The new front in the right’s war on abortion

“The Biden administration helped expand access to medication abortion last week, with the US Food and Drug Administration finalizing a rule to make the pills more readily available in pharmacies. But this effort to help patients get pills to end a pregnancy could be dwarfed by a major push to restrict access to the medication from anti-abortion leaders and their Republican allies.
As lawmakers head back to state legislatures this month, many for the first time since Roe v. Wade was overturned in June, Republicans face new pressure to restrict access to the combination of abortion-inducing drugs, mifepristone and misoprostol, used typically within the first 10 to 12 weeks of a pregnancy. Medication abortion has become the most common method for ending pregnancies in the United States, partly due to its safety record, its lower cost, diminished access to in-person care, and greater opportunities for privacy.

Restricting access to the pills is not a new goal for the anti-abortion movement; the Guttmacher Institute tracked 118 medication abortion restrictions introduced last year across 22 states, and many conservative states already have laws on the books for dispensing the drugs that go beyond what the FDA requires and what leading health organizations recommend.

But efforts to crack down on abortion pills have taken on new urgency since the Dobbs v. Jackson decision. More women are finding ways to bypass abortion bans through organizations like Aid Access in Europe, pill suppliers from Mexico, and methods like mail forwarding from states where abortion is legal. While a study from the Society of Family Planning estimated that legal abortions nationwide declined by more than 10,000 in the two months following the Supreme Court’s decision, some or many of those abortions may have been replaced by pills women privately obtained and researchers couldn’t count.

“Everyone who is trafficking these pills should be in jail for trafficking,” Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, told the Washington Post in December. “It hasn’t happened, but that doesn’t mean it won’t.”

Some of the restrictions on medication abortion leaders are considering extend well beyond those pursued by lawmakers in previous years, when their focus was generally on banning telemedicine and adding more requirements for dispensing pills in person, like mandatory ultrasounds, waiting periods, and visits with doctors.

Anti-abortion activists are exploring new strategies, such as laws to ban websites like Aid Access and Plan C and laws to make health care providers newly liable for disposing of aborted fetal tissue. In a federal lawsuit filed in November, one religious conservative group has challenged the FDA’s approval of mifepristone writ large, alleging the agency abused its authority 23 years ago in authorizing the drug at all.

Some lawmakers are looking to test the limits of their extraterritorial powers, exploring how and whether they could punish a resident for getting an out-of-state abortion, or retaliate against providers in other states who facilitate them.

“Anti-abortion advocates are throwing the kitchen sink in an attempt to see what might work,” said Jenny Ma, a senior attorney at the Center for Reproductive Rights. “That’s the same playbook the anti-abortion movement had before Dobbs … but they’ve become emboldened.””

Midterm Voters Choose To Protect Reproductive Freedom

“Five states had abortion-related measures on their 2022 midterm ballots, and voters in all of these states seem to have sided with reproductive freedom.

In three states—California, Michigan, and Vermont—voters endorsed constitutional amendments protecting the right to an abortion, while Kentuckians voted against an amendment stating that there is no such right.”

The New Abortion Prohibition Era

“even if large majorities shared the pro-life view, anti-abortion laws are still very different from laws against murder in an important respect. When there is such deep, sincerely held disagreement about matters of such personal import, when hundreds of thousands of women every year personally weigh the factors and decide that an abortion is the right choice, that is a signal that new prohibition regimes will be extremely costly, and perhaps ultimately unjustifiable. Not everything bad must be banned. In the last three decades, abortions have fallen precipitously, from a high of 1.4 million in 1990, even as the law has remained largely unchanged, suggesting that even those who believe abortion to be a moral nightmare have other options at their disposal and that those other tools were working. We should seriously consider whether the outcomes are better all around if governments leave it to individuals to persuade each other, help each other, and talk to each other.

To do that, Americans need to be able to speak freely about abortion. They will need to share information about how abortions work and who gets them. And they’ll need to do that in broad daylight, so that bad information doesn’t go unchecked. This will be more difficult in states that choose more draconian criminalization regimes.”

“As with other prohibitions, poor people and minorities will suffer most. People without resources in states with harsh restrictions will carry unwanted babies to term and, if current trends hold, they will most often keep them despite financial or personal difficulties they will face in doing so. Wealthy women will be able to travel to get abortions, and they will be able to hire lawyers to get them out of trouble when they get caught. In those cases, the new laws won’t stop those women from getting abortions; instead they will simply get abortions secretly, unsupported, at greater expense, and far from home.
It’s been a while since first-trimester abortions were illegal anywhere in the United States. But we have spent the decades since Roe experimenting with all kinds of other prohibitions, and all we have for our trouble is a trail of death and destruction.”

Courts Split on Whether the Feds Can Overturn These State Abortion Bans

“”Federal law is clear: patients have the right to stabilizing hospital emergency room care no matter where they live,” said Department of Health and Human Services (DHS) Secretary Xavier Becerra. “Women should not have to be near death to get care.”
In July, HHS issued new guidance stating that EMTALA’s provision for stabilizing treatment includes a right to an abortion in some circumstances. “If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted,” the agency said.

No existing abortion ban lacks an exception for a mother’s life, but some do omit exceptions for women’s health. And determining whether something counts as a life-threatening emergency—as opposed to a mere health-threatening emergency—isn’t so clear-cut. Many pregnancy complications could become life-threatening while not being necessarily or immediately so. The HHS guidance attempts to provide clarity, stating that regardless of what a state law says, physicians must provide an abortion if one is necessary to address an emergency medical condition (including, but not limited to, ectopic pregnancy or severely high blood pressure).

Texas sued over the HHS directive. Joined by the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Association (CMDA), the state sought to have the HHS “abortion mandate” declared “unlawful, unconstitutional and unenforceable” and for the court to issue a preliminary injunction on its enforcement.”

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.”