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DA asks Wisconsin Supreme Court to decide abortion lawsuit without lower court ruling

By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — A Republican prosecutor asked the Wisconsin Supreme Court on Tuesday to decide whether a 174-year-old state law bans abortion in the state without waiting for a ruling from a lower appellate court.

The U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade, the landmark 1973 decision legalizing abortion, reactivated an 1849 law that conservatives have interpreted as banning abortion.

Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit arguing that the law is too old to enforce and conflicts with a 1985 law permitting abortions before fetuses can survive outside the womb. Dane County Circuit Judge Diane Schlipper ruled in July that since the law doesn’t use the term “abortion,” it only prohibits attacking a woman in an attempt to kill her unborn child. The ruling emboldened Planned Parenthood to resume offering abortions in the state.

Sheboygan County District Attorney Joel Urmanski, a Republican who is defending the statutes as a ban, said in December that he would appeal the Dane County ruling. He filed a petition with the state Supreme Court on Tuesday asking the justices to take the case without waiting for a decision from a lower state appeals court.

Urmanski’s attorney, Matt Thome, wrote in the petition that the state Supreme Court should decide the appeal because its ruling will have a statewide impact and guide policymakers. The case will eventually end up before the high court anyway, he added.

The petition states that Kaul agrees that the state Supreme Court should take the appeal directly. State Justice Department spokesperson Melanie Conklin had no immediate comment.

Planned Parenthood of Wisconsin’s chief strategy officer, Michelle Velasquez, said in a statement that the organization agrees that allowing the appeal to go through lower courts would only create needless delays before the Supreme Court issues a final decision.

Urmanski faces an uphill battle if the state Supreme Court takes the case. Liberal justices control the court, and one of them, Justice Janet Protasiewicz, repeatedly stated on the campaign trail last year that she supports abortion rights.

State governments looking to protect health-related data as it’s used in abortion battle

In Brief

  • Cellphone location data was used to send anti-abortion ads to people who visited Planned Parenthood offices, sparking concerns about privacy and data protection.
  • Legislation is being proposed at both federal and state levels to address the unauthorized use of health information and prevent tracking of individuals’ reproductive or sexual health facilities visits.
  • The Federal Trade Commission and states have taken legal actions against companies over the unauthorized use and sale of health-related data.

By GEOFF MULVIHILL
Associated Press

Some state governments and federal regulators were already moving to keep individuals’ reproductive health information private when a U.S. senator’s report last week offered a new jolt, describing how cellphone location data was used to send millions of anti-abortion ads to people who visited Planned Parenthood offices.

Federal law bars medical providers from sharing health data without a patient’s consent but doesn’t prevent digital tech companies from tracking menstrual cycles or an individual’s location and selling it to data brokers. Legislation for federal bans have never gained momentum, largely because of opposition from the tech industry.

Whether that should change has become another political fault line in a nation where most Republican-controlled states have restricted abortion — including 14 with bans in place at every stage of pregnancy — and most Democratic ones have sought to protect access since the U.S. Supreme Court in 2022 overturned Roe v. Wade.

Abortion rights advocates fear that that if such data is not kept private, it could be used not only in targeted ads but also in law enforcement investigations or by abortion opponents looking to harm those who seek to end pregnancies.

“It isn’t just sort of creepy,” said Washington state Rep. Vandana Slatter, the sponsor of a law her state adopted last year to rein in unauthorized use of health information. “It’s actually harmful.”

But so far, there’s no evidence of widespread use of this kind of data in law enforcement investigations.

“We’re generally talking about a future risk, not something that’s happening on the ground yet,” said Albert Fox Cahn, executive director of the Surveillance Technology Oversight Project and an advocate of protections.

The report last week from Sen. Ron Wyden, an Oregon Democrat, showed the biggest known anti-abortion ad campaign directed to people who had been identified as having visited abortion providers.

Wyden’s investigation found that the information gathered by a now-defunct data broker called Near Intelligence was used by ads from The Veritas Society, a nonprofit founded by Wisconsin Right to Life. The ads targeted people who visited 600 locations in 48 states from 2019 through 2022. There were more than 14 million ads in Wisconsin alone.

Wyden called on the Federal Trade Commission to intervene in the bankruptcy case for Near to make sure the location information collected on Americans is destroyed and not sold to another data broker. He’s also asking the Securities Exchange Commission to investigate whether the company committed securities fraud by making misleading statements to investors about the senator’s investigation.

It’s not the first time the issue has come up.

Massachusetts reached a settlement in 2017 with an ad agency that ran a similar campaign nearly a decade ago.

The FTC sued one data broker, Kochava, over similar claims in 2022 in an ongoing case, and settled last month with another, X-Mode Social, and its successor, Outlogic, which the government said sold location data of even users who opted out of such sharing. X-Mode was also found to have sold location data to the U.S. military.

In both cases, the FTC relied on a law against unfair or deceptive practices.
States are also passing or considering their own laws aimed specifically at protecting sensitive health information.

Washington’s Slatter, a Democrat, has worked on digital privacy issues for years, but wasn’t able to get a bill with comprehensive protections adopted in her state.

She said things changed when Roe was overturned. She went to a rally in 2022 and heard women talking about deleting period-tracking apps out of fear of how their data could be exploited.

When she introduced a health-specific data privacy bill last year, it wasn’t just lawyers and lobbyists testifying; women of all ages and from many walks of life showed up to support it, too.

The measure, which bars selling personal health data without a consumer’s consent and prohibits tracking who visits reproductive or sexual health facilities, was adopted with the support of nearly all the state’s Democratic lawmakers and opposition from all the Republicans.

Connecticut and Nevada adopted similar laws last year. New York enacted one that bars using tracking around health care facilities.

California and Maryland took another approach, enacting laws that prevent computerized health networks from sharing information about sensitive health care with other providers without consent.

“We’re really pushing forward with the free-flowing and seamless exchange of health care data with the intend of having information accessible so that providers can treat the whole person,” said Andrea Frey, a lawyer who represents health care providers and digital health systems across. “Conversely, these privacy concerns come into play.”

Illinois, which already had a law limiting how health tracking data — measuring heart rates, steps and others — can be shared, adopted a new one last year that took effect Jan. 1 and that bans providing government license plate reading data to law enforcement in states with abortion bans.

Bills addressing the issue in some form have been introduced in several states this year, including Hawaii, Illinois, Maine, Maryland, Massachusetts, Missouri, South Carolina and Vermont.

In Virginia, legislation that would prohibit the issuance of search warrants, subpoenas or court orders for electronic or digital menstrual health data recently cleared both chambers of the Democratic-controlled General Assembly.

Democratic Sen. Barbara Favola said she saw the bill as a necessary precaution when Republican politicians, including Virginia Gov. Glenn Youngkin, have sought restrictions on abortion.

“The next step to enforcing an abortion ban could be accessing menstrual health data, which is why I’m trying to protect that data,” Favola said in a committee hearing.
Opponents asked whether such data had ever been sought by law enforcement, and Favola responded that she wasn’t aware of a particular example.

“It’s just in search of a problem that does not exist,” said Republican Sen. Mark Peake.
Youngkin’s administration made it clear he opposed similar legislation last year, but his press office didn’t respond to a request for comment on where he stands on the current version.

Sean O’Brien, founder of the Yale Privacy Lab, says there is a problem with the way health information is being used, but he’s not sure laws will be the answer because companies could choose to ignore the potential consequences and continue scooping up and selling sensitive information.

“The software supply chain is extremely polluted with location tracking of individuals,” he said.

Associated Press reporters Frank Bajak and Sarah Rankin also contributed to this report.

Abortions in the US rose slightly post-Supreme Court ruling, study finds

By GEOFF MULVIHILL
Associated Press

The total number of abortions provided in the U.S. rose slightly in the 12 months after states began implementing bans on them throughout pregnancy, a new survey finds.

The report out this week from the Society of Family Planning, which advocates for abortion access, shows the number fell to nearly zero in states with the strictest bans — but rose elsewhere, especially in states close to those with the bans. The monthly averages overall from July 2022 through June 2023 were about 200 higher than in May and June 2022.

The changes reflect major shifts after the U.S. Supreme Court in June 2022 handed down its Dobbs v. Jackson Women’s Health Organization ruling, overturning Roe v. Wade, the 1973 ruling that had made abortion legal nationally. Since last year, most Republican-controlled states have enacted restrictions, while most Democrat-controlled states have extended protections for those from out of state seeking abortion.

“The Dobbs decision turned abortion access in this country upside down,” Alison Norris, a co-chair for the study, known as WeCount, and a professor at The Ohio State University’s College of Public Health, said in a statement. “The fact that abortions increased overall in the past year shows what happens when abortion access is improved, and some previously unmet need for abortion is met.” But she noted that bans make access harder — and sometimes impossible — for some people.

Meanwhile, an anti-abortion group celebrated that the number of abortions in states with the tightest restrictions declined by nearly 115,000. “WeCount’s report confirms pro-life protections in states are having a positive impact,” Tessa Longbons, a senior researcher for the Charlotte Lozier Institute, said in a statement.

Abortion bans and restrictions are consistently met with court challenges, and judges have put some of them on hold. Currently, laws are being enforced in 14 states that bar abortion throughout pregnancy, with limited exceptions, and two more that ban it after cardiac activity can be detected — usually around six weeks of gestational age and before many women realize they’re pregnant.

In all, abortions provided by clinics, hospitals, medical offices and virtual-only clinics rose by nearly 200 a month nationally from July 2022 through June 2023 compared with May and June 2022. The numbers do not reflect abortion obtained outside the medical system — such as by getting pills from a friend. The data also do not account for seasonal variation in abortion, which tends to happen most often in the spring.

The states with big increases include Illinois, California and New Mexico, where state government is controlled by Democrats. But also among them are Florida and North Carolina, where restrictions have been put into place since the Dobbs ruling. In Florida, abortions are banned after 15 weeks of pregnancy — and it could go to six weeks under a new law that won’t be enforced unless a judge’s ruling clears the way. And in North Carolina, a ban on abortion after 12 weeks kicked in in July. The states still have more legal access than most in the Southeast.

The researchers pointed to several factors for the numbers rising, including more funding and organization to help women in states with bans travel to those where abortion is legal, an increase in medication abortion through online-only clinics, more capacity in states where abortion remains legal later in pregnancy and possibly less stigma associated with ending pregnancies.

Nationally, the number of abortions has also been rising since 2017.

Abortions to resume in Wisconsin Monday

Planned Parenthood of Wisconsin announced Thursday abortions in Milwaukee and Madison would resume Monday.

“A decision by the Dane County Circuit Court in July made it clear that the 1849 law is not enforceable for voluntary abortions. Planned Parenthood of Wisconsin, in consultation with attorneys, physicians, partners, and other stakeholders, has made the decision to restore this necessary reproductive health care. We are incredibly grateful to the many supporters across Wisconsin who didn’t give up and helped in so many ways to make this possible,” Planned Parenthood of Wisconsin posted to Facebook Thursday.

Wisconsin Abortion

“Planned Parenthood will never back down until abortion access is protected — and expanded — for the patients who count on us for care. No matter what,” Planned Parenthood of Wisconsin officials added.

In response to Planned Parenthood’s announcement Thursday, Wisconsin Governor Tony Evers said, “I’ve been clear from the beginning that I would fight to restore reproductive freedom in our state with every power and every tool we have, and I’ve spent every day over the last year doing just that.”

“Today’s announcement from Planned Parenthood of Wisconsin as a result of our lawsuit regarding Wisconsin’s criminal abortion ban means Wisconsinites will once again be able to access vital reproductive healthcare and abortion services without exception for the first time since June of last year. This is critically important news for Wisconsin women and patients across our state who, for a year now, have been unable to access the healthcare they need when and where they need it,” Evers noted.

Wisconsin Abortion

Wisconsin abortion

“But I also want to be clear today: I will never let up. And we must not let up. Our fight to restore the same reproductive rights and freedoms Wisconsinites had up until the day the U.S. Supreme Court overturned Roe must continue. I will keep fighting like hell every day until Wisconsinites have the right to make their own healthcare decisions without interference from politicians who don’t know anything about their lives, their family, or their circumstances,” Evers added.

Both Evers and Planned Parenthood noted over a year ago now, on June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey and upending nearly 50 years of a constitutional right to abortion that Wisconsinites and Americans had relied upon for nearly five decades.

Evers also said, “the U.S. Supreme Court decision to overturn Roe threw reproductive freedom in Wisconsin into chaos. As Wisconsin remains one of several states with an outdated criminal abortion ban on the books—which was enacted in 1849 before the Civil War and at a time when Wisconsin women did not have the right to vote—healthcare providers and patients in Wisconsin were thrown into legal uncertainty, and nearly all abortion services in the state ceased.”

Roe v. Wade

Since the U.S. Supreme Court overturned Roe, Wisconsinites have been without abortion care services, with few exceptions, for more than a year now.

Days after the Dobbs decision was released, Evers and Wisconsin Attorney General Josh Kaul filed a lawsuit to clarify that Wisconsin’s outdated, total criminal ban on abortion is unenforceable. On July 7, 2023, the Dane County Circuit Court denied a motion to dismiss the case and decided to allow that lawsuit to continue. In her ruling, the judge stated that “…Wis. Stat. § 940.04 does not prohibit a consensual medical abortion.” In response to the court’s ruling, Planned Parenthood of Wisconsin today announced they plan to resume providing abortion services to patients in Wisconsin.

Gov. Evers and Democrats have been working to protect and defend reproductive freedom for Wisconsinites for the past four years, including in the wake of the U.S. Supreme Court’s decision to overturn Roe and decades of reproductive healthcare precedent with their ruling in Dobbs.

Over the course of the past four years, the governor has vetoed several bills passed by the Legislature, including several during the last legislative session that would have restricted access to abortion, inserted politics into the personal and private conversations between patients and their healthcare providers and made it harder for doctors to provide medically accurate information and treatment. Many of these bills also sought to limit healthcare options for people seeking basic, necessary care, such as pregnancy care, cancer screening and prevention, sexually transmitted disease screening and treatment, and wellness exams, Evers noted.

Dobbs

Prior to the Dobbs decision, Evers joined legislative Democrats in calling on the Legislature to repeal “Wisconsin’s archaic criminal abortion ban.” When a leaked draft U.S. Supreme Court opinion in Dobbs revealed the Supreme Court was poised to overturn Roe, Gov. Evers called the Legislature into a special session to press legislative action to protect reproductive freedom.

Ever also noted last fall, after U.S. Sen. Ron Johnson (R-Wisconsin) erroneously suggested Wisconsin voters could challenge the state’s 1800s-era criminal abortion ban directly through a binding statewide referendum—something he has repeatedly since recommended, which he knows is not permissible in Wisconsin even though it is allowable in 20 other states.

Evers again called the Legislature into a special session to create a pathway for Wisconsinites to directly challenge the state’s criminal abortion ban and repeal the archaic law. Republicans in the Legislature gaveled out of the special session without consideration or debate.

Earlier this year, in January, the governor and legislative Democrats announced a new effort to put an advisory referendum on the April 2023 ballot, asking voters if Wisconsin should repeal the state’s criminal abortion ban and restore the constitutional rights guaranteed for nearly 50 years under Roe.

In March 2023, Gov. Evers again joined legislative Democrats to reintroduce legislation to repeal Wisconsin’s 1849-era criminal abortion ban—a ban that was passed before the Civil War and before women had the right to vote and that prohibits nearly all abortions without exceptions for rape and incest. The bill, Assembly Bill 218, would cleanly repeal Wisconsin’s criminal abortion ban, removing this archaic statute from our books and effectively reverting abortion access in Wisconsin to what it was on June 23, 2022, the day before the U.S. Supreme Court’s decision in Dobbs.

Wisconsin Representative Lisa Subeck (D-South Central, Wisconsin) who has represented the 78th legislative district since 2015 responded, “I am thrilled that Wisconsinites will once again have access to abortion services without being forced to travel out of state. This restores the ability of patients, in consultation with their physicians, to make their own decisions when facing an unintended or untenable pregnancy. If the last year has shown us anything, it is that our freedom to make our own reproductive health care decisions is fragile and must be protected. That is why I will continue working to pass the Restore Roe Act and other measures to ensure our reproductive freedom into the future.”

Public policy reaction

Sen. Kelda Roys (D-Madison) agreed with Subeck.

“This is a welcome decision for patients. For the past 15 months, abortion has been unavailable in Wisconsin, forcing people to travel out of state to receive necessary medical care. No one’s rights or freedom should be limited by where they live, or the whims of a judge, politician, or corporation. Criminalizing abortion does not stop abortion — just this week, data from the Guttmacher Institute shows that the number of abortions in Illinois and Minnesota, and nationally, has risen substantially, despite abortion being unavailable in wide swaths of the country,” Roys said.

“While we must continue to fight for constitutional protection of reproductive rights in our statehouses and courtrooms, we must also educate and empower ourselves and each other. Medication abortion should be available over the counter,” Roys added.

The Wisconsin Law Journal reached out to Devin LeMahieu (R-Sheboygan) for his reaction. A staffer said a statement has not been issued yet.

The Wisconsin Law Journal also reached out to Assembly Speaker Robin Vos (R-Rochester), but no one was available for comment prior to publication.

The Wisconsin Law Journal also reached out to Republican Senator Ron Johnson seeking comment. No one in Johnson’s office was available prior to publication.

 

In-fighting erupts among Republicans at first GOP Debate in Milwaukee

In-fighting and chaos among Republicans erupted at the first GOP Primary Debate in Milwaukee on Wednesday night at the Fiserv Forum.

Despite some empty seats in the arena, there was certainly no lack of heat among candidates — to the point the moderators could not gain control of the stage filled with eight of the nine GOP candidates running for president in 2024. As many of the candidates talked over each other and deflected questions, moderators remained mostly silent.

The GOP candidates engaged in a heated exchange, frequently pointing fingers back at each other. At one point a candidate said stop blaming Democrats, regarding inflation and current economic challenges.

“No one is telling the American people the truth. The truth is that Biden didn’t do this to us,” said GOP Presidential Candidate Nikki Haley.

“Our Republicans did this to us. … When they passed that $2.2 trillion COVID stimulus bill, they left us with 90 million people on Medicaid, 42 million people on food stamps. … They need to eliminate the earmarks that Republicans brought back in, and they need to make sure they understand these are taxpayer dollars. It’s not their dollars,” Haley noted.

Role Reversal?

“And while (Republicans) are all saying this (blaming Democrats), you have Ron DeSantis. You’ve got Tim Scott. You’ve got Mike Pence. They all voted to raise the debt. And Donald Trump added $8 trillion to our debt. And our kids are never going to forgive us for this. And so, at the end of the day, you look at the 2024 budget. Republicans asked for $7.4 billion in earmarks. Democrats asked for $2.8 billion. So, you tell me who are the big spenders? I think it’s time for an accountant in the White House,” said Haley.

GOP presidential candidates have been critical of Biden’s Department of Justice holding Trump accountable for his alleged criminal actions.

Among those candidates, Vivek Ramaswamy said, “We’re skating on thin ice and we cannot set a precedent where the party in power uses police force to indict its political opponents. It is wrong. We have to end the weaponization of justice in this country.”

However, then GOP candidates said if they are elected to the Oval Office, they would prosecute the Biden family.

After saying, “we have plenty of room in the federal prisons to lock up these violent criminals,” former New Jersey Governor and Presidential Candidate Chris Christie said, “In a Christie administration, (Hunter Biden) would go to jail for 10 years.”

After describing Vladimir Putin’s alleged war crimes with Ukraine, Christie said, “this is the Vladimir Putin, who Donald Trump called brilliant and a genius. If we don’t stand up against this type of autocratic killing in the world, we will be next,” he said.

Despite former President Donald Trump showing a resounding lead in the polls among fellow GOP candidates, FOX News Reporter Bret Baier and Martha MacCallum, who hosted Wednesday’s event, did not mention that and instead referred to the former president as an “elephant not in the room.”

“But we are going to take a brief moment and talk about the elephant not in the room,” Baier said, referring to Trump.

“Former president Trump has been indicted in four different states on 91 counts. He will be processed tomorrow in Georgia at the Fulton County Jail for charges relating to the 2020 election loss,” said MacCallum.

When the candidates were asked if they would still support Trump if convicted, the reaction was mixed.

After Ramawamy said, “President Trump, I believe was the best president of the 21st century,” Trump declared Ramawamy the winner of Wednesday’s debate. 

Not everyone agreed.

“I’m not going to support somebody who’s been convicted of a serious felony, or who has this is disqualified under our Constitution. And that’s consistent with RNC rules. And I hope everybody would agree with that,” said Former U.S. Attorney, DEA administrator, Arkansas governor, and current GOP Presidential candidate Asa Hutchinson.

Christie and Haley both said they believe then-Vice President Mike Pence did the right thing in defending and upholding the constitution and rule of law when Trump attempted to overturn the 2020 presidential election.

“Someone’s got to stop normalizing this conduct. OK? Now — and now, whether or not — whether or not you believe that the criminal charges are right or wrong, the conduct is beneath the office of president of the United States,” Christie said.

Haley went one step further in criticizing the former president.

“We have to look at the fact that three-quarters of Americans don’t want a rematch between Trump and Biden. And we have to face the fact that Trump is the most disliked politician in America. We can’t win a general election that way,” Haley said.

When candidates spoke negatively of Trump, the audience frequently booed. Throughout the debate, the audience booed a candidate and just minutes later applauded the same candidate.

“Donald Trump will be convicted of these crimes,” Pence said.

“I put my left hand on Ronald Reagan’s Bible, I raised my right hand. And I took an oath to support and defend the Constitution of the United States. And it ended with a prayer, so help me God. It was a promise that I made to the American people. But I also made it, it made it to my heavenly Father ….. no one’s above the law. … The American people deserve to know that the president asked me in his request that I reject or return votes unilaterally, power that no vice president in American history had ever exercised or taken. [Trump] asked me to put him over the Constitution, and I chose the Constitution. And I always will,” Pence said.

Presidential Candidate and Florida Gov. Ron DeSantis deflected the question if he would still support Trump (and if Pence did the right thing). During the debate, DeSantis attacked the “corporate news media,” deflected questions and vowed to never to let “the Deep State” lock America down during a pandemic ever again.

The “Deep State” refers to an unproven conspiracy theory based without any evidence or facts that federal law enforcement (FBI), the intelligence community (CIA), news media, and financial and industrial sectors collaborate on certain shared agendas. Former presidential adviser David Gergen has previously said that the term had been falsely used by Steve Bannon, Breitbart News, and various other Trump supporters in an attempt to delegitimize critics of Trump’s presidency.

Topics at the debate ranged from abortion and education to immigration and using U.S. military forces to attack drug cartels.

Haley said, “I am unapologetically pro-life.”

Pence said how his faith has impacted his politics, in what critics have said is a gross deviation from the separation of church and state.

“After I gave my life to Jesus Christ as my Lord and Savior, I open up the book and I read, before I formed you in the womb, I knew you. And see I set before you life and death, blessings and curses now choose life. And I knew from that moment on the cause of life had to be my cause. And I’ve been a champion for life in the Congress, a champion for life as governor and as vice president,” Pence said.

“Consensus is the opposite of leadership. When the Supreme Court returned this question to the American people, they didn’t just send it to the states only. It’s not a state’s only issue. It’s a moral issue,” Pence added.

Pence then stated “A 15-week ban is an idea whose time has come. It’s supported by 70 percent of the American people.”

A Wall Street Journal poll last year said only 31% of Americans support a 15-week ban.

Multiple candidates took digs at “liberal prosecutors.”

“And liberal prosecutors in major metropolitan areas continue to work out their fanciful agendas, to do bail reform and go easy (on criminals),” Pence said.

DeSantis agreed and went one step further, “playing the (George) Soros card.”

“These hollowed out cities, this is a symptom of America’s decline. And one of the biggest reasons is because you have George Soros funding these radical left-wing district attorneys. They get into office and they say they’re not going to prosecute crimes,” DeSantis said.

Previously, the Anti-Defamation League (ADL) said “playing the Soros card” is a dangerous dog whistle for antisemitism, “sure to be heard loud and clear by a large audience.”

At one point the in-fighting among GOP candidates escalated when Haley accused Ramaswamy of wanting to defund Israel.

“You want to go and defund Israel. You want to give Taiwan to China,” Haley said.

Then Haley accused Ramaswamy of allegedly supporting Russia’s President, Putin.

“When I was at the U.N., the Russian ambassador suddenly died. This guy is a murderer. And you are choosing a murderer over a pro-American country,” Haley said.

Meanwhile, Trump did not attend Wednesday’s debate and instead aired an exclusive interview with fired FOX News Host Tucker Carlson. The interview aired on X, formerly known as Twitter.

Carlson opened the interview saying, “It’s debate night and we are not in Milwaukee.”

During Trump’s Wednesday interview he defended the Jan. 6 insurrection and said Pence should have sent the votes back to the Legislature. Trump also falsely stated, again, that he won the 2020 Wisconsin Presidential election.

Referring to the Jan. 6 supporters he addressed before marching to the Capitol, Trump said, “People in that crowd said it was the most beautiful day they’ve ever experienced. There was love in that crowd. There was love and unity.”

“I have never seen such spirit and such passion and such love. And I’ve also never seen, simultaneously, and from the same people, such hatred of what they’ve done to our country,” Trump added.

Trump previously said it is beneath him to appear in Milwaukee with the other GOP candidates, The Associated Press reported. 

As previously reported by the Wisconsin Law Journal, the following candidates were present at Wednesday’s debate.

Sen. Tim Scott, S.C.

Florida Gov. Ron DeSantis

Former South Carolina Gov. Nikki Haley

Vivek Ramaswamy

New Jersey Gov. Chris Christie

Former Vice President Mike Pence

North Dakota Gov. Doug Burgum

Gov. Asa Hutchinson

Despite the chaos in the debate, Milwaukee Police officials tell the Wisconsin Law Journal,”the event occurred without incident.”

MPD made a total of one arrest for disorderly conduct.

“MPD publicly expresses our gratitude for the men and women of our Department, both civilian and sworn, who plalnned and worked to ensure community safety in our City. MPD extends our gratitude to our public safety partners including the Milwaukee Fire Department, the Office of Emergency Management, the Office of Violence Prevention, federal law enforcement, and other agencies who worked with us to keep Milwaukee safe. In addition, MPD publicly expresses our gratitude for the community that we serve.  A number of protests occurred during the event and we are grateful for all those who organized and participated in these protests and ensured they occurred peacefully, without causing harm to our City or others.  MPD respects the rights of anyone who wishes to express their opinion.  We serve all residents and visitors of Milwaukee,” officials said in a statement.

Appeals Court upholds legality of abortion pill, with restrictions

A federal appeals court panel ruled Wednesday the abortion pill Mifepristone remains legal, however, set restrictions on patient access, according to court documents obtained by the Wisconsin Law Journal.

The Appeals Court ruling sets the stage for a final decision before the United States Supreme Court on the future legality of one of the most frequently utilized methods of terminating pregnancies.

The decision prohibits the pill from being sent through the mail or prescribed via telemedicine.  In April, the U.S. Supreme Court said mifepristone would remain legal for sale under the current rules until the appeals process concludes.

Anti-abortion groups filed the lawsuit last year, several months after the Supreme Court had overturned Roe v. Wade.

If the Supreme Court denies review, the appeals court’s ruling would remain, limiting but not entirely eliminating access to the pill.

Stymied by the US Supreme Court, Biden wants voters to have the final say on his agenda

People demonstrate outside the U.S. Supreme Court on June 30 in Washington, D.C. After a series of major blows to his agenda from the Supreme Court, President Joe Biden is intent on making sure it is voters — not the justices of the high court — who have the final say. (AP File Photo/Jacquelyn Martin)

By COLLEEN LONG and ZEKE MILLER
Associated Press

WASHINGTON (AP) — After major blows to his agenda by the U.S. Supreme Court, President Joe Biden is intent on making sure voters will have the final say.

When the court’s conservative majority effectively killed his plan to cancel or reduce federal student loan debts for millions of people, Biden said, “Republicans snatched away the hope that they were given.” When the justices ended race-based affirmative action in college admissions, he said, “This is not a normal court.” When they overturned Roe v. Wade and a national right to abortion last year, the president said, “Voters need to make their voices heard.”

As Biden heads into the 2024 election, he is running not only against the Republicans who control one-half of Congress but also against the conservative bloc that dominates the nation’s highest court. It’s a subtle but significant shift in approach toward the Supreme Court, treating it more like a political entity even as Biden stops short of calling for an overhaul.

That shift is becoming apparent in everything from the White House’s messaging to its legal strategy.

“The president respects the court’s authority, but if its judgments are going to be political and there are members of the court who are saying that, he owes it to voters to make it clear what his positions are and what he’s doing to address it,” said Ron Klain, his former chief of staff.

“Many members of the current court testified that Roe is settled law and still overturned it,” he added, referring to the court’s ruling on abortion. “That has its consequences.”

Biden, who once led the Senate Judiciary Committee, is focusing on the politicization of the court as a way to encourage voters to back him. Yet he has not embraced any effort to make big changes to the court.

Instead, Biden is increasingly vocal about his belief that the court is abandoning mainstream constitutional interpretation. He tells voters they need more Democrats in Congress and a Democrat in the White House to counter the impact of the conservative-leaning court.

Biden has won his share of cases, including on immigration, before a court where conservatives hold a 6-3 majority. But the student loan defeat capped a term when justices imposed significant roadblocks.

White House officials say Biden is keen to explore other ways to pursue the same priorities and explain to the American people about the obstacles.

“There’s only upside in running against the court as an institution because the court is doing things that are wildly unpopular and they’re preventing the president from implementing his agenda,” said Chris Kang, chief counsel of the progressive group Demand Justice and a onetime deputy counsel to President Barack Obama.

“I think that it’s important to make clear that the Supreme Court is making it impossible to implement and advance policies that should not have any controversy attached to them,” he added.

Republicans are working to portray Biden as overstepping his legal authority in pursuit of his agenda. They say the high court’s policies are in step with much of the country and they are trying to motivate their own voters by highlighting what the GOP has achieved through court rulings.

Former President Donald Trump, at the recent Faith and Freedom Coalition conference in Washington, praised the three justices he had nominated to the Supreme Court. “Exactly one year ago today, those justices were the pivotal votes in the Supreme Court’s landmark decision ending the constitutional atrocity known as Roe v. Wade,” Trump said.

He drew a standing ovation by noting that “conservatives had been trying for 50 years,” to overturn that ruling. “But I got it done and nobody ever thought it was a possibility.”

Other administration officials said the court’s conservative dominance has lowered the political cost to Biden when the justices scuttle some of his legally suspect actions such as on student loans and coronavirus mandates. On the latter, the Supreme Court struck down Biden’s attempt to require employees of large companies to get shots but left the requirement in place for health care workers, though by that time the pandemic had started to wane.

Klain insisted that everything Biden has put forward had a solid legal basis and was approved by the Justice Department’s Office of Legal Counsel.

“There was no sense of taking the legal issues lightly or just ‘do it and take whatever the court says,” he said.

Confidence in the Supreme Court fell to its lowest point in at least 50 years after the leaked draft opinion in the abortion case in 2022. Those who view the current court favorably are largely Republican.

According to the Pew Research Center’s September 2022 report, only 28% of Democrats and Democrat-leaning independents now view the court favorably, down nearly 40 percentage points since 2020. And people in the United States increasingly favor term limits.

Positive views of the court among Republicans and those who lean Republican has increased to 73%. As a result, the partisan gap is larger than at any other point in the 35 years of polling that Pew has done on the court.

Republicans have focused for years on remaking the federal judiciary and Supreme Court. When Sen. Mitch McConnell, R-K.Y., was the majority leader, he refused to even meet in 2016 with Obama’s pick for the high court — current Attorney General Merrick Garland, a federal judge at that time. The nomination stalled until a Republican president, Trump, took over.

Establishment GOP operatives backed Trump because of his pledge to name as many judges to the bench as possible. Their gamble worked. Trump ended up with three Supreme Court nominees and 54 federal appeals court judges, reshaping the courts for a generation.

Democrats are now finally understanding the power of judges as a voting tool, and Biden has made judicial nominations a priority, appointing a record number of judges for a president at this point in his first term, including some of the most diverse picks yet to the judiciary. Biden aides plan on highlighting those accomplishments during the reelection campaign, but acknowledge it’s only a small salve to their troubles at the high court.

Biden has taken to warning voters about what else the Supreme Court might do in the future, whether rolling back same-sex marriage rights or access to contraception.

“President Biden is being direct with the American people about the stakes these extreme decisions that jettison decades of longstanding precedent have for their fundamental freedoms and their daily lives,” said White House spokesman Andrew Bates.

Part of Biden’s unwillingness to go further to reshape the Supreme Court comes from a sense of history. Those pushing social change stood by the court after Brown v. Board of Education, a major civil rights case, and even Roe v. Wade, holding up its autonomy as a way to push forward. Backing away from that, particularly for an establishment Democrat like Biden, is not easy.

As Biden said in an interview with MSNBC, “I think if we start the process of trying to expand the court, we’re going to politicize it maybe forever in a way that is not healthy,” Leah Litman, a professor of law at the University of Michigan and co-host of “Strict Scrutiny” podcast about the Supreme Court, said that while Biden was unlikely to go that far, “there are a variety of things that Democratic politicians could run on that would actually allow them to more explicitly push back against the court.”

Besides expanding the size of the Supreme Court and or the lower courts, she said, other options include stripping the Supreme Court of jurisdiction over certain cases, setting term limits and implementing ethics changes.

All of them, she said, are things the party could embrace “as part of their recognition that the court has politicized itself.”

Wisconsin judge: Lawsuit to repeal abortion ban can continue

MADISON, Wis. (AP) — Wisconsin’s 173-year-old abortion ban outlaws killing fetuses but doesn’t apply to consensual medical abortions, a judge ruled Friday in allowing a lawsuit challenging the ban to continue in the perennial battleground state.

Dane County Circuit Judge Diane Schlipper said the legal language in the ban doesn’t use the term “abortion” so the law only prohibits attacking a woman in an attempt to kill her unborn child.

“There is no such thing as an `1849 Abortion Ban` in Wisconsin,” the judge wrote.

Wisconsin lawmakers enacted statutes in 1849 that have until now been widely interpreted as outlawing abortion in all cases except to save the mother’s life. The U.S. Supreme Court’s landmark 1973 Roe v. Wade ruling legalizing abortion nullified the ban, but legislators never repealed it. Then, the high court’s decision last June to overturn Roe v. Wade reactivated the statutes.

Republicans and their conservative allies across the country praised the reversal, but the decision energized Democratic voters. Wisconsin Gov. Tony Evers parlayed anger over the ruling into a re-election victory in November. The issue figures to be front and center again in the state as the 2024 presidential campaign ramps up.

The state’s Democratic attorney general, Josh Kaul, has vowed to restore abortion access. He filed a lawsuit in Dane County days after Roe v. Wade was overturned, seeking to repeal the ban.

Kaul argues that the ban is too old to enforce and that a 1985 law that permits abortions before a fetus can survive outside the womb supersedes the ban. Three doctors later joined the lawsuit as plaintiffs, saying they fear being prosecuted for performing abortions.

Kaul has named district attorneys in the three counties where abortion clinics operated until the Supreme Court overturned Roe v. Wade as defendants. One of them, Sheboygan County’s Republican district attorney, Joel Urmanski, filed a motion seeking to dismiss the case in December.

Urmanski maintained that it’s a stretch to argue that the ban is so old it can no longer be enforced and that the 1985 law and the ban complement each other. Since the newer law outlaws abortions post-viability, it simply gives prosecutors another charging option, he contends.

Kaul’s attorneys have countered that the two laws are in conflict and doctors need to know where they stand.

Schlipper explained in a written ruling denying Urmanski’s dismissal motion that she interprets the 1849 law as prohibiting people from killing fetuses by assaulting or battering the mother. The law doesn’t apply to consensual medical abortions because it doesn’t use the word “abortion.” Therefore, a doctor who performs an abortion is criminally liable only if the fetus was viable under the 1985 law, she wrote.

That means the doctor plaintiffs could ultimately win a declaration that they can’t be prosecuted for performing abortions and hence the case should continue, Schlipper wrote.

Andrew Phillips and Jacob Curtis, two of Urmanski’s attorneys, didn’t immediately respond to emails seeking comment on the decision. Heather Weininger, executive director of Wisconsin Right to Life, a group that advocates against abortion, called the ruling “a devastating setback in our ongoing fight to protect Wisconsin’s preborn children.”

The ruling means that the lawsuit will continue in Schlipper’s courtroom. Regardless of how the judge ultimately rules, the case carries so much weight for the future of the state that it almost certainly will rise to the state Supreme Court, which is exactly where Democrats want it.

Liberal justices will control the court with a 4-3 majority after progressive Janet Protasiewicz is sworn in on Aug. 1. She stopped short on the campaign trail of saying how she would rule on a challenge to the 1849 ban but said repeatedly she supports abortion rights.

Evers tweeted Friday that Schlipper’s decision to allow the case to continue is “good news and a critical step” toward restoring reproductive rights.

Republicans introduce bill that ups penalty for performing abortion

WIsconsin abortion
Demonstrators protest outside the Wisconsin state Capitol in Madison on May 3, 2022. Wisconsin Republicans released a package of legislation Tuesday that would tweak the state’s abortion ban by increasing the penalty for performing abortions and specifying medical procedures to save a mother’s life do not qualify as abortion. (Amber Arnold/Wisconsin State Journal via AP, File)

By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — Wisconsin Republicans released a package of legislation Tuesday that would tweak the state’s abortion ban by increasing the penalty for performing abortions and specifying medical procedures to save a mother’s life don’t qualify as abortion.

Democratic Gov. Tony Evers is almost certain to veto the measure should it pass the Republican-controlled Legislature. He has already promised to veto a different Republican-backed bill that would allow abortions in the case of rape or incest, saying he supports restoring abortion rights to what they were in Wisconsin before the U.S. Supreme Court overturned Roe v. Wade last year.
That ruling reactivated a Wisconsin 1849 state law banning nearly all abortions.

Democratic Attorney General Josh Kaul and a group of physicians, with the support of Evers, have sued to overturn the ban, arguing a 1985 law that permits abortion up to the point of viability trumps it. The new liberal-controlled Wisconsin Supreme Court is expected to decide the case.

State Sen. Romaine Quinn and Reps. Gae Magnafici and Donna Rozar released a package of four bills Tuesday dealing with abortion.

The first measure would increase the penalty for anyone besides the mother who performs or causes an abortion with the intent to kill the unborn child guilty to 12 1/2 years in prison. Currently, the maximum sentence is six years.

Another bill would clarify that medical procedures designed to save a pregnant woman’s life but could harm the unborn child don’t qualify as abortion as long as the procedures aren’t performed with the intent of killing the child and the doctor tries to preserve the mother and the child’s lives.

The bill lists inducing labor early, cesarean sections, removal of a miscarriage or ectopic or molar pregnancies as examples of acceptable procedures.

“These bills offer an important clarification and reinforce the sanctity of life,” Quinn, Magnafici and Rozar wrote in a memo to their fellow lawmakers seeking cosponsors.

The doctors suing to overturn Wisconsin’s abortion ban have argued that provisions in the ban allowing abortions to save a mother’s life are vague. The bill would weaken that argument by clarifying what procedures are acceptable, making it all the more like Evers would veto the proposal.

Pro-Life Wisconsin, one of the state’s anti-abortion groups, praised the proposals. The bills would “maintain and strengthen our current law abortion ban and provide the necessary resources for both moms and babies to survive and thrive in a post-Roe Wisconsin,” said Matt Sande, Pro-Life Wisconsin’s legislative director in a statement.

Another bill in the package would increase the tax exemption that parents can claim for each dependent from $700 to $1,000 and extend eligibility to parents of unborn children. Parents could claim the exemption as soon as an ultrasound detects a heartbeat in the unborn child.

A fourth proposal would require the state Department of Health Services to hand pro-life group Choose Life Wisconsin, Inc., a $1 million grant annually. The organization would have to use the money to provide grants of up to $50,000 to pregnancy resource centers. Such centers provide crisis pregnancy counseling, support for unwed mothers and care for mothers and babies.

The last bill in the package would allocate $5 million in state grants for organizations that help people adopt children.

Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu didn’t immediately respond to emails Tuesday inquiring about whether they support the legislation.

Vos and Assembly Republicans introduced a bill earlier this year that would legalize abortions in the case of rape or incest but the proposal has gone nowhere under the Evers veto threat. LeMahieu has said the Senate won’t take it up.

Wisconsin judge to hear first arguments in abortion lawsuit

Demonstrators protest outside the state Capitol in Madison, Wis., on May 3, 2022, in response to the news that the U.S. Supreme Court could be poised to overturn the landmark Roe v. Wade case that legalized abortion nationwide. A Wisconsin judge is set to consider Thursday, May 4, 2023, whether the state’s attorney general can legally challenge the battleground state’s 174-year-old abortion ban and whether the ban is so old its unenforceable. (Amber Arnold/Wisconsin State Journal via AP, File)

MADISON, Wis. (AP) — A Wisconsin judge was set to hear arguments Thursday in a lawsuit challenging the state’s 174-year-old abortion ban, a statute held in abeyance for nearly five decades until the U.S. Supreme Court struck down Roe v. Wade last year.

State Attorney General Josh Kaul, a Democrat, filed the lawsuit in Dane County circuit court last June seeking to repeal the ban. Kaul argues that the 1849 law is so old it was essentially adopted without the people’s consent; or alternately, that narrower restrictions on abortion enacted in Wisconsin in 1985 supersede the older statute. The 1985 legislation permits terminating pregnancies up until a fetus can survive outside the womb, while the older law outlawed abortion except to save the mother’s life.

Kaul initially sued Republican legislators but later dropped them from the case and named three district attorneys as defendants, seeking to prohibit them from enforcing the ban. Thursday’s hearing before Circuit Judge Diane Schlipper was expected to focus on a motion by one of the prosecutors named. Republican Joel Urmanski, Sheboygan County’s district attorney who has vowed to prosecute anyone violating the abortion ban, has asked the court to dismiss the case.

Urmanski argues that Kaul lacks standing to sue because the abortion ban doesn’t hurt him. Urmanski also rebuts Kaul’s argument that the ban is unenforceable because it’s so old. State laws don’t lose their effect through disuse, Urmanski said.

The judge wasn’t expected to immediately rule Thursday, but she could lay down a timeline for her decision.

The case carries so much weight that no matter what happens in Schlipper’s courtroom or at the appellate level it will almost certainly end at the state Supreme Court. That plays to Kaul’s advantage because liberal-leaning justices will hold a 4-3 majority on the court after Milwaukee County Circuit Judge Janet Protasiewicz is sworn in this August.

Protasiewicz signaled repeatedly during her campaign that she supports abortion rights, an unprecedented approach in a judicial race. Typically judicial candidates keep their issue-oriented views to themselves to avoid the appearance of bias.

Protasiewicz’s win symbolizes a larger problem for local- and state-elected officials brought on by the U.S. Supreme Court’s decision striking down Roe v. Wade: the ruling handed conservatives a victory they’d been working toward for decades, but it also galvanized Democrats and their voters to turn out in force at the polls.

US Supreme Court asked to preserve abortion pill access rules

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women’s Center in Tuscaloosa, Alabama, in 2022. Danco Laboratories is asking the U.S. Supreme Court to preserve access to its abortion pill free from restrictions imposed by lower court rulings, while a legal fight continues. (AP File Photo/Allen G. Breed)

By MARK SHERMAN and JESSICA GRESKO
Associated Press

WASHINGTON (AP) — The Biden administration and a drug manufacturer asked the Supreme Court on Friday to preserve access to an abortion drug free from restrictions imposed by lower court rulings, while a legal fight continues.

The Justice Department and Danco Laboratories both warned of “regulatory chaos” and harm to women if the high court doesn’t block an appeals court ruling in a case from Texas that had the effect of tightening Food and Drug Administration rules under which the drug, mifepristone, can be prescribed and dispensed.

The new limits would take effect Saturday unless the court acts before then.

“This application concerns unprecedented lower court orders countermanding FDA’s scientific judgment and unleashing regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone,” Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, wrote Friday, less than two days after the appellate ruling.

A lawyer for the anti-abortion doctors and medical organizations suing over mifepristone said the justices should reject the drugmaker’s and the administration’s pleas and allow the appeals court-ordered changes to take effect.

The fight over mifepristone lands at the Supreme Court less than a year after conservative justices reversed Roe v. Wade and allowed more than a dozen states to effectively ban abortion outright.

The justices are being asked for a temporary order to keep in place Food and Drug Administration regulations governing mifepristone. Such an order would give them time to more fully consider each side’s arguments without the pressure of a deadline.

The Biden administration and Danco, which is based in New York, also want a more lasting order that would keep the current rules in place as long as the legal fight over mifepristone continues. As a fallback, they asked the court to take up the issue, hear arguments and decide by early summer a legal challenge to mifepristone that anti-abortion doctors and medical organizations filed last year.

The court rarely acts so quickly to grant full review of cases before at least one appeals court has thoroughly examined the legal issues involved.

A ruling from the 5th U.S. Circuit Court of Appeals late Wednesday would prevent the pill, used in the most common abortion method, from being mailed or prescribed without an in-person visit to a doctor. It also would withdraw the Food and Drug Administration’s approval of mifepristone for use beyond the seventh week of pregnancy. The FDA says it’s safe through 10 weeks.

Still, the appeals court did not entirely withdraw FDA approval of mifepristone while the fight over it continues. The 5th circuit narrowed an April 7 ruling by U.S. District Judge Matthew Kacsmaryk, whose far-reaching and virtually unprecedented order would have blocked FDA approval of the pill. He gave the administration a week to appeal.

“To the government’s knowledge, this is the first time any court has abrogated FDA’s conditions on a drug’s approval based on a disagreement with the agency’s judgment about safety — much less done so after those conditions have been in effect for years,” Prelogar wrote.

Erin Hawley, a lawyer for the challengers, said in a statement that the FDA has put politics ahead of health concerns in its actions on medication abortion.

“The 5th Circuit rightly required the agency to prioritize women’s health by restoring critical safeguards, and we’ll urge the Supreme Court to keep that accountability in place,” said Hawley said, a senior counsel with Alliance Defending Freedom, a conservative legal group that also argued to overturn Roe v. Wade.

Mifepristone was approved by the FDA more than two decades ago and is used in combination with a second drug, misoprostol.

Adding to the uncertainty, a separate federal judge in Washington on Thursday clarified his own order from last week to make clear that the FDA is not to do anything that might block mifepristone’s availability in 17 Democrat-led states suing to keep it on the market.

It’s unclear how the FDA can comply with court orders in both cases, a situation that Prelogar described Friday as untenable.

The two judges who voted to tighten restrictions, Kurt Engelhardt and Andrew Oldham, are both appointees of former President Donald Trump. The third judge, Catharina Haynes, is an appointee of former President George W. Bush. She said she would have put the lower court ruling on hold entirely for now to allow oral arguments in the case.

The appeals court judges in the majority in Wednesday’s decision noted that the Biden administration and mifepristone’s manufacturer “warn us of significant public consequences” that would result if mifepristone were withdrawn entirely from the market under the lower court ruling.

But the judges suggested FDA changes making mifepristone easier to obtain since 2016 were less consequential than its initial approval of the drug in 2000. It would be “difficult” to argue the changes were “so critical to the public given that the nation operated — and mifepristone was administered to millions of women — without them for sixteen years” the judges wrote.

Use of medication abortion jumped significantly after the 2016 rule expansion, according to data gathered by the Guttmacher Institute, a research group that supports abortion rights. In 2017, medication abortion accounted for 39% percent of abortions but by 2020 had increased to become the most common method, accounting for 53% of all abortions.

Experts have said the use of medication abortion has increased since the court overturned Roe. When the drug was initially approved, the FDA limited its use to up to seven weeks of pregnancy. It also required three in-person office visits: the first to administer mifepristone, the next to administer the second drug, misoprostol, and the third to address any complications. It also required a doctor’s supervision and a reporting system for any serious consequences of the drug.

If the appeals court’s action stands, those would again be the terms under which mifepristone could be dispensed for now. At the core of the Texas lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because the agency did not adequately review safety risks.

Mifepristone has been used by millions of women over the past 23 years. While less drastic than completely overturning the drug’s approval, the latest ruling still represents a stark challenge to the FDA’s authority overseeing how prescription drugs are used in the U.S. The panel overturned multiple decisions made by FDA regulators after years of scientific review.

Common side effects with mifepristone include cramping, bleeding, nausea, headache and diarrhea. In rare cases, women can experience excess bleeding that requires surgery to stop.

Still, in loosening restrictions on mifepristone, FDA regulators cited “exceedingly low rates of serious adverse events.” More than 5.6 million women in the U.S. had used the drug as of June 2022, according to the FDA. In that period, the agency received 4,200 reports of complications in women, or less than one tenth of 1% of women who took the drug.

Associated Press writers Paul Weber and Lindsay Whitehurst also contributed to this report.

DOJ to ask US Supreme Court to put abortion pill limits on hold

Bottles of the abortion pill mifepristone, left, and misoprostol are displayed at a clinic in Des Moines, Iowa. A federal appeals court has preserved access to an abortion drug for now but under tighter rules. (AP File Photo/Charlie Neibergall)

By PAUL J. WEBER and JESSICA GRESKO
Associated Press

AUSTIN, Texas (AP) — A federal appeals court ruled that the abortion pill mifepristone can still be used for now but restored restrictions on the drug in a decision that the Justice Department said Thursday it would swiftly challenge at the Supreme Court.

At stake in an accelerating legal battle that began in Texas is nationwide access to the most common method of abortion in the U.S., less than a year after the reversal of Roe v. Wade prompted more than a dozen states to effectively ban abortion outright.

In a ruling late Wednesday, the 5th U.S. Circuit Court of Appeals in New Orleans temporarily narrowed a ruling by a lower court judge in Texas that had completely blocked the Food and Drug Administration’s approval of mifepristone. But a divided three-judge panel still reduced the period of pregnancy when the drug can be taken and said it could not be dispensed by mail.

The ruling preventing the pill from being sent by mail amounts to another significant constraint of abortion access and was cheered by opponents of the drug. The Justice Department said it would ask the U.S. Supreme Court for an emergency order to put any action on hold.

“We are going to continue to fight in the courts, we believe the law is on our side, and we will prevail,” White House Press Secretary Karine Jean-Pierre said Thursday, speaking from Dublin during a visit by President Joe Biden.

Mifepristone was approved by the FDA more than two decades ago and is used in combination with a second drug, misoprostol.

Abortion rights groups expressed relief that the FDA approval would remain in place for now but criticized the court for reinstating restrictions on the drug. Whole Woman’s Health, an abortion provider that operates six clinics in five states, said in a tweet it was continuing to offer mifepristone in clinics and through virtual services while reviewing the decision.

In the 2-1 vote, the judges put on hold changes made by the regulator since 2016 that relaxed the rules for prescribing and dispensing mifepristone. Those included extending the period of pregnancy when the drug can be used from seven weeks to 10 and allowing it to be dispensed by mail, without any need to visit a doctor’s office.

The panel’s decision came just days after the Justice Department swiftly appealed the far-reaching ruling by a federal judge in Texas that blocked the FDA’s approval of the pill in a lawsuit by the drug’s opponents. There is virtually no precedent for a lone judge overturning the regulator’s medical decisions.

The lawsuit challenging the drug’s approval was brought by the Alliance Defending Freedom, which also argued for overturning Roe v. Wade and indicated it was content for now in the mifepristone case. Erin Hawley, an attorney for the group, said it had no plans to seek an appeal that might restore the Texas court’s full ruling.

“The 5th Circuit’s decision is a significant victory for the doctors we represent, women’s health, and every American who deserves an accountable federal government acting within the bounds of the law,” Hawley said.

The two judges who voted to tighten restrictions, Kurt Engelhardt and Andrew Oldham, are both appointees of former President Donald Trump. The third judge, Catharina Haynes, is an appointee of former President George W. Bush. She said she would have put the lower court ruling on hold entirely for now to allow oral arguments in the case.

Adding to the uncertainty, a separate federal judge in Washington last week ordered the FDA not to do anything that might block mifepristone’s availability in 17 Democrat-led states suing to keep it on the market. The judge in that case has not yet to responded to the Justice Department seeking additional clarity this week.

The appeals court judges in the majority in Wednesday’s decision noted that the Biden administration and mifepristone’s manufacturer “warn us of significant public consequences” that would result if mifepristone were withdrawn entirely from the market under the lower court ruling.

But the judges suggested FDA changes making mifepristone easier to obtain since 2016 were less consequential than its initial approval of the drug in 2000. It would be “difficult” to argue the changes were “so critical to the public given that the nation operated — and mifepristone was administered to millions of women — without them for sixteen years” the judges wrote.

When the drug was initially approved, the FDA limited its use to up to seven weeks of pregnancy. It also required three in-person office visits: the first to administer mifepristone, the next to administer the second drug, misoprostol, and the third to address any complications. It also required a doctor’s supervision and a reporting system for any serious consequences of the drug.

If the appeals court’s action stands, those would again be the terms under which mifepristone could be dispensed for now.

Democratic leaders in states where abortion remains legal since the Supreme Court overturned Roe v. Wade last year say they are preparing in case mifepristone becomes restricted. New York Gov. Kathy Hochul said Tuesday that her state would stockpile 150,000 doses of misoprostol.

The White House also has contingency plans in place, but Jean-Pierre held off detailing them while legal action continued. Instead, she described a proposed new federal rule to limit how law enforcement and state officials collect medical records if they investigate women who flee their home states to seek abortions elsewhere.

Pharmaceutical executives this week also signed a letter that condemned the Texas ruling and warned that FDA approval of other drugs could be at risk if U.S. District Judge Matthew Kacsmaryk’s decision stands.

At the core of the Texas lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because the agency did not adequately review safety risks.

Mifepristone has been used by millions of women over the past 23 years. While less drastic than completely overturning the drug’s approval, the latest ruling still represents a stark challenge to the FDA’s authority overseeing how prescription drugs are used in the U.S. The panel overturned multiple decisions made by FDA regulators after years of scientific review.

Common side effects with mifepristone include cramping, bleeding, nausea, headache and diarrhea. In rare cases, women can experience excess bleeding that requires surgery to stop.
Still, in loosening restrictions on mifepristone, FDA regulators cited “exceedingly low rates of serious adverse events.”

More than 5.6 million women in the U.S. had used the drug as of June 2022, according to the FDA. In that period, the agency received 4,200 reports of complications in women, or less than one tenth of 1% of women who took the drug.

Associated Press writers Mark Sherman, Lindsay Whitehurst, Colleen Long and Matt Perrone also contributed to this report.