Missouri's current Attorney General Andrew Bailey recently filed a lawsuit that demonstrates his continuous efforts to blaze new trails in the law and civic cynicism in service to the goal of ever more restrictions on the reproductive rights of citizens not only in Missouri but the entire United States. The reasoning behind the suit not only conveys the depravity of those pushing these restrictions but demonstrates how little they understand about the larger feedback loop between the medical system they have disturbed and the larger economic system it impacts.
Prioritizing Power Over People
Bailey's suit was filed in conjunction with AGs from Kansas and Idaho and lists the FDA as defendant. The ONE HUNDRED AND NINETY NINE pages of the suit claim women "face severe, life-threatening harm" as a result of the FDA's approval of abortion drugs like mifepristone and approval of their distribution by mail-order. It claims nearly one in twenty five women who use one of these drugs will still require emergency room care and that women should be required to see a doctor in person prior to obtaining a prescription for any of these drugs.
You can see a copy of the full lawsuit here in PDF format at the court's document management web site:
https://storage.courtlistener.com/recap/gov.uscourts.txnd.370067/gov.uscourts.txnd.370067.195.1.pdfThe suit cites a variety of statistics to induce shock and anger over the medical impacts of abortion drugs on women. For example, it cites the required FDA label on drugs stating 2.9 to 4.6 percent of users will visit the emergency room after using the drug. THE ER! These must be horrific complications! Well, maybe. But this statistic could just be a reflection that primary care access SUCKS in many areas and if a patient encounters heavy bleeding, they're not going to get into an OB/GYN or primary care physician with one hour's notice. These visits aren't necessarily a sign of undue risk with the drugs, they're a sign of a completely dysfunctional health care system.
Another statistic cited in paragraph 627 illustrates how innumerate and / or manipulative Bailey and team are in their narrative.
627. The study also found that ED visits coded severe or critical for women who underwent a chemical abortion increased by 4,041.1% between 2004 and 2015, compared to a 450.6% increase for surgical abortion subjects and 20.9% for live birth subjects.
Again, that's dreadful! Right? Well, maybe. But mifepristone first became available in the United States in 2000. Prior to 2000, the number of Emergency Department (ED) visits due to mifepristone was ZERO because the drug wasn't legal. Per this report from the Guttmacher Institute, the share of medical abortions has grown from 0% in 2000 to 53% in 2020.
https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortionsOver that same rough period, the number of total abortions has dropped from about 1.3 million in 2000 to 930,160 in 2022. In 2004, medical abortions were about 14% of all abortions or 0.14 x 1.25 or 175,000. If medical abortions are 53% of the total 930,160 now, that's 492,984 medical abortions. So the volume of medical abortions increased 281% over the period. So if the ER visit count jumped 4041% in that period, clearly the drugs are far more dangerous than surgical abortions or office-supervised abortions right?
Not necessarily. Again, a large number of Americans visit an ER not because emergency care is truly needed but because primary care capacity does not exist to handle non-critical issues and patients are not qualified to judge what is life-threatening or not. No one is citing skyrocketing death rates among patients opting for a medical abortion. None exist.
Section XXII of the lawsuit is entitled Economic Injuries to Plaintiffs’ Medical Systems and spans forty pages from 152 to 191 with similar tables and claims which all look very "sciency" and meticulously researched but are likely reflecting a similar cherry-picked process that takes the data completely out of context.
In any civil lawsuit, the plaintiff is required to explain how they have standing to file the action and summarize how the defendant's actions are causing harm to the plaintiff. The Plaintiffs, all three Attorneys General, state their position as AG and their claim as having authorization per state law to "institute, in the name and on the behalf of the state, all civil suits and other proceedings at law or in equity requisite or necessary to protect the rights and interests of the state."
That's some curious wording there. "...interests of the state." I would have worded that as "protect the rights and interests of the citizens of the state", just to make it absolutely clear what is being protected.
But I'm not Andrew Bailey. Andrew Bailey makes it perfectly clear much further in the text of the lawsuit where his priorities lie. Page 190 contains two paragraphs that have drawn particular attention and disgust.
751. These estimates also show the effect of the FDA’s decision to remove all in-person dispensing protections. When data is examined in a way that reflects sensitivity to expected birth rates, these estimates strikingly “do not show evidence of an increase in births to teenagers aged 15-19,” even in states with long driving distances despite the fact that “women aged 15-19 … are more responsive to driving distances to abortion facilities than older women.” This study thus suggests that remote dispensing of abortion drugs by mail, common carrier, and interactive computer service is depressing expected birth rates for teenaged mothers in Plaintiff States, even if other overall birth rates may have been lower than otherwise was projected.
752. 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.
The point in paragraph 751 seems bizarre. Bailey and his cohorts are attempting to create a sense of drama / urgency from the fact that teen birth rates among women 15-19 DID NOT increase as a sign of a problem. Um, how can one put this gently? The GOAL of allowing remote dispensing of abortion drugs WAS to reduce the birth rate among teens who did not want to have a child. The GOAL of the program WAS to make the choice available to people with barriers to driving 300 miles to visit a reproductive health clinic. OF COURSE the number of surgical abortions would decline and the number of medication-induced abortions would go up.
The point in paragraph 752 is a sign of much deeper problems to come. Bailey and his cohorts are essentially arguing that State Attorney Generals have a vested interest in fostering population growth as a means of maintaining and increasing their influence over federal funds allocated to states based on population and maintaining a state's relative legislative influence in the US House by limiting the means by which CITIZENS can choose to control their fertility. That is not hyperbole. That is EXACTLY what this lawsuit states.
It's bad enough that politicians have prioritized their own power and influence over the rights of their citizens. It's worse that this language in paragraph 752 is such a distortion of the priorities that the judicial system is intended to reflect. That language likely appears completely tone-deaf to average citizens but it is likely to be viewed with outright contempt by many (most?) in the legal profession. Yet, it appears in this lawsuit. Why? It's not an accident. It seems clear that Bailey and company made this claim because they've identified a judge or a circuit court that has given prior indications of sympathy to such a justification. If this court can land on that judge's desk in the right circuit, this team will edge closer to getting the issue of constitutionality of contraceptive drugs and abortion drugs onto the Supreme Court's docket. Current US Supreme Court justices have directly stated in recent rulings they are EAGER to invent originalist justifications for declaring such drugs unconstitutional and would entertain cases seeking to ban their use entirely.
Show Me Brain Drain from Extremism
The language in this lawsuit only emphasizes how ignorant extremist anti-abortion advocates are about EVERYTHING related to abortion, the larger healthcare system and society in general. If Andrew Bailey is worried about population loss resulting from a reduction in teen pregnancies and the subsequent loss of federal funds and legislative representation based on population loss, he will have much more to worry about as the impacts of Missouri Republicans' draconian efforts really begin to take root and feed on each other.
What doctor is going to want to serve their residency in a Missouri hospital that might threaten their career before it begins if they specialize in OB/GYN and perform a procedure to save a woman's life that some mouth-breathing Republican takes exception to and sues the doctor for violating Missouri's abortion prohibitions because the patient wasn't close enough to death?
With fewer doctors willing to complete their residencies in Missouri hospitals, how long will it be before hospitals and local practices have difficulty maintaining staff for critical procedures and routine care alike?
How many young women are going to want to attend college in Missouri for four years and run the risk of getting pregnant and not being able to obtain an abortion?
How many young couples are going to want to stay in Missouri when they begin having a family for fear one of those pregnancies encounters issues that Missouri Republicans decided ISN'T severe enough to allow appropriate treatments to save the mother's life (and future fertility)?
How many EXISTING businesses are going to want to remain located in a state gaining a well-deserved reputation as a social backwater and risk not being able to attract and retain the kinds of employees they need?
How many NEW businesses making a decision on where to locate would choose a state as backward as Missouri which will make it drastically more difficult for that new business to attract talent?
WTH
