The Biden administration is suiting up to fight for medication abortion, but I hope they have a solid backup plan

OPINION: The White House says it will fight the mifepristone ruling. But if this case goes to the Supreme Court, it will face the same justices who overturned Roe v. Wade.

Editor’s note: The following article is an op-ed, and the views expressed are the author’s own. Read more opinions on theGrio.

It’s time to suit up, y’all. The Biden administration is ready to fight the atrocious mifepristone ruling out of Texas. But considering how the Supreme Court decimated Roe v. Wade last year, I sure hope they have a backup plan because, once again, women and pregnant people are in limbo when it comes to accessing basic health care.

In one of the most epic attempts at a Friday news dump, U.S. District Judge Matthew Kacsmaryk released a heinous decision in which he declared the word fetus to be “unscientific,” opted to use the anti-abortion phrase “unborn human” and suspended the Food and Drug Administration’s approval of mifepristone, a drug that was approved in 2000 and is used in more than half of abortions in the country. But roughly 30 minutes after Kacsmaryk’s hack job ruling was published, U.S. District Judge Thomas Rice in Washington state swooped in and released an opposing ruling, which ordered the FDA to continue the “status quo” with mifepristone distribution. The only catch is that this ruling applied to the 17 states and the District of Columbia that signed on to the lawsuit.

Though there is no evidence that Judge Rice was intentional about releasing his judgment as a countermove to undercut the harmful ruling out of Texas mere minutes after it was issued, that’s exactly what it looks like from the outside. But instead of accepting this golden egg and ignoring the Texas ruling until a higher court could weigh in, the Biden administration has decided to fight, which is great politically, but it will likely lead to a predictable negative outcome. 

Considering how much of a winning message abortion rights and reproductive rights are for Democrats, it’s strategically important that we continue to hear from the Biden administration that they are 10 toes down when it comes to protecting our rights. This week, Vice President Kamala Harris declared, “There is no question that the president and I will stand with the women of America and do everything we can to ensure that women have the ability to make decisions about their health care…” 

That’s the right tone and it’s the right message, especially after Judge Janet Protasiewicz beat the brakes off of the anti-abortion Republican candidate in Wisconsin by 11 points, a state Biden only won by less than 1 percentage point in 2020, with that same commitment. On top of that, the polling has been consistent for years that 60% of the nation supports access to abortion. So fighting this Texas ruling makes political sense, but now comes the reality that if an appeals court doesn’t grant the Department of Justice’s request for a stay, then by Saturday, mifepristone will be banned. And if this case does advance to the Supreme Court, then it will face the exact same conservative justices who overturned Roe and who are salivating at the opportunity to take away more of our rights. 

Alright, now cue the backup plans. First up, on Monday, Congressional Democrats introduced a bill that codifies the FDA’s authority in approving abortion medications and, while the intention is good, it’s doubtful that MAGA Republican House Speaker Kevin McCarthy would allow a vote to happen on the legislation. Next up, according to reports, the makers of mifepristone are already considering how to reapply for FDA approval if the Texas ruling is upheld and the 23-year-old drug approval is withdrawn. While that process would take time, it would undercut the case entirely and allow for mifepristone to be used nationwide. 

No matter which course of action the Biden administration takes, the clock is ticking.

Juanita Tolliver is the host of Crooked Media’s “What A Day” Podcast, and an MSNBC political analyst.

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