The DOJ Files a Lawsuit Challenging Idaho’s Strict Abortion Ban

“Idaho’s abortion trigger ban, which was passed in 2020 and is slated to go into effect on August 25, bans all abortions outright. Rather than offering a narrow list of exceptions, as other anti-abortion laws do, Idaho’s law simply provides an affirmative legal defense for doctors arrested and charged with performing abortions. If a doctor can prove by a “preponderance of the evidence” that “[he] determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman,” or if the physician has a copy of the patient’s police report of rape, such doctors cannot be found guilty of performing an illegal abortion. However, if doctors charged with providing abortions fail to meet this standard, they can face up to five years in prison.
“Laws will exist that ask [physicians] to deprioritize the person in front of them and to act in a way that is medically harmful,” Louise King, an OB-GYN at Brigham and Women’s Hospital in Boston, told NPR, referring to new abortion restrictions taking effect across the U.S. “The penalty for not doing so will be loss of license, money loss, potentially even criminal sanctions.” Idaho’s law would likely incentivize doctors to delay care for dangerous pregnancy complications until a woman’s death is imminent.

“When a hospital determines that an abortion is the medical treatment necessary to stabilize the patient’s emergency medical condition, it is required by federal law to provide that treatment,” Garland said during a press conference on August 2, noting that Idaho’s law “would subject doctors to arrest and criminal prosecution, even if they perform an abortion to save a woman’s life.”

The DOJ is suing Idaho over this law, arguing that its blanket ban on abortions, even when the procedure is necessary to save a woman’s life or preserve her health, violates federal law. The Emergency Medical Treatment and Labor Act (EMTALA) is a 1986 federal law requiring hospitals that receive Medicare funds (which includes the vast majority of hospitals) to provide stabilizing care to their patients before discharging them. The DOJ argues that by banning abortions when they are necessary to stabilize a patient’s medical condition (such as when an abortion prevents a deadly septic infection during an incomplete miscarriage or is necessary to begin treatment for newly diagnosed cancer), Idaho’s abortion ban violates federal law and, therefore, must be struck down in accordance with the Supremacy Clause of the Constitution.”

Republicans turn on each other amid post-Roe chaos

“Republican state officials have been waiting decades for the chance to ban abortion.

Now that they can, red state lawmakers are mired in partisan infighting and struggling to agree on how far to go. The most fervently anti-abortion lawmakers are accusing their colleagues of capitulating on rape and incest exceptions, while those calling for compromise or moderation believe more strident Republicans are ignoring political realities.”

Rape and incest abortion exceptions don’t really exist

“Out of the 13 states with abortion bans in effect, only a few of them have these exceptions: Mississippi has an exception for rape but not for incest, while South Carolina’s and Georgia’s exceptions extend to both. (Oklahoma has passed multiple bans — some with exceptions, some without — and it’s still unclear which takes precedence.)

Another nine states have passed bans that are on hold. Four of those states include exceptions, according to data from the Guttmacher Institute, a reproductive health rights think tank.”

“Most of the rape and incest exception clauses in abortion bans say that an abortion seeker must report the sexual assault to the police and then give the police report to their abortion provider, a process advocates say creates added stressors and hurdles for pregnant people.
In Mississippi, where a ban is in effect, the law states that, “No abortion shall be performed or induced […] except in the case where […] the pregnancy was caused by rape. For the purposes of this act, rape shall be an exception to the prohibition for an abortion only if a formal charge of rape has been filed with an appropriate law enforcement official.” The law does not specify who an “appropriate” law enforcement official is.

In Utah, where a judge is keeping the state’s abortion ban on hold due to a lawsuit filed by Planned Parenthood, the trigger law would ban almost all abortions but allow them in the case of rape or incest. Under this ordinance, the responsibility to verify that there was a rape falls on the health care provider.”

“Abortion advocates see all kinds of issues with these requirements. They create additional roadblocks for abortion seekers who are already facing challenges in a country where anti-abortion advocates want to ban the procedure outright, and who have undergone a traumatic experience already. The majority of sexual assaults — two out of three — are not reported to the police, and rape victims are often assaulted by someone they know, which further complicates their decision to file a report since they fear retaliation or believe the police won’t help, among other reasons.

And when people do report having been sexually assaulted, they are often not believed by law enforcement: The story of the 10-year-old Ohio rape survivor wasn’t believed, with Ohio Attorney General Dave Yost claiming that “there was not a damn scintilla of evidence” to support the story. Onlookers only believed the story when news broke that the 27-year-old perpetrator came forward and confessed to raping the child at least twice.”

4 charts that show just how big abortion won in Kansas

“On Tuesday, an unprecedented number of Kansans voted against a constitutional amendment that would have allowed lawmakers to end abortion protections. That’s a big win for women’s rights, but the outcome also carries major implications for elections nationwide this November. It’s especially true in those states where abortion rights are on the ballot after the overturning of Roe Vs. Wade and where Democrats are seeking to stay in power.

Contrary to what some conservatives had thought, abortion is an issue that can mobilize voters.

More than 900,000 Kansans showed up to the polls to vote on the state’s abortion referendum. That’s the biggest turnout for a primary election in the state’s history, according to the Kansas Secretary of State’s office. That number is closer to what we’d expect to see in a general election turnout, which is always vastly higher than primaries. And it suggests we could also see high turnout in upcoming primaries where abortion is on the docket.”

“What’s perhaps most surprising about the referendum vote is that it happened in a very Republican state. Just a quarter of registered voters in Kansas are Democrats, while 40 percent are Republicans. Nearly a third are unaffiliated.”

The challenge of turning pro-choice Americans into pro-choice voters

“Pollsters say there are arguments in favor of abortion rights that can resonate across the ideological spectrum. The most popular messages, researchers find again and again, are those that emphasize freedom from government control, and those that stress that abortion should be a decision between a woman and her doctor.

For the past decade, these concepts haven’t always been prominent in abortion access debates. As the procedure came under increasing attack nationwide, reproductive rights supporters mobilized Democrats and allies to stand up more forcefully for abortion access, and challenged the idea that some abortions — like in the event of rape or incest — are more worthy than others.

Rather than accept the “safe, legal, and rare” messaging popularized by Bill Clinton in the 1990s, celebrities, lawmakers, and activists have encouraged amplifying abortion stories, even, or especially, less sympathetic ones. Activists have also emphasized that messages about a “woman and her doctor” could diminish the reproductive agency of the pregnant woman herself. As feminist writer Rebecca Traister put it earlier this week, “It’s at the heart of the attitude that a person who can be pregnant… cannot simply get access to that procedure by their own damn self, without consultation or permission from anyone.”

The issue now is that, although a majority of American voters have repeatedly said they believe Roe should be upheld, roughly one-third of that majority personally opposes abortion. Those who believe abortion should be legal only in some cases primarily cite rape, incest, or a threat to a woman’s life.

Navigator Research, a group that works to provide messaging guidance to progressives, including Planned Parenthood, has conducted a few surveys on reproductive rights over the last few months: one in April before the leak of the draft Dobbs decision, one in May after it, and one following the Supreme Court’s final ruling. They found that respondents found a few consequences of the ruling especially concerning and believable: that women would have to seek unsafe abortions and that victims of rape and incest would be forced to give birth.

These ideological tensions between reproductive activists and other self-identified pro-choice people were not of huge concern when Roe was the law and defending the decision was a collective rallying point. But it makes building a coalition in a post-Roe world a more delicate balance.”

Dobbs Opened Up an Attack on Doctors

“The whole sorry affair should remind us of one key reason why Roe was decided in the first place: to protect doctors.

It is a sad fact that some doctors will avoid providing essential medical care if the treatment in question is politically controversial. These doctors understandably fear that an overzealous prosecutor might use a vague law against them, just as Indiana’s attorney general threatened to do here.

Doctors who deal in certain types of pharmaceuticals run the same risks. In fact, just three days after Dobbs, the Supreme Court actually enhanced the legal protections for doctors who prescribe opioids. In an ironic twist, the Court did so while effectively reviving a pre-Roe case that protected the medical privacy rights of abortion providers.”

“The Dobbs decision obliterated those medical privacy protections by a narrow 5–4 vote. Yet by a 6–3 vote just three days later, the Supreme Court embraced the logic of Roe’s most important predecessor (Vuitch) when it strengthened the medical privacy rights of doctors who prescribe opioids (Ruan).

This contradictory and confusing state of affairs is bad both for medicine and for the law, and it ought to be fixed as soon as possible. Whenever a poorly drafted statute is open to abuse by an overreaching prosecutor, the Supreme Court has the option of using the void-for-vagueness doctrine to strike down the offending law. The Court could also require that all abortion regulations conform to the doctor-friendly rules spelled out in Ruan and Vuitch. Particularly egregious laws, meanwhile, can be invalided by the courts for lacking a rational basis.

The Constitution provides firm procedural safeguards whenever the government interferes with life, liberty, property, or privacy. The Supreme Court needs to ensure that doctors still enjoy those safeguards’ benefits.”

Can pharmacists refuse to fill prescriptions for drugs that can be used in abortions?

“Methotrexate is a fairly common drug that treats a wide range of medical conditions. I take it to help control an autoimmune disorder. So do about 60 percent of rheumatoid arthritis patients. It is used to treat some cancers, such as non-Hodgkin lymphoma. It also has at least one other important medical use.

The drug is the most common pharmaceutical treatment for ectopic pregnancies, a life-threatening medical condition where a fertilized egg implants somewhere other than the uterus — typically a fallopian tube. If allowed to develop, this egg can eventually cause a rupture and massive internal bleeding. Methotrexate prevents embryonic cell growth, eventually terminating an ectopic pregnancy.

And so many patients who take methotrexate say they have become the latest victims of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization — the decision overruling Roe v. Wade.

It’s unclear how widespread this phenomenon is, though the problem is serious enough that the Arthritis Foundation put out a statement warning that “arthritis patients who rely on methotrexate are reporting difficulty accessing it,” and that “at least one state — Texas — allows pharmacists to refuse to fill prescriptions for misoprostol and methotrexate, which together can be used for medical abortions.”

In some cases, pharmacists are reportedly reluctant to fill methotrexate prescriptions in states where abortion is illegal, and doctors are similarly reluctant to prescribe it. In other cases, pharmacists may refuse to fill valid methotrexate prescriptions because they personally object to abortion, even in states where the procedure remains legal.”

Enforcing Abortion Bans Is Much Harder Than Winning in Court

“I don’t know exactly what an inquisition into my wife’s miscarriages would have looked like. But I do know that it would have done nothing to ease her anguish. Abortion opponents won their victory in the Supreme Court, and now it’s on them to avoid making difficult situations much worse.”

Fetuses in HOV Lanes, Abortions at Sea, and More Post-Dobbs Weirdness

“A pregnant Plano, Texas, woman argues that she has a right to drive in a highway lane reserved for vehicles with two or more passengers. At 34 weeks pregnant, Brandy Bottone was pulled over by police while driving in a high-occupancy vehicle (HOV) lane on Interstate 75 South. When asked if there was anyone else in the car, Bottone pointed to her stomach and said “my baby girl,” she told The Dallas Morning News:
“One officer kind of brushed me off when I mentioned this is a living child, according to everything that’s going on with the overturning of Roe v. Wade. ‘So I don’t know why you’re not seeing that,’ I said.

“He was like, ‘I don’t want to deal with this.’ He said, ‘Ma’am, it means two persons outside of the body.’

“He waved me on to the next cop who gave me a citation and said, ‘If you fight it, it will most likely get dropped.’

“But they still gave me a ticket. So my $215 ticket was written to cause inconvenience?

“This has my blood boiling. How could this be fair? According to the new law, this is a life.

Bottone said she will be fighting the citation in court.

Her situation hints at how all sorts of existing rules could change—or at least be challenged—when the legal definition of personhood changes.”

The end of Roe will mean more children living in poverty

“Almost half the United States is ready to outlaw abortion now that the Supreme Court has overruled Roe v. Wade. But many of those states are not willing to give new babies and their families the educational, medical, or financial support they need to lead a healthy life. That could leave tens of thousands of future children unnecessarily disadvantaged and living in poverty.”

“Those births will predominately be in the states with the most draconian post-Roe abortion restrictions. And with a few exceptions, those 22 states rank in the bottom half of states in the comprehensive support they provide to children and their families, according to the State-by-State Spending on Kids Dataset compiled by Brown University’s Margot Jackson and her colleagues. The disparities can be enormous: Vermont spends three times as much money on education, health care, and other economic support for children as Utah.”

“The children born in these circumstances will start life a few steps behind, all because their political leaders strove to ban abortion without offering support to the children who would be born if their aims were achieved.”