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Abortion Drug Access Could Be Limited By Supreme Court − If The Court Decides Anti-Abortion Doctors Can, In Fact, Challenge The FDA

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Pro-abortion rights activists rally in front of the Supreme Court on March 26, 2024, the day justices heard oral arguments about the use of mifepristone. Drew Angerer/AFP via Getty Images

Who has the legal right to challenge decisions by the U.S. Food and Drug Administration? And should the moral umbrage of a group of anti-abortion rights doctors shift policy across the country, limiting women’s ability to get the widely used abortion drug mifepristone?

These are a few of the central questions that the Supreme Court fielded on March 26, 2024, during the oral arguments in FDA v. Alliance for Hippocratic Medicine. A group of doctors is challenging the FDA, saying that the federal agency’s decision allowing people to get mifepristone via telehealth, at up to 10 weeks of pregnancy, is causing some medical professionals harm.

Amy Lieberman, politics and society editor at The Conversation U.S., spoke with family law and reproductive justice scholars Naomi Cahn and Sonia Suter to better understand what’s behind the oral arguments before the Supreme Court – and how the court’s eventual decision, expected in June, could affect people’s ability to get abortions by using mifepristone, one of two drugs used for medication abortion.

White boxes of Mifepristone are seen stacked in a shelf.
A cabinet holds mifepristone at a health clinic in Casper, Wyo., in June 2023.
Rachel Woolf for The Washington Post via Getty Images

What is this case about?

Sonia Suter: It’s about whether the FDA’s regulations for the use of mifepristone were appropriately loosened in 2016 and 2021. These changes generally make mifepristone more accessible by allowing people to have the medication prescribed via a telehealth visit and then getting the pill in the mail.

Naomi Cahn: That 2016 regulation also extended the time during which mifepristone could be prescribed, increasing it from seven to 10 weeks gestation. Medication abortions accounted for 63% of all abortions that occurred in the U.S. in 2023. This percentage has increased since the Supreme Court overturned the constitutional right to an abortion in 2022.

Why are these guidelines being challenged?

Suter: A group of doctors and medical associations that oppose abortion are challenging these guidelines and using this court case as a way, we believe, to limit the ability to get an abortion by using medication.

They challenged the drug’s initial approval by the FDA and the relaxed restrictions on how it is used. They claimed that the FDA exceeded its authority, did not rely on proper data and did not have adequate support from scientific studies for its decision that mifepristone could be safely prescribed. Their initial arguments, which the lower court accepted, would have banned mifepristone. But that decision was not upheld by the 5th Circuit Court.

Instead, the issues before the Supreme Court focus on whether the FDA should have expanded the use of mifepristone. Virtually all studies have shown that mifepristone is not dangerous, even with the relaxed conditions on its use.

What is the federal government’s central argument against these claims?

Cahn: The government is stating that the FDA appropriately reviewed all of the evidence and its decision was appropriate.

Indeed, the attorney representing the mifepristone manufacturer, Jessica Ellsworth, pointed out that the studies cited by the challengers have either been discredited or withdrawn because they were unreliable.

Another critical issue, as U.S. Solicitor General Elizabeth Prelogar said to the justices today, is whether the organization challenging this ruling actually has legal standing – the right to sue – to bring a lawsuit against the FDA.

Why is the question of who can sue the FDA important here?

Suter: Under U.S. law, you cannot succeed in court every time you are unhappy. The Supreme Court has ruled that the Constitution requires parties who bring suit in federal court to have “standing.” This means parties have to show that they have been injured in some tangible way or threatened with such an injury by the acts that are the basis of the lawsuit. In this case, a group of doctors morally opposed to abortion are saying they have been injured. Their claim is that with the changes in the FDA’s regulation of mifepristone prescriptions, patients will come to them in the emergency room, requiring medical care that violates these religious beliefs and causes them stress.

The government’s response is that the FDA is not making them do anything, including prescribe these pills or treat these patients. And there are conscience laws that say if the treatment is against a health care provider’s beliefs, they do not need to provide that care. So the government asks: How are the doctors harmed here?

A line of people in formal clothing are seen behind barricades outside the Supreme Court on a grey day.
People wait outside the Supreme Court to hear oral arguments on mifepristone on March 26, 2024.
Drew Angerer/AFP via Getty Images

What is your impression from the justices, listening to these arguments?

Cahn: I was surprised by how much time the justices spent asking about legal standing and whether there was a direct enough connection between the plaintiffs and the FDA’s guidance.

What’s the potential impact of the court’s eventual ruling on this case?

Cahn: The court’s decision has implications for the whole FDA approval process as well as access to medication abortion, including through telehealth and the mail. If the court rules for the doctors challenging the FDA, mifepristone would still be available, but access to it would be severely limited because people would need an in-person visit before they could get it.

The Conversation

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

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TikTok Fears Point To Larger Problem: Poor Media Literacy In The Social Media Age

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Tiktok is not the only social media app to pose the threats it’s been accused of. picture alliance via Getty Images

The U.S. government moved closer to banning the video social media app TikTok after the House of Representatives attached the measure to an emergency spending bill on Apr. 17, 2024. The move could improve the bill’s chances in the Senate, and President Joe Biden has indicated that he will sign the bill if it reaches his desk.

The bill would force ByteDance, the Chinese company that owns TikTok, to either sell its American holdings to a U.S. company or face a ban in the country. The company has said it will fight any effort to force a sale.

The proposed legislation was motivated by a set of national security concerns. For one, ByteDance can be required to assist the Chinese Communist Party in gathering intelligence, according to the Chinese National Intelligence Law. In other words, the data TikTok collects can, in theory, be used by the Chinese government.

Furthermore, TikTok’s popularity in the United States, and the fact that many young people get their news from the platform – one-third of Americans under the age of 30 – turns it into a potent instrument for Chinese political influence.

Indeed, the U.S. Office of the Director of National Intelligence recently claimed that TikTok accounts run by a Chinese propaganda arm of the government targeted candidates from both political parties during the U.S. midterm election cycle in 2022, and the Chinese Communist Party might attempt to influence the U.S. elections in 2024 in order to sideline critics of China and magnify U.S. social divisions.

To these worries, proponents of the legislation have appended two more arguments: It’s only right to curtail TikTok because China bans most U.S.-based social media networks from operating there, and there would be nothing new in such a ban, since the U.S. already restricts the foreign ownership of important media networks.

Some of these arguments are stronger than others.

China doesn’t need TikTok to collect data about Americans. The Chinese government can buy all the data it wants from data brokers because the U.S. has no federal data privacy laws to speak of. The fact that China, a country that Americans criticize for its authoritarian practices, bans social media platforms is hardly a reason for the U.S. to do the same.

The debate about banning TikTok tends to miss the larger picture of social media literacy.

I believe the cumulative force of these claims is substantial and the legislation, on balance, is plausible. But banning the app is also a red herring.

In the past few years, my colleagues and I at UMass Boston’s Applied Ethics Center have been studying the impact of AI systems on how people understand themselves. Here’s why I think the recent move against TikTok misses the larger point: Americans’ sources of information have declined in quality and the problem goes beyond any one social media platform.

The deeper problem

Perhaps the most compelling argument for banning TikTok is that the app’s ubiquity and the fact that so many young Americans get their news from it turns it into an effective tool for political influence. But the proposed solution of switching to American ownership of the app ignores an even more fundamental threat.

The deeper problem is not that the Chinese government can easily manipulate content on the app. It is, rather, that people think it is OK to get their news from social media in the first place. In other words, the real national security vulnerability is that people have acquiesced to informing themselves through social media.

Social media is not made to inform people. It is designed to capture consumer attention for the sake of advertisers. With slight variations, that’s the business model of all platforms. That’s why a lot of the content people encounter on social media is violent, divisive and disturbing. Controversial posts that generate strong feelings literally capture users’ notice, hold their gaze for longer, and provide advertisers with improved opportunities to monetize engagement.

There’s an important difference between actively consuming serious, well-vetted information and being manipulated to spend as much time as possible on a platform. The former is the lifeblood of democratic citizenship because being a citizen who participates in political decision-making requires having reliable information on the issues of the day. The latter amounts to letting your attention get hijacked for someone else’s financial gain.

If TikTok is banned, many of its users are likely to migrate to Instagram and YouTube. This would benefit Meta and Google, their parent companies, but it wouldn’t benefit national security. People would still be exposed to as much junk news as before, and experience shows that these social media platforms could be vulnerable to manipulation as well. After all, the Russians primarily used Facebook and Twitter to meddle in the 2016 election.

Media literacy is especially critical in the age of social media.

Media and technology literacy

That Americans have settled on getting their information from outlets that are uninterested in informing them undermines the very requirement of serious political participation, namely educated decision-making. This problem is not going to be solved by restricting access to foreign apps.

Research suggests that it will only be alleviated by inculcating media and technology literacy habits from an early age. This involves teaching young people how social media companies make money, how algorithms shape what they see on their phones, and how different types of content affect them psychologically.

My colleagues and I have just launched a pilot program to boost digital media literacy with the Boston Mayor’s Youth Council. We are talking to Boston’s youth leaders about how the technologies they use everyday undermine their privacy, about the role of algorithms in shaping everything from their taste in music to their political sympathies, and about how generative AI is going to influence their ability to think and write clearly and even who they count as friends.

We are planning to present them with evidence about the adverse effects of excessive social media use on their mental health. We are going to talk to them about taking time away from their phones and developing a healthy skepticism towards what they see on social media.

Protecting people’s capacity for critical thinking is a challenge that calls for bipartisan attention. Some of these measures to boost media and technology literacy might not be popular among tech users and tech companies. But I believe they are necessary for raising thoughtful citizens rather than passive social media consumers who have surrendered their attention to commercial and political actors who do not have their interests at heart.

The Conversation

The Applied Ethics Center at UMass Boston receives funding from the Institute for Ethics and Emerging Technologies. Nir Eisikovits serves as the data ethics advisor to Hour25AI, a startup dedicated to reducing digital distractions.

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How Trump Is Using Courtroom Machinations To His Political Advantage

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Former President Donald Trump sits in a New York courtroom as jury selection proceeds in one of his criminal cases. Jabin Botsford/Pool Photo via AP

The second week is wrapping up in former President Donald Trump’s first criminal trial on charges from the state of New York related to paying hush money to an adult film star. So far, the jury has been selected, but no other proceedings have begun.

The Conversation U.S. interviewed Tim Bakken, a former New York prosecutor and now a legal scholar teaching at West Point, and Karrin Vasby Anderson, a political communication expert at Colorado State University, to find out what overarching themes they have observed, both in the courtroom and outside it.

Is this trial proceeding normally?

Bakken: It seems like an ordinary trial, but it is an extraordinary trial underneath if we really look at some of the details. The first thing that struck me was on Day 1, when Judge Juan Merchan questioned 96 jurors. Fifty of them said they could not be fair to Trump. On Day 3, 48 of that day’s 96 said the same thing.

That does not bode well for a defendant in a jurisdiction where Democrats outnumber Republicans 9 to 1.

In addition, the judge did not make an accommodation to alleviate the possible difficulty that such antagonism represents. If 50 out of 96 people raised their hands and said they couldn’t be fair because of the color of the defendant’s skin, that would signal a problem. In a trial, that problem is addressed through allowing the defense to ask more questions of the jurors and to get more peremptory challenges, which allows them to dismiss a juror without having to explain why.

There are 10 already allotted because this is a low-level felony trial. In other cases in New York, you would have 20, such as a murder case. And the judge has the discretion to increase that number. He could have done that in this case, but he didn’t.

An artist's rendering of a courtroom scene.
A courtroom sketch depicts Judge Juan Merchan, Donald Trump, prospective jurors and other court and legal personnel.
Christine Cornell via AP Pool

How fast is the judge moving?

Bakken: Merchan has told Trump he may not be able to attend his child’s high school graduation, scheduled for May 17. That indicates that the judge is moving apace.

But in many cases in New York – on Fridays, for example, when a defendant or defense lawyer or prosecutor is Muslim or Jewish – some or all of the entire day will be taken off by the judge. There won’t be any trial.

I think the judge will let Trump attend the high school graduation, because otherwise he might seem to treat Trump a little bit differently than other defendants.

What is most important for the public to understand so far?

Anderson: I think it’s important for the casual observer, who might wonder whether being on trial for a felony was hurting Trump’s presidential campaign, to understand that he’s strategically using the trial to his advantage.

Voters following the trial in the mainstream media are hearing from experts that the legal proceedings are progressing relatively normally and the system is standing up under the unprecedented circumstances of this case.

But in the conservative media sphere, Trump is using the trial as a campaign strategy pretty effectively, stoking his base’s fears and quoting pundits and hosts from Fox News, Newsmax and OAN who echo his framing of the trial.

Trump has said the requirement to be in the courtroom every day is harming his ability to campaign. The Guardian reported, however, that while he is in court, his “Truth Social page is putting up new posts minute by minute.”

If you look at those posts, you see a series of complaints about the case interspersed with pro-Trump campaign messaging and posts telling voters to be afraid of what he says is rampant crime under Joe Biden’s tenure as president.

Individually, the campaign posts are consistent with Trump’s usual messaging. But when Trump layers messages about crime with others about an allegedly corrupt justice system, the goal is to not only intensify voters’ fears but also tell voters they should be afraid because powerful people are coming for him and are going to come after regular people next.

Trump is also charging that the process of his trial is undermining democracy. He posted a video in which his close adviser Stephen Miller urged, “So when you hear them say that democracy is on trial, they’re right. Democracy is on trial. Freedom is on trial. The rule of law is on trial. … If Donald Trump is convicted then all of these principles are convicted and destroyed with him.”

This sets up a catch-22. If Trump is not convicted, he gets to say he was exonerated. If he is convicted, then he just pivots to this charge that a normally operating courtroom is what’s undermining justice and democracy – not his actions or the actions of his campaign.

If Trump was just posting on his social media account, it wouldn’t be nearly as powerful. But Fox News, OAN and Newsmax are really functioning as his campaign surrogates. Since much of the country is paying attention to that media space, that’s a really consequential campaign strategy. It’s savvy of him to use the court proceedings in this way.

A man walks out a door that is guarded by a police officer.
Donald Trump walks outside during a break in trial proceedings.
Mark Peterson/Pool Photo via AP

Is any of what Trump is saying a fair criticism or statement?

Bakken: The New York district attorney decided to prosecute Trump in this case. He didn’t have to. It seems unquestionable that Trump filed or made false business documents. That’s a misdemeanor. And in this instance, the misdemeanor statute of limitations had run out by the time the district attorney issued the charges. But the prosecutor chose to say the actions were related to another crime, which makes them felonies.

Anderson: The charges also have context. Maybe no other businessperson would be prosecuted for this filing of paperwork. But that’s only half of the problem. Donald Trump would not be in trouble for filing this paperwork if he hadn’t done it to allegedly illegally influence an election.

I think that’s actually why Trump is so aggressively pushing his narrative of “election interference.” He knows that the charges against him are really about breaking campaign finance laws and his conduct in an election more than a particular business filing.

Bakken: In the last week or so, it came out that Merchan had contributed to Democratic candidates, including President Biden, in the past. It was reportedly a total of US$35, which seems very minimal. But one of New York’s legal ethics leaders, Stephen Gillers, a professor at New York University, said it is a judicial ethics violation, though he said it would likely only merit a warning and not removal from the case.

What does the trial mean so far in terms of politics or the 2024 presidential election?

Anderson: I think the media has to report on the facts on all sides of this trial. But I worry that it may not actually be as consequential as maybe people who are following it think that it will be, because many undecided voters have opted out of political news altogether.

Bakken: The trial emphasizes an extraordinary level of political antagonism between the parties, and also an extraordinary reluctance of people who are not inclined toward party politics to tune out and protect themselves.

The people who are tuning out might not be strong advocates, politically, for one side or the other but the people who would be neutral if they collected all the information. They could be the moderators, the good-faith, middle-minded people who can help bridge the gap between the political combatants.

The Conversation

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

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South Korean President Yoon Faces Foreign Policy Challenges After The National Assembly Election

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South Korea’s pesident faces political woes. Kim Hong-Ji/AFP via Getty Images

South Korea’s parliamentary election of April 10, 2024, was widely seen as a referendum on President Yoon Suk Yeol’s first two years in office.

That being the case, the nation collectively expressed its strong disapproval.

With a relatively high turnout of 67%, voters handed Yoon’s conservative People’s Power Party defeat, with its share of the 300-seat National Assembly dropping from 114 to 108.

The opposition Democratic Party retained its large majority in the National Assembly, winning 175 seats and maintaining control in the populous metropolitan areas of Seoul, Incheon and Gyeonggi provinces. Voters also delivered a disappointing outcome for most third-party candidates, the exceptions being the Rebuilding Korea Party, which campaigned as more combative opposition to the DP, and the New Reform Party, which broke away from the ruling PPP earlier this year.

As a political scientist with a focus on East Asia and international affairs, I believe the election results will have ramifications on Yoon’s foreign and domestic agenda during the remainder of his term.

Growing domestic pressure

Yoon had hoped the election would end the political gridlock that has stymied his first two years as president.

Throughout that time, the opposition has held a legislative majority. Subsequently, Yoon’s government has seen key parts of its agenda for education, labor and pension reforms blocked. Yoon has also vetoed multiple bills passed by the opposition-controlled legislature.

But the election saw the DP and other opposition parties amass 192 seats, just short of a veto-proof, two-thirds majority. As such, President Yoon again faces a divided government for the remainder of his term. In fact, he will be the only South Korean president whose party has failed to control the National Assembly at any time during the five-year presidential term.

A better parliamentary outcome for Yoon’s party would have bolstered the chances for the government’s legislative agenda on pressing domestic issues, such as addressing the country’s declining birthrate, high inflation and expanding medical student enrollment, as well as relaxing business regulations.

Instead, the Yoon government is more likely to be on the defensive after the election. Opposition parties have vowed to investigate alleged stock manipulation involving first lady Kim Keon Hee and probe former Defense Minister Lee Jong-sup over claims that he influenced an earlier report into the drowning death of a Korean marine.

Though Yoon retains veto power, there is now growing uncertainty over whether ruling PPP assembly members will continue defending the president’s actions if and when the two probes move forward.

Meanwhile, President Yoon’s prime minister, Han Duck-soo, announced his resignation after the assembly election. The National Assembly can vote against the president’s nominee to replace him, which may compel Yoon to pick a candidate acceptable to the opposition parties.

A trickier foreign policy climate

Under South Korea’s political system, the presidency has greater leeway in national security and foreign affairs than in domestic policy.

As such, the Yoon government will likely continue its foreign policy of expanding trilateral partnerships with the U.S. and Japan, building ties with NATO and striving to be a “global pivotal” state in the Asia-Pacific region.

During his first two years in power, Yoon has generally aligned South Korea closer to the West, though he has also been careful to avoid direct confrontation with China and Russia – both of which are geographic neighbors and trade partners.

While the opposition-controlled National Assembly has, to date, been generally supportive of the Yoon government’s attempts to strengthen ties with the U.S. – a policy that remains popular among the South Korean public – the same cannot be said about its attempts to bolster relations with Japan.

In particular, the Democratic Party and the Rebuilding Korea Party have criticized the prospect of a closer partnership with Japan – whether through military exercises or intelligence sharing – mainly due to Korea’s experiences under Japanese colonial rule.

And despite being generally welcoming of ties with the West, the two opposition parties are more cautious than the Yoon government when it comes to engaging in geopolitical rivalry. Specifically, Democratic Party leader Lee Jae-myung warned during the recent election campaign that South Korea should not become involved in the Russia-Ukraine war or China-Taiwan tensions.

The opposition might not directly stop Yoon from pursuing his foreign policy, but they are likely to pressure the president to pay attention to domestic political issues.

Moreover, opposition parties will be pushing the Yoon government to demonstrate what diplomatic “wins” the country has secured through its partnership with Japan and the United States. Notably, if the point of strategic partnership with the United States and Japan is to ensure security in East Asia, some voters may legitimately ask why it has failed to deter North Korea’s continued military provocations.

If the Yoon government cannot demonstrate diplomatic successes, opposition parties are likely to frame his foreign policy as one-sided “subservient diplomacy.”

Yoon has three years to show that his foreign policy has paid dividends; South Korea’s next presidential election is in the spring of 2027.

How successfully the president can navigate the domestic and international constraints exacerbated by the results of the parliamentary election could determine whether he exceeds the political expectations of a president facing a divided government or encounter, as some predict, an early “lame-duck presidency.”

The Conversation

Jong Eun Lee does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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