How the Anti-Abortion Movement Used the Progressive Playbook to Chip Away at Roe v. Wade

“The attack on Roe has been decades in the making—and its successes owe not just to the strength of the conservative anti-abortion movement, but to the progressive playbook that achieved breakthroughs on civil rights, gay marriage and even abortion.

Much like the civil-rights activists of the past, abortion foes have pursued a long-term strategy that stretches far outside the courts. It depends on grassroots political change as well as legal challenges, and on the tidal push-and-pull between politics and the law at the highest levels.”

“Efforts by anti-abortion activists at the state and local level also reflect the use of a strategy that has already proved successful for gay rights advocates—one that focused on changing local laws, one step at a time, to make the values written into an earlier case appear to be out of step with contemporary constitutional law as well as public sentiment.”

“The current focus on “viability”—the question at the heart of the Dobbs case—is a new step in this politics of repudiation. In Roe v. Wade, the Court has held that there is a right to abortion until fetal viability, which now falls around the 24th week of pregnancy. Advances in neonatal care might move up the date of viability somewhat, but until now the point has held: Any future limits on abortion right would have to observe that line in the sand. The Court has preserved this “viability” line even as it repeatedly tinkered with abortion rights in response to politics.
To chip away at the “viability” norm, states have rushed to ban abortions much earlier in pregnancy—the Mississippi law now before the Supreme Court prohibits the procedure a full eight to nine weeks before viability. Georgia recognizes fetal personhood at six weeks. Alabama has sought to ban abortions outright, regardless of gestational time. Anti-abortion activists then point to all these moves as evidence that the viability norm encoded in Roe, just like the sexual-behavior norm encoded in Bowers, has now become an outlier—a relic of a time when American beliefs around abortion were far more permissive.”

“By flooding the field of action with abortion restrictions based on different standards over the years, abortion opponents have forced courts to wrestle with difficult and often murky medical questions, and given judges with more favorable ideological leanings maximal opportunities to revisit legal rules and frameworks. One successful wave of post-Roe anti-abortion activism assailed the logic of the trimester framework, a critical part of the original Roe decision that deemed most restrictions in the first trimester of pregnancy unconstitutional. In the most important Supreme Court abortion case between Roe and Dobbs—Planned Parenthood v. Casey, in 1992—the Court threw out the trimester framework but preserved the viability line as an essential component of the right to choose.”

“In Dobbs, the renewed attack on viability sets the stage for an end game. Viability has long been in the crosshairs because abortion foes see it as a potential weakness in the Roe precedent—philosophers and bioethicists have sometimes questioned its logic. The Supreme Court could have dodged the fate of viability in Dobbs, but instead they decided to tackle it head-on: In fact, they narrowly chose to consider only the question of whether pre-viability bans are unconstitutional. That means that if the Court wants to uphold Mississippi’s law, the justices must get rid of at least part of Roe. Even if the justices in Dobbs do not openly repudiate a woman’s right to choose, Roe could be fatally weakened.”

Will at-home abortions make Roe v. Wade obsolete?

“Biden’s pledge to “follow the science” when it comes to public health is under scrutiny as medical experts argue — citing new data gained during the pandemic — that administering the abortion drugs remotely is safe and effective.

Should the federal rules get rewritten, someone in, say, Arkansas, could have a video consultation with a doctor in Massachusetts or even the UK and then receive the pills by mail. Even if red states moved to ban their importation, enforcement would be nearly impossible.

“It takes the fight out of the clinic setting into individual people’s homes,” explained Alina Salganicoff, the Director of Women’s Health Policy at the Kaiser Family Foundation. “That becomes much more difficult to regulate and could potentially broaden access.”

Women’s health and advocacy groups stress, however, that the pills are not a panacea. For one, they can only be used safely in the first 10 weeks of pregnancy — a narrow time window during which many people are not yet aware that they are pregnant. Additionally, taking the pills in a state that has banned them could be legally perilous, discouraging people from seeking medical help if they have a complication.”

“Medication abortion relies on two pills — misoprostol, which is lightly regulated, and mifepristone, which has been more tightly regulated by FDA since its introduction in the market decades ago.

Yet mifepristone “has very few risks at all,” argues Villavicencio. “It is more safe than over-the-counter medications like ibuprofen and Tylenol. We know this medication can be safely administered via telemedicine because we’ve studied it.”

ACOG, along with the American Medical Association and other leading medical groups, has been lobbying the Biden administration and arguing in court that the federal rules for dispensing the pills should be loosened. Their push has been echoed on Capitol Hill, where Democratic lawmakers have urged Biden to allow telemedicine abortions both during the pandemic and beyond.

But the decision still presents a political quandary for Biden, who until recently was relatively conservative on abortion for a Democratic politician.”

Argentina becomes the first large Latin American country to legalize abortion

“According to the BBC, a minimum of 350,000 illegal abortions occur annually in Argentina, a figure that some activist groups feel is undercounting the real number. Illegal abortions can lead to health complications and even death for the people who experience them — the World Health Organization estimates that up to 13.2 percent of maternal deaths worldwide can be attributed to unsafe abortions.

Argentina has seen adherence to Catholicism decline in recent years, according to a study from the National Scientific and Technical Research Council (CONICET). The Buenos Aires Times reports that in 2019, 62.9 percent of the population identified as Catholic, a 13.6 percentage point drop since 2008. Simultaneously, while evangelicals gained new adherents, the share of people identifying with no religion grew the most, reaching nearly 20 percent of the population.”

“While Argentina is still a largely Catholic country, this decline could explain why Pope Francis’s comments opposing legalizing abortion did not have an overwhelming effect on the outcome of this vote. Francis, who was born and worked in Argentina for much of his life, has referred to abortion as being part of a “throwaway culture” and has rooted his opposition to the medical procedure as being based in science, according to Crux, a Catholic online newspaper.

According to France 24, Catholics weren’t alone in opposing the measure; they joined forces with the country’s growing evangelical wing to mobilize against abortion. They will likely fight to overturn this measure, especially as this change exposes Argentina’s religious fault lines.

But the victorious activists are the abortion rights feminists who have spent years fighting for abortion legalization.”

“Argentina became the biggest country in Latin America to legalize elective abortion”

Biden can do 3 things on day one to unwind Trump’s war on reproductive health

“Again and again over the last four years, the Trump administration has made it harder for Americans — and people abroad — to get basic reproductive health care.

In 2017, the administration reimposed and broadened a rule, sometimes called the Mexico City policy, barring health organizations around the world that get US aid from providing or even discussing abortions. The result was a reduction in access to abortion, as well as services like contraception and prenatal care.

The same year, Trump’s Health and Human Services Department issued rules weakening an Obama-era mandate requiring employers to offer insurance that covers birth control, allowing them to claim an exemption if they had a religious or moral objection. Those rules have been tied up by lawsuits, but just won a major victory at the Supreme Court in July.

And in 2019, the Trump administration finalized what reproductive health advocates call a “domestic gag rule,” barring health care providers that get federal family planning funds under the Title X program from performing or referring for abortions. As a result, hundreds of clinics have exited the program, cutting its ability to provide birth control services in half.

These actions have had a real and serious impact on patients, only compounded by a pandemic that has made it even harder for many Americans, especially low-income people of color, to access reproductive health care.

But there is likely an end in sight for many of the Trump administration’s policies: Since they were enacted by executive action, they can be undone by President-elect Joe Biden when he takes office, without any help from Congress.

Biden has promised to do exactly that”

Telemedicine Abortion Gets Green Light From Federal Court

“Under current rules set by the U.S. Food and Drug Administration (FDA), non-surgical abortion— i.e., the kind that’s induced by pharmaceuticals, not physicians—still requires patients to visit a hospital, doctor’s office, or medical clinic to be prescribed the abortion drugs, even though a patient will go through the process at home.

“A medical or medication abortion uses two drugs to terminate a pregnancy,” explains a new report, “Prescription Denied: Accessing the Abortion Pill,” from Newsy. The first of these pills, mifepristone, “blocks a hormone to induce the abortion. The second drug, misoprostol, completes it by expelling the pregnancy. But mifepristone, which for medication abortion goes by the brand name Mifeprex, is among the most restricted drugs in the U.S. which makes it challenging to get. … the Food and Drug Administration imposes tighter restrictions on Mifeprex than on opioids such as fentanyl.”

The American College of Obstetricians and Gynecologists (ACOG), the National Women’s Health Network (NWHN), and other groups have been pushing the FDA to revise its rules so that abortion patients can see doctors via telemedical appointments and then receive their pills in the mail.

“If the laws and regulations that determine the terms of abortion access in the United States were based on science—not politics—medication abortion would be widely available in the United States without medically unnecessary restrictions on distribution,” states an open letter signed by a range of physicians and health and advocacy groups.”

“U.S. District Judge Theodore Chuang seemed to be in agreement with these advocates and doctors, writing in his decision that “in-person requirements” for abortion pills present a “substantial obstacle” to patients and are likely unconstitutional.”

Why conservative Chief Justice Roberts just struck down an anti-abortion law

“Ultimately, Roberts concludes that the principle of stare decisis — the doctrine that courts should generally be bound by their prior decisions — compels him to strike down Louisiana’s law. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts concludes.

As a practical matter, that means the constitutional right to an abortion is likely to survive for at least another year or two. But Roberts also signals that he’s open to a lawsuit challenging this right on other grounds.

The takeaway from Roberts’s opinion isn’t that the right to an abortion is safe. It’s that Roberts is reluctant to bend the Court’s ordinary procedures to hand abortion opponents a victory in this particular case.”

Ending a Life That Has Not Begun—Abortion in the Bible

“Choosing to ban abortion in cases where rape caused pregnancy would be difficult to argue as biblically supported, as the Book of Numbers prescribes a potion that should cause sterility and perhaps even abortion as the enforced consequence of infidelity. As a result, it is hard to argue that the Bible always speaks out against abortion.”

“All in all, the Bible does not speak as clearly about abortion as some politicians might wish. Where it does speak about pregnancy and abortion, the God-given character of human life is an important point of departure. On the one hand, there are passages that state how God has plans for some special human beings, his prophets, already during their stay in their mother’s womb. This implies that already at that stage God had selected them as the persons they would become. On the other hand, some passages indicate that human life was only thought to begin either at the moment the fetus was fully developed or even up to a month after the baby’s birth. It is therefore difficult to refer to anything like “the Bible’s teaching on abortion.” The Bible contains a diverse collection of views on the origin of human life. Any attempt to base a political strategy on the Bible should always indicate, for honesty’s sake, that such a “biblical view” is based on a conscious choice of passages and interpretations by each individual speaker.”

What Mike Pence’s public health record says about his ability to lead on coronavirus

“In 2011, a Congress member from Indiana helped pass federal legislation to strip funding from Planned Parenthood.

Two years later, the last Planned Parenthood affiliate in Scott County, Indiana, closed its doors because of budget cuts. It was also the last HIV testing center in the county. By 2015, an HIV outbreak was brewing in the state. At the peak of the outbreak, 20 new cases were being diagnosed per week, with a total of nearly 200 cases eventually reported, according to HuffPost.

But that Congress member, who became Indiana’s governor, didn’t want to authorize a needle-exchange program to stop the spread of the virus.

“I don’t believe effective anti-drug policy involves handing out drug paraphernalia,” he said.

That Indiana governor was, of course, Mike Pence. Now he’s the vice president, and on Wednesday, President Trump put him in charge of fighting coronavirus in the US.”

“In general, the administration has sought to restrict funding to Planned Parenthood and other groups, reproductive health advocates say, without regard to the public health implications. The administration’s policies have already made it harder for low-income Americans to get screening for conditions like breast and cervical cancer. And some fear that, especially with Pence in charge, the administration could put politics over science when it comes to coronavirus response too.”

“Finally, over two months after the HIV outbreak was reported, Pence said he would pray on the issue, according to the New York Times. Two days later, he issued an executive order for syringes to be distributed in Scott County.

The distribution helped stop the epidemic, according to the Times. But Pence didn’t actually allocate new money for the program, or for fighting the epidemic generally, forcing state officials to cut other health programs, Meyerson said: “overall, his governorship showed that he did not commit to an adequately funded public health infrastructure.””

“Last year, the administration issued a rule barring Planned Parenthood and other groups that perform or refer for abortions from getting federal funding through Title X, a program aimed at providing family planning services to low-income Americans. As a result, nearly 1,000 health centers around the country have lost funding, making it harder for many Americans to get necessary services like cancer screening or HIV tests.”

“Also in 2017, six members of the Presidential Advisory Council on HIV and AIDS resigned in protest, with one writing in Newsweek that “the Trump administration has no strategy to address the ongoing H.I.V./AIDS epidemic, seeks zero input from experts to formulate H.I.V. policy, and — most concerning — pushes legislation that will harm people living with H.I.V. and halt or reverse important gains made in the fight against this disease.”

Then, in 2019, the Trump administration cut funding for fetal-tissue research, despite long-standing arguments by scientific and medical experts that such research is crucial for developing vaccines and treatments for diseases. Research into AIDS and other conditions has already suffered as a result, Carter said.”