Independents back abortion rights. They’re less sure Democrats do.

Originally published in Vox on May 8, 2023.
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Democrats know that Republican attacks on abortion rights will be central to their efforts to reelect Joe Biden and regain full control of Congress in 2024.

And for good reason — Democrats won competitive midterm races last fall while running on protecting reproductive freedom. Last month, in another high-stakes election in Wisconsin, the judicial candidate who staunchly supported abortion rights beat her anti-abortion opponent by 11 points.

Polls conducted over the last few months indicate that abortion remains top of mind for voters, who seem to have grown even more supportive of abortion rights than they were before the Dobbs v. Jackson decision overturned the constitutional right to an abortion last June.

“I don’t think Democrats have fully processed that this country is now 10 to 15 percent more pro-choice than it was before Dobbs in state after state and national data,” pollster Celinda Lake said recently.

But there is one worrying sign for Democrats in the polling data. Over the past two weeks, for example, two new national polls and data from three focus groups conducted in swing states (Ohio, North Carolina, and Michigan) indicated that significant numbers of independent voters remain confused and skeptical about where Republicans and Democrats stand on protecting abortion rights. The upside for Democrats is they may have substantial room to grow with these voters.

One survey, conducted in mid-April by Marist Poll in partnership with NPR and PBS NewsHour, found 38 percent of independent voters think neither Democrats nor Republicans handle the abortion issue well, compared to just 10 percent of Democratic voters and 21 percent of Republican voters who felt the same. And when the progressive polling group Navigator asked voters in April what they thought came closest to the Democratic Party’s position on abortion, 34 percent of independents said they didn’t know enough to say, compared to just 9 percent of Democrats and 11 percent of Republicans.

These gaps are significant, as most US adults self-identify as independent voters — 41 percent, according to Gallup, compared to 28 percent of adults who ID as Republican and 28 percent as Democrat. “Since 2009, independent identification has grown and reached levels not seen before,” Gallup reported this year.

The surveys come as some abortion rights activists continue to raise frustrations with the president for what they see as his lackluster support for keeping abortion legal. While the Biden administration has done much to defend abortion rights since the Supreme Court issued its ruling last summer, the president himself has struggled to talk about abortion, relying largely on surrogates and euphemisms like “protect women’s health care” and “a woman’s right to choose.” In Biden’s recently released reelection launch video, he did not say “abortion” himself — though a woman was featured holding an “abortion is healthcare” protest sign. In February, Biden used the word “abortion” explicitly for the first time in a State of the Union address, though many activists were still upset he devoted just four sentences to the topic, and almost an hour into his speech. “It was, to be blunt, offensive,” feminist writer Jessica Valenti said after.

The Biden administration did not return a request for comment.

Bryan Bennett, a pollster with Navigator, said independents broadly report pro-choice attitudes, so the two new surveys suggest Biden and Democrats “have a real opportunity to talk more and crystallize” where they stand on abortion.

Bennett noted that among independent women, the gaps were even higher, with 43 percent in their latest survey saying they weren’t sure what Democrats’ position on abortion was. “Focusing on that, and trying to reach that 34 percent of independents who don’t have a position, represents a real chance to drive that [pro-abortion rights] advantage,” he said.

What we know about independent voters and abortion rights

A majority of independent voters back abortion rights, though public opinion research indicates there may be some notable differences between their views and those of self-identified Democrats. For example, while a post-Dobbs Navigator survey found 84 percent of Democrats identified as “pro-choice,” the pollsters found just 54 percent of independents did. Thirty percent of independents in the same survey identified as “pro-life,” compared to 11 percent of Democrats.

Heading into the 2022 midterms, pollsters found abortion rights to be a significantly motivating issue for independent voters, though again less motivating than for Democrats. A quarter of independents told Navigator the Dobbs decision made them “much more motivated” to vote in November, compared to 56 percent of Democrats. And 41 percent of independents told KFF the decision made them “more motivated” to vote, compared to 64 percent of Democrats. A Wall Street Journal poll found 9 percent of independents ranked the Supreme Court ruling as the top issue among five choices motivating them to vote, compared with 77 percent of Democrats.

In days immediately following the midterms, NARAL Pro-Choice America led exit surveys of voters in battleground states and found that while Democrats ranked abortion a top priority for Congress and the White House, independents did not.

Still, independents definitely reported broad pro-choice attitudes in NARAL’s exit survey, with 54 percent saying they’d be less likely to support Republicans if they tried to pass more abortion bans, and 74 percent of independents said women and their doctors should make decisions about abortion, not politicians.

When asked about the Marist/NPR survey finding high levels of distrust among independents for both Democrats and Republicans, Angela Vasquez-Giroux, NARAL’s vice president of research, noted that many voters support abortion access because they distrust politicians generally. “Voters don’t want politicians involved in their personal freedoms and personal medical decisions,” she told Vox.

New focus groups suggest some voters are very confused

In late April, Navigator hosted three focus groups with women voters to learn more about how abortion issues continue to motivate Americans politically. The participants in Ohio and North Carolina were suburban women who identified as either weak Democrats, independents, or weak Republicans; the participants in Michigan were women of color who identified as either strong Democrats, weak Democrats, or independents.

Each group had between seven and nine participants, and all had previously stated they either support the right to abortion or do not believe the government should prevent access to abortion even if they are personally against it. While these are tiny samples, researchers say the qualitative data from a focus group helps clarify voter beliefs and signals questions to more rigorously study in the future.

Vox reviewed video footage and transcripts from the three focus groups and found in each some women who support abortion rights had significant trouble identifying Democrats’ and Republicans’ stances on abortion.

“I think Democrats are pro-life and Republicans are against it,” said one participant in Ohio, when asked what Democrats and Republicans believe on abortion.

In Michigan, a woman was asked how the two parties differ on abortion and how she would describe each party’s position.

“I’m not sure,” the woman answered. “I really haven’t basically heard anything about which party is leaning toward it and which one isn’t.” When the focus group moderator pressed her to guess, she answered: “If I had to guess, I would say Democrat would probably be against it and Republican probably would be for it.”

In North Carolina, a participant said she wasn’t sure where the parties stand on abortion and had been surprised Roe v. Wade was overturned under a Democrat.

“Okay, but did Joe Biden have a say in whether or not it was overturned?” the focus group moderator asked.

“No, but he helped get the Supreme judges where they are.” The moderator then informed the woman that the most recent judges came in under Donald Trump.

Confusion among independents has been reflected in some other polling data. For example, in a survey conducted in the two weeks after Dobbs, 23 percent of independents said they don’t know if abortion rights were at risk in their state, compared to just 5 percent of Democrats who said the same. Likewise, while a majority of independents said in the same survey they would support a nationwide law that protects the right of a woman to have an abortion, 18 percent of independents said they weren’t sure either way, suggesting there might be more need to clarify for voters what that means.

One Democratic pollster, speaking on background, said the data about independents was great to have and provides “actionable information” for campaigns ahead of 2024.

Other leaders have been more hesitant to suggest Democrats could benefit from new tactics to target pro-choice independents — saying the recent election results in Democrats’ favor speak for themselves.

“Time and time again, whether it was the 2022 midterms, ballot initiatives, or special elections in Virginia and Wisconsin, voters continue to prove that they will support the candidate who will protect their reproductive freedom,” said Jenny Lawson, the vice president of organizing and electoral campaigns at Planned Parenthood Action Fund. “The data is clear and we have the receipts: Anti-abortion politicians are on the losing side of the issue.”

Vasquez-Giroux of NARAL also defended Biden’s rhetoric. “I think the president is doing a pretty good job of being clear about where he stands, and [regarding] the reelection video — taking one example out is not fully representative,” she said. “And you do have [Vice President] Kamala Harris out on the road talking about abortion. It should be clear where the administration stands.”

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The Republican push to weaken child labor laws, explained

Originally published in Vox on May 5, 2023.
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Earlier this week Republican state lawmakers in Wisconsin circulated a new bill that would allow workers as young as 14 years old to serve alcohol in bars and restaurants, down from the state’s current age minimum of 18 years old. The legislative proposal “creates a simple solution” to workforce staffing issues, said the Republican bill sponsors in a memo they circulated to colleagues on Monday.

Wisconsin is not the only state looking to loosen labor laws affecting minors, and over the last few months there have been been Republican-led bills in states like Arkansas, Ohio, and Iowa aimed at making it easier for teenagers to work in more jobs and for more hours in the day. Some labor experts say the proposed changes pose little threat to workplace safety, but they’ve overlapped with shocking exposés in the New York Times and Washington Post that uncovered exploited migrant children working illegally in American jobs. On Tuesday, the US Labor Department announced it had found two 10-year-olds working at a McDonald’s in Louisville, Kentucky, sometimes until 2 am.

As the Wisconsin lawmakers suggested, these new bills are partly a reaction to the competitive labor market and struggles businesses have been facing to fill open positions. But they’re also rooted in longstanding conservative opposition to workplace regulation, and some labor advocates worry they’re just the opening salvo to a broader attack on government safety rules.

What are the new state laws being proposed?

Over the last two years, at least 10 states have introduced or enacted laws to change the rules governing teenage work requirements.

In 2022, New Hampshire and New Jersey passed laws extending the hours teenagers could work. New Hampshire lawmakers also relaxed rules for busing tables where alcohol is served, allowing 14-year-olds now to do it, down from the previous minimum of 15 years old. New Jersey lawmakers bumped up the number of hours teens can work during the summer (to 40 hours a week for 14- and 15-year-olds and 50 for 16- and 17-year-olds.)

This year lawmakers have advanced more bills in states like Georgia, Missouri, Nebraska, Ohio, and Iowa.

Some rule changes — like allowing teens to work later in the summer — sound fairly innocuous, but others have caused more concern, like a proposal in Minnesota to allow 16- and 17-year-olds to work on construction sites, and one in Iowa that would allow 14-year-olds to work in meat coolers. Others worry about a general slippery slope of loosening child labor laws, and sending a message to employers that enforcement will be even more relaxed than it already is.

For example, even though a federal labor investigation recently found 10 children working illegally in Arkansas for a company that cleans hazardous meatpacking equipment, in March, Republican Gov. Sarah Huckabee Sanders signed the “Youth Hiring Act” — a law eliminating Arkansas’ requirement that 14- and 15-year-olds get work permits. The work permits, which Republicans called an “arbitrary” burden, had required proof of age, parent permission, and an employer’s signature.

While work permits are not mandated under federal law, critics of the Youth Hiring Act said they provided an important paper trail of youth employment, and reminded Arkansas businesses of their legal obligations.

In Iowa, lawmakers are advancing a controversial bill that allows young teens to work in some currently prohibited fields, if it’s deemed part of a school or employer training program. Supporters of the bill say more hazardous jobs like heavy manufacturing and construction would still be barred from teen employment, but new exceptions for minors would include fields like demolition and manufacturing. The bill would also permit 16- and 17-year-olds to serve alcohol in restaurants, if their parents granted permission. Democratic lawmakers have voiced concern about the risks this poses to youth workers, especially since the bill would also extend the hours a teen could work into the night.

Michael McGrorty, a veteran wage-hour investigator, thinks the proposed state changes “are not really very important.” McGrorty predicted schools will likely still require parental permission for work-study credit even if states no longer mandate it, and said even if minors are approved to work in hazardous occupations, most firms still won’t allow it because their insurance won’t provide liability coverage. “This is the reason that construction apprenticeships don’t permit entry of minors, though the federal government allows this,” he told Vox.

The federal government provides a floor of protection against child labor, and that hasn’t changed — yet

The federal government regulates youth employment primarily under the Fair Labor Standards Act (FLSA), a law Congress passed in 1938. The FLSA bars “oppressive child labor” and sets a floor on standards, wages, and hours for teen jobs. Those standards include:

  • Minors of any age can work in virtually any business that’s entirely owned by their parents, except for youth under age 16, who can’t work in mining or manufacturing.
  • No minor can work in an occupation deemed hazardous, like roofing or forest fire fighting.
  • Children under 14 can work in FLSA exempt-jobs like delivering newspapers, acting, and babysitting.
  • On school days, 14- and 15-year-olds can work for up to three hours outside of school hours. On days when school is not in session, they can work up to eight hours.
  • During the summer months 14- and 15-year-olds can work until 9 pm, though during the traditional school year they can only work between 7 am and 7 pm.

The FLSA doesn’t regulate things like job breaks or benefits, but does allow for an employer to pay youth workers a minimum wage of $4.25 during their first 90 days on the job. The FLSA also has a much weaker set of protections for children working in agriculture.

Most minors are covered under FLSA, and states can pass their own protections on top, so long as they don’t conflict with the federal government’s. For example, it’s common for states to limit the hours 16-year-olds can work, and require all minors to get “work permits” to get jobs, but these are not federal rules.

Many of the legislative fights lately concern efforts to roll back some of those state protections, or to impose changes that apply to the narrow set of employers exempt from FLSA. However, there have also been some conservative rumbling about changing the federal rules, too. In Ohio, for example, Republican lawmakers approved a bill allowing 14- and 15-year-olds to work until 9 pm, rather than 7 pm, during the school year with parent permission, and passed a concurrent resolution urging Congress to amend the FLSA to bring it in line with Ohio’s change.

Enforcement of federal youth labor laws hasn’t been great

The Department of Labor is responsible for enforcing the FLSA, but the underfunded agency has been struggling greatly on that front. Earlier this year the agency announced the number of minors employed in jobs that violate child labor laws in fiscal year 2022 increased 37 percent over fiscal year 2021, and 283 percent over fiscal year 2015.

Congress has held the Labor Department’s budget flat for years, leading to a 12 percent loss in Wage and Hour division staff between 2010 and 2019. The department’s Office of the Solicitor has also lost more than 100 attorneys over the last decade, for these same budgetary reasons.

In February the Labor Department reported findings from 14 separate child labor investigations, including one that found Packers Sanitation Services, Inc. had been illegally employing over 100 teens between the ages of 13 and 17 in hazardous occupations. Federal investigators found the use of child labor “systemic” across eight states.

While the Department of Labor has over 600 additional child labor investigations open, critics note the penalties for violating FLSA are weak, thus the law itself may be a weak deterrent. The penalty for Packers Sanitation, for example, was a mere $1.5 million.

In the wake of the New York Times investigating companies illegally employing youth migrant workers in dangerous jobs, the Departments of Labor and Health and Human Services launched a new joint task force to investigate the problem, and pledged to try and better vet sponsors of unaccompanied children.

Lawmakers are also scrambling to react with bills in Congress to increase civil penalties for child labor law violations, though for now nothing has moved forward.

Conservatives and business groups have long objected to youth employment restrictions and they’re behind the new bills today, too

Some conservatives have long seen child labor laws as government overreach, dictating rules for minors that should be left up to individual families. Others simply oppose most forms of government regulation. And still others see youth labor restrictions as an unnecessary barrier at a time when companies are struggling to hire workers.

Conservative billionaire Charles Koch and his late brother David Koch have long used their fortunes to support rolling back child labor restrictions. In 1980, David Koch ran for vice president on the Libertarian Party ticket and pledged to “abolish” child labor laws, income taxes, and Medicare. In 1982, Ronald Reagan’s administration proposed the first major change to federal child labor laws in 40 years, to expand the hours and types of jobs 14- and 15-year-olds could work, and make it easier for employers to pay students less than minimum wage.

Tesnim Zekeria from Popular Information highlighted some of the more recent Koch-funded efforts to weaken support for child labor laws, including an essay, “A Case Against Child Labor Prohibitions” published in 2014 from the Koch-funded Cato Institute that argued depriving work opportunities to poor children in developing countries “only limits their options further and throws them into worse alternatives.”

In 2016, a Koch-funded conservative nonprofit, the Foundation for Economic Education, published “Let the Kids Work” where the author argued children taking jobs would help them develop a work ethic, a professional network, and skills and discipline to build character. In 2019, another academic tied to the Koch-funded Commonwealth Foundation argued in Forbes to eliminate the minimum wage for teenagers.

Last week the Washington Post reported on a Florida-based conservative think tank, the Foundation for Government Accountability, that has played a leading role in the recent spate of bills winding through state legislatures. In March, the Arkansas state representative who sponsored the state’s “Youth Hiring Act” said the bill “came to me from the Foundation [for] Government Accountability.” The Post also found the Florida think tank helped a Missouri lawmaker craft and edit their child labor bill.

Other conservative causes the Foundation for Government Accountability focuses on include blocking Medicaid expansion and adding new restrictions to welfare programs like food stamps. On their website they proclaim they help “free individuals from the trap of government dependence and to let them experience the power of work.”

Yet another conservative group pushing new bills to weaken child labor rules is the National Federation of Independent Business (NFIB), the primary lobbying arm for small businesses. The American Prospect and Workday magazines reported on its advocacy role and its reliance on the tight labor market as justification. “Our members’ inability to fill workplace vacancies has catapulted to the top concern currently facing the success of their businesses,” said NFIB in 2021 testimony it submitted in support of Ohio’s proposed bill.

The Foundation for Government Accountability also points to the worker shortage as justification. In a white paper the group published in 2022, they emphasized that teenagers “are a critical source of labor for businesses struggling to find help” and underscored that parents should get to decide whether their kids worked or not, linking their advocacy to a broader political push on the right for “parents’ rights.”

According to an analysis by the left-leaning Economic Policy Institute, between 2001 and 2021, the share of 16- to 19-year-olds not working increased by 22.4 percent, which the think tank said is “almost entirely explained” by the higher share of young people prioritizing education during those years.

The risks of loosening youth employment rules

Immigration advocates say the loosening of child labor rules poses the greatest threat to migrant children, who are already more vulnerable to exploitation. The number of unaccompanied children entering the United States rose to 128,904 in 2022, per federal data.

Ending work permits, some advocates warn, will make it even harder to track the landscape of child labor in the United States. The Census Bureau’s American Community Survey only asks about employment status for those 16 and older. Some children are paid in cash, and the available data on youth employment — especially in agriculture — is notoriously incomplete.

“We don’t have very good estimates of the number of independent child migrants that are working in the United States,” Eric Edmonds, an economist at Dartmouth who studies youth trafficking and child labor, told The Dispatch in March. “My guess is that the number of independent child migrants that are working are a fraction of a percent of the number of children working in the United States.”

Labor experts warn that the weakening of child labor laws also threatens other workplace regulations, as well as the wages of all workers. Many of the same conservative organizations pushing these rules have also taken aim at union rights and environmental safety standards.

For now, many of these efforts have picked up steam by skating under the radar, and seizing on the fact that many parents hold favorable opinions generally of teen work. A recent national poll led by the C.S. Mott Children’s Hospital National Poll on Children’s Health found only 29 percent of parents considered themselves very informed about their state’s laws for teen employment, but over 60 percent said teen jobs helped promote time management skills, and over 75 percent said they help teach money management.

In March the Des Moines Register/Mediacom Iowa Poll surveyed state residents on the bill pending in the Iowa legislature to relax child labor laws, and found 50 percent favored the bill, 42 percent opposed it, and 8 percent were unsure. Republicans and men were likely to support the bill, while Democrats and a plurality of women opposed it. Among parents of those with children under 18, the pollsters found 57 percent backed it.

The fight to make it harder for landlords to evict their tenants

Originally published in Vox on May 1, 2023.
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In most US communities, renters have very little assurance of staying in their homes long term if they’d like to. Landlords can hike rents, evict tenants through court with little difficulty, or simply choose to not renew their lease. Nearly 5 million Americans lose their homes through eviction and foreclosure every year, and millions more deal with threats of housing loss.

In July 2021, local lawmakers in Albany approved New York’s first “good cause” eviction law — a city ordinance affirming tenants’ right to renew their leases, defining what could lead to eviction, and protecting them against “unconscionable” rent hikes exceeding 5 percent. Within a few months, four more upstate New York cities — Kingston, Newburgh, Poughkeepsie, and Beacon — followed suit.

But tenant advocates didn’t have long to celebrate. Landlords challenged the measures in court, arguing the local laws violated their state property rights. In three separate rulings over the last six months, the courts agreed, and “good cause” laws in Newburgh, Albany, and Poughkeepsie were struck down. Kingston lawmakers preemptively repealed their own measure two weeks ago.

A statewide “good cause” eviction law is now at the heart of one of the most high-profile battles in New York’s legislature. It mirrors the growing focus of housing advocates across the country, who argue lawmakers need to do more to prevent the harms clearly linked to losing one’s home, including higher job loss, debt, suicide, and reduced credit access.

Similar state-level “good cause” measures have passed recently in California, Oregon, and Washington state, and legislators in Colorado, Connecticut, and Maryland have taken up the idea this year, too.

Landlord groups argue “good cause” eviction rules will upend the housing market during an already volatile period, and slow down much-needed new construction. Supporters of the protections say this is just real estate industry fear-mongering, noting that in states that have already passed “good cause” eviction laws, construction has continued apace.

No state has had a “good cause” ordinance longer than New Jersey, which passed its own version in 1974.

“There’s a thriving rental market in New Jersey, it has not collapsed by any stretch of the imagination,” said Peter Hepburn, a sociologist at Rutgers University-Newark and an analyst at Princeton’s Eviction Lab.

Julia Salazar, the New York senator leading the push in her state legislature for “good cause” eviction, said opposition is led largely by those “who want to exploit the need people have to be housed.” She argued there’s been a lot of misinformation about her bill.

“No one is saying we have enough housing stock or we don’t need to build, and I believe we urgently need to build more housing,” she told Vox. “If ‘good cause’ were in fact any impediment to that then I would certainly be concerned, but the reality that we’ve seen in states like New Jersey and Oregon is it’s just not.”

However, whether these laws will provide the kind of protection advocates yearn to see is not clear, since many common reasons for eviction — like being a nuisance or damaging property — are listed as “good causes” in the statutes. One hope, though, is that they could provide more regulation over the myriad informal evictions that typically take place outside of court. To date, there’s been little research on the effectiveness of the laws in the states that have recently passed them, partly because they’re so new and partly because it’s challenging to disentangle the effect of “good cause” from all the other Covid-19 tenant protections.

In New Jersey, advocates concede, “good cause” has not been a strong deterrent against evictions, partly because its language barring “unconscionable” rent increases lacks a specific threshold (like 5 percent, for example), making enforcement difficult.

“The note of caution I would sound is that every ‘good cause’ statute permits eviction for nonpayment of rent,” said Hepburn. “And nonpayment of rent is far and away the most common cause that evictions are filed.”

How “good cause” eviction laws work

Laws requiring “good cause” for eviction (sometimes called “just cause” or simply eviction “for cause”) are tenant protections meant to give renters a greater sense of housing security and empower them to hold landlords accountable for poor conditions without fear of retaliation.

The laws vary from place to place but they always include specific reasons a landlord could choose to legally evict a tenant or opt not to renew their lease. A tenant can then challenge an eviction in court if they feel it was ordered without legitimate cause.

The National Low Income Housing Coalition lists three core components of “good cause” legislation. Beyond defining the legal grounds for an eviction, advocates say most place limits on rent increases (some of these limits are vaguer than others), and most laws also include enhanced requirements for written eviction notices, so tenants have enough time to gather any documentation they need to challenge it. In Oregon, for example, landlords have to provide a tenant they want to evict with 90 days notice.

While there has not been much research to date on the impact of “good cause” eviction laws, some evidence suggests they make a difference. One study found local “good cause” ordinances in four California cities lowered eviction rates between 2000 and 2016. The researcher concluded the measures “have a significant and noticeable effect on eviction and eviction filing rates” and provide a low-cost policy solution for other states and cities. Other advocates note that traditional eviction data — which relies on court filings — generally fails to capture the 72 percent of forced displacement that occur outside the court system.

Ned Resnikoff, the policy director for California YIMBY, said he doesn’t believe there’s any reliable data yet on California’s statewide “good cause” measure that took effect in 2020, partly because some eviction moratoriums remain in effect. “But the Terner Center has found that the rent stabilization piece of [the law] isn’t being adequately enforced, so I think it’s reasonable to surmise that we might face a similar issue with just cause protections,” he told Vox.

Progressives are throwing their weight behind the fight in New York

Progressive activists have named “good cause” eviction a top priority for this year, and powerful congressional Democrats including Reps. Alexandria Ocasio-Cortez, Jerry Nadler, and House Minority Leader Hakeem Jeffries have also come out in support.

The bill would bar rent increases that exceed 3 percent of the previous rental amount, or 1.5 percent of the Consumer Price Index, whichever is higher. This could provide significant protection: Even among New York City’s 1 million rent-stabilized apartments, tenants are looking at rent increases for next year that could range between 5 and 16 percent.

New York’s bill would go further in protecting tenants than the “good cause” laws that passed on the West Coast, as New York’s proposed limits on rent increases would apply not only to old units, but also to new and future housing.

The Community Service Society of New York, a progressive advocacy group, estimates that 1.6 million New York households would be protected from eviction based on unreasonable rent increases under Salazar’s bill.

Landlords are fighting back, arguing the eviction moratorium from the pandemic already put them under severe financial strain, will lead to more backlogged court cases, and will leave them financially vulnerable in an inflationary period. The right-leaning New York Post blasted the proposed law for potentially discouraging new housing and driving existing landlords out of business.

Tim Foley, the CEO of the Building and Realty Institute, which represents Westchester and mid-Hudson region real estate professionals, told Vox his members worry it will hurt their ability to get financing to complete their projects. He pointed out that banks, including the recently collapsed Signature Bank, paused or stopped lending following the passage of New York’s 2019 state tenant protections. His organization also found repairs and maintenance in rent-stabilized units decreased after the 2019 law, suggesting there could be “unintended consequences” to the tenant rights law.

Ann Korchak, the board president of Small Property Owners of New York, a landlord advocacy group with roughly 600 members, told Vox she believes her state “already has incredibly strong tenant protections” and disagrees with advocates who say otherwise.

Salazar told Vox she sees Democratic Gov. Kathy Hochul as their biggest political obstacle, and previously indicated she’s open to making modifications to her bill. Lawmakers tried and failed to pass a similar bill in 2019, but Salazar thinks there are more elected officials now who embrace a “housing justice” platform.

Hochul, who introduced her own housing agenda earlier this year, has thus far signaled disinterest in the proposed “good cause” eviction bill, though her proposals have failed to gain traction and pressure remains for lawmakers to do something on the affordability crisis.

Evictions are life-altering and preventable

Despite research showing harms related to eviction, it wasn’t until the pandemic that the government stepped up to help families avoid this traumatic experience. One of the most significant Covid-19 social policy developments was the creation of the federal Emergency Rental Assistance Program, which authorized $46.5 billion to help people stay housed. More than half of states passed their own eviction prevention measures as well.

But now emergency rental aid has mostly tapped out, state and local eviction moratoriums have mostly expired, and a federal bill to establish a permanent eviction prevention fund died in Congress.

Advocates say “good cause” measures, especially since they can be passed at little cost to governments, represent a meaningful interim step lawmakers can take now as they continue fighting for more rental assistance, source-of-income discrimination bans, and right to counsel. To make “good cause” ordinances more effective, tenant advocates say local courts and legislators must also develop stronger enforcement mechanisms, including better ways to track and analyze eviction filings and judgments. The National Low Income Housing Coalition also emphasizes the need to pass “equitable marketing strategies” that can help tenants learn how to exercise their rights.

Hepburn, of Rutgers and the Eviction Lab, said “good cause” eviction measures are worthy ideas, especially in a place like New York, which has the highest share of renters among all 50 states. Yet he noted the unfortunate reality that gaps in housing security between blue and red states continue to widen.

“These laws should happen, but it should be noted that where they’re passing are in places that have tenant protections already,” he said. “These bills are not coming up in places like South Carolina, like Virginia, like Georgia. How do we do something like this in Indiana?”

Fixing the child care crisis starts with understanding it

Originally published in Vox on April 17, 2023.
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Nearly every day a new story is published about “the child care crisis” in America. (I’ve written stories referencing it myself.) President Joe Biden has referred to the “acute, immediate child care crisis”; on April 18, he signed new orders to boost child care programs and their workers.

But what exactly is that crisis? A closer look at the various articles, think tank reports, advocacy campaigns, and political speeches reveals that not everyone is talking about the same thing.

Is the crisis the inability of families to afford child care? The struggle to land spots in licensed centers, or find care close to home or work? Is it a lack of support for parents who want to stay home with their kids, or the failure to provide support to other informal caregivers? Is it the inability to attract child care workers in the competitive labor market? Is it inequitable enrichment opportunities for children, or the challenges parents, particularly mothers, face when trying to work? Is it all of the above, or only some?

Crises are often multifaceted, and disagreement over what should be prioritized to address them is not unusual. But the “child care crisis” rhetoric, by combining several problems into one, often muddles the picture, and implies there’s more consensus on said crisis than actually exists. This matters because not all proposed child care solutions would address the respective concerns, and some interventions could even make aspects worse.

The first step to solving a crisis is understanding it. And policymakers know less about the child care landscape than one might expect. For instance, despite many anecdotal stories reporting a shortage of child care staff, researchers admit they do not actually have a good idea of what the supply and demand mismatch for child care actually is — what kind of care do parents actually want for their kids, and would they use center-based care if it was available? Private and informal arrangements — be it through grandparents or nannies from sites like Sittercity and Care.com — remain vastly understudied.

The concept of a “child care desert,” which has been popularized by advocates in recent years, refers to communities that have more than three kids for every licensed slot, and presumes parents would want those official slots if they were available. Experts admit they don’t know this is the case.

“The data is horrible, it’s very, very limited, we’re all trying to stitch things together from multiple incomplete sources,” said Aaron Sojourner, a labor economist who has studied the sector. “And I don’t love the ‘child care desert’ metaphor — it’s a great communications tool, everyone understands immediately that putting children in a desert is dangerous — but as a research tool, it’s fairly arbitrary, and doesn’t take into account who really wants care and under what circumstances.”

Some groups, like the Bipartisan Policy Center, have been trying to gather more precise estimates, and concluded recently that across 35 states, a gap between supply of available care and potential need for it exists for 3.5 million children, or 31.2 percent of kids. But researchers involved acknowledge their data does little to clarify parental demand for care. Those 3.5 million kids might need slots in child care, but they might not.

Separate surveys the Bipartisan Policy Center has led in partnership with the polling firm Morning Consult found that while two-thirds of parents prefer “formal care” — meaning a child care center, a home-based child care business, pre-K, or Head Start — one-third of parents prefer “informal” care — meaning care from relatives, parents, friends, neighbors, and nannies. Indeed most parents currently using informal care told pollsters they’d prefer it, even if a free and convenient formal option were available to them.

This suggests “there’s not one solution for child care needs,” said Morning Consult pollster Claire Taylor.

Leaders should say which problem they are trying to fix

Journalists often report on parents struggling to find child care, or child care businesses struggling to hire and retain staff. But not knowing what the demand really looks like complicates crafting a solution.

Should policymakers look to boost the number of licensed child care businesses run out of homes, or primarily centers? Since 2005, home-based child care businesses — which tend to be cheaper for parents — have declined by almost 50 percent, in part due to increased competition and rising regulatory burdens. Should child care be targeted to traditional working hours, or do parents need more flexible options? How has remote work affected demand?

The number of child care providers backed by private equity has also increased significantly over the last few decades, while the number of children participating in nonprofit child care, like a church-based program, has declined. Patrick Brown, a fellow at the Ethics and Public Policy Center, has argued policy should be designed to better support nonprofit options, which could help address affordability concerns and better align with parent preferences.

Is the key crisis of child care the cost families are paying? One fundamental challenge is that an individual’s peak earning potential — in their 40s — doesn’t align with when most families have young children.

Many experts argue the government should increase spending on early childhood — partly to bring expenditures more in line with public spending on older children. But there’s debate over whether the government should subsidize the cost for more affluent households. In late 2022, Arizona State University professor Chris Herbst found that families spent 8.7 percent of their annual income on child care costs in 2019, up from 6.6 percent in 2005. This increase in cost burden, Herbst found, was similar for families regardless of income level and marital status.

Even though not all parents want formal child care, researchers do feel confident in saying the current prices deny many families, particularly low-income families, a real choice between formal options and informal ones.

Or is the child care crisis around unequal learning opportunities for children? Some researchers argue that boosting “quality” of programs, even if that makes them more costly to run, is essential. Others argue the trade-offs required to boost quality metrics are unnecessary and unduly expensive, and only serve to impede access to care.

Or is the lack of affordable child care a crisis due to its impact on workforce participation? When costs get too high for care, many parents — and usually moms — decide it makes more sense to reduce their hours or quit altogether.

Or is it the low wages paid to child care workers — which can fuel high turnover and disrupt parents’ work schedules? “The wages are undeniably empirically low,” said Herbst, who found that the median hourly wage ranked 16th lowest out of 753 occupations on a federal labor survey — in between cashiers and sports bookers. To raise staff wages without public subsidy would likely mean raising parent fees. In practice, this would mean fewer families able to afford formal child care at all.

The trade-offs of contemporary child care proposals

This won’t be an exhaustive list, but to illustrate some of the ideas above, it’s perhaps easier to look at concrete ideas people are already talking about.

One idea is increasing investments in the Child Care and Development Block Grant (CCDBG), a longstanding federal program aimed at reducing child care costs for low-income families. There’s already bipartisan support for this, as right now only a tiny fraction of those families eligible actually receive assistance.

Additional CCDBG funding could help more low-income mothers work in the labor market, and find affordable child care. But many progressive child care advocates argue policymakers should increase public subsidies to all or most families, not just low-income households, and warn increased funding to CCDBG alone would do little to incentivize quality improvements, or address low wages in the sector.

Another idea is increasing immigration. Expanding immigration could bring down the cost of child care for families by increasing the supply of workers and help more moms work in the labor market. Past research has shown that when US communities increase their supply of low-skilled immigrants, the employment of high-skilled women goes up because they can hire more nannies and cleaners. Other research found that tougher US immigration policy decreased the number of immigrants working in child care, and led to reduced employment of college-educated women.

Whether an increasing supply of immigrants would help with wages is unclear. One study found metro areas with increased low-skilled immigration between 1980 and 2000 saw “larger decreases in the median wages of childcare workers” but another found reducing immigrants led to lower wages for immigrant and native child care workers alike. Past research found that the arrival of low-wage immigrants has little to no negative effect on native-born workers’ wages or employment. Matthew Yglesias, author of the pro-immigration book One Billion Americans, noted that expanding the supply of Spanish-speaking child care workers could, for example, create new positions for bilingual child care workers to work as supervisors.

Yet many child care advocates express ambivalence about immigration as a solution — warning that the workers could be exploited and that it could detract from their broader goal of boosting the status of child care work in the US. “The history of child care in America is that it’s been done by Black women, immigrant women, and unpaid labor of moms, so there are artificially depressed wages based on discrimination,” said Julie Kashen, the director for women’s economic justice at the left-leaning Century Foundation. “The idea is to fight against the discrimination, not just to play into those kinds of ideas.”

An idea Kashen and many other advocates support instead is increasing public subsidies for licensed “high-quality” child care, as Democrats proposed doing in their failed Build Back Better package in 2021, and which Democrats plan to introduce again soon.

This new public spending would boost child care wages and likely induce new workers to the field, though would offer little help to those parents uninterested in formal care, and could raise prices sharply for higher-income families.

Another basic idea is simply to give parents money with the discretion to spend it as they see fit. This could help more parents afford child care if they want, and potentially allow child care businesses to raise their prices and increase wages. A child allowance, however, wouldn’t necessarily boost the supply of workers, the quality of programs, or maternal labor market participation.

These trade-offs are playing out in real-time right now in Vermont, where Democrats are advancing a proposal to increase subsidies to early childhood programs, paid for in part by repealing a child credit Vermont authorized last year. Vermont’s robust child subsidy was based in part on the success of the federal government’s expanded child tax credit during Covid-19, which helped families buy household essentials and reduced the child poverty rate by 30 percent.

Vermont’s proposed reshuffling of funds would likely raise the wages of child care workers, though take money away from informal caregivers. Josh McCabe, director of social policy at the Niskanen Center, called this a “breathtakingly bad idea” and noted progressives rejected work requirements in the federal child tax credit but are now “pushing for the expansion of subsidies only accessible to households where all parents are in paid employment.”

The bottom line is you’d be hard-pressed to find anyone who says they don’t want to support children, families, and child care workers — and if “tackling the child care crisis” simply means that, then yes, everyone agrees. But figuring out exactly how to do that is where things get tricky, and where the political rubber meets the road. It also helps explain why so little has gotten done, despite seeming consensus on the crisis rhetoric.

Better data would help, particularly more research on parent preferences and informal care arrangements. But so too would speaking in plainer language about what measures we’re fighting for, and which ideas to support parents, kids, and workers we’re not.

Where are all the apartments for families?

Originally published in Vox on April 23, 2023.
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Roughly 40 percent of American millennials have four-year college degrees, and if there’s one thing these highly educated young people have liked to do over the last 15 years, it’s move to big cities.

Researchers find they (well, we) have accounted for more than half the population increase in “close-in” urban neighborhoods in the country’s largest metro areas since 2010, and they credit our migration (and our taxes) with accelerating urban revival. We don’t have to guess as to why: Millennials like diverse, walkable environments with good public transit and bike lanes. They like the rich cultural amenities, including bars, restaurants, and concert venues. And they like the higher-paying work opportunities available.

All this might make you think millennials have moved to cities permanently. But as they get older, the number of urban children has continued to drop. Lower birth rates are part of the story, but economists say the strong correlations with population shifts strongly suggest that “out-migration” of cities explains a big portion of the loss. In other words, millennials now in their mid-30s and 40s with young kids have started decamping for suburbs to raise their families.

Some older adults nod smugly, seeing these suburban migration patterns as proof that there was never any meaningful difference between their preferences and that of millennials at all. Millennials did not start the trend of moving to cities in one’s 20s: Plenty of baby boomers and Gen X moved to urban areas in young adulthood, and then back to the suburbs to raise a family once they coupled up and needed more space.

And certainly some millennial families really do crave the kind of lifestyles found in suburbs: the bigger houses and lawns, the schools, and safety.

But for many other young people looking to start families, the choice to stay in the city or move to the suburbs doesn’t feel much like a choice at all. There simply aren’t many family-oriented housing options in cities, let alone ones young couples could afford.

For years now the shortage of housing, and the dearth of new housing built to accommodate a growing population, has been getting more attention. But only more recently have people started to discuss that, even in places that have loosened their zoning rules and authorized new housing construction, the overwhelming majority of new units are studios or one- and two-bedroom apartments, built with singles, childless couples, and adult roommates in mind.

Advocates for more housing say they’re aware that cities are losing families with kids, even in areas that are adding new units to the market — and they argue that it’s one reason why reforming zoning is only the first step toward building cities that house more people.

“Yes, there’s been a ‘build baby build’ attitude because we’re so far behind, but there are big asterisks and caveats to that,” said Matt Lewis, a spokesperson for California YIMBY, a pro-housing group. “If you just do zoning, you will end up with a whole lot of one- and two-bedrooms.”

Zoning reform is necessary but not sufficient

Housing demand outstrips supply in major cities, leading to rising costs for tenants and prospective homeowners. A top culprit for this scarcity is local zoning laws that bar new construction and empower homeowners who gain financially from restricting new housing to decide whether or not to make room for more neighbors.

Over the last decade, there has been a growing movement to loosen zoning rules to facilitate more construction. And among those few places that have changed their zoning laws, evidence suggests it has helped contain rising rents, largely by reducing competition among individuals for units.

Addressing restrictive zoning is a crucial first step to making cities more affordable, and most communities still haven’t even taken that step.

Orphe Divounguy, a senior economist at Zillow, analyzed the top metropolitan areas sourced from the American Community Survey and found that the most “doubling up” — meaning a family living with another family — occurs in the nation’s most expensive cities, like Los Angeles, Boston, Denver, Seattle, and Washington, DC.

While some might simply prefer these living arrangements, Divounguy observed that nearly 70 percent of families doubling up in these high-cost cities had incomes of $35,000 or less — suggesting their choices to live in closer quarters may be driven by financial need. “We need to build more units,” Divounguy told Vox. “If we had more units then buyers and renters would have more buying power and prices would go down.”

Christopher Leinberger, a longtime land use strategist, agreed that upzoning — altering rules to allow more dense housing in places previously zoned only for single-family homes — is the fundamental prerequisite for creating more family-oriented housing. Without that, he argues, land prices will remain “completely out of whack” and drive up prices.

“A few decades ago, the plot of land itself would be no more than 20 percent of a home’s price,” Leinberger said. “Today it can be up to 50, 60, or 70 percent.”

Higher land prices is also a top reason developers don’t bother building entry-level starter homes anymore, even in areas they’re legally allowed to; the increasingly expensive plot of land can’t justify the expense of building a low-cost affordable house.

Emily Hamilton, the director of the Urbanity Project at the Mercatus Center, echoes Leinberger and Divounguy in saying that liberalizing zoning laws would help expand family-oriented housing. “Freeing homebuilders to serve a wider variety of households at a broad range of incomes is the path to abundant housing,” she wrote recently in Discourse magazine. “It would allow more parents to have shorter commutes, freeing more time to spend with their kids.”

Other regulatory barriers stand in the way of family-oriented housing

The problem is, as housing advocates are learning, upzoning is not enough.

The basic back-of-the-envelope calculations of housing developers in America today are such that if a builder can construct more housing in cities, they will almost always build one- and two-bedroom apartments because smaller units generate more rent per square foot. Developers are, in effect, incentivized to try and pack in as many units as they can.

The most successful strategy for ending homelessness is under attack

One option is to pass laws that require developers to include more family-sized units in their portfolio — more three- or four-bedroom places, for example. But housing experts say trying to force developers to build family-oriented housing will probably backfire. “Dictating to developers what their product mix should be is going to be difficult,” said Leinberger. “If you get into the business of legislating that, they’ll just go to some other town.”

So if you’ve fixed your city’s restrictive zoning, now what?

Lewis, of California YIMBY, said they’ve been learning out in the Golden State that the next step is to look at the building codes and other regulatory barriers that influence the types of housing developers choose to build.

“It’s like whack-a-mole,” he said, meaning just when pro-housing advocates think they’ve defeated the last barrier to new construction, new ones come into clearer view. “These are all arcane rules that no one was paying attention to until five-seven years ago.”

One such building code restriction is the requirement that most multifamily buildings have two stairwells. This is a rule rooted in fire safety, though most other countries allow one stairwell and opt for other fire safety strategies instead. One consequence of the double stairwell model is it ends up making architecture more homogenous and inefficient. (This is why most apartment buildings in America have long central hallways, with apartments on either side.)

Housing activists lately have been rallying around “single-staircase” reform, changing building codes to eliminate this requirement for a second stairwell. These reforms will make it easier to use different floorplans and hopefully make it more cost-effective to build family-oriented housing in cities — perhaps a three-bedroom, one-and-a-half bath apartment, with only one bedroom having a walk-in closet.

Lawmakers in Washington state overwhelmingly approved a bill this month to legalize single-stairwell construction, and California legislators are currently pursuing a similar reform.

Other barriers include regulations like minimum lot sizes, “set-back” requirements that give towns power to dictate how far back from the curb a home can be built, and “floor-area ratios” — the ratio of a building’s total floor area to the size of the land on which it’s built.

California Sen. Scott Weiner has been leading the way in his to state to push bills tackling these barriers. “We need to reform zoning, but we also need to end loopholes that make it impossible for our communities to actually build the multifamily housing for which we have already zoned,” he said.

The risk-averse banks also need to be convinced

Unfortunately, adding more homes for families in cities will likely require even more than just making these land-use changes.

Bobby Fijan, a developer who has been trying to build more family-oriented housing in cities, said one of the biggest challenges is convincing American real estate investors that these projects are worthy bets. “I firmly believe it is a chicken and egg problem,” he told Vox.

“Real estate in the US is very conservative, they want to back things in a very standardized way, and they want to look and see heaps of data showing something already works,” he said. “In industries like tech and retail, people are obsessed with the question of ‘what does the customer want?’ That’s not a question that’s really asked in real estate.”

Right now, because the housing supply and demand gap is still so wide, it’s likely that real estate investors will keep backing projects that look like what they’re already building: buildings that cater to childless adults. These are safe bets, with strong track records of delivering returns.

But this doesn’t mean real estate trends can’t change. Fijan has been working to get financing from private equity and is hoping he can build enough “proof points” of successfully profitable family-oriented housing in cities to get the more risk-averse banks to bite in the future.

It’s a gamble that holds a lot of promise. Plenty of young families will still opt for the suburbs’ greener pastures, but many parents would be happy to stay put in their beloved dense cities and raise their kids. To make that a viable option, though, they need somewhere they can actually live.

The fight to make it harder for landlords to evict their tenants

Originally published in Vox on May 1, 2023.
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In most US communities, renters have very little assurance of staying in their homes long term if they’d like to. Landlords can hike rents, evict tenants through court with little difficulty, or simply choose to not renew their lease. Nearly 5 million Americans lose their homes through eviction and foreclosure every year, and millions more deal with threats of housing loss.

In July 2021, local lawmakers in Albany approved New York’s first “good cause” eviction law — a city ordinance affirming tenants’ right to renew their leases, defining what could lead to eviction, and protecting them against “unconscionable” rent hikes exceeding 5 percent. Within a few months, four more upstate New York cities — Kingston, Newburgh, Poughkeepsie, and Beacon — followed suit.

But tenant advocates didn’t have long to celebrate. Landlords challenged the measures in court, arguing the local laws violated their state property rights. In three separate rulings over the last six months, the courts agreed, and “good cause” laws in Newburgh, Albany, and Poughkeepsie were struck down. Kingston lawmakers preemptively repealed their own measure two weeks ago.

A statewide “good cause” eviction law is now at the heart of one of the most high-profile battles in New York’s legislature. It mirrors the growing focus of housing advocates across the country, who argue lawmakers need to do more to prevent the harms clearly linked to losing one’s home, including higher job loss, debt, suicide, and reduced credit access.

Similar state-level “good cause” measures have passed recently in California, Oregon, and Washington state, and legislators in Colorado, Connecticut, and Maryland have taken up the idea this year, too.

Landlord groups argue “good cause” eviction rules will upend the housing market during an already volatile period, and slow down much-needed new construction. Supporters of the protections say this is just real estate industry fear-mongering, noting that in states that have already passed “good cause” eviction laws, construction has continued apace.

No state has had a “good cause” ordinance longer than New Jersey, which passed its own version in 1974.

“There’s a thriving rental market in New Jersey, it has not collapsed by any stretch of the imagination,” said Peter Hepburn, a sociologist at Rutgers University-Newark and an analyst at Princeton’s Eviction Lab.

Julia Salazar, the New York senator leading the push in her state legislature for “good cause” eviction, said opposition is led largely by those “who want to exploit the need people have to be housed.” She argued there’s been a lot of misinformation about her bill.

“No one is saying we have enough housing stock or we don’t need to build, and I believe we urgently need to build more housing,” she told Vox. “If ‘good cause’ were in fact any impediment to that then I would certainly be concerned, but the reality that we’ve seen in states like New Jersey and Oregon is it’s just not.”

However, whether these laws will provide the kind of protection advocates yearn to see is not clear, since many common reasons for eviction — like being a nuisance or damaging property — are listed as “good causes” in the statutes. One hope, though, is that they could provide more regulation over the myriad informal evictions that typically take place outside of court. To date, there’s been little research on the effectiveness of the laws in the states that have recently passed them, partly because they’re so new and partly because it’s challenging to disentangle the effect of “good cause” from all the other Covid-19 tenant protections.

In New Jersey, advocates concede, “good cause” has not been a strong deterrent against evictions, partly because its language barring “unconscionable” rent increases lacks a specific threshold (like 5 percent, for example), making enforcement difficult.

“The note of caution I would sound is that every ‘good cause’ statute permits eviction for nonpayment of rent,” said Hepburn. “And nonpayment of rent is far and away the most common cause that evictions are filed.”

How “good cause” eviction laws work

Laws requiring “good cause” for eviction (sometimes called “just cause” or simply eviction “for cause”) are tenant protections meant to give renters a greater sense of housing security and empower them to hold landlords accountable for poor conditions without fear of retaliation.

The laws vary from place to place but they always include specific reasons a landlord could choose to legally evict a tenant or opt not to renew their lease. A tenant can then challenge an eviction in court if they feel it was ordered without legitimate cause.

The National Low Income Housing Coalition lists three core components of “good cause” legislation. Beyond defining the legal grounds for an eviction, advocates say most place limits on rent increases (some of these limits are vaguer than others), and most laws also include enhanced requirements for written eviction notices, so tenants have enough time to gather any documentation they need to challenge it. In Oregon, for example, landlords have to provide a tenant they want to evict with 90 days notice.

While there has not been much research to date on the impact of “good cause” eviction laws, some evidence suggests they make a difference. One study found local “good cause” ordinances in four California cities lowered eviction rates between 2000 and 2016. The researcher concluded the measures “have a significant and noticeable effect on eviction and eviction filing rates” and provide a low-cost policy solution for other states and cities. Other advocates note that traditional eviction data — which relies on court filings — generally fails to capture the 72 percent of forced displacement that occur outside the court system.

Ned Resnikoff, the policy director for California YIMBY, said he doesn’t believe there’s any reliable data yet on California’s statewide “good cause” measure that took effect in 2020, partly because some eviction moratoriums remain in effect. “But the Terner Center has found that the rent stabilization piece of [the law] isn’t being adequately enforced, so I think it’s reasonable to surmise that we might face a similar issue with just cause protections,” he told Vox.

Progressives are throwing their weight behind the fight in New York

Progressive activists have named “good cause” eviction a top priority for this year, and powerful congressional Democrats including Reps. Alexandria Ocasio-Cortez, Jerry Nadler, and House Minority Leader Hakeem Jeffries have also come out in support.

The bill would bar rent increases that exceed 3 percent of the previous rental amount, or 1.5 percent of the Consumer Price Index, whichever is higher. This could provide significant protection: Even among New York City’s 1 million rent-stabilized apartments, tenants are looking at rent increases for next year that could range between 5 and 16 percent.

New York’s bill would go further in protecting tenants than the “good cause” laws that passed on the West Coast, as New York’s proposed limits on rent increases would apply not only to old units, but also to new and future housing.

The Community Service Society of New York, a progressive advocacy group, estimates that 1.6 million New York households would be protected from eviction based on unreasonable rent increases under Salazar’s bill.

Landlords are fighting back, arguing the eviction moratorium from the pandemic already put them under severe financial strain, will lead to more backlogged court cases, and will leave them financially vulnerable in an inflationary period. The right-leaning New York Post blasted the proposed law for potentially discouraging new housing and driving existing landlords out of business.

Tim Foley, the CEO of the Building and Realty Institute, which represents Westchester and mid-Hudson region real estate professionals, told Vox his members worry it will hurt their ability to get financing to complete their projects. He pointed out that banks, including the recently collapsed Signature Bank, paused or stopped lending following the passage of New York’s 2019 state tenant protections. His organization also found repairs and maintenance in rent-stabilized units decreased after the 2019 law, suggesting there could be “unintended consequences” to the tenant rights law.

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Foley said his members instead back bills to expand legal representation for low-income New Yorkers during eviction proceedings (known as “right to counsel”) and to expand access to housing vouchers.

Ann Korchak, the board president of Small Property Owners of New York, a landlord advocacy group with roughly 600 members, told Vox she believes her state “already has incredibly strong tenant protections” and disagrees with advocates who say otherwise.

Salazar told Vox she sees Democratic Gov. Kathy Hochul as their biggest political obstacle, and previously indicated she’s open to making modifications to her bill. Lawmakers tried and failed to pass a similar bill in 2019, but Salazar thinks there are more elected officials now who embrace a “housing justice” platform.

Hochul, who introduced her own housing agenda earlier this year, has thus far signaled disinterest in the proposed “good cause” eviction bill, though her proposals have failed to gain traction and pressure remains for lawmakers to do something on the affordability crisis.

Evictions are life-altering and preventable

Despite research showing harms related to eviction, it wasn’t until the pandemic that the government stepped up to help families avoid this traumatic experience. One of the most significant Covid-19 social policy developments was the creation of the federal Emergency Rental Assistance Program, which authorized $46.5 billion to help people stay housed. More than half of states passed their own eviction prevention measures as well.

But now emergency rental aid has mostly tapped out, state and local eviction moratoriums have mostly expired, and a federal bill to establish a permanent eviction prevention fund died in Congress.

Advocates say “good cause” measures, especially since they can be passed at little cost to governments, represent a meaningful interim step lawmakers can take now as they continue fighting for more rental assistance, source-of-income discrimination bans, and right to counsel. To make “good cause” ordinances more effective, tenant advocates say local courts and legislators must also develop stronger enforcement mechanisms, including better ways to track and analyze eviction filings and judgments. The National Low Income Housing Coalition also emphasizes the need to pass “equitable marketing strategies” that can help tenants learn how to exercise their rights.

Hepburn, of Rutgers and the Eviction Lab, said “good cause” eviction measures are worthy ideas, especially in a place like New York, which has the highest share of renters among all 50 states. Yet he noted the unfortunate reality that gaps in housing security between blue and red states continue to widen.

“These laws should happen, but it should be noted that where they’re passing are in places that have tenant protections already,” he said. “These bills are not coming up in places like South Carolina, like Virginia, like Georgia. How do we do something like this in Indiana?”

The most farcical argument in the case against abortion pills

Originally published in Vox on April 12, 2023.
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Anti-abortion activists have been using a deeply misleading refrain to squash access to mifepristone, a drug approved in 2000 by the US Food and Drug Administration (FDA) to safely end pregnancies.

“Pregnancy is not an illness,” declared Erik Baptist, the lead counsel for the coalition of anti-abortion groups Alliance Defending Freedom, in a hearing before Judge Matthew Kacsmaryk in a federal district court in Texas last month. “Pregnancy is not a disease.”

Last Friday night, when Kacsmaryk issued his unprecedented decision ordering mifepristone to be pulled from the market, the anti-abortion judge said the same thing: “Pregnancy is not an ‘illness,’” Kacsmaryk emphasized in his 67-page order, writing that it’s “a natural process essential to perpetuating human life.”

The argument matters because anti-abortion leaders claim the FDA illegally approved mifepristone through an accelerated drug reviewal process known as Subpart H that only applies to “new drugs for serious or life-threatening illnesses.” If pregnancy isn’t an illness, their logic goes, then mifepristone shouldn’t have been approved at all.

It’s a silly argument that reflects both an unreasonably textualist interpretation of the law, as well as a Christian view that pregnancy is holy and stopping it is sacrilege. It’s a shoddy legal interpretation because there’s a long history of the FDA using the terms illness, disease, and condition interchangeably. In an amicus brief filed in the case in February, 19 US food and drug scholars from 16 academic institutions across the United States emphasized mifepristone has always been lawfully approved.

“Although amici represent a diverse range of ideologies and do not necessarily agree on all moral and ethical questions associated with abortion, [we] uniformly agree that Plaintiffs have gravely mischaracterized U.S. federal food and drug law,” the experts wrote.

This isn’t the only time the anti-abortion movement has turned to the “pregnancy is not an illness” rallying cry to fight back against reproductive health care. Back in 2011, when the Institute of Medicine recommended that contraception be covered without co-pay under private health insurance plans, anti-abortion activists strongly objected under these same terms.

“Pregnancy is not a disease, and fertility is not a pathological condition to be suppressed by any means technically possible,” said the chair of the Committee on Pro-Life Activities of the United States Conference of Catholic Bishops at the time. “Contraception only prevents disease or serious illness if one considers pregnancy to be a disease or serious illness,” echoed Bob Laird, a fellow at Human Life International.

It’s exhausting that we have to litigate this point at all because federal regulators never claimed that pregnancy was an illness. Pregnancy is a medical condition — which the FDA lawfully regulates drugs and devices for. (See also: FDA-approved pregnancy tests.)

Mifepristone is one of the most heavily studied and scrutinized drugs in the US, and has been repeatedly assessed and affirmed for its safety and value. It has been used by over 5 million women in the United States since it was approved for use 23 years ago.

“The ironic thing about the [Alliance Defending Freedom] lawsuit is the FDA used Subpart H because it was trying to restrict mifepristone more onerously,” said Greer Donley, a professor at the University of Pittsburgh School of Law. “So [to] the extent that the FDA was trying to do anything sneaky using Subpart H, it was doing it to over-regulate mifepristone, not under-regulate it.”

Explaining the weak “Subpart H” argument

The FDA has emphasized in its agency guidance that when referring to drugs and biologics for serious conditions, it uses the terms condition, disease, and illness “interchangeably.”

By disregarding this, the anti-abortion movement avoids reckoning with the reality that pregnancy is an objective medical condition that falls under the FDA’s legal purview. (Even anti-abortion activists admit pregnancy can cause many serious and life-threatening complications, including preeclampsia, placental abruption, venous thromboembolism, and postpartum depression.)

Back in 1992, the FDA approved new regulations to govern the approval, use, and distribution of drugs for “treating serious or life-threatening illness.”

One section of these regulations — Subpart H — outlines the conditions needed to assure safe use for the drugs. The fact that the text doesn’t explicitly say “condition,” anti-abortion lawyers argue, is proof of a smoking gun. But in its preamble to the final rule establishing Subpart H, the FDA says the regulation applies “to conditions or diseases that can be serious for certain populations or in some or all of their phases.”

As the 19 food and drug scholars outline in their amicus brief, when Congress incorporated this Subpart H regulation as a new section of the Federal Food, Drug, and Cosmetic Act in 1997, federal lawmakers did so in a section applied to products “intended for the treatment of a serious or life-threatening condition.” In other words, there were multiple examples of Congress and the FDA using this interchangeable “disease” and “condition” interpretation.

In 2000, the FDA approved mifepristone under Subpart H and required the abortion medication to be provided by physicians and only distributed in person. Seven years later, when Congress authorized the FDA to regulate certain drugs under a Risk Evaluation and Mitigation Strategies (REMS) list, a designation that allows for additional restrictions if the government determines that increased barriers are necessary for a drug’s benefit to outweigh its risks, Congress codified that REMS is used for drugs for “a disease or condition.” The FDA has since had mifepristone on its REMS list, even though groups like the American College of Obstetricians and Gynecologists argue these additional restrictions are unnecessary.

“Subpart H was a precursor to the REMS program in 2007, and that law explicitly said ‘conditions’ in its operative section,” said Donley. “The plaintiffs just want to ignore how the FDA has long interpreted the word.”

In his decision, Judge Kacsmaryk claimed that mifepristone was illegally approved under Subpart H in 2000, partly because pregnancy is so distinct from the other conditions that drugs were approved for it under this regulation. More than half of the drugs approved under Subpart H by 2002 were for the treatment of HIV and HIV-related disease, while nine were for cancers and cancer symptoms, four were for bacterial infections, one was for leprosy, and one was for chronic hypertension. “One of these things is not like the others, one of these things just doesn’t belong,” snarked Kacsmaryk in his legal order, literally citing: “See Sesame Street.”

The “pregnancy is not a disease” line is just a straw man

You should expect to hear the slogan “pregnancy is not an illness” more often from anti-abortion leaders going forward as they continue to fight against abortion pills and contraception. Indeed, Alliance Defending Freedom’s senior counsel Erin Hawley said it on Monday, following news that the Biden administration had appealed Kacsmaryk’s order in the federal Fifth Circuit. “Pregnancy is not an illness, and chemical abortion drugs don’t provide a therapeutic benefit,” Hawley argued in a statement.

It’s not hard to understand why anti-abortion activists like the phrase so much. It doesn’t sound overtly religious at first blush, and it can come off as even vaguely feminist if you believe that women’s bodies and women’s health care have long been disrespected and disregarded by society and medical professionals.

But on the FDA’s terms, it’s not a serious argument. Mifepristone is an FDA-approved drug to end a pregnancy, and the FDA has approved multiple forms of birth control to prevent pregnancy in the first place. Pregnancy is a condition the FDA is lawfully authorized to regulate drugs and products for, and any arguments about curing or preventing the “disease of pregnancy” are bogus and just meant to inspire confusion.

A Texas judge just issued a national ruling against medication abortion. What now?

Originally published in Vox on April 8, 2023.
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A decision in a highly anticipated federal court case was issued Friday night: A district judge in Texas, with longstanding and outspoken anti-abortion views, suspended the US Food and Drug Administration’s approval of mifepristone, a widely used drug to end pregnancies.

But the judge, Matthew Kacsmaryk of the Northern District of Texas, ordered that his decision would not take effect for seven days to allow the federal government time to appeal his decision. Within hours, both the US Justice Department and Danco Laboratories, a manufacturer of mifepristone, announced their plans to challenge the ruling.

For now, access to the drug remains unchanged.

Adding to the chaos and uncertainty, a second and competing federal court decision regarding mifepristone was released Friday in Washington state, in a case led by 17 Democratic attorneys general who argued the FDA had actually been too restrictive when it approved mifepristone.

The federal judge in that case, Thomas Rice, issued a preliminary injunction blocking the FDA from taking “any action to remove mifepristone from the market or otherwise cause the drug to become less available.”

While Rice’s decision applies only to the 17 states involved in the lawsuit, his order would conflict with the nationwide injunction Kacsmaryk just issued, which could set up an accelerated path for the US Supreme Court to take up the issue. The Biden administration said it is still reviewing the Washington state decision.

Kacsmaryk’s decision was riddled with false statements about medication abortion and the risks of mifepristone, which has been used by millions of women since it was first approved by the FDA 23 years ago. It’s unprecedented for a district judge to reverse the FDA’s approval of a drug, and some reproductive rights groups warn this could set the stage for similar challenges to other drugs anti-abortion groups oppose, like birth control and emergency contraception.

On Friday night, President Biden vowed to fight the Texas decision, emphasizing that if it were to stand, “there would be virtually no prescription approved by the FDA safe from this kind of attack.”

Sen. Ron Wyden (D-OR), who chairs the Senate Finance Committee that oversees the FDA, said in a statement that he believes the FDA has the authority to ignore Kacsmaryk’s ruling. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America,” he said.

The availability of the drug will ultimately be decided by higher courts. But if mifepristone were to be pulled off the market, the consequences for access to abortion would be severe. Medication abortion — referring to the combination of mifepristone and misoprostol — accounts for more than half of all abortions in the US, and is used typically within the first 10 to 12 weeks of a pregnancy. It’s 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.

The anti-abortion movement has been trying to restrict access to medication abortion since before the overturn of Roe, but past attempts to challenge the FDA’s approval process were all summarily rejected. The Texas lawsuit and the plaintiffs’ demand for a nationwide injunction represent the increasing aggressiveness of the anti-abortion movement to take aim at abortion access not only in conservative states controlled by Republicans, but also in deep blue states run by Democrats.

What is mifepristone?

Mifepristone is a prescription drug that works by blocking the hormone progesterone, which maintains the interior of the uterus. If progesterone is blocked, the uterus can’t support a pregnancy and the embryo is detached.

For medication abortions, a second drug — misoprostol — is then used. Misoprostol has been around since the 1970s and was first developed to treat stomach ulcers. An individual seeking to end a pregnancy would take misoprostol 24 to 48 hours after mifepristone, causing their cervix to soften and their uterus to contract and expel the embryo.

Mifepristone is also used for other situations like miscarriage management, and helping patients with Cushing’s syndrome who also have Type 2 diabetes. Lawyers for the plaintiffs insist restricting mifepristone for abortion won’t impact patients who use the drug for other reasons, but already some pharmacists and doctors have resisted prescribing misoprostol to patients, wary of breaking new laws or suspicious patients will use the drugs covertly for an abortion.

The drug was authorized by the FDA in 2000 and is approved for ending a pregnancy in the US up to 10 weeks’ gestation, though the World Health Organization recommends mifepristone up to 12 weeks.

Between 2000 and 2018, more than 3.7 million women in the United States used the medication — sold under the brand Mifeprex — to end an early pregnancy. In 2016, the FDA reported that mifepristone’s “efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.” Three years later, the agency approved a generic version, GenBioPro.

Why is there a lawsuit attacking mifepristone?

Back in November, a lawsuit challenging the legality of mifepristone was filed on behalf of a coalition of anti-abortion groups and doctors known as the Alliance for Hippocratic Medicine. Led by the conservative legal advocacy group Alliance Defending Freedom, the lawsuit claims the FDA caved to political pressure under Bill Clinton when it approved mifepristone more than 22 years ago, and it should thus be pulled from the market.

The lawsuit claims the FDA didn’t properly assess mifepristone’s safety, and that the federal government has put people at risk more recently by making the medication easier to obtain. Examples it cites include the FDA extending in 2016 the recommended window of time to take mifepristone from seven weeks of a pregnancy up to 10, and removing a requirement in 2021 that women must pick up mifepristone in person, thereby making telehealth and mail orders more accessible.

The National Academies of Sciences, Engineering, and Medicine has affirmed medication abortion as a safe method to terminate pregnancy, and concluded that there is no medical need for the drugs to be administered in the physical presence of a health care provider. The FDA has also repeatedly rejected the evidence the plaintiffs claim shows medication abortion is unsafe.

The case has virtually no scientific merit, and challenging the use of a drug that has been studied and safely used for over two decades is highly unusual. Jack Resneck Jr., the president of the American Medical Association, said in a statement Friday night that Kacsmaryk’s “disregard for well-established scientific facts in favor of speculative allegations and ideological assertions will cause harm to our patients and undermines the health of the nation.”

Most Americans also believe medication abortion should be accessible. A poll released in early March found majorities of Americans support keeping medication abortion legal and allowing women to use it at home to end an early-stage pregnancy. Another recent survey found 59 percent of voters disapprove of overturning the FDA’s approval of abortion medication, including 72 percent of Democrats, 65 percent of independents, and 40 percent of Republicans.

But legal experts concede these are legally unpredictable times given the politicization of the courts. The federal lawsuit was intentionally filed in Amarillo, Texas, so that Kacsmaryk, a conservative judge, would hear the case. Kacsmaryk was appointed by Donald Trump and is a former Christian activist who has openly opposed abortion for decades.

Last year, he ruled that federal law prohibiting certain forms of discrimination by health providers does not protect against anti-LGBTQ discrimination, and in a separate case, he concluded that teenagers can’t access birth control without their parents’ permission under Title X, a federal program that provides family planning and preventative health services.

What are the implications of the decisions?

Both decisions in Texas and Washington state were issued by lower courts, so these legal battles are not over. The federal government has already said it will appeal the Texas decision, but it’s unclear if the Biden administration will appeal to the Fifth Circuit, or go directly to the US Supreme Court.

Will mifepristone remain available? One possibility is that the Fifth Circuit or the Supreme Court issues a “stay” as the case continues to be litigated, meaning the drug could continue to be prescribed, while the lawsuit stretches on. When Roe was on the books, there were lots of court-ordered abortion bans upheld in district courts like Kacsmaryk’s, but then never enforced because lawyers would successfully win “stays” as they proceeded to challenge the bans in higher-level courts. Whether appellate courts in the post-Roe era would be as willing to block a lower judge’s order while the case continues is an open question.

David Cohen, a law professor at Drexel University who specializes in reproductive rights law, said before Kacsmaryk issued his order that typically an appellate court would consider whether a district court order would be so disruptive to the status quo that it needs to be halted while they consider the case. In normal times, abruptly taking off the market an FDA-approved drug that has been safely used by millions of women for over 20 years would certainly meet the threshold of “very disruptive” to the status quo.

“But I think we are in a world where the conservative Fifth Circuit feels very emboldened, so we can’t count on” a stay, Cohen told Vox. It’s possible, especially given the Washington state decision, that the Biden administration skips the Fifth Circuit and appeals directly to the Supreme Court. “We’ve seen more litigants doing that in recent years, though usually it’s been conservative litigants,” Cohen explained. “I don’t know if the FDA would want to do that, but it’s possible they think they’d get a fairer shake at the Supreme Court.”

What options for abortion are still available right now?

For at least the next week, nothing will change,

If mifepristone is ultimately pulled from the market, people seeking abortions could still access care at in-person clinics for surgical abortions. But those procedures typically cost more money, and require more time and resources from already-strapped abortion clinics. In its legal filing opposing the Texas case, the Justice Department warned that taking mifepristone off the market would lead to delays and overcrowding at these clinics, which were already managing an influx of out-of-state patients since Roe’s overturn.

Another option that would remain even if the order takes effect is ordering pills either from the European-based nonprofit Aid Access, which bypasses US restrictions by prescribing the drugs to patients from overseas, or through alternative methods vetted by the reproductive justice group Plan C such as mail forwarding. “We will not let this unjust ruling stop people from accessing abortion pills, which are readily available through alternate supply routes in the US,” Plan C co-director Elisa Wells said Friday night.

Another option would be pursuing medication abortion using only misoprostol. While not FDA-approved, this method is backed by the World Health Organization, and a common way of ending pregnancies around the world. In February, researchers found misoprostol-only abortions in the US to be 88 percent effective, with few incidents of serious adverse events or signs of a potential abortion complication. In comparison, research in the US on using mifepristone and misoprostol together has shown success rates of 95 percent. But research on misoprostol-only abortions in other countries has also shown similar efficacious results, ranging between 95 and 99 percent.

Abortion providers, though they expressed adamant opposition to the Texas lawsuit, have been preparing to offer misoprostol-only abortions if mifepristone is taken off market. The National Abortion Federation, in its clinical guidelines, says that “where mifepristone is either not legally available or inaccessible, misoprostol-alone regimens may be offered.” Because misoprostol has been FDA-approved to treat stomach ulcers and can be prescribed off-label for solo use, there is less concern that access to that drug will disappear.

There are also pending federal lawsuits to expand access to medication abortion

In addition to battling this lawsuit from anti-abortion groups, reproductive health organizations have been planning their own legal strategies to expand access to abortion pills. In January, two such lawsuits were filed, claiming two states’ restrictions on mifepristone illegally preempt the FDA.

Through the passage of the Federal Food, Drug, and Cosmetic Act in 1938, Congress empowered the FDA as the sole agency to approve drugs in the US. It’s responsible for reviewing a drug’s safety, weighing its risks and benefits, and regulating appropriate conditions for safe and effective use.

With this in mind, GenBioPro, the generic manufacturer of mifepristone, argued in a lawsuit that West Virginia’s state abortion ban is unconstitutional because it violates the supremacy and commerce clauses of the US Constitution, which empowers the FDA as the sole regulator of drugs across the country.

In response to Kacsmaryk’s ruling, GenBioPro issued a statement affirming that as it reviews the Texas decision, it will continue to make its product available. “The bottom line is, we are confident in the legality of mifepristone’s approval,” CEO Evan Masingill said.

A similar case, filed in January by an OB-GYN in North Carolina, challenged state officials for imposing restrictions on mifepristone that go beyond what the FDA requires. North Carolina requires doctors to provide mifepristone in person at a particular type of facility after a 72-hour waiting period and, in some cases, an ultrasound.

Experts say there is a “strong, though legally uncertain” argument that the supremacy clause of the Constitution gives the federal government authority over these conflicting state rules. This idea — that federal regulation of drugs would take precedence, and a state cannot ban a drug that has been given federal approval — is known as the preemption argument.

For now, legal scholars say it’s unclear how preemption arguments will play out in court. Courts often grant deference to the FDA, though there are relatively few examples involving drugs. The main precedent is a 2014 case where a federal judge struck down a Massachusetts effort to restrict the opioid Zohydro, since the FDA had approved the painkiller. If the plaintiffs win their case, millions more people could have easier access to mifepristone.

The astonishing radicalism of Florida’s imminent ban on abortion

Originally published in Vox on April 5, 2023.
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Last summer, just days after the US Supreme Court overturned Roe v. Wade, a new law in Florida took effect that banned abortion after 15 weeks of pregnancy, down from the previous legal threshold of 24 weeks.

Now Florida lawmakers are poised to take even more aggressive action against reproductive freedom in the third most populous state, armed with a supermajority of Republicans in both chambers and Gov. Ron DeSantis, who is readying himself to launch a presidential bid.

Less than one month ago, Florida lawmakers introduced parallel bills in both chambers of the state legislature to restrict abortion at six weeks of pregnancy. In practical terms, this is a total ban: Many people do not even know they’re pregnant at six weeks. Even if they are aware, the Florida requirement to obtain an abortion — two in-person doctor visits with a 24-hour waiting period in between — is a challenging logistical burden at 15 weeks and would be nearly impossible at six.

On Monday, the Florida Senate approved the six-week ban, and the House is supposed to vote on its version next week. DeSantis declared last month he’d sign it into law.

The proposed ban would not only decimate what’s left of abortion access for residents in Florida but also significantly curtail care for women across the South, who have been traveling to Florida from their more restrictive states since Roe was overturned last summer. Annie Filkowski, the policy director of Florida Alliance of Planned Parenthood Affiliates, told Vox their clinics have seen nearly four times the patient volume since June, with people seeking abortions from “the surrounding states and the entire Southeast.”

The 15-week ban was already challenged in state court, and the six-week ban, if it passes, would not take effect until after the Florida Supreme Court rules on the legality of the earlier ban. While abortion rights advocates believe they have a strong case, they know their odds are long thanks to a politicized judiciary. DeSantis has stacked the state’s high court with conservative appointees, transforming the bench from a 5-2 liberal majority to a 6-1 conservative one.

Still, advocates say it is imperative that the public understand that, no matter what, abortion care will remain legal up to 15 weeks in Florida, at least until that decision comes down later this summer, even if DeSantis signs a six-week ban into law this month.

“Having an effective date tied to a Supreme Court decision is really hard for the public to understand, and it is intentionally confusing,” said Filkowski.

Florida’s 15-week abortion ban is already being challenged in court

Anabely Lopes was 15 weeks into her pregnancy when her doctors informed her that her fetus had a fatal congenital disorder that would kill the baby shortly after birth. Lopes was devastated, and then soon alarmed when she could find no doctor who would even give her a medically exempt abortion, as the providers all feared being sued. At 16 weeks and three days pregnant, Lopes traveled 1,000 miles to Washington, DC, to end her pregnancy. She later joined Rep. Debbie Wasserman Schultz (D-FL) in February as her guest at the State of the Union, serving as an example of someone denied critical treatment under extreme abortion laws.

Abortion rights advocates have been challenging the 15-week ban as illegal under Florida’s constitution, but the law that barred Lopes from receiving the procedure has remained in effect as the litigation plays out. A decision is expected sometime this summer.

In the meantime, though, the state is trying to go further. If the bill passes and takes effect, as experts think is likely given the aggressive political climate in the Republican-controlled state, it would instantly catapult Florida into the ranks of the most restrictive states in the country on abortion access.

The proposal not only bans abortion after six weeks but also bans abortion by telemedicine, and requires any medication abortion to be dispensed in person, which effectively outlaws mail orders of the pills. (Researchers have affirmed there is no medical need for abortion pills to be administered in the physical presence of a health care provider.) No other state has had a six-week ban with a requirement for two in-person doctors visits and no option for telehealth.

While the Florida Senate’s bill includes exceptions for rape and incest, the proposed legislation would require anyone claiming those exceptions to provide a copy of a police report, medical record, or court order — even though victims often do not involve law enforcement. The executive director of the Florida Council Against Sexual Violence has called the exceptions “meaningless” and “harmful.”

Some anti-abortion activists remain unsatisfied with even these meager, impractical exceptions, and are now lobbying House Republicans to eliminate the rape and incest carveouts altogether.

Six weeks is simply not enough time for the vast majority of people to get abortion care, especially if remote options are off the table. As of 2017, nearly three-quarters of counties in Florida did not have any abortion clinics. In medical terms, pregnancy is measured from the date of the last menstrual period, not from the date of conception, and up to 25 percent of women don’t even have regular menstrual cycles, meaning a missed period wouldn’t signal anything unusual. It can take at least three weeks for a pregnancy hormone to appear on a home pregnancy test, and while blood tests can also confirm pregnancies, Florida health care professionals testified that it can take weeks to months to get an appointment with an OB-GYN, with wait times particularly long for low-income and Black Floridians.

Once a pregnancy is confirmed, a patient, under Florida law, would need to schedule an ultrasound with an abortion provider. Scheduling these appointments takes even more time. Filkowski told Vox wait times at their clinics average about 20 days.

These barriers would prove virtually insurmountable for most people, and even harder for minors in Florida, who are required by law to either get parental consent to end a pregnancy or petition a judge to bypass their parents.

The Republican state senator who sponsored the six-week ban, Erin Grall, conceded a teenager would be unlikely to go through that legal process within six weeks. “I think the purpose of this bill is to say that when there is life, we are going to protect it,” Grall said.

The Senate bill also includes $25 million in new state funding for anti-abortion pregnancy centers, which are typically religiously affiliated clinics that provide women with items like diapers and baby clothes, and counsel them against getting abortions. This represents a more than fivefold increase from the $4.45 million in taxpayer funds Florida already allocates to such centers.

Lacking enough votes to block the Senate bill, Democratic lawmakers tried and failed to amend it. Amendments included religious exemptions (two Jewish state senators argued Judaism encourages abortion to protect the health and safety of the mother, and other religions like Buddhism and Unitarianism allow abortions), an effort to eliminate the state’s 24-hour waiting period, and an exception for women facing mental health risk.

Florida provides critical reproductive health care for people throughout the South

While abortion banned after 15 weeks is far more restrictive than Floridians had to deal with prior to 2022, women in neighboring states like Louisiana, Mississippi, and Alabama have been contending with even stricter abortion rules since the overturn of Roe. As such, many have been traveling to Florida to end their pregnancies.

State data shows 82,192 people got abortions in Florida in 2022, compared to 79,817 in 2021. The increase was largely driven by those coming in from out of state. There were 6,708 non-Floridians who ended pregnancies in Florida in 2022, 38 percent more than the year prior.

If Florida bans abortion after six weeks, people in the South will need to travel even farther for care, and many will likely turn to North Carolina, where it’s currently legal up to 21 weeks.

Stephanie Loraine Pineiro, who leads the reproductive justice group Florida Access Network, told Vox that if the ban takes effect, their work “will be focused on those needing to travel out of state, to wherever is safest and has the least amount of barriers.”

DeSantis is readying himself for the Republican presidential primary

The Republican governor is expected to announce his candidacy for the White House in the coming months, and no doubt expects signing a radically restrictive abortion law will help him in the competitive conservative primary. At least 13 GOP-controlled states have banned most abortions.

Among Florida voters, though, such restrictions are out of step with public opinion. One survey conducted by Florida Atlantic University last year found 67 percent of Floridians said abortion should be legal in all or most cases, while just 12 percent supported a total ban. Another recent survey, led by the Public Religion Research Institute, found 64 percent of Floridians backed abortion in all or most cases.

Abortion rights advocates say they are not surprised to see the aggressive enthusiasm for restricting reproductive rights from DeSantis, even as he worked to avoid commenting on abortion much last year during his campaign.

“This is Ron DeSantis seeing the success other states have had in implementing six-week bans on abortion care, like Texas, Alabama, and Georgia,” said Pineiro. “I’m sure those served as fuel and inspiration for him to say, ‘Oh, it’s already been litigated.’”

Filkowski, of Florida Alliance of Planned Parenthood Affiliates, agreed. “Ron DeSantis has shown from day one a perpetual thirst to have control over our bodies, our lives, our libraries,” she said. “I think we have seen his political maneuvering to give the answer that suits the crowd that’s in front of him. Like, when he was asked about abortion during his campaign, he’d practically run and never gave a full answer. But we are not surprised now.”

The anti-abortion movement’s next radical legal argument

Originally published in Vox on March 20, 2023.
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Until very recently, nearly everyone accepted some basic ideas about the American legal system. If a state passes a law, and that law is challenged in court, we should act as if that law is still in effect while the case works its way through the court system.

That changes only if a judge issues a “preliminary injunction” blocking the law while the lawsuit plays out or a “permanent injunction” to strike the law down. In that case, we all act as if the law is not in effect.

But in recent years, an aggressive wing of the anti-abortion movement has been working to challenge this broadly held idea of legality — a push that has attracted little notice, but is further complicating the debate over abortion access. Jonathan Mitchell — the architect behind Texas’s notorious SB 8 law that bans abortions after about six weeks of pregnancy, who is currently suing three women for allegedly helping a friend end a pregnancy — has been advancing the idea that abortion providers could still be held liable for pregnancies they help terminate under restrictive state laws, even if the law is blocked by the courts when the abortion occurs.

Prior to Dobbs v. Jackson, abortion rights lawyers beat back a host of abortion restrictions by arguing they were unconstitutional, violating the protections afforded by the Supreme Court’s 1973 decision. The end of Roe v. Wade has stripped Americans of a fundamental backstop to attacks on abortion access, meaning legal challenges to both state and federal abortion laws are being fought now in new waters.

The recent controversy surrounding Walgreens’ announcement to 21 Republican state attorneys general that it would not dispense medication abortion to their residents has centered primarily on four states that have abortion restrictions that are either blocked in court or pending in the legislature. A law the Montana legislature passed in 2021 barring telemedicine for abortion, for example, is currently enjoined. Walgreens consumers, Democratic politicians, and most journalists have said that as a result in those four states, at least for now, it’s legal for Walgreens to dispense the pills.

But this new push to hold providers liable for breaking laws that are enjoined by courts is making decisions from health care providers, including pharmacy chains, more complicated. Legal experts interviewed by Vox agreed it’s simply unclear right now how courts would rule on whether you can be successfully prosecuted for breaking a law under injunction, and the Supreme Court has disagreed on the question in the past.

The uncertain legal landscape notwithstanding, abortion rights advocates want companies to resist threats from Republicans and anti-abortion activists. “Through misinformation and intimidation, anti-abortion advocates are working to create an atmosphere of fear and confusion that goes against decades of scientific evidence with the goal of pushing abortion care further out of reach for many people, especially those from marginalized groups,” Elizabeth Nash, a state policy expert at the Guttmacher Institute, told Vox.

But for years, abortion rights groups have correctly argued that the public has underestimated the warnings and intentions of the anti-abortion movement. So to ask companies and individuals now to presume anti-abortion lawyers are bluffing about their novel, and even ridiculous, legal threats, or to assume conservative judges would not side with those lawyers as they have often in the past, requires a stretch of the imagination.

How the anti-abortion movement wants to weaken the protection of a court injunction

In 2018, anti-abortion lawyer Jonathan Mitchell penned a law review article arguing that if a court issues an injunction, it should be understood that those laws are still in effect, and anyone who violates those laws is not shielded from future prosecution.

“If a court were to dissolve the injunction, the executive would be free to enforce the statute again — both against those who will violate it in the future and against those who have violated it in the past,” Mitchell wrote.

That context has been largely missing from coverage of the abortion-pill wars. In the days following news about Walgreens, advocates for reproductive rights strongly suggested the pharmacy was needlessly capitulating to Republican political pressure. “California will not stand by as corporations cave to extremists and cut off critical access to reproductive care and freedom,” California Gov. Gavin Newsom had said. Writing for CNN, legal historian Mary Ziegler said Walgreens’ announcement shows “the mere threat of legal consequences counts for more with some in corporate America than the very real lives of the women.”

But the growing legal debate over injunctions adds more layers to Walgreens’s apparent corporate cowardice.

Mitchell’s argument about injunctions was mostly ignored until 2021, when Texas passed SB 8, a bill that allows private citizens to enforce the state’s six-week abortion ban through civil litigation and receive a cash bounty if they’re successful. The SB 8 law also includes a provision that says an individual cannot cite as a defense any court decision that was later overruled on appeal or by a subsequent court. Drexel law professor David Cohen called this SB 8’s “sword of Damocles” provision — hanging over the heads of abortion providers even in the event a court provides relief from an anti-abortion law.

Rachel Rebouché, a law professor at Temple University, said while it seems “common sense” that someone would not be retroactively liable for actions they took while a law was enjoined — as it would present due process concerns — the law is not “crystal clear, and the anti-abortion movement is really seizing on that.”

In 1982, in a US Supreme Court case, the justices disagreed over the liability protection afforded by injunctions. Two justices, Thurgood Marshall and William Brennan, argued an injunction offers “permanent protection from penalties for violations of the statute that occurred during the period the injunction was in effect.” But Justice John Paul Stevens, in his concurring opinion, questioned whether federal courts could really offer that. In 2004, law professor Vikram David Amar described the implications of Justice Stevens’ position as “quite scary.”

There are some hints that the current Supreme Court would not be receptive to radically changing the status quo on injunctions. In 2020, the Court decided a voting rights case where it vacated an injunction making it easier to vote in South Carolina, but also held that voters who cast their ballots while the injunction was in place would still have those votes counted. And in his concurring Dobbs v. Jackson opinion, Brett Kavanaugh wrote that he did not believe a state could “retroactively impose liability or punishment for an abortion that occurred before today’s decision.” Still, these are not firm assurances. “I have no doubt [Kavanaugh] would happily change his position in a fully briefed case on this issue if it suited him,” Cohen, of Drexel’s law school, said.

One reason the issue has remained unsettled for so long, University of Virginia law professor Doug Laycock told Vox, is that prosecutors typically just move on if a court vacates an injunction. “They say, ‘we won our point in court, we can enforce the law going forward, and that’s what we really care about.’”

The problem now, Laycock explains, is that feelings on abortion are so intense that prosecutors might indeed go after people following the overturn of an injunction, even though in the past they haven’t considered doing so. “We’re seeing doctors who will not rely on the exceptions in these new anti-abortion statutes because they think the pro-life prosecutors are crazy, and who knows what they might charge,” he said. “I think the same thing is going on with respect to pharmacies.”

Cohen, of Drexel, wrote in 2021 about how SB 8 puts lawyers who represent Texas abortion providers in a difficult position. “If you won an injunction, would you advise your clients to start performing abortions with the risk of substantial liability hanging over their head if the injunction is reversed any time in the next six years? That would be a hard enough question without the explicit language in SB 8. But with the clause highlighted here, it would likely be very risky.”

Caught in the middle of this legal and political tug-of-war are providers, who are left to play chicken with aggressive anti-abortion lawyers looking to test the limits of what we think of as “legal.”

Rebouché, of Temple’s law school, noted that when Mitchell first published his 2018 law review article, “people thought it was a little crazy.” But then SB 8 happened, and the Supreme Court let it stand. “This is just another example of the anti-abortion movement throwing everything at the wall and seeing what sticks.”