“Kentucky is currently without abortion access, as the state’s only two abortion providers have suspended operations while they challenge a new law that they say makes it impossible for them to provide abortions legally.
The law—House Bill 3, passed in March—made abortion illegal after 15 weeks of pregnancy. It also instituted several new restrictions on abortion provision before this cutoff, including a ban on abortion pills being shipped in the mail or otherwise provided outside a physician’s office.
“Instead, the patient must visit a physician in person to receive the first dose and it requires her to be counseled that the procedure may be reversed after the first pill, an assertion which medical organizations say is not based on any evidence,” notes the Louisville Courier Journal.
The 15-week ban got the most attention, but it’s the other provisions that currently make it impossible for Kentucky’s abortion clinics to continue operating at all, say the providers. These provisions include requiring the state’s Cabinet for Health and Family Services to create an elaborate certification process for anyone making, shipping, or dispensing abortion pills.
“We cannot comply with the many, many, many, many burdens within the bill,” Tamarra Wieder, Kentucky state director for Planned Parenthood, told the Associated Press.
That’s in part because the regulations took effect immediately—before the processes for complying with them were even in place.
“The law requires that providers are, for instance, registered with the state, certified with the state as providers who can dispense medication abortions. That program doesn’t exist yet, so there’s no way for providers to be certified at the moment,” Heather Gatnarek, an attorney with the American Civil Liberties Union (ACLU) in Kentucky, told NPR.”
“It’s incredibly rare for a draft opinion to be leaked like this and this leak has been roundly condemned.”
“If the opinion is issued as-is or somewhere near it, constitutional protection of abortion access will be null and the decision of whether or not to permit abortion will return to the states.
Thirteen states have enacted laws saying that abortion is immediately illegal should Roe be overturned (Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming). Others retain (currently unenforced) pre-Roe bans that will be triggered again.
Overall, some 23 states “have laws that could be used to restrict the legal status of abortion,” according to the Guttmacher Institute. This includes nine states with “unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.”
Meanwhile, other states have passed laws guaranteeing abortion access in Roe’s absence, and others are poised to do so. According to the Guttmacher Institute, “16 states and the District of Columbia have laws that protect the right to abortion.””
“The new law, which goes into effect immediately, will force the state’s two remaining abortion clinics in Louisville to close due to onerous new requirements on doctors, forcing Kentuckians to look elsewhere for abortion care.
And it comes as Republican-led legislatures across the country are passing seemingly unconstitutional, draconian anti-abortion laws in anticipation of a coming Supreme Court decision widely expected to eliminate Americans’ right to an abortion. Oklahoma, for example, recently passed a law similar to Kentucky’s that imposes a near-total ban on abortions except in cases where the pregnant person’s life is in danger — though it isn’t slated to go into effect for another few months.”
“The Food and Drug Administration (FDA)..announced that it is permanently loosening restrictions on the abortion-inducing drug mifepristone, allowing women to receive it by mail after a telemedicine session. The FDA had already used its enforcement discretion to allow that practice for the duration of the COVID-19 pandemic. The new policy preserves the option, which will play an increasingly important role as many states impose new restrictions on abortion, especially if the Supreme Court decides that the Constitution does not protect access to the procedure after all.
The FDA first approved mifepristone, a.k.a. RU-486 and Mifeprex, in 2000. The standard protocol for a medical abortion currently involves a dose of mifepristone, which thins the lining of the uterus by blocking the effects of progesterone, followed one or two days later by a dose of misoprostol, which causes uterine contractions. The FDA has approved the use of that regimen up to 10 weeks into a pregnancy. In 2019, according to the Centers for Disease Control and Prevention (CDC), 79 percent of abortions in the United States were performed at nine weeks or earlier.
The FDA originally required that mifepristone be dispensed in person by a medical provider. An FDA-approved research project launched in 2016, the TelAbortion Study, aimed to assess the safety and efficacy of prescribing the drug based on “a video evaluation over the internet.” The program expanded during the pandemic, eventually including 17 states and the District of Columbia. According to a TelAbortion report published last March, covering nearly 1,400 packages of pills mailed from May 2016 through September 2000, “this direct-to-patient telemedicine service was safe, effective, and acceptable, and supports the claim that there is no medical reason for mifepristone to be dispensed in clinics as required by the Food and Drug Administration.””
“On first glance, it would be easy to see the Supreme Court’s decision Friday in Whole Woman’s Health v. Jackson as a win for abortion rights. It would also be wrong.
More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.
The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch’s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.
The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they play in enforcing the law. The most important provisions of the law — the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so — will most likely remain in effect.
Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.
SB 8 was written for the very purpose of evading judicial review, and Jackson largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch’s opinion “leaves all manner of constitutional rights more vulnerable than ever before.” If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.”
“Normally, private plaintiffs can’t sue a state directly in federal court — but they can sue the state official tasked with enforcing an unconstitutional law. SB 8 seeks to exploit this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing the state’s anti-abortion law. Instead, the law may only be enforced through private lawsuits.
Such lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant — and there is no upper limit on this bounty.
The idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.”
“A federal court, in other words, isn’t allowed to block the most important parts of SB 8 — the part allowing “any person” to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.
So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.”
“The argument that adoption can effectively replace abortion assumes that people who choose the former are able to simply sidestep all the challenges associated with parenthood. But people who choose adoption still become parents — they just don’t raise their children. They often experience significant grief and loss, for which they struggle to get support in a culture that views adoption through rose-colored glasses. Barrett seemed to be “assuming that people who terminate their rights are moving quickly past this termination,” says Gretchen Sisson, a sociologist with Advancing New Standards in Reproductive Health, a group at the University of California San Francisco. But “that is not something that I have ever seen in my research.”
Thinking of adoption as a stand-in for abortion also ignores the very real dangers people face when they carry any pregnancy to term. Maternal mortality has been rising in the US for 20 years, and the most recent data places the country a dismal 55th in the world when it comes to the safety of childbirth.”
“Beyond the medical risks, there are social consequences to consider, from fielding unwanted questions to potential abuse from family members or partners who find out about the pregnancy.”
“Under the modern understanding of the Constitution, a federal law regulating abortion — like other federal regulation of health providers — is unambiguously constitutional.
Congress’s power to regulate is broad but not unlimited. The Constitution lays out a list of powers that Congress is allowed to exercise, such as the power to raise armies or the power to establish post offices.
One of these powers is the ability to enact legislation enforcing rights protected by the 14th Amendment. Both Roe and Casey rooted the right to an abortion in this amendment’s guarantee that no one may be denied “liberty” without due process of law. So, as long as Roe and Casey remain good law, Congress may enact laws protecting abortion rights.
But, of course, the whole reason Democrats want to pass the WHPA is because Roe and Casey are under threat. So Congress cannot realistically rely on its power to enforce the 14th Amendment if it wants to sustain legislation protecting abortion. The Supreme Court is likely to change its understanding of which rights are protected by the 14th Amendment very soon.
Alternatively, the WHPA could also be sustained under Congress’s broad power to regulate the national economy. This power derives from two provisions of the Constitution, which permit Congress to “regulate commerce … among the several states,” and to “make all laws which shall be necessary and proper for carrying into execution” this power to regulate commerce.
As the Supreme Court explained in Gonzales v. Raich (2005), Congress may use its power over national commerce to regulate any “economic ‘class of activities’ that have a substantial effect on interstate commerce.” The Court’s decisions permit federal laws regulating landlords, family farmers, and other businesses and professionals that primarily serve local consumers. They permit federal regulation of abortion.
Abortion is a medical procedure that is provided by professionals, who typically charge a fee. Some of these doctors travel across state lines to provide this service. They are trained at medical schools all over the country, perform their services in clinics funded by donors from other states, use medical equipment manufactured in other states — you get the idea.
Abortion, in other words, is an economic activity that has a substantial effect on interstate commerce. So, under Raich, Congress could pass a law protecting abortion rights.
But this modern understanding of the Constitution isn’t exactly beloved by conservatives. And if Democrats pass a law like the WHPA, a Supreme Court dominated by Republican appointees might overrule Raich — or, at least, limit it, potentially doing considerable violence to Congress’s ability to provide other legal protections in the process.”