efforts enabling the remote dispensing of abortion drugs has caused abortions for women in Plaintiff States and decreased births in Plaintiff States. This is a sovereign injury to the State in itself.”

Citing a 2023 study on the effect of the overturning of Roe v. Wade on fertility rates, the lawsuit goes on to state that, “depressing expected birth rates for teenaged mothers in Plaintiff States” can lead to “a loss of potential population causes further injuries as well: the States subsequent ‘diminishment of political representation’ and ‘loss of federal funds,’ such as potentially ‘losing a seat in Congress or qualifying for less federal funding if their populations are’ reduced or their increase diminished.”

In other words: teenagers not giving birth is injurious to a state’s political power. It’s not the only time pregnant children are used to further their case.

The suit also argues “injury to Plaintiffs’ sovereign interests” regarding teen girls in foster care. “By seeking to enable teen girls to obtain abortion drugs online by mail all on their own, Defendants seek ‘to undermine [the States’] state right to consent to [their custodial] children’s medical care[.]’ ... Plaintiff States are the legal parent, guardian, or custodian of many minor girls in state foster care systems or other state facilities. Plaintiff States actively enforce and administer their rights to decide whether these children obtain medical care.”

The Department of Health and Human Services highlight a bevy of negative outcomes for teen parents, particularly mothers, and their children, including being less likely to finish high school, more likely to need public assistance, more likely to have low income as an adult, and children more likely to deal with poorer education, behavioral, and health outcomes.