Monthly Archives: July 2022

School funding lawsuits are long, frustrating, and crucial for fighting inequality

Ever since the mid-1980s, policymakers and researchers have debated the question of whether public school funding really matters. Yes, some school districts have more money per student, but is it money that helps improve student achievement or is it better teachers? Is it increased spending that boosts test scores or higher-quality curriculum and nicer facilities?

Both Republicans and Democrats have capitalized on the debate when it proved convenient, suggesting maybe schools were getting too much and needed to embrace their favored policy reforms instead.

If this all sounds rather silly to you, you’re not alone. Money pays for teachers, after all. For facilities. For textbooks and technology. Thankfully, decades of research has mounted to push the tiresome debate in a much more constructive direction. A raft of studies now show sustained increases in school funding lead to better outcomes for students, as measured by higher test scores, higher graduation rates, and even higher wages.

It’s still not entirely clear where said funding increases should go. More tutors? After school programming? Music programs or athletics? But spending too little overall, researchers feel confident in saying, will hurt kids’ chances.

Armed with this knowledge, advocates for public schools still face a problem. How do you get state legislators to spend more on education? While school funding is a mix of local, state, and federal dollars, the least amount comes from the federal government. Local communities can raise property taxes, but most cities can only tax their residents so much, and relying on local taxes alone is a surefire way to ensure schools in rich areas are better off than schools in poor ones. States, therefore, play an important role, but as any education activist can tell you, it can be awfully hard to get state lawmakers to act without pressure.

That’s where state school funding lawsuits come in. Since 1973, the Supreme Court has held there exists no federal right to an equal education, so lawyers and advocates have turned to arguments based on state constitutions instead. These cases, where students or parents or even school districts themselves sue for more funding, have emerged as a key way to get more money into low-income schools. “Very few major changes in school funding have ever taken place without judicial action,” said David Knight, a professor of education finance at the University of Washington College of Education.

But these cases take years to litigate, are hard to win, and even if a plaintiff does win, state lawmakers often drag their feet on remedies, leading to even more protracted court battles. As of 2019, as tallied in the book A Federal Right to Education, plaintiffs prevailed in school funding lawsuits in a state’s highest court in 23 states and lost in 20 states.

A new school funding lawsuit, first filed in 2014, will soon be decided in Pennsylvania. The outcome matters not only for families in Pennsylvania but for school advocates nationwide who are trying to decide if these cases still make sense for them to pursue. While the lawsuits tend to be highly state-specific, some legal experts say that judges have signaled something of a retreat in enthusiasm for intervening in public school finance over the last decade, though there are enough counter-examples (like in Kansas and New Mexico) that it can be hard to draw firm conclusions.

“Pennsylvania will be a real bellwether on future cases,” said William Koski, a Stanford professor who focuses on education law and policy. “It’s why it’s being so closely watched by folks around the country.”

Even the defense concedes more money would help Pennsylvania students

One of the key ways states can mitigate school inequity is by distributing more money — reducing reliance on local property taxes to drive dollars into classrooms. But Pennsylvania ranks 45th in the nation for its state share of funding for K-12 education, picking up 38 percent of the costs to educate kids compared to a national average of 47 percent. “Pennsylvania has long been one of the most inequitable states in the country,” said Bruce Baker, a Rutgers University professor specializing in education finance.

“Taxable wealth varies dramatically among school districts,” Katrina Robson, an attorney for the plaintiffs, explained in court. For example, she said, if the small rural Shenandoah Valley district, one of the plaintiffs, taxed at nearly double the average rate in the state, it could still only raise about $4,000 per student. New Hope-Solebury in Bucks County, by contrast, could tax at the average rate, and raise upwards of $21,000 per student.

Matthew Kelly, an education professor at Penn State University, testified that his analysis showed the wealthiest school districts in Pennsylvania spend $4,800 more per student than the state’s poorer districts, and school districts would need an additional $4.6 billion to meet a target for adequate funding set by the state.

In practical terms, funding disparities can lead to situations like some kindergartners only getting 15 minutes of recess per day because a school can’t afford more staffing. Nonwhite students from low-wealth districts are nearly twice as likely to be taught by inexperienced teachers.

Defendants argued that even if disparities exist across Pennsylvania, students still receive more on average than children in other states, as Pennsylvania ranks near the top nationally in per-pupil spending. “The narrative that Pennsylvania drastically underfunds education is simply not accurate,” said a lawyer for House Speaker Bryan Cutler in court.

The lawyer also pushed back on the idea that a judge should intervene in education policy decisions. “You cannot conflate things that are nice to have with what the Constitution requires,” he argued. “Not funding a weight room is not unconstitutional.” In other instances, the defendants criticized the way the petitioner school districts spent the funds they did have, like on iPads instead of on cheaper Chromebooks.

In one of the most staggering but revealing parts of the trial, lawyers for the defense questioned why a school district needed to provide high-quality course offerings to all of its students anyway. “What use would a carpenter have for biology?” a defense lawyer asked. “What use would someone on the McDonald’s career track have for Algebra 1?”

The plaintiffs feel the four-month trial, which ran between November and March, went well, with even the defense’s key expert witnesses conceding that increases in spending can help students.

Eric Hanushek, a Stanford economist, has long argued that increased spending does not necessarily lead to improved benefits for kids, though his claims have largely rested on decades-old studies with crude methodologies. Hanushek mostly dismisses the more empirically rigorous research that has emerged in the 21st century, so much so that Baker calls Hanushek “education’s merchant of doubt.”

“I believe that money can matter,” Hanushek said in the trial. “It probably, at times, matters. The problem is that we don’t know when it’s going to matter.” He acknowledged that if districts “use our resources well” they can successfully educate low-income students.

A decision in the trial could come later this fall.

These cases turn largely on local political conditions and individual judges

Education historians analyze the history of school funding lawsuits in three waves. The first wave of litigation was relatively short — from 1971 through 1973 — and hinged on the 14th Amendment’s equal protection clause. Lawyers successfully made this argument in two federal district courts and in California’s Supreme Court, but the US Supreme Court rejected it in its San Antonio Independent District v. Rodriguez decision.

So lawyers and advocates pivoted. In the second wave of lawsuits, from 1973 to 1989, they made arguments that school spending systems were unconstitutionally inequitable, and relied heavily on state education provisions to make their case. This wasn’t the most successful era, with plaintiffs winning in only seven out of 22 final decisions. Though of those states where plaintiffs did win, according to Koski, per-pupil spending did become more equal across school districts and more targeted to less-wealthy areas.

The third wave began with Kentucky’s Supreme Court decision in 1989 and continues through today. Rather than arguing for “equitable” or “equal” education, advocates have found success arguing that state constitutions guarantee all students an adequate level of education. Framing arguments around minimum levels of “adequacy,” lawyers have found, appeals to political values around ensuring opportunity and seems to offer more deference to those sympathetic to local control arguments. There’s no doubt that politics play a significant role in the success or failure of these trials.

“These cases are all political,” Koski said. “Politics matters more than constitutional language.”

It should be noted, though, that simply winning a case does not mean the actual remedy will be good or will not lead to new problems.

In Washington state, plaintiffs won their state school funding lawsuit in 2012, with the state Supreme Court ruling the legislature had failed to meet its constitutional duty for the state’s 1.1 million students. After initial resistance, this McCleary decision eventually prompted Washington lawmakers to increase funding for public schools by a whopping $7 billion in new dollars over the last decade. However, the McCleary decision also massively expanded funding gaps between wealthy and poor school districts in the state that didn’t exist before, driven by a flawed funding formula lawmakers used to distribute the new aid.

“Everyone did get more money, but the wealthiest districts got the most,” said Knight of the University of Washington. “One takeaway for Pennsylvania is you’ve got to take your time to get the remedy right, you can’t just rush that part.”

In Pennsylvania, advocates have been working to mobilize political pressure on their elected officials in anticipation of a final court ruling. Susan Spicka, executive director of the statewide advocacy group Education Voters of PA, said they’ve always viewed the lawsuit as “one piece of the toolkit” to fix public schools, and are clear that the path ultimately lies with the legislature in Harrisburg.

“The school funding lawsuit is just really helpful to get people to understand who is failing who, because a lot of people will blame their school board or think it’s all on the local level,” she said. “With the lawsuit we can say that in most cases your local school district, that’s already raising taxes, is doing the best it can, but the state is failing on its end.”

Looking ahead at future cases

The lawsuits can be slogs. New Mexico is a state where advocates found success in court but are still struggling with lawmakers to enforce their ruling. “The legislature did take some steps but three years later there’s still a lot to be done,” said Ernest Herrera, a Mexican American Legal Defense and Educational Fund attorney representing the plaintiffs. “Where we’re at is enforcing our judgment, doing discovery, conducting depositions to find how far the state has come and what is still left.” Herrera, who co-filed the case in 2014, acknowledged “it’s been a long battle.”

Even though they can be arduous, it’s hard to imagine the cases will disappear, given how widespread school inequity is nationwide and how strong the research is suggesting increased school funding helps kids.

A 2018 report released by the US Commission on Civil Rights detailed the persistent school funding inequities that remain between high-poverty and low-poverty districts. “Low-income students and students of color are often relegated to low-quality school facilities that lack equitable access to teachers, instructional materials, technology and technology support, critical facilities, and physical maintenance,” the federal report said. The cases are one of the only strategies that have proven, however imperfectly, to drive billions more in new funding to low-income students.

New state cases continue to be filed and litigated. In 2019, the ACLU of Maryland and the NAACP Legal Defense and Educational Fund went to court to reopen a landmark school funding case from 1994. Maryland tried to dismiss the plaintiffs but the Circuit Court for Baltimore City ruled in 2020 that the complaint could continue. In Washington state, education advocates filed a new school equity lawsuit last December, taking on inequitable school buildings, an angle that the earlier McCleary case didn’t focus on. While there have been a few attempts to file new federal school lawsuits in recent years, those cases haven’t proved successful so far, and advocates say the current composition of the US Supreme Court doesn’t bode well for any new revisitation of Rodriguez.

“The position I would focus on now is less about overturning Rodriguez and more about seeking the recognition of a federal right that would protect some form of an adequate education for all children, that would prepare students to be effective and engaged citizens and be college- and career-ready,” said Kimberly Robinson, a University of Virginia law professor specializing in education and public policy. “That said, while yes, I think this adequacy argument is the better one, I still don’t think this current Court with a 6-3 conservative majority would accept it.”

So bumpy state litigation will likely remain. Even if the plaintiffs win in Pennsylvania later this year, the case could be appealed to the state’s high court. Spicka, of Education Voters PA, said they’re prepared for the long fight, and cited the hundreds of people who turned out to rally in support during the four-month trial.

“State lawmakers always pit communities against each other, and this lawsuit was just soul-filling to see rural and urban communities come together to say: Harrisburg, we need you to fund our schools,” she said. “We had immigrants and communities of color standing side by side with rural whites, and there were just no school funding hunger games.”

Senate Democrats slowly consider their options after Roe

Originally published in Vox on July 7, 2022.
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When the draft Supreme Court opinion on Dobbs v. Jackson Women’s Health leaked in early May, Democratic lawmakers in the Senate scrambled to figure out a response.

They settled on a vote on a bill that had already failed to pass in February, the Women’s Health Protection Act — a bill that would both codify access to abortion and invalidate existing state restrictions on the procedure. But in the wake of the draft opinion, the bill, which the House passed last fall, failed again in the Senate, 49-51. Supporters of the legislation brushed off the failure, stressing the point was to galvanize voters behind a vision that could be realized by electing more Democrats and overturning the filibuster.

Two months later, the Supreme Court has overturned Roe v. Wade. But Democrats in Congress are still negotiating their next move to protect abortion rights.

Democratic senators, led by Patty Murray (WA) and Elizabeth Warren (MA), have been pushing for a bolder response from the executive branch. Aside from pressuring the administration, the closest thing congressional Democrats have to a strategy is asking voters to help them maintain their House majority and elect two more senators in November. If they do, Democrats could scrap the filibuster for abortion bills, surmounting both Republican opposition and resistance from Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ).

Behind the scenes, a debate among Democratic leaders, strategists, and reproductive rights groups that began with the draft opinion leak is still playing out.

Should Democrats hold votes on various angles of the abortion debate that poll well with voters — for example, a vote upholding abortion access nationally in cases of rape or incest, or threat to a mother’s life? These measures likely wouldn’t get 60 votes to pass, but they might get support from a few Republicans, would force others to take potentially unpopular positions ahead of the midterm elections, and could demonstrate majority support for some forms of abortion rights.

“I think a rape, incest, health-of-the mother exception gets probably 52 to 53 votes in favor, and from a morale standpoint there’s just a huge difference seeing something with 52 votes in favor rather than 49,” said a senior Democratic aide, one of several aides who spoke on condition of anonymity.

But other prominent Democratic leaders argue that such votes would be theatrical wastes of time, and possibly even counterproductive: They could give moderate Republicans an opportunity to distance themselves from their extremist party, or undermine the case for broadly protecting abortion rights by deeming some abortions more worthy than others.

In interviews, aides and lawmakers suggested Democrats are also considering another path: introducing reproductive health bills through a process called unanimous consent. This parliamentary tactic could allow Democrats to bring up abortion issues often and blame Republicans when measures — even moderate or popular ones — fail. But only one senator is needed to block unanimous consent bills, so this wouldn’t get every lawmaker on record or offer the televised drama of a full vote.

Still, two weeks after Roe fell, there remains no organized plan. The Supreme Court decision came down on the morning of Friday, June 24. Lawmakers left for recess that weekend and do not return until July 11.

“Given that we had a leak draft of the opinion, I don’t know why there wasn’t an outline of all the things that we’d be voting on if Roe were overturned,” said a senior Democratic Senate aide. “If you could have gotten consensus around having a vote around a rape, incest, or health exception bill, or a bill on medication abortion, or on IVF, or contraception access, that all could have been ready to go the day the Supreme Court ruled.”

The Women’s Health Protection Act is Democrats’ effort to codify Roe

For the past year, Democrats have rallied around the Women’s Health Protection Act, legislation that lawmakers say would codify Roe into law, but would also override many state restrictions to make abortion more accessible.

Since the Supreme Court’s 1992 Planned Parenthood v. Casey decision, states have been allowed to enact abortion restrictions as long as the restrictions do not present an “undue burden” on someone seeking to end a pregnancy. (What constitutes an “undue burden” is vague and heavily contested.) Nearly 500 restrictions have been passed by state and local governments since 2011, and the Women’s Health Protection Act would override most of these laws by invalidating medically unnecessary state restrictions, such as requirements for ultrasounds, parental consent, mandatory waiting periods, and admitting privileges at nearby hospitals.

Mary Ziegler, a legal historian at Florida State University, told the 19th News in February that while it’s difficult to say whether the Women’s Health Protection Act is broader than Roe, it “definitely disallows more restrictions than the current interpretation of Roe/Casey.”

Reproductive health groups have been all-in on the bill, including urging the overturn of the Senate filibuster if necessary to get it passed. But in February, it failed 46-48, with almost all present Democrats voting in favor of opening debate on the bill, and no Republicans doing so. In the wake of the leaked draft overturning Roe, it hardly fared better, not reaching majority support.

The only Democrat in opposition was Manchin, who says he would support legislation to codify Roe but sees the Women’s Health Protection Act as going beyond the narrower Roe and Casey standards.

Sens. Susan Collins (ME) and Lisa Murkowski (AK), two Republicans who likewise support legislation to codify Roe, have also objected to the fact that the Women’s Health Protection Act would override states that have permitted religious exemptions for abortion providers. Following the overturn of Roe, Collins reiterated her position that abortion should be legal nationwide, though she supports allowing states to “account for regional differences with regulations like parental notification requirements.”

In February, Murkowski and Collins released their own bill, the Reproductive Choice Act, which would codify Roe and Casey, but also ensure that any existing religious conscience exceptions could stay in place. States could continue to enact abortion regulations so long as they don’t “have the purpose or effect of presenting a substantial obstacle to a woman seeking to terminate a pregnancy.”

The bill picked up no co-sponsors, and was blasted as a harmful step backward by Democrats and reproductive health groups. “Senators Collins and Murkowski are trying to muddy the waters by pushing a flimsy bill that claims to codify the right to abortion into law but actually weakens the protections we have under current law,” NARAL Pro-Choice America said in a statement.

Sens. Tim Kaine, Susan Collins, and Lisa Murkowski are working on a bipartisan bill

Democrats argue it’s a waste of time to expect any other Republicans to come on board with the Collins-Murkowski bill. The entire Republican Senate caucus except Collins and Murkowski, for example, recently voted for a measure that would strip federal funding for cancer screenings, STI testing, and birth control from health providers if they refer any patient for an abortion.

“This isn’t like the gun bill,” a Democratic aide said, referring to the bipartisan gun bill President Joe Biden signed into law last month. “There aren’t 10 votes there to find.”

Still, Murkowski and Collins have been working with Sen. Tim Kaine (D-VA) on a potential bipartisan bill, though they have not made anything public so far.

Even if their bill couldn’t reach 60 votes, Kaine has said he thinks there’s value in a compromise measure that could command bipartisan majority support in Congress, especially since courts are still grappling with the issue of abortion rights.

A spokesperson for Kaine told Vox that the senator “is examining the [Supreme Court] opinion and talking to colleagues to determine how best … to find bipartisan support to federally protect reproductive freedom.”

For now, Democrats and reproductive rights groups are skeptical. If Collins and Murkowski are not willing to change the filibuster, then their efforts at drafting a compromise bill are “nothing more than a political stunt that should not be taken seriously,” NARAL president Mini Timmaraju told Vox.

Sen. Tina Smith, a Democrat from Minnesota, said she’d need to know whether the Kaine-Collins-Murkowski proposal would protect people from the kinds of restrictions previously passed in states like Texas, where private citizens can now file lawsuits against providers and anyone suspected to “aid and abet” an illegal abortion.

“Would the bill protect people in those circumstances?” she asked. “And I don’t know the answer to that, but I think that is the question that has to be asked and understood.” Smith said she thinks the focus also needs to stay on how many votes there are.

A spokesperson for Warren declined to say whether she’d vote for a Kaine-Collins-Murkowski bill ahead of November if the filibuster were overturned, and a Murray spokesperson said simply that the senator “has spoken with” Kaine about his work with Collins.

Should Democrats hold votes on bills that won’t pass to get Republicans on record?

A thorny debate on the Democratic side of the aisle is whether to hold more votes that highlight where Republicans stand on reproductive rights, even if the bills have no shot of passage.

Republicans already voted in February and May against the Women’s Health Protection Act, but that was an expansive bill. More people are paying attention now that Roe has been overturned, and there is an election coming up. Could more votes help keep attention on the issues, and drive home more clearly where individual lawmakers stand? What about bills barring criminal penalties for women who seek or obtain abortions? Or barring penalties for friends and acquaintances who might assist them? Or codifying exceptions for rape and incest?

Other Democrats have floated the idea of voting on other rights besides abortion that are not spelled out explicitly in the Constitution, like same-sex marriage and the right to contraception.

For now, most Democratic lawmakers say they are waiting to see what their senior female colleagues want to do, and will take their lead from them. Others say they are waiting to get clearer signals from the reproductive rights advocacy groups, like Planned Parenthood, NARAL, and Emily’s List.

A group of female senators, led by Patty Murray, the health committee chair, started convening in May to explore response options after the draft opinion leaked; on June 7, more than a month later, Murray and Warren led 23 other Democratic senators in sending a letter to the Biden administration, urging the president to lead a national plan to defend reproductive rights. The letter listed seven specific ideas for the administration to consider, including increasing access to abortion pills and exploring travel vouchers for those who might need to go to another state for the procedure.

Reproductive rights groups had first approached female senators with the idea to urge Biden to declare the overturn of Roe a public health emergency, a suggestion Warren and Smith took up in a New York Times op-ed the day after the Supreme Court decision.

A Warren spokesperson declined to say whether the senator thought there was merit to taking individual votes on aspects of reproductive rights ahead of the November midterm elections, but did say Warren “supports putting everyone on the record with votes and every Republican senator voted against the Women’s Health Protection Act.”

A Murray aide said the senator plans to lead Senate Democrats “in using the floor to continue making clear the stark difference between where Democrats stand and where Republicans stand on every woman’s right to control her own body, calling for unanimous consent on women’s health bills and delivering floor speeches about the devastating impact of the Dobbs decision.” The aide pointed out that Murray also has a health committee hearing planned for July 13 to highlight the effects of the Dobbs decision.

In interviews, aides and lawmakers involved in these discussions said that rather than hold more formal votes, elected officials are leaning toward a Senate procedure known as “unanimous consent” or “UC.”

Unanimous consent moves more quickly: Any senator can bring up a measure for unanimous consent, and any other can block it. A Democratic lawmaker might introduce a bill codifying the right to birth control, for example, seeking unanimous consent. If just one Republican objects, then the legislation can’t move forward through this expedited process, and Democrats could theoretically then blame the whole party for the obstruction.

“Democrats could still credibly say it was Republicans who blocked the bill from moving forward,” said an aide familiar with the discussions.

“Democrats have a lot of bills and are interested in making that contrast between the parties clear, so UC offers an opportunity to highlight that week after week, and not let that momentum fall away,” explained another aide.

Recently introduced legislation includes bills to stop disinformation from crisis pregnancy centers, protect abortion care for military service members, and codify FDA regulations on abortion pills. Sen. Ron Wyden (D-OR) reiterated the need post-Roe to strengthen online privacy laws, and a letter Speaker Nancy Pelosi circulated in the House floated ideas related to targeting personal data stored in period tracking apps, as well as legislation reiterating that Americans have a constitutional right to freely travel.

Still, some lawmakers and staffers say their caucus would be making a mistake in not holding more formal votes, especially on aspects that hold broad appeal among the American public. One downside with unanimous consent is that those tactics generally draw far less notice in the media, and they fail to put everyone on record.

“Has a [television] network ever cut to the floor during a UC?” said an aide who was critical of the strategy. “If we had a motion to proceed vote on a rape-incest-health bill, I guarantee CNN and MSNBC would put it on TV. That’s literally never happening with a UC, that gets dismissed in two seconds.”

These staffers point to disturbing examples mounting in the news of people denied abortion care in the wake of the Dobbs decision — including a 10-year-old rape victim in Ohio. Voting on a rape and incest exception bill could theoretically divide the Republican caucus and underscore how out of step Republicans are with the public.

Plus, one staffer said, framing this as a tactical retreat is not how it was viewed when Democrats voted on narrower pieces of the Affordable Care Act: “We voted on different aspects, like preexisting conditions, the contraceptive piece, the donut hole, and no one ever thought that was harmful in talking about the most popular parts of the law and having those standalone votes.”

But several Democratic aides dismissed the idea that further votes were needed, stressing that Republican opposition to reproductive health care was already clearly demonstrated with the two failed Women’s Health Protection Act votes. Anything above that would be redundant, and could serve to highlight Democrats’ inability to get legislation passed.

“I don’t think anyone in America is confused on where things stand, and do people even pay attention to a bunch of show votes in Congress?” an aide asked. “I just don’t think there’s a huge, compelling case for it, though I don’t think we’re strongly opposed either.”

Smith, of Minnesota, offered something of a middle-ground position. “It’s clear where Republicans stand on reproductive freedom — they are opposed to it. And they’ve made that clear in their votes and in confirming justices committed to overturning Roe, so voters know, and I don’t think we need additional votes,” she told Vox.

Still, Smith acknowledged, there’s value to taking votes.

“I can’t speak for all of my colleagues in the caucus about how they will want to proceed and what we might do, but let me just say that votes in the Senate can help us demonstrate how out of step the Republicans are with what Americans want,” she said. “I don’t think those votes are needed for Americans to understand the fundamental differences between Republicans and Democrats. People, I think, understand that regardless, but I know we will continue to have conversations about what votes we want to have in order to put Republicans on the record again.”

What a lawsuit in Mississippi tells us about the future of abortion pills

Originally published in Vox on June 29, 2022.
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As some states have moved to fully ban abortion in the wake of Dobbs v. Jackson Women’s Health, new questions emerged about abortion pills: Do states have the legal authority to outright ban drugs that have been approved by the U.S. Food and Drug Administration?

An ongoing federal lawsuit in Mississippi could provide a glimpse at the answer. GenBioPro, the manufacturer of generic abortion pills, is fighting to overturn state restrictions that impede access to the abortion pill mifepristone. Their lawsuit, filed in 2020, hinges on an argument that many legal experts expect other states and advocates to make in the coming months: that Mississippi’s restrictions on medication abortion are unduly excessive, illegally pre-empting the FDA’s authority on drug safety.

The FDA approved mifepristone for use in 2000. Over the next 18 years, 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 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 GenBioPro’s generic version.

Today medication abortion — a combination of both mifepristone and misoprostol — account for more than half of all abortions in the US, and fights over accessing the pills are expected to be among the most fiercely contested in the post-Roe era.

Just hours after the US Supreme Court overturned Roe, President Joe Biden gave a speech promising to protect a woman’s access to drugs approved by the FDA, including mifepristone. Biden announced he was directing the federal Department of Health and Human Services “to ensure that these critical medications are available to the fullest extent possible” and Attorney General Merrick Garland pledged to use the powers of the Justice Department to crack down on states trying to ban medication abortion.

But the Biden administration has stayed quiet on the Mississippi lawsuit. The White House declined to comment on the case, as did the FDA and DOJ. HHS did not return requests for comment.

Mississippi has urged for a dismissal of the case. Judge Henry Wingate, a Reagan appointee on the United States District Court for the Southern District of Mississippi, requested that both parties provide written submission on the impact, if any, of the Dobbs decision on the lawsuit, and on Mississippi’s “trigger law” banning abortions, which is set to take effect next week. Submissions are due on Thursday.

A ruling in favor of Mississippi could have implications for other jurisdictions seeking to ban abortion pills in a post-Roe landscape.

If upheld, it “would also open the floodgates for states to substitute their judgment for FDA’s in other controversial areas of medicine — some of which we may be aware of — some of which we may not be,” said Delia Deschaine, a DC-based attorney who specializes in FDA regulation. “For example, if there were a group of individuals opposed to palliative care, a state could conceivably limit access to medications that are approved for use in that context. This then becomes a situation where the practice of medicine using pharmaceuticals unpredictably varies between states — which creates its own host of public health issues.”

What it means to “pre-empt” 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.

Even though many reproductive health experts — including the American College of Obstetricians and Gynecologists — actually say the FDA has too many restrictions on mifepristone (for example, only certified pharmacies or providers can dispense the drug) everyone must abide by the agency’s determinations.

But many red states, including Mississippi, have passed laws that go even further than FDA’s rules around mifepristone. For example, Mississippi requires a doctor to physically examine a patient prior to offering the drug, and for patients to ingest the medication “in the same room and in the physical presence of” the physician who gave it to them, rather than taking the medication at home.

Experts say there is a “strong, though legally uncertain” argument that the Supremacy Clause of the US Constitution gives the federal government authority over these conflicting state rules. Indeed, GenBioPro has argued Mississippi’s law is “an impermissible effort by Mississippi to establish its own drug approval policy and directly regulate the availability of drugs within the state.”

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.

“The fact that this case relates to a medication that is used in abortion is one reason we might see the district court take a different stance than other courts on this issue,” said Deschaine.

Anti-abortion advocates maintain that states have the authority to restrict or ban mifepristone, because states can regulate medical practice, and the FDA lacks the authority to regulate abortion. Legal scholars also note that Congress has never explicitly said that FDA drug approval supersedes state law, though it has expressed that for medical devices.

While the DOJ declined to comment on the GenBioPro case, Attorney General Garland’s recent public statements suggest the agency is thinking about the preemption argument. “The FDA has approved the use of the medication Mifepristone,” Garland said Friday, adding that, “states may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

What’s next for the GenBioPro lawsuit

Gwyn Williams, an attorney representing GenBioPro, told Vox that in response to the judge’s request, their team submitted a statement reiterating their previous position that the legal issues decided by the US Supreme Court in Dobbs “do not affect GenBioPro’s claims, which are based on federal preemption and not on constitutional rights to privacy or abortion.” Williams says they expect the judge to issue his decision on dismissing the case soon.

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Paul Barnes, a Mississippi Assistant Attorney General representing the state, declined to comment.

Greer Donley, a University of Pittsburgh law professor who specializes in reproductive law, told Vox that one reason why the court has been “pretty delayed” in issuing any rulings could be because the judge “might be trying to look for an opportunity to kick the case.”

If Mississippi fully bans abortion statewide — which it’s set to do next week, though that trigger law is now being challenged in court — then the state’s mifepristone restrictions might become moot. “If there’s a statewide ban, then I can imagine the defendant saying the lawsuit is moot now because all these laws that regulate abortion providers are subsumed by the bigger abortion ban generally,” said Donley.

But Donley says the preemption argument would still have broad merit, since the FDA still acts as a gatekeeper.

“To earn the right to sell a drug product, manufacturers must produce years, if not decades, of expensive, high-quality research proving that the drug is safe and effective,” she wrote, along with law professors David Cohen and Rachel Rebouché in a legal article cited in the Dobbs dissent. “If they are successful, they can sell their product in every state; if unsuccessful, they cannot sell their product anywhere. If a state were to ban abortion, it would in effect ban the sale of an FDA-approved drug.”

In other words, if it is impossible to comply with both state and federal law at the same time, there remains a plausible preemption argument.

Deschaine, the attorney who specializes in FDA regulation, thinks upholding state restrictions on abortion pills could certainly affect whether other drug companies seek to go through the FDA approval process in the future.

“The incentives for developing FDA-approved drug products are strong, but those start to erode the more fractured the regulatory scheme for these products becomes,” she said. “If a company does not believe that it will be able to market its product in all US states/jurisdictions, then it may not be willing to assume the risk of pursuing the drug approval pathway. Indeed, even absent those restrictions, that pathway is very costly and uncertain.”

The coming legal battles of post-Roe America

Originally published in Vox on June 27, 2022.
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When the Supreme Court issued its 6-3 decision in Dobbs v. Jackson Women’s Health, declaring that there is no longer a constitutional right to end a pregnancy, it ushered in a series of new and fiercely contested legal questions about who can be punished for doing so, and where, under newly restrictive state laws.

Can a state punish a resident for getting an out-of-state abortion? Can it punish the provider in another state who facilitated it? Or as Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote in their dissent: “Can a State prohibit advertising out-of-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions?”

Many anti-abortion activists and conservative legal scholars have long insisted that overturning the 1973 Roe v. Wade decision would lead to a simpler legal landscape — freeing the Supreme Court from the “abortion-umpiring business,” former Justice Antonin Scalia​​ wrote in 1992, and allowing the matters to be decided “state by state.”

But while conservatives fantasized about the supposedly tidier legal landscape of a post-Roe America, other legal scholars warned overturning Roe could make the legal complexities of the last five decades seem quaint.

In his concurring Dobbs opinion, Justice Brett Kavanaugh dismissed concerns that overturning Roe will raise new vexing legal questions. “As I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” Kavanaugh wrote. His arguments: The right to travel between states, as people seeking abortion in states with bans will now need to do, is constitutionally protected. Legal precedent would also prevent states from holding anyone liable for abortions that occurred before Friday’s decision.

With the rise of the internet, telehealth appointments, mail-order pharmacies, and drugs like mifepristone and misoprostol that people can acquire in advance of being pregnant, the questions around what it means to both provide and obtain an abortion have evolved considerably since the pre-Roe days, as have questions about what it means to “cross state lines” to get one. The liabilities involved in all these scenarios are likely to be tested in the years to come.

Ultimately, the end goal for the anti-abortion movement is not a patchwork of abortion-friendly and abortion-restricting states. It’s a country where abortion is illegal and inaccessible and ideally where fetuses are viewed as people, entitled to the same protections as any other individual under the Fourteenth Amendment.

“Until that argument is accepted, the antiabortion movement will use state powers to stop as many abortions as possible, including outside state borders,” wrote three Pennsylvania law professors, Greer Donley of University of Pittsburgh, David Cohen of Drexel University, and Rachel Rebouché of Temple University, in a working paper posted online in February that laid out the legal dilemmas, and was cited directly in the Dobbs dissent. This doesn’t necessarily mean that those attempts will succeed, but it underscores just how uncertain the legal landscape now is.

Though someone is unlikely to be physically barred from crossing a state border to end a pregnancy, the potential for criminal penalties when they return is very real in a post-Roe landscape. Up until now, states have primarily targeted abortion providers and clinics, as people seeking abortions were exercising their constitutionally protected right to end a pregnancy. But if new laws are upheld that extend greater legal protection to fetuses, the pressure on pregnant people around violating those new fetal rights will also increase. As more people opt for self-managing their abortions at home outside the formal health care system, experts say laws aimed at criminalizing these sorts of abortions are more likely.

With poorly regulated data privacy laws, aggressive prosecutors could amass a lot of evidence if they suspect a person obtained an illegal abortion, or an abortion that would not be legal in their home state. Missouri lawmakers introduced a bill last year that would have claimed legal jurisdiction for any pregnancy that was conceived within Missouri borders or in which the parents were Missouri residents at conception. It never received a vote, but lawmakers took another swing this year, introducing a bill that would target anyone in or outside of Missouri’s borders who “aids or abets” a Missouri resident’s abortion. Liberal states, in turn, are now trying to pass new protections for providers and allies who help end pregnancies for out-of-state residents.

“There are a whole host of unanswered questions that will now dominate,” Rebouché said. “Particularly as states start to enact their own abortion bans and do so on various timelines, I think what to expect in the immediate future is confusion.”

There is little legal precedent for these questions

Only two cases since Roe have really addressed questions about out-of-state legal liability, and it’s not clear how they would apply in a post-Roe America.

In its 1975 Bigelow v. Virginia decision, the US Supreme Court affirmed that a Virginia newspaper could print an ad for an abortion clinic in New York, where the procedure was legal, even though in 1971, when the ad originally ran, it was illegal in Virginia. The Court upheld the advertising on First Amendment grounds, and also noted that Virginia could not prevent its residents from traveling to New York for an abortion or prosecute them for doing so.

“A State does not acquire power or supervision over the internal affairs of another State merely because the welfare and health of its own citizens may be affected when they travel to that State,” the justices then wrote.

Then in 2007, the Missouri Supreme Court issued a decision in another abortion-related case, this one pertaining to a state law that prohibited individuals from “aid[ing], or assist[ing]” a minor’s abortion without parental consent. Planned Parenthood challenged the statute on First Amendment grounds, since the organization provided information to minors about out-of-state options, and alleged the law violated the commerce clause of the Constitution, since it would “requir[e] non-Missouri health care providers and others” to comply with the parental consent law. The court, citing Bigelow, dismissed the commerce clause claim, and said it was beyond the state’s authority. “Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect,” the court wrote.

Still, Donley, Cohen, and Rebouché caution from reading too much into these examples. “Though these two precedents contain strong statements against the application of extraterritorial abortion law, there is no reason to count on them being the final say on the matter,” they write in their preprint paper on post-Roe possibilities. “The first is dated and concentrated on the First Amendment, and the second is applicable in Missouri only.” The scholars note the Supreme Court could easily revisit Bigelow’s anti-extraterritoriality principle, and that it will indeed be “ripe for reassessment” once interjurisdictional abortion prosecutions begin.

But until these questions wind their way back up to the Supreme Court, aggressive prosecutors can and likely will experiment with testing the limits of the law.

For example, the law professors note, Georgia passed a law in 2019 which declared “unborn children are a class of living, distinct person” who deserve “full legal protection.” This law effectively banned abortions after just six weeks, as soon as fetal cardiac activity could be detected. It was later struck down by a district judge as a violation of Roe, but has since been stayed at the 11th Circuit Court of Appeals, pending a decision in Dobbs. The appellate court is now expected to lift that stay in the coming days or weeks, and Georgia’s Republican Attorney General Chris Carr already sent a letter on Friday urging the 11th Circuit to reverse the district court’s decision.

If the law goes into effect, an emboldened prosecutor could seek criminal penalties for a Georgian who crossed state lines to obtain a legal abortion, or even against anyone who helped them travel across state lines, under the rationale that their unborn child deserves full legal protection. States may struggle to enforce extraterritorial prosecutions, though, just as they’ve struggled to crack down on Aid Access, which dispenses medication abortion to US residents from overseas.

There is no legal consensus yet on these questions, and politics will likely play a role in shaping what plays out. While there are not many activists urging prosecutors to go after teenagers who import marijuana from other states, pressure to enforce state abortion bans to the fullest extent possible is a safer bet. Already, Texas Republicans are discussing new legislation that would allow district attorneys to criminally punish anyone who helps a person end a pregnancy outside Texas. And if an anti-abortion activist in a red state sees an opportunity to shut down or cause headaches for an abortion provider working in a blue state, it’s fair to expect they will try.

Some scholars, including University of Pennsylvania law professor Seth Kreimer and Yale law professor Lea Brilmayer, have argued that extraterritorial prosecution of abortion would likely be illegal under the Constitution. Others, like Chicago-Kent School Law professor Mark Rosen and University of Michigan law professor Donald Regan, have argued that states would likely be able to regulate out-of-state abortion activity of their residents.

Donley, Cohen, and Rebouché identify with a third category of scholars, including Harvard law professor Richard Fallon and Washington University in Saint Louis law professor Susan Appleton, who think it will be murky, variable, and highly contested for years to come.

Blue states are trying to shield providers from red-state prosecutions

With Roe in place, a provider in New York or California had little to fear from a prosecutor in Texas or Louisiana. Abortion was a constitutionally protected right for all citizens. But with Roe overturned, that legal calculus changes, and providers may find themselves vulnerable to states that have fully banned the procedure, or that want to punish anyone who helps their citizens get it.

To try to protect providers who offer abortion services to patients who might visit them from a state where it’s illegal, Democrat-controlled states have started to craft and pass so-called shield laws. These laws offer additional protections, like barring state agencies from helping another state’s criminal investigation, and ensuring that an abortion provider could not lose their professional license or face malpractice insurance penalties as a result of an out-of-state complaint.

While these shield laws are unlikely to face constitutional challenge, it’s unclear if they will really be effective, and Donley, Cohen, and Rebouché note they may also create new legal battles between red and blue states. “After all, if Illinois refuses to extradite an abortion provider to Georgia, will Georgia retaliate and refuse to extradite a gun dealer to Illinois?” they asked in their February paper.

Medication abortion also creates particularly complex legal challenges for states. Laws around telemedicine generally defer to the location of the patient, but could a provider in New Jersey, where abortion is legal, face penalty for mailing pills to a patient who lives in a state where abortion is illegal, if the patient traveled to New Jersey for the actual appointment? Or what if the pills were sent to an address in a Democrat-controlled state, and then forwarded through the mail to a state where it’s illegal, either by a mail forwarding service or by a friend?

“There will be efforts to crack down on PO boxes, but the person who just gives [a telehealth provider] their friend’s address and the friend then personally forwards the mail — that will be impossible to police,” Donley told Vox.

Heightened conflict between the federal government and Republican states has already started

In addition to new battles between red and blue states, legal scholars predict new and unprecedented tensions between states and the federal government in a post-Roe environment.

A preview of those fights came on Friday, when President Joe Biden gave a speech calling out “extremist governors and state legislators” who want to try to limit access to FDA-approved medication like mifepristone. Biden announced he was directing the federal Department of Health and Human Services “to ensure that these critical medications are available to the fullest extent possible and that politicians cannot interfere in the decisions that should be made between a woman and her doctor.” The same day, Attorney General Merrick Garland announced he would use the powers of the Justice Department to crack down on states trying to ban medication abortion.

A majority of states have imposed some sort of restriction on medication abortion, though many are looking to enact even more aggressive regulation going forward. It’s not clear yet whether states can outright ban drugs that have been approved by the FDA, since that agency has the sole authority to approve drugs in the US. “It’s an open question,” Patti Zettler, an associate professor of law at Ohio State University and former associate chief counsel for the FDA, told the Washington Post last month.

There’s some legal precedent for courts striking down state restrictions that conflict with FDA approval. In 2014 a federal judge struck down a Massachusetts effort to ban the opioid Zohydro, since the FDA had approved the painkiller.

Still, it might be harder for a court to strike down laws that in practice restrict access to the drugs, like Texas’s ban on obtaining pills after just seven weeks of pregnancy, but that do not technically ban its use.

For now, no one really knows, but the evidence suggests we’re entering a new legal era, not simply reverting to the pre-1973 status quo. As Breyer, Sotomayor, and Kagan write in their dissent, the Dobbs decision “puts the Court at the center of the coming ‘interjurisdictional abortion wars.’”

Should you keep abortion pills at home, just in case?

Originally published in Vox on June 22, 2022
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Medication abortion, or taking a combination of the drugs mifepristone and misoprostol, is an increasingly common method for ending pregnancies in the United States. Reasons vary and overlap: Some women lack access to in-person abortion clinics; others prefer to end pregnancies in the comfort of their own home. Others seek out the pills because they cost far less than surgical abortion.

With more in-person clinics shuttering and a Supreme Court that’s threatening to overturn Roe v. Wade, a small but growing number of reproductive experts have been encouraging discussion of an idea called “advance provision” — or, more colloquially, stocking up on abortion pills in case one needs them later.

It’s an idea that has merit: Mifepristone has a shelf life of about five years, misoprostol about two, and both drugs work better the earlier in a pregnancy you take them. In states that are ramping up abortion restrictions, there’s often a race against the clock to access care. In Texas, for example, if you don’t realize until eight weeks in that you’re pregnant — which could be only a couple of weeks after a missed period — you would have already passed the state’s new legal deadline for obtaining abortion pills. But if you had already stored them in your home, or your friend or neighbor had, then you’d be able to take them.

In a 2018 nationally representative survey of women ages 18 to 49, 44 percent expressed support for advance provision, and 22 percent said they were personally interested in it. Those who had previously had a medication abortion and those who reported facing greater barriers to reproductive health care were more likely to support the idea.

Data on these kinds of abortions — often called “self-managed” or “self-administered” — are harder to track. Research published in 2020 estimated that 7 percent of women will self-manage an abortion in their lifetime, though this was calculated with the assumption that Roe was still in place. New Guttmacher data published last week on US abortion incidence found there were 8 percent more abortions in 2020 than in 2017, but self-managed abortions are excluded from this count.

“We know there are thousands of self-managed abortions that we aren’t capturing,” Rachel Jones, a Guttmacher research scientist, told Vox. “If the Supreme Court overturns Roe, and abortion becomes illegal in 26 states and people can’t travel to another state, then self-managed is going to be the only other option they have for an abortion.”

Talking more frankly about self-managed abortion goes against longstanding American cultural norms. For years US reproductive rights groups stressed that the decision to end a pregnancy “was made between a woman and her doctor.” Internationally, where abortion has been more heavily criminalized, there is less pressure to involve medical professionals. It was in the legally restrictive context of Brazil in the late 1980s that women first pioneered the use of misoprostol to self-manage their abortions.

Rebecca Gomperts, the Dutch physician who in 2018 founded Aid Access to deliver abortion pills to US patients, has been one of the most vocal advocates for advance provision, and began offering it as an option to people in all 50 states last fall. Costs for the pills range from $110 to $150, with a sliding scale for those who lack funds. Recently, in Politico, Gomperts encouraged doctors to begin prescribing mifepristone and misoprostol to those who are not pregnant, so they have the medication available if they need it later.

“Abortion pills are something that, actually, you cannot die from,” she said. “There’s no way that you can overdose on it. And what we know from research is that you don’t need to do an ultrasound for a medical abortion.”

The idea of getting medication in advance of need is nothing new. Doctors also used to commonly prescribe emergency contraception to women before it became available over the counter.

Right now large mainstream abortion rights groups are mostly staying quiet on advance provision, leaving lesser-known organizations like Aid Access and Plan C to try to get out the word. (NARAL and Guttmacher declined to comment, and Planned Parenthood did not return requests for comment.)

Aid Access and Forward Midwifery are among the few groups currently offering US patients the option to order pills in advance, though Elisa Wells, co-director of Plan C, said she knows others are considering it. “I was just having a conversation with a provider in Montana,” she told me. “We believe it will become more common. Sometimes we call it the ‘just in case’ plan, because unplanned pregnancy is so common.”

It’s a safe option for most patients

When it comes to safely ending pregnancies, medication abortion is over 95 percent successful, according to Guttmacher. Less than 0.4 percent of patients require hospitalization. The National Academies of Sciences, Engineering, and Medicine has also affirmed medication abortion as a safe method to terminate pregnancy, one with very low risk of complications.

Research published earlier this year in the medical journal Lancet found self-managed abortions specifically to be very effective, and with high rates of patient satisfaction.

Gomperts also urges more attention on misoprostol-only abortions, which are common internationally. The drug can be easier for women to access since misoprostol is less tightly regulated; it’s used for other ailments including stomach ulcers and managing miscarriages, and is sold over the counter in many countries.

While medication abortion is a safe option for almost everyone with an early pregnancy, the pills are not recommended for people who take blood thinners, who have bleeding disorders, or who are at high risk of ectopic pregnancies. (Ultrasounds are recommended for those in this latter category.)

Still, one upside of advance provision — and medication abortion generally — is the greater number of people who could potentially provide the pills, including primary care doctors. Another upside is that it could be easier to share pills with those who need the medication quickly but lack access to it. Research suggests the drugs are best taken within the first 10 to 12 weeks of a pregnancy.

Paying attention to legal risks and criminalization

Outside of groups that exploit international law like Aid Access, advance provision is unlikely to be a legal option in every state. Some states, for example, require patients to get ultrasounds before a provider can give them abortion pills. Other states are cracking down on abortion pills themselves.

While few states currently ban self-managed abortion outright, many have existing laws that overzealous prosecutors could use to go after women, like fetal homicide statutes. “I am concerned that if people stockpile, without knowing the legal risks or how to cover their digital footprints, they could be subject to criminalization,” said Renee Bracey Sherman, founder of the abortion storytelling group We Testify.

The National Right to Life Foundation also released model legislation in mid-June that encourages states to criminalize those who “aid or abet” illegal abortions, including those who provide instructions over the phone or internet about self-managed methods.

Even in states with fewer legal concerns, advance provision won’t be the right option for everyone. “It’s a potentially high cost for a patient that is unlikely to be covered by insurance,” said Daniel Grossman, a physician and a professor of obstetrics and gynecology at the University of California San Francisco. Not everyone can afford to spend $150 to have a backup method available, and some people will still need or prefer in-person clinic care.

It hasn’t gone mainstream, yet

In the days following the leaked draft of the Supreme Court’s decision to overturn Roe v. Wade, telehealth abortion providers reported spikes in internet searches and pill orders. Still, most Americans lack familiarity with not only abortion medication but also the few groups that currently provide the pills in advance. Some activists say leaders and more well-resourced organizations should do more to promote self-managed abortion as an option.

In December 2021, three UCSF reproductive health researchers, including Grossman, published an article calling advance provision “an unexplored care model that we believe holds promise and merits further study.”

Grossman told Vox that he believes more people should ask their primary care and reproductive health providers if they’d be open to prescribing or giving them abortion pills to store for later use. “Even if the doctor doesn’t want to, I think it’s worth just sparking a conversation with them and get their provider thinking,” he said. Grossman previously told Jezebel he’s found it challenging to get other researchers and health care providers to give advance provision the attention it deserves.

“We have ibuprofen in case of a headache, cough syrup in case of a cold, and Plan B in case of a broken condom,” said Bracey Sherman of We Testify. “It’s already normal for other health care and we should normalize it for abortion.”

Wells, from Plan C, said the historical restrictions placed on abortion have likely made some groups and individuals more reticent to talk about advance provision. “I think there’s probably a lot of fear about not wanting to break any rules,” she said.

Another factor limiting discussion, Wells suggested, is the way abortion has been heavily medicalized in the US, to the point where people believe the drugs have to be or are best administered by a medical professional. Attitudes are different internationally, she said.

“We have become so invested in saying that we need to have safe abortions and that doctors and clinicians and the clinics can provide that,” Wells said. “Clinicians have done a wonderful job, and we have to have all these different types of care options available, but [self-managed abortions] can be a bit of a threatening message to that whole system.”