The expanded child tax credit kept 4 million kids out of poverty. Can it come back?

Originally published in Vox on August 30, 2022.

As the ink dries on the Inflation Reduction Act — the landmark federal law that tackles climate change, drug pricing, health insurance, and tax enforcement — advocates for the expanded child tax credit have been quietly mourning their loss.

The expansion, passed as part of President Joe Biden’s pandemic relief program, delivered hundreds of dollars into parents’ bank accounts every month in 2021, ultimately helping 65 million children and keeping 3.7 million of them out of poverty. A year ago, the expanded CTC was heralded as one of the most significant policy achievements of the Biden era, so important to the broader Build Back Better negotiations that House Speaker Nancy Pelosi described its upcoming expiration as “really important leverage” for getting the rest of their agenda through.

It wasn’t enough. By January 2022, it was clear that any attempt to pass Biden’s agenda would likely exclude the child tax credit due to irreconcilable differences between West Virginia Sen. Joe Manchin and his Democratic colleagues over whether tax credit recipients should be required to work. When the Inflation Reduction Act passed last month, it didn’t include the CTC.

Now advocates for the CTC say they’re looking ahead to next steps. The first opportunity for new legislation could come at the end of the year, when Congress negotiates extensions on expiring business tax breaks. Advocates are also looking at new administrative solutions at the IRS, and thinking more seriously about state-level reform, amid state budget surpluses and new research detailing just how much families benefited from the now-expired expanded federal credit.

“It was very unfortunate that we didn’t get the expansion that we wanted in reconciliation, but it still is a very live issue,” said Brayan Rosa-Rodríguez, a senior policy analyst at UnidosUS, a national Latino advocacy group. “We’re going to focus on it over the next couple months to see if we can get it included in a tax extender bill.”

During the past year, as inflation wreaked havoc on bank accounts and eroded the value of existing family benefits, lawmakers have faced pressure to offer relief. In the wake of the Supreme Court overturning Roe v. Wade, conservatives have also been facing more pressure to support families, and a proposal introduced in June by Republican Sens. Mitt Romney (UT), Richard Burr (NC), and Steve Daines (MT) to distribute monthly cash payments to parents has garnered a lot of attention. Notably, this Republican proposal includes a requirement that families earn at least $10,000 to receive its full benefit, the kind of work requirement progressives rejected during reconciliation. Virtually every Republican has said that some “connection to work” is essential for any family policy they’d vote for.

To reach a bipartisan deal at the end of the year, advocates recognize they will have to entertain terms they rejected with Manchin.

“It’s obviously easier to get to 50 votes than it is to get to 60 votes, and that’s what it is,” said Zach Tilly, a policy associate with the Children’s Defense Fund, which co-led a coalition that pushed for the expanded CTC. “I think the way we’re looking at this opportunity at the end of the year is basically just as one where we may still have some leverage to get something done.”

Progressives are looking to an end-of-the-year compromise

Romney’s new child tax credit proposal — the Family Security Act 2.0 — is a modified version of a child allowance policy he introduced in 2021. One of the major differences between the two proposals is that the new one has a work requirement, something his Republican colleagues demand and which Manchin demanded last year during reconciliation.

The FSA 2.0 would increase the maximum annual child tax credit from $2,000 to $4,200 for each child under age 6 and $3,000 for each child ages 6 through 17, paid out in monthly installments. Expecting parents could also qualify for an additional $2,800 credit during the final four months of pregnancy. The “phase-in” of Romney’s plan — meaning the time at which families could start receiving their benefit — is much faster compared to the status quo. Right now the first $2,500 of earnings does not count toward CTC eligibility, while Romney’s plan would phase in the credit beginning with a family’s first earned dollar. This expansion would all be financed by consolidating other tax benefits, including a significant revamp of the earned income tax credit.

The left-leaning Center on Budget and Policy Priorities estimates that the number of children living in poverty would decline by 1.3 million under the Romney proposal, and that roughly 20 million children in families making less than $50,000 would be better off. But the CBPP also argues that roughly 10 million children would be worse off under the Romney plan, due in part to its proposed cuts to the EITC and its elimination of the “head of household” tax filing status, which millions of single parents use when they file their income tax returns.

The Niskanen Center, a centrist think tank that helped Romney craft his new proposal, pushed back on the CBPP’s analysis and defended the elimination of the “head of household” filing option, something conservatives have long argued disincentivizes marriage by imposing financial penalties on couples who tie the knot.

Niskanen agreed some families would be worse off, but said some of CBPP’s concerns could be addressed by increasing the phase-in and phase-out rate of the Romney proposal, to account for inflation. Niskanen also said the CBPP understates the benefit of making tax refunds administratively simpler for both recipients and the government.

As recently as this spring, progressive tax wonks and the Biden administration told Democrats in Congress that they should not consider any possible work requirement for expanding the child tax credit in reconciliation. But left-leaning groups are now acknowledging a compromise on this will likely be needed.

The Family Security Act doesn’t include any of the more politically popular exceptions to work requirements, such as exempting families with very young children, or families where the primary caregiver is disabled, elderly, or a student.

“If policymakers move toward a compromise on a Child Tax Credit expansion, the highest priority should be to make the credit fully refundable,” the CBPP said, meaning eligible to all regardless of whether they’re earning a certain amount of income. “But if that isn’t politically possible,” the CBPP concedes, “and an earnings requirement is included, important exemptions should be included as well.”

Writing earlier this month in The HillUniversity of California Berkeley public policy professor Bruce Fuller urged Biden to step up and find a compromise with Romney, such as a work requirement that starts when children enter school. “Romney’s bid has drawn deafening silence from the White House and leading Democrats,” Fuller wrote.

Josh McCabe, a family policy analyst at the Niskanen Center, thinks most advocacy groups were waiting for reconciliation negotiations to finally be over and are now starting new discussions. “I think people are more open to things that they weren’t before, and everyone’s feeling out what’s possible,” he told Vox. “So with the FSA 2.0 there’s a more generous phase-in, which is unattractive relative to the fully refundable CTC from 2021, but it’s very attractive relative to the status quo.”

Tilly, of the Children’s Defense Fund, acknowledged that it will take 60 votes to get anything done on the child tax credit at the end of the year. “So that limits what’s possible,” he said, though he emphasized that advocates have some leverage, as they recognize it will be politically difficult for Republicans to extend federal business tax cuts without offering any economic relief to families. An open letter published in March from 133 economists also made the case that an expanded CTC would be too small to meaningfully increase inflation, but large enough to help offset inflation’s toll, particularly for lower-income households.

“There’s a big gap between where we and most Democrats are and where the most CTC-sympathetic Republicans in the Senate are,” Tilly said. “So that’s obviously going to be the focus for us and a lot of the people that we work with in the fall, to try to bridge that gap and make improvements.”

New ideas for reform are cropping up at the state level

While Democrats and activists were not successful in expanding the federal CTC, the flurry of organizing, research, and media coverage on the policy’s success has had spillover effects, prompting more local policymakers to think about opportunities for state-level CTC reform.

In 2021, Colorado passed a new state child tax credit, which families will get to claim for the first time next year. Maryland recently passed a new child tax credit for families with children with disabilities, and New Mexico recently created a fully refundable tax credit worth up to $175 per child.

Last year, Massachusetts also converted two existing tax deductions for dependents into fully refundable child tax credits, and this year the state’s Republican Gov. Charlie Baker proposed doubling the value of those credits. In Vermont, Republican Gov. Phil Scott just signed a tax cut package that will send $1,000 for every child 5 and under to Vermont households making $125,000 or less, a program state lawmakers say was modeled on the expanded federal CTC.

McCabe, of the Niskanen Center, says the big difference between state CTCs and the expanded federal CTC right now is the states have tended to target their aid toward lower-income families, though exceptions exist, as in Massachusetts and Vermont. States are also tending to focus their CTCs on families with younger children, whereas the federal CTC supported families with older teens, too. One reason for this is means-testing state CTCs and limiting them to younger children helps keep the overall cost of the program down. Another reason is that there’s mounting evidence that the cost of raising younger children, compared to older teens, is more difficult for parents to afford.

The CBPP recently put out an analysis encouraging states to create their own CTCs, and noted that the cost of enacting or improving existing ones is “typically small enough that states may be able to absorb them without raising additional revenue.”

In a new report published by the People’s Policy Project, a crowdfunded leftist think tank, founder Matt Bruenig proposes reforming state-level tax credit programs (both CTCs and EITCs) to counteract the exclusion of low-income children from the federal tax credits. In other words, states could step up to push for what advocates were not able to get passed on the federal level during reconciliation negotiations.

“Minor and inexpensive tweaks to state tax credit programs could effectively extend the federal child benefit regime to poor families,” Bruenig writes. “This kind of state-level policymaking is where child benefit advocates should focus their attention over the next few years.”

Bruenig notes 29 states currently have these kinds of programs, and there will be 32 states that have them beginning in 2023. He identifies 14 states and Washington, DC, that have full Democratic control and could be more easily persuaded to make progressive tax policy reforms.

Bruenig told Vox there could also be a scenario where Romney’s proposed child tax credit was passed but gave states the option to effectively opt out of the work requirement, by allowing states to contribute money to the federal government so that the federal benefit would not phase in for their own residents.

“This would make the state supplement more administratively simple since you wouldn’t have to administer a separate state CTC,” Bruenig added, noting that the supplemental security income (SSI) program also works like this.

Rodriguez, from UnidosUS, said he thinks it’s a good time for state legislators to try to plug weaknesses in state versions of federal programs, particularly as states are experiencing historical budget surpluses from Covid-era investments. Rodriguez says he and his colleagues have also been encouraging states to allow immigrant workers with Individual Taxpayer Identification Numbers (an alternative to Social Security numbers) to collect state EITC benefits, something eight states currently allow. Eighteen percent of US citizen children in poverty — more than 1.63 million kids — are currently excluded from the EITC because they live in mixed-status families with undocumented members.

“This is a moment where we could have an inclusive and generous EITC at the state level, and the same goes for state-level CTCs,” Rodriguez said.

McCabe said one issue with Bruenig’s proposal is states may be hesitant to design their CTC programs around federal policy, as federal policy can change pretty quickly. States may also not want to wait around for federal enabling legislation if they were to opt for the idea that more closely resembles how SSI is administered. Moreover, if Republicans in Congress opposed the expanded CTC last year for being fully refundable, they very well may oppose making it easier for states to blunt the pain of their federal work incentives.

“I think states might be better off with creating entirely new infrastructure,” McCabe said. “I think Massachusetts is right to do it much broader, more limited by age, and then slowly grow their credit over time.”

The expiring Trump tax cuts present opportunities for CTC advocates through 2025

Advocates for the expanded child tax credit see opportunities to build on and improve the child tax credit as Trump-era tax cuts expire over the next few years. “We’re looking at the tax extenders at the end of the year, and as we’re doing that, we’re trying to think through what we need to do to really build momentum to pass something more permanent,” said Elisa Minoff, a senior policy analyst with the Center for the Study of Social Policy.

Advocates also see opportunities to push for administrative improvements at the IRS, to make the tax filing process easier and less costly for families. The IRS will have a new Biden-tapped commissioner next year, and the agency will have new money flowing in from the Inflation Reduction Act, some of which can be used to upgrade the agency’s technology.

Much of what CTC advocates say they will push for next in Congress depends on how the elections shake out this November. If Democrats win deeper majorities in the midterms, then they might be able to pass a more generous expanded federal CTC, like the House passed in its $1.85 trillion Build Back Better package last fall.

If Democrats lose seats in Congress, or even if they hold their number of seats steady, advocates may have to rethink their strategy around negotiating with Republicans or Manchin. Manchin’s demands for the CTC included limiting the number of affluent families who could claim the credit and having some form of work requirement. He also disliked the idea of only expanding the credit for one year, but worried about the cost of a big permanent expansion.

Climate advocates were able to win big priorities in the reconciliation deal this year only by ceding to all the main legislative priorities of the West Virginia Democratic senator.

“I think if we wound up in a position where now the entire future of the CTC turns on Joe Manchin’s approval, then I think the lesson of this reconciliation bill is that you have to tailor the process to him,” said Tilly. “Because he obviously has no qualms about letting it die.”

Advertisement

There’s a bipartisan bill to codify Roe — and abortion rights groups can’t stand it

Originally published in Vox on August 22, 2022.
—–

Amid threats over the last year that the Supreme Court might abolish the right to an abortion, Democrats and advocacy groups have used an imperfect but popular phrase as a synonym for protecting reproductive freedom: “codify Roe.”

“When we go back to Washington, we will be putting Roe v. Wade codification on the floor of the House to make sure that women everywhere have access to the reproductive health that they need,” House Speaker Nancy Pelosi pledged last September. When a draft of the Dobbs v. Jackson decision leaked in May, President Joe Biden stressed the need for “legislation that codifies Roe, which I will work to pass and sign into law.”

bill introduced earlier this month aims to do exactly that, writing into law the holdings of Supreme Court decisions that guaranteed the right to contraception and to abortion before fetal viability, usually in the 22nd to 24th week of pregnancy.

But translating abortion-related court decisions into legislative language that everyone can agree on has turned out to be more difficult and controversial than lawmakers have publicly acknowledged.

The bill, known as the Reproductive Freedom for All Act, is a bipartisan effort, sponsored by Republican Sens. Susan Collins and Lisa Murkowski and Democratic Sens. Tim Kaine and Kyrsten Sinema. It has sparked outrage among the leaders of abortion rights groups: They argue it would not actually codify key Supreme Court decisions and could even be a step backward from what Americans had before Dobbs. The measure does much less to protect abortion rights than the Women’s Health Protection Act, abortion rights groups’ favored bill, which passed the House but has failed twice in the Senate.

Their reaction underscores a key debate over Democrats’ legislative strategy in post-Roe America. Even as Democrats say they want to codify Roe, national reproductive rights groups and their allies in Congress see a political window to move beyond Roe’s weak framework and more meaningfully protect abortion access.

These groups, including Planned Parenthood, NARAL Pro-Choice America, the Center for Reproductive Rights, and a dozen others, think it’s unlikely that the Kaine-Collins bill could attract much Republican support beyond its two co-sponsors. Energized by recent pro-abortion rights victories, they express confidence about sticking to their original plan: elect two more senators, maintain control of the House, and then overturn the filibuster to pass the Women’s Health Protection Act, which would not only restore the pre-Dobbs status quo but dismantle a slew of state restrictions on abortion.

“We have this really clear political opportunity to realize some big, big wins,” NARAL president Mini Timmaraju said. “And we owe these folks who are at risk of losing their lives because of things like ectopic pregnancies, we owe them the biggest, boldest solution possible.”

The Kaine-Collins bill, by contrast, is intentionally less ambitious. “It’s like a time machine bill,” Kaine said. “We wanted to put something on the table that would give back Americans exactly what they had, and lock in a statutory protection that women had relied on for 50 years. Not expanding, not subtracting.”

Vox spoke with top Democratic lawmakers, legislative aides and strategists, leaders of reproductive rights groups, and legal scholars to understand the choices and challenges ahead for federal abortion policy. The interviews illuminated a simmering debate over whether it’s worth trying to return to the legal frameworks of June 23, 2022 — the day before Dobbs was decided — and deeper divisions over what baseline abortion rights the federal government should, or realistically can, guarantee.

The Reproductive Freedom for All Act, explained

In addition to enshrining the right to contraception, the bill prohibits state rules that impose an “undue burden” on abortion before fetal viability, the same standard established by the Supreme Court in its 1992 Planned Parenthood v. Casey decision.

Outright bans are illegal under this undue burden framework, but restrictions that significantly curtail access to abortion have often been upheld. The Reproductive Freedom for All Act also affirms health care workers’ right to refuse to provide abortion for religious reasons — something currently allowed in over 40 states, and a key demand from its Republican co-sponsors.

The bill sponsors readily admit there are not 60 votes in the Senate to pass the legislation, and Collins, Murkowski, and Sinema do not support overturning the filibuster. But the sponsors say they wanted to signal that a bipartisan majority of their chamber supports codifying Roe. (Kaine and Sinema also support the Women’s Health Protection Act, but Collins, Murkowski, and Democratic Sen. Joe Manchin opposed that legislation, depicting it as too expansive.)

Kaine compared his bill to lawmakers who fought for gun control when they also lacked 60 votes. “We spent a decade pushing for that, and then tragedies made the Senate move,” he said. “I think life post-Dobbs is a series of tragedies, and we have a sense that real life is going to push votes our way.”

The response to Kaine-Collins from reproductive rights groups and some Democratic lawmakers has ranged from chilly to hostile, with objections falling into four general buckets, of varying legitimacy.

Would the bill actually codify Roe?

The first objection — voiced by virtually every national advocacy group for reproductive rights — is that the Reproductive Freedom for All Act does not include explicit enough language to bar pre-viability abortion bans, like the 15-week ban in Mississippi that sparked the Dobbs case to begin with. For this reason, they say, the bill doesn’t actually codify Roe v. Wade.

This is the most controversial objection. The bill clearly states a government cannot impose an undue burden on a woman’s right to an abortion before fetal viability, and that fetal viability is determined by a woman’s attending doctor, not the state. While it’s likely that medically unnecessary restrictions such as mandatory waiting periods could withstand the murky undue burden standard, an outright ban is a different question.

Kaine says the bill was specifically written to prevent pre-viability bans. “I practiced civil rights law for 18 years and virtually any intellectually honest judge would look at this and say Congress says you can’t impose an undue burden, which a ban clearly is,” he said. “While you may have rogue judges here or there, returning to the undue burden standard would give the judiciary not just the tools but also the mandate to throw out those kinds of laws.”

So what’s going on? Pressed for answers, reproductive health groups and senators pointed to a concurring opinion in Dobbs from Chief Justice John Roberts. Writing alone, Roberts argued that the right to an abortion does not necessarily need to be paired with fetal viability. Roberts suggested Mississippi’s 15-week ban could potentially be legal, as long as a woman had a “reasonable opportunity” to get an abortion before then.

“Senator Kaine’s legislation is missing the core protection of Roe, which prohibited any ban on abortion before viability, and replaces it with a dangerous legal standard that could permit extremist state laws like Mississippi’s 15-week ban,” Sen. Elizabeth Warren told Vox in a statement. “This bill is closer to codifying Chief Justice Roberts’s concurrence in the Dobbs decision than it is to codifying Roe, and I do not support it.”

But the idea that John Roberts’s interpretation of the undue burden standard — which was rejected by the Court’s five-member conservative majority — would triumph now is unpersuasive, said several legal experts.

Ben Eidelson, a Harvard constitutional law professor, said the Reproductive Freedom for All Act “very clearly precludes pre-viability bans” and noted the Roberts concurrence “really has no legal relevance here.”

The majority opinion in Dobbs — not the concurring one — would define the legal backdrop for interpreting what Congress does next, Eidelson said. “It would be extraordinary for the Court to turn around, after Congress relies on that, and say that actually Roe and Casey meant something completely different than they themselves had said or anyone ever thought,” he added.

Sherif Girgis, a Notre Dame law professor who argued the Supreme Court should overturn Roe, said the Kaine-Collins bill prohibits abortion bans “even a little bit” before viability and “there is no serious argument to the contrary.”

Girgis noted that “every judge at every level of the judiciary” who has considered the abortion question in the last 30 years — including very conservative judges like James Chiun-Yue Ho on the Fifth Circuit and Amul Thapar on the Sixth — has held that Casey’s undue burden standard precludes any pre-viability ban, and that even Roberts didn’t disagree in Dobbs.

Rachel Rebouché, the dean of Temple Law School and co-author of an influential paper on coming legal battles in a post-Roe America, also said she doesn’t see how Roberts’s concurrence would be significant here. “Even if the bill is not explicit as you might want it to be, it is pretty explicit,” she said. “And even if John Roberts argues that Casey never necessarily intended the viability line to be the line Roe prohibits, there is no other vote on the Court for that view.”

There are a few dissenting scholars. Leah Litman, a constitutional law professor at the University of Michigan, argues the operative section of the Kaine-Collins bill needs to be more specific, given Roberts’s opinion in Dobbs and because states like Texas and Mississippi, and conservative groups, have been arguing that undue burden doesn’t necessarily prohibit pre-viability bans.

“That gives the Court wiggle room to say it’s not so clear,” she said. “It’s a sloppy bill that is foolish and naive and fails to take the federal courts as they are.”

Could the bill pass and withstand a court challenge?

The second objection is practical: The Kaine-Collins bill doesn’t have the votes. Timmaraju, president of NARAL, describes the Reproductive Freedom for All Act as a “political stunt that should not be taken seriously” given that its sponsors have not backed overturning the filibuster.

Advocates say their best path to protect abortion rights is to elect two more Democratic senators to overcome its last failed vote of 49-51. Democrats are favored to at least retain control of the Senate next year, but to lose the House. Performing well enough in November, though, doesn’t mean the filibuster’s death is a foregone conclusion; just as many lawmakers pledged support for Medicare-for-all only when the possibility seemed remote, more objections to ending the filibuster might emerge if it were a real possibility.

There’s a third objection: that the Reproductive Freedom for All Act is inadequate because it would invariably return questions back to the same anti-abortion federal judiciary that just overthrew Roe. This objection is a little tricky, since the Women’s Health Protection Act would also get embroiled in legal challenges, and be reviewed by those same hostile judges.

But advocates say at least the Women’s Health Protection Act is much more specific on what types of restrictions would violate the law, an improvement over the “undue burden” standard that leaves so much to court discretion.

Mary Ziegler, a professor at the UC Davis School of Law who has authored several books on reproductive rights history, said federal courts would likely strike down both bills because Congress has limited authority to legislate in this area.

“It’s either going to be relying on Section 5 of the 14th Amendment, or the commerce clause, and quite likely you’ll get a conservative Supreme Court that says Congress doesn’t have the authority to do either of those things,” she said. “Which is a reason why there will have to be some kind of conversation about court reform, because there would be real jeopardy for any federal legislation protecting abortion rights.”

Sarah Standiford, the national campaign director for Planned Parenthood Action Fund, agreed there are real hurdles right now for federal bills. “I think there is a hunger for Congress to solve this problem, but the solution is not simple, and the solution is going to be using every avenue we have, and the fact is many of those avenues are at the state level,” she told Vox. “We have to be honest with ourselves about the limitations that structurally exist in Congress.”

Advocates want to focus beyond Roe and Casey

The final category of objection is the biggest one: that restoring the Roe and Casey standards would not do enough to address the abortion care crisis in the United States. Before Dobbs, it was perfectly legal to enact medically unnecessary restrictions that crippled abortion clinics and which made terminating pregnancies practically too difficult to do. The overturn of Roe has wiped the slate clean, and activists see an opportunity to fight for stronger protections.

In explaining her objection to the Kaine-Collins bill, Sen. Tammy Duckworth (D-IL) told Politico it doesn’t “fully [guarantee] a woman’s right to reproductive choice.” Warren said returning to the status quo before Dobbs “is not good enough.” A joint statement from 15 reproductive rights, health, and justice groups stressed they’re looking for “legislative solutions that make abortion truly accessible.”

Timmaraju, NARAL’s president, emphasized that activists have developed a much clearer understanding of how restrictions permitted under the undue burden standard can decimate access to care. “To those who say we want to go back in a time machine to the day before Dobbs, that was still a bad day,” she said.

Democratic senators and activists also stress the Kaine-Collins bill does not explicitly prohibit SB 8, the novel citizen-enforced abortion ban that Texas passed last September and which several states are looking to copy.

The Women’s Health Protection Act doesn’t explicitly bar these bans either, but does include language its drafters hope could grant advocates grounds to challenge the “bounty hunters” in court.

Kaine, for his part, thinks his bill would protect against laws like SB 8. “A bounty hunting law is an undue burden, and a six-week ban is before viability,” he said. “Our bill would wipe out all those state schemes.”

Eidelson, the constitutional law professor, thinks that if Congress passed the Reproductive Health for All Act and if the Supreme Court upheld it (both big ifs), that would, in fact, substantially undercut SB 8 and similar laws. Much of the chilling effect in Texas over the last year stemmed from the interaction of SB 8’s threat of liability and pending uncertainty over Roe v. Wade.

The Kaine-Collins bill’s opponents aren’t just disinclined to accept the pre-Roe status quo — they’re less certain they need to compromise. An increasing share of Democrats and independents say the Dobbs decision has motivated them to vote in November. Advocates are energized by the recent ballot victory in Kansas, two special elections where Democrats outperformed their 2020 vote share, and midterm polls that show voters are concerned about abortion rights. Democratic Senate staffers say privately that there’s no reason to tamp down on bold rhetoric now, and there will be time to moderate later if the political landscape shifts.

“I think the thing that is most useful for abortion rights advocates to be doing now is to be as aggressively chest-thumping as possible,” one senior aide told me, speaking anonymously to candidly describe Senate discussions. “It helps to position ourselves so that when the next meltdown comes, what emerges out of it will be as strong as possible.”

The strategically optimal path to federal abortion rights is for now unsettled, but the stakes are high. Ziegler, of UC Davis, said she’s not surprised the national groups aren’t defending bills to codify Roe and Casey now that those decisions have been overturned.

“I do think Casey from the standpoint of most national groups was never good enough,” she said. “I also think from the standpoint of a person of color living in Arizona with a fetal personhood law, Casey probably looks awfully good right now.”

California could transform how fast food workers are treated

Originally published in Vox on August 15, 2022.
—-

Ten years after the launch of the Fight for $15, fast-food workers nationwide are still grappling with low and stolen wages, unsafe workplaces, and rampant sexual harassment. California lawmakers now are considering a bill to address those problems, aimed at improving conditions for the more than 550,000 fast-food workers in the state.

The bill, known as AB 257 or the FAST Recovery Act, passed the California Assembly in January, and is coming up for a full vote in the state Senate this month. “There may be no more consequential measure for labor rights in Sacramento this session,” said LA Times columnist Michael Hiltzik. Its impact though, might not be limited to California.

The legislation would establish a new state council with the power to set minimum working standards for fast food restaurants across California. It would also create a means to hold companies like McDonald’s and Pizza Hut legally responsible for any labor violations at individual stores, even if those individual stores are owned by franchisees. Right now, big corporations are generally not liable for their franchisees breaking labor laws.

In many European countries, unions negotiate working standards that apply to workers across an entire industry, not just one company. This approach, known as “sectoral bargaining,” is particularly useful for protecting workers toiling in industries that rely heavily on part-time staff, contractors, and subcontractors. Sectoral bargaining is prohibited by federal labor law in the US, but the bill in California is a similar idea, and a step that a labor-friendly state can take on its own.

Food industry and franchise trade groups certainly recognize the threat the FAST Recovery Act presents to their business model, and the national implications if it becomes law.

“If passed, also expect to see similar legislation in states like New York, Oregon, Washington, Illinois, and more,” warns lobbying materials from the National Restaurant Association. “The greatest chance for defeating this legislation is in the California Senate, making it imperative for the industry to focus its efforts there.”

Unions and labor allies, in turn, have been advocating hard for the bill — organizing worker strikes, petitions, and lobby trips to Sacramento and Washington, DC.

In June, presidents from America’s largest national unions sent a letter to Democratic Gov. Gavin Newsom urging him to “support and champion” the FAST Recovery Act. “This bill is an opportunity to connect policy with your progressive values and demonstrate that California knows how to lead the nation with innovative solutions that tackle rising inequality,” they wrote.

Newsom, who is rumored to have 2024 presidential ambitions, vetoed a big labor bill last year that would have made it easier for California farmworkers to unionize. Omar Rodriguez, a spokesperson for Newsom, told Vox they don’t typically comment on pending legislation: “The governor will evaluate the bill on its own merits if it reaches his desk,” he said.

Kate Andrias, a labor law professor at Columbia University who has written about sectoral bargaining, told Vox that she sees the FAST Recovery Act as “a significant step forward.” “There are ways in which workers can influence wages and regulations already, but what this bill does is create a focal point for workers to be a more empowered part of the administrative system,” she said.

How the FAST Recovery Act would work

The law would establish a 13-member council that includes political appointees from state health and labor agencies, as well as food industry officials, fast food workers, and union representatives. The council would “promulgate minimum standards” for things like wages and working conditions for restaurants where workers aren’t unionized. The bill would also clarify joint liability for the franchisor and franchisee, and establish protections for workers who exercise their rights.

The standards would apply to any chain in California that has at least 30 stores nationwide that share a common brand.

Only six votes from the council are required to issue a rule, which means even if all four direct representatives from the business community reject it, the measure could still pass. The California legislature would have an opportunity to reject or change the council’s proposed standards, as would the state’s Occupational Health and Safety Administration.

Advocates say the bill will help prevent wage theft, sexual harassment, and general lack of compliance with existing labor standards

Angelica Hernandez, an activist with the Fight for $15 campaign in California, has worked at McDonald’s for the last 18 years. In that time, she told Vox, she had her wages stolen in the form of unpaid hours for time worked and experienced sexual harassment on the job. When she tried to tell her manager about her harassment, she said she was laughed at and dismissed.

A McDonald’s spokesperson said the company “has been clear that sexual harassment will not be tolerated” and pointed to McDonald’s Global Brand Standards for safe, respectful, and inclusive working environments, which took effect for all restaurants beginning in January 2022.

In response to Hernandez’s allegations specifically, McDonald’s says it investigated her harassment concerns, and “matters [were] closed in alliance with our company policies.” With regard to the wage theft, the spokesperson noted that over the last few years the restaurant Hernandez works at “has implemented safeguards that further ensure employees are properly paid for their work.” The spokesperson said they also “conduct routine wage and hour audits” at this particular restaurant.

“With AB 257, we would have a more dignified job,” Hernandez said. “We would finally have a voice and have a place where we can make sure that we are setting better standards. It’s sad because we work in a free country but we’re not free in our job to speak out.”

Fast food workers rally and demand the passage of AB 257, landmark legislation they said would protect and empower the state’s fast food workforce, in Irvine, California, on July 27.

The vast majority of fast food workers in California are women and people of color, and many report similar experiences as Hernandez. In one survey of California fast food workers, released in May by the Fight for $15, 85 percent said they experienced wage theft on the job. Another recent survey, commissioned by the Los Angeles County Department of Public Health and conducted by the UCLA Labor Center, found 43 percent of workers experienced workplace injury or illness, nearly half experienced verbal abuse, and a quarter said they were retaliated against by their managers for reporting workplace issues.

This month, in a joint study between University of California San Francisco and Harvard’s Shift Project, researchers found California fast food workers are paid nearly $3 per hour less — almost $6,000 less annually — than workers in comparable service-sector jobs across the state, and are more likely to have unpredictable schedules and work part-time involuntarily.

While California already has some of the most robust labor laws on the books, advocates say those rules are often flouted in part because franchisees have little legal authority to make changes to their businesses aside from cutting corners on worker pay. (The bill was introduced by Assembly member Chris Holden, a former Subway franchise owner in Pasadena.)

“Franchises can’t control pricing, hours of operation, or their suppliers,” said Brian Callaci, the chief economist at the Open Markets Institute, an anti-monopoly think tank. “All they can do is drive down labor costs, so the franchising model is really designed to put the interest of local employers and their workers at odds.”

Matthew Haller, president of the International Franchise Association, told Vox that franchise brands ensure their franchisees comply with the law “by virtue of their franchise agreements, and have an incentive to ensure compliance to protect the brand.”

The restaurant industry warns the bill would hurt businesses and consumers

One of the main arguments put forth by opponents of the FAST Recovery Act is that the bill would make it harder and more costly for stores to operate and that lawmakers would be better off dedicating more resources to California’s labor department to enforce existing rules.

Sean Redmond, the vice president of labor policy at the US Chamber of Commerce, called AB 257 “a radical proposal to micromanage the fast food industry” and said consumers would bear the consequences through higher prices. Other business leaders are warning of reductions in jobs and working hours.

Jeff Hanscom, vice president of state and local government affairs for the International Franchise Association, called the bill “one of the most damaging pieces of legislation to ever impact the franchise business model.” The business-backed Campaign to Stop AB 257 has blasted the idea as “11 unelected political appointees to run California’s entire counter service restaurant industry from Sacramento.”

Still, supporters of the bill push back on this framing. “Exploiting your workers is not a socially permissive competitive strategy,” Callaci said. “I think it’s that blunt.”

It’s not clear how lawmakers will proceed. On Thursday, the bill passed out of the Senate appropriations committee, but California’s Department of Finance has come out against the legislation, saying it “could lead to a fragmented regulatory and legal environment for employers and raise long-term costs across industries.”

A step toward sectoral bargaining

Labor advocates believe the FAST Recovery Act would represent a meaningful step toward sectoral bargaining, as right now states are barred from passing their own collective bargaining law for private-sector workers. To do so would be what’s known as an illegal preemption of the National Labor Relations Act, which governs unions for private employees.

The big labor reform bill known as the Protecting the Right to Organize Act (PRO) that unions are advocating for in Congress would not legalize sectoral bargaining, but it includes measures that would also move things closer to that point. Andrias, of Columbia University, said the PRO Act would clarify the standard for joint-employment between franchisors and franchisees, and require the GAO to study sectoral bargaining. The bill would also make it generally easier for workers to unionize and strike.

National labor advocates say while the FAST Recovery Act would be an innovative solution, it also does not represent a radical departure from past models. “It is based in well-settled principles of law,” wrote Berkeley law professors Catherine Fisk and Amy Reavis. “It is akin to existing appointed bodies, such as the California Energy Commission and California Coastal Commission, that are designed to tackle difficult issues and ensure input from stakeholders.”

And there are similar experiments happening elsewhere across the country. In 2015, then-New York Gov. Andrew Cuomo convened a wage board to evaluate compensation in the state’s fast food industry. This led to an increase in the minimum wage for New York fast food workers, phased in over six years. In 2018, Seattle established a labor standards board to make recommendations for domestic workers, and Detroit followed suit with a multi-industry board in 2021.

Thinking about labor organizing across broad industries, advocates say, is a helpful shift in perspective, and it can also take different forms from these aforementioned models. In 2018, for example, public school educators mobilized through the new #RedforEd movement, and right now there’s a wave of national grassroots organizing with Starbucks and Amazon workers.

“Sometimes the term ‘sectoral bargaining’ can be a distraction,” said Andrias. “What we’re really talking about is broader-base bargaining, and that could look different in different contexts.”

School vaccine mandates for Covid-19 are not happening

Originally published in Vox on August 8, 2022.

For the third summer in a row, school leaders are facing the question of what — if anything — they’re going to do to stop the spread of Covid-19 when students return to classrooms.

One thing is clear: Almost none of them will be requiring vaccines.

Just 31 percent of children between 5 and 11 in the US have been fully vaccinated, and 61 percent of 12- to 17-year-olds have been. (Only about 3 percent of children under 5 had received a first dose by July 20.)

Still, no state in the country is planning to require student vaccinations, a marked turnaround from where things seemed to be headed last winter, when multiple states and school districts suggested vaccine mandates were coming soon. Only Washington, DC, has announced a mandatory school vaccine policy this fall, for students 12 and older.

Other mitigation measures — from masks to ventilation — may also be on their way out. The Centers for Disease Control and Prevention will likely soon recommend easing school testing, quarantine, and social distancing requirements, CNN reported last week. (Many schools often disregarded CDC guidelines, but the update is a sign of how expectations have shifted.)

Burbio, a company that specializes in aggregating school calendars, reported that so far, the vast majority of school districts it tracks nationwide will not be requiring masks this fall. And a June CDC study found just under 40 percent of American public schools had replaced or upgraded their HVAC systems to provide improved ventilation.

For the last three years, school requirements — closed or open? masks on or off? — have been a battleground in the culture war over Covid-19. Fear of wading back into the polarized fights over vaccination is one reason school leaders have backed away from requiring the shots. So is the fact that vaccines for children under 12 are not yet fully approved by the FDA.

But an even bigger factor might be mass indifference: American adults are more hesitant to vaccinate their kids, especially younger kids, than they were to get shots themselves. And no influential health group or federal agency is pushing states to require them to do so.

How California backtracked on vaccine mandates

In October 2021, California’s Democratic Gov. Gavin Newsom was the first in the nation to announce a planned Covid-19 vaccine mandate for K-12 students once the FDA had fully approved the shots. He said at the time that it could take effect as early as January.

Some school districts in the state tried to impose vaccine mandates that would take effect even earlier. Los Angeles Unified School District, the second largest in the nation, announced in September 2021 that students 12 and older must be fully vaccinated by December 19, or switch to online schooling. In Oakland, California, the school board passed a similar vaccine requirement in late September for eligible students, with a deadline of January 1. The Pfizer vaccine for 16- and 17-year-olds had been fully approved in August, while the shots for 12- to 15-year-olds were still under FDA’s emergency use authorization.

By December 2021, facing both political and legal pressure, school leaders pushed back the vaccine mandates to the start of the 2022-23 school year. LAUSD board president Kelly Gonez has said their decision was “not about conceding to a vocal minority of anti-vaxxers,” although those who oppose mandatory Covid vaccines hailed the delay as a victory.

But as 2022 continued, pressure for youth Covid-19 vaccines declined. A state lawmaker in California who had introduced a bill to require Covid-19 vaccines for K-12 students withdrew it in April, saying that focus needed to be on ensuring access to the vaccine. The same week, the California Department of Public Health announced it would no longer add the Covid-19 vaccine to its list of mandated childhood vaccines for public schools because they had not all yet received full FDA approval. The earliest the requirement would take effect, they said, was July 2023. Individual school districts like Los Angeles followed suit.

A California health department spokesperson told Vox that the state was waiting “to ensure sufficient time for successful implementation of new vaccine requirements.” As of last month, the vaccines are now fully approved for ages 12 and up, but not yet for younger children. The California health agency also said even after all the shots receive full approval, officials would still take into consideration other health group recommendations before issuing a new mandate.

Louisiana, likewise, retreated on a student vaccine mandate Democratic Gov. John Bel Edwards announced last November. New Orleans Public Schools is the only district in the state to require students to be vaccinated against Covid-19, though policy enforcement has been mixed. New York City Mayor Eric Adams, who said in January he was considering a student vaccine mandate for the fall, quietly dropped the idea, scaling it back to a requirement for students participating in certain sports and other “high-risk” extracurriculars like choir.

Why districts have been loath to require Covid vaccines for students

The California situation illustrates the several factors at play in schools’ reluctance to require vaccines.

One issue is the lack of full FDA approval for vaccines for younger children. The US Supreme Court has endorsed states’ authority to require student vaccines, but many policymakers were wary of testing that legal authority for Covid-19 shots that had only received emergency use authorization. (The Justice Department issued a memo last summer saying schools could legally do this, but the threat of defending those decisions in court was both real and unappealing.)

As a result, even once youth vaccines became available, leaders hesitated to require them without full FDA approval. But now the FDA has fully approved vaccines for teens and adolescents, and that still hasn’t led states or districts to require the shots for older kids.

Policymakers are also wrestling with the fact that the virus is much less deadly for children compared to adults. (Approximately 1,180 of the more than 1 million Americans who have died of the virus were 17 or younger, though health experts stress vaccination can still help protect against these rare outcomes.) Kids can also catch the virus in school and spread it back at home to their more vulnerable parents and grandparents, but that risk became easier to tolerate once adult vaccines were approved.

Most school districts were wary of igniting another public school culture war battle at a time when students were still struggling to regain academic and social skills lost during the pandemic. On the eve of the anniversary of the January 6 riot, former President Donald Trump blasted President Joe Biden for supposed “talk” that his administration might enforce a vaccine mandate for school children and urged “MAGA nation” to rise up against any such requirements. (The Biden administration has not publicly discussed any student vaccine mandate.)

Conservative law firms were also helping to mount legal challenges against proposed Covid-19 vaccine requirements, and groups fighting mask and vaccine mandates have insisted there is no reason to vaccinate kids to protect more vulnerable populations.

Polling also indicated that many parents were not eager to have their kids get the shots, and administrators felt hesitant to impose any rules that could keep vulnerable students — particularly Black and Latino students — out of in-person learning for even longer than they already endured.

The Covid-19 Vaccine Monitor, run by the Kaiser Family Foundation, reported recently that parents’ intentions to vaccinate their older children have remained relatively steady since the start of the year: About six in 10 parents of those aged 12-17 say their child has been vaccinated (57 percent); about 30 percent say they will definitely not get their teen vaccinated. Eight percent said they will only vaccinate their child if required.

Covid vaccination uptake is even lower among children ages 5-11, and nearly half of parents of that age group either say they will only get them vaccinated if required to do so (10 percent) or say they definitely won’t (37 percent).

While all demographic groups in the KFF study expressed concerns about long-term effects and side effects, Black and Hispanic parents also voiced more concerns over the logistics of getting their kids vaccinated.

Jeremy Singer, an education policy researcher who has been studying Covid-19 school reopenings, said it’s notable that resistance to youth Covid-19 vaccine requirements is present in nearly all school districts. One reason why, he said, may be what school districts are hearing from parents and community members.

“District leaders may still be feeling risk-averse, but at this point the ‘riskier’ thing for them could be to impose an unpopular mandate,” he said.

In January 2022, Singer and his colleagues surveyed Detroit parents on whether they supported or opposed various health measures. “Parents expressed overwhelming support for almost every measure … except vaccine mandates for staff and especially students, for which there was a lot more ambivalence,” he said of their findings, which are not yet published.

National groups and federal agencies aren’t pushing for vaccine mandates

Back in February, Education Secretary Miguel Cardona wrote in a letter to schools, “The #1 tool we have available right now to make sure our schools remain safe and open for all students is vaccination,” and encouraged schools to provide information and host clinics. But the department has stopped short of encouraging schools to require the shots. Elaine Quesinberry, a spokesperson for the Education Department, referred Vox’s questions about student Covid-19 vaccines to the CDC, and the CDC did not return a request for comment.

The CDC’s last updated schools guidance, posted in late May, does not recommend schools require the shot, though encourages schools doing targeted outreach to promote it. A White House spokesperson declined earlier this year to say if Biden would support schools requiring Covid-19 vaccines for students if the vaccines had received full FDA approval.

Susan Martin, a spokesperson for the American Academy of Pediatrics, referred Vox to their policy statement recommending Covid-19 vaccines for all eligible children, and their interim guidance on safe schools, which says Covid vaccination and boosters should be encouraged.

Even teacher unions — which were influential in shaping school reopening decisions in the 2020-21 school year — have not staked out youth vaccination as a dealbreaker for safe in-person learning. An NEA spokesperson said, “Our position on vaccines have not been changed or updated at this point” and referred Vox to a position statement published in December 2020, which said parents should follow vaccine guidelines from the CDC and the American Academy of Pediatrics.

Back in October 2021, the last time the American Federation of Teachers released a formal statement on youth vaccines, president Randi Weingarten said “vaccine approval will be critical to keeping our kids safe and healthy, and making sure our schools stay open and remain safe and welcoming for all.” In a statement to Vox, Weingarten said the group is awaiting “full authorization by the FDA to inform requirements for kids — but in the meantime we must ensure the other guardrails, including revamped ventilation, are in place.”

Washington, DC, is moving forward with its student vaccine requirement

The big exception is in the nation’s capital. In late December, Washington, DC, councilmembers voted overwhelmingly in favor of legislation requiring all eligible students to get vaccinated against Covid-19.

The bill set a vaccination deadline for March 1, 2022, though enforcement was delayed until the start of the 2022-23 school year, a concession to help keep students in school. At the time, just over 60 percent of DC young people ages 12-17 had received their two shots.

Last month the city announced it would move forward with its back-to-school vaccination policy, requiring Covid-19 vaccines for all students ages 12 and older within the first 20 school days. DC is also ramping up outreach and enforcement for its other required youth vaccinations — like measles and mumps — which the city didn’t enforce strictly last year, and students fell behind on.

“I think one thing that is important to know in terms of how DC is moving forward is we’re not just talking about the Covid vaccination, we are having a conversation about routine child immunization, and the Covid vaccine just happens to be a part of the series where kids need to get caught up,” said Christina Henderson, a DC councilmember and the lead sponsor of the bill requiring Covid-19 vaccines for students.

Henderson said their effort this year involves more concerted help from pediatricians, school leaders, and public health officials, to stress the importance of vaccination and to relay the evidence that millions of young people by now have safely received the shots.

Henderson pointed to the recent case of an unvaccinated 20-year-old with polio, and stressed that this is not the time to waver on the importance of pediatric vaccination. “We also know mandates work,” she added, noting that while many teen athletes were initially ambivalent about getting vaccinated, following DC Mayor Muriel Bowser’s vaccination requirement to participate in sports last September, even hesitant students got their shots.

The Washington Post reported in late July that about 85 percent of DC students ages 12-15 have been vaccinated against Covid-19, but just 60 percent of Black children in that age range have been.

“If one school has a high unvaccinated rate of students, then we will bring a mobile vaccine clinic there,” Henderson said. “We are not going to assume that parents are purposely saying ‘I don’t want to get my child covered.’ It might just be they were away all summer and didn’t know about it, or didn’t have time.”

Kathryn Lynch-Morin, a spokesperson for DC’s Office of the State Superintendent of Education, told Vox that city agencies have been coordinating closely with schools to support them with technical assistance, guidance, and outreach to families.

“Our children belong in school with their friends and teachers who care about them,” she said. “But, we know if an outbreak of one of these serious or deadly diseases were to occur, it could have a harmful impact on our children, families, and staff. We also know that vaccinations save lives.”

How state governments are reimagining American public housing

Originally published in Vox on August 4, 2022

What if one of the answers to America’s housing crisis is something that’s been staring us in the face?

Public housing — but not exactly the kind most people think of.

Even before the pandemic, the nation had too few homes available to buy or rent. Housing prices were eating up bigger chunks of people’s budgets every year — and that was all before inflation started wreaking havoc on American bank accounts. Now, with the Federal Reserve hiking interest rates to try to rein in inflation, one unfortunate but entirely predictable consequence is a reduction in home construction. With mortgage rates going up, fewer people are looking to buy, which means fewer private developers are launching projects compared to a year ago, unwilling to risk not landing a buyer. Housing experts warn that the longer this all drags on, the harder it will be to get new projects started later, worsening an already serious housing shortage.

To prevent this grim spiral, a small but growing number of analysts and lawmakers are turning their sights to an idea that has fallen mostly out of favor over the last 50 years: what if the government steps in to develop its own housing? Specifically, state and local governments.

In June the Rhode Island legislature approved $10 million in its state budget for a new pilot program to build mixed-income public housing. It’s one of several state and local governments starting to get into a game that’s historically been the federal government’s purview.

K. Joseph Shekarchi, a Democrat who serves as the state’s powerful House speaker, pushed to include this funding as one way to tackle Rhode Island’s affordable housing crisis. “I think housing authorities in Rhode Island are one of the best-kept secrets. They produce clean, affordable, low-income housing that are really well-maintained and high quality,” he told Vox. “So with this $10 million, we want to see if there’s an appetite for incentivizing housing authorities to increase their housing stock.”

Governments have successfully addressed past housing shortages through publicly developed housing in places like ViennaFinland, and Singapore, but citing these examples often leads to glazed eyes and weary skepticism that such models could ever work in the US, with our more meager welfare systems and our strong cultural attitudes toward private homeownership. America’s 958,000 units of federal public housing have also long suffered from reputation problems both real and exaggerated, with many seen as ugly, dirty, or unsafe. Few understand that many of the woes of American-style public housing have had to do with rules Congress passed nearly 100 years ago that predictably crippled its success and popularity, rules like restricting the housing to only the very poor.

“There’s just real skepticism that governments can do things well, and there’s the stigma of American public housing driven by racist and classist policy choices that have undermined public housing here in ways that European and Asian public housing programs have not,” said Alex Lee, a California state representative, who introduced a bill this year to create new publicly owned mixed-income housing.

Lee prefers the term “social housing” — to help differentiate his vision from the segregated, income-restricted, and underfunded public housing that has defined the American model. “But just because there were mistakes made doesn’t mean we’re doomed to repeat them,” he added.

Lee’s legislation commanded wide support from powerful constituencies in California, and passed through both his chamber and the state Senate’s housing committee. Though his bill is now stalled out, experts say it went farther than anyone expected on its first try, and Lee has pledged to keep pushing next year.

In Colorado, lawmakers just passed a bill creating a new state office to develop 3,500 new housing units targeted to middle-class families. And in Hawaii, lawmakers recently passed several bills that make it easier for the state to build mixed-income condos with 99-year leases, similar to how public housing works in Singapore.

But where this model may already most clearly demonstrate the government’s power to increase housing supply is in Montgomery County, Maryland — a suburb just outside Washington, DC. The local public housing authority there is on track to build nearly 9,000 new publicly owned mixed-income apartments over the coming years, by leveraging relatively small amounts of public money to create a revolving fund that can finance short-term construction costs. One of their initial projects — 268 new apartment units located near a planned bus rapid transit line — is set to be finished this year.

“What I like about what we’re doing is all we have effectively done is commandeered the private American real estate model,” said Zachary Marks, the chief real estate officer for Montgomery County’s housing authority. “We’re replacing the investor dudes from Wall Street, the big money from Dallas.”

State and local governments don’t have the best track record at quickly spinning up new affordable housing, and most public housing authorities lack staff like Marks, experienced in this kind of real estate acquisition. But the public sector can start with acknowledging they have the tools and resources that make it easier to build even in weak economic periods, plus no voracious investor to satisfy at the end of a project. Governments could even step in now to buy half-finished housing from companies that suddenly find themselves unable to make their financing math work.

While Montgomery County is a liberal area in a blue state, Marks notes there’s nothing about what they’re doing with the Housing Production Fund that heavily relies on government subsidies, which is typical of traditional affordable housing projects. “This kind of project is better for the taxpayer, it avoids a concentration of poverty, and it’s very capitalist in my view,” he said. “A lot of this is just convincing governments that you don’t even know how powerful you actually are.”

States can become public developers in different ways

When Meghan Kallman was first elected to the Rhode Island state Senate in 2020, she knew she wanted to focus on housing. The pandemic had intensified housing insecurity in her district, and Rhode Island ranked near the bottom nationally for building new units. And while an early 1990s law already required every Rhode Island city and town to have at least 10 percent of its housing be affordable to low and moderate-income households, only six out of 39 municipalities actually met that target in 2020.

Kallman said this all showed more aggressive state action was needed. With the backing of Reclaim RI, an activist group formed by leaders of Bernie Sanders’s 2020 presidential campaign, Kallman proposed the Create Homes Act, legislation to launch a new state agency that could build, own, and operate housing.

The idea, Kallman explained, is to have an agency that could develop plans not only for increasing housing supply but also for maintaining and repairing existing housing stock. She introduced it near the end of this year’s session, and though it didn’t pass, it picked up significant support, including Rhode Island’s Senate President Dominick Ruggerio. Kallman thinks they’re well positioned to get it over the finish line in 2023.

“What would it look like to have a system where rental units are state-administered, and it falls into the category of a public good that people can avail themselves of?” she asked. “I think that’s a really interesting proposal and something I’m really excited to support and see how it works out.”

Andrew Friedson, a Montgomery County councilmember who has been leading efforts in Maryland to address his region’s housing shortage, told Vox he’s been supporting the public development idea because “there is now much broader recognition and understanding” that governments have to be more aggressive. “The status quo and even marginal improvements are not going to come anywhere close to meeting the need,” he said.

Indeed, states typically have not attempted any of this. While states since the 1980s have taken a leading role in funding and administering affordable rental housing, developing and owning mixed-income housing has not been something governments in the US have done, or even seen as their responsibility.

Mark Shelburne, a national housing policy consultant, said the public developer idea holds promise. “It’s pretty rare that someone actually has a truly new idea in this space,” he said. “Pretty much every idea out there has already been said before — and who knows, maybe at some point in history someone had this same concept and we’ve all just forgotten — but I will say this does seem like a new idea today.” Shelburne added that the concept “absolutely can be viable” if the authorizing legislation is set up properly and flexibly.

Paul Williams, the founder and director of the Center for Public Enterprise, a recently launched think tank, has been leading efforts to promote the idea of state and local public housing developers.

It’s not an immediate fix — “getting out of this mess will take no less than 20 years,” he wrote in an essay last August on solving the housing crisis — but it’s one of the only viable solutions he sees.

“Congress is not going to fund new public housing, we can’t even get them to fund the capital backlog,” Williams told Vox, referring to the billions of dollars needed for outstanding repairs and maintenance of existing federal housing units. “So getting local and state governments to create public enterprises to do public development is what I see as the way to move this forward.”

States are rediscovering their self-interest

Why did states retreat from developing their own affordable housing, anyway? Part of the reason is that the federal government stepped up to the plate, with the Housing Acts of 1937 and 1949, and establishing the US Department of Housing and Urban Development in 1965. States and local governments were happy to let HUD take over, but when federal public housing started to lose support in Congress in the 1970s, and the Reagan and Clinton administrations slashed HUD’s budget in the ’80s and ’90s, there was no real state and local infrastructure around to fill the void.

Shekarchi, the Rhode Island House speaker, noted that housing has always been a difficult and complicated issue, and on the local level, many communities balk at any hint of affordable housing construction and associated tax increases. “Many people don’t want it because they think affordable housing means more traffic or diminishing of home values or crime or drugs or low-income people,” he said. “And I think state government is reflective of those views. We have two-year election cycles and legislators are reflective of the public.”

But despite these NIMBY attitudes, some local policymakers are beginning to recognize their own self-interest in stepping up on housing development, capitalizing on tools and public ownership that can create value and be reinvested into the community.

“Both because we don’t have to meet the private sector return requirements, and because it’s much easier to set policy on things that you own, all of that [revenue] just gets poured back into overall housing production and operation,” said Marks, of Montgomery County. “A lot of the time I’m talking to people about the short-term benefits [of our development model], but frankly the biggest benefit is that value that we’re creating very slowly over 20 years, so that the people sitting in my chair in two or three decades will have a ton of resources that can be realizable by them then, to continue the mission.”

Stanley Chang, a state senator in Hawaii who has been leading efforts in his state to promote social housing, says he spent a lot of time visiting places like Vienna and Singapore to understand regions that actually solved their housing shortages. “I’m not arguing we should copy-and-paste but I do think we should learn the lessons from these places,” Chang said.

Kallman, the Rhode Island state senator, says she doesn’t view her proposed public developer bill as a revenue generator for the state, though she acknowledges it could indeed turn out to be one. “For me this is primarily about the state stepping up,” she said. “To solve a housing problem that is affecting huge numbers of people.”

Campaigns may have lost their most effective — and annoying — outreach tool

Originally published at Vox.com on July 19, 2022

Text messaging — with their markedly high “open rates” — is an especially potent form of political outreach: Since 2016, texting has become one of the most appealing ways for campaigns to engage voters or supporters, especially as so many have ditched their landlines.

But as part of a broader effort to crack down on the fast-growing problem of spam calls and texts, mobile carriers like AT&T, T-Mobile, and Verizon have been rolling out a new policy that affects any business, nonprofit, union, or campaign that intends to send at least 3,000 messages per day.

It means that political campaigns and advocacy groups have fewer rights to text you, if you haven’t affirmatively opted in to receive the messages — and it’s causing distress among those groups ahead of the midterms.

The changes — known as “10DLC” for the 10-digit long codes that high-volume businesses and apps use to text local numbers — will require organizations to register with the Campaign Registry, a subsidiary of the Milan-based communications firm Kaleyra. Carriers will impose higher messaging fees and slower delivery rates for any group that fails to register, and in some cases block them from delivering messages altogether.

Every registered group must also limit their texts only to users who have opted-in to receive them, a massive change from the status quo. Progressive groups warn this new requirement will yield dire democratic consequences — particularly for the most marginalized who are typically ignored by elites and politicians. Others suggest these groups have grown too reliant on unsolicited texting, and that it’s not essential to successful mobilization.

Campaigns had a preview of what the future might look like if they fail to comply with the new 10DLC rules. Last month, a Democratic National Committee texting campaign, meant to notify voters that it was primary day, provide them with information on making a voting plan, and invite them to attend a free virtual training on mobilizing others, was suspended after at least five recipients of the roughly 50,000 registered complaints about the unsolicited blasts.

Recipients of the DNC texts had been invited to opt-out of future messages by texting back “stop,” and the DNC said their records indicated that everyone they texted had expressed interest in receiving the messages either by opting in or having affirmatively engaged with the committee before in other ways. Still, the handful of complaints triggered an audit, and the committee’s ability to send messages from that particular number is still suspended.

“This shutdown … is nothing less than the silencing of core political speech at the hands of a private company pursuant to an ambiguous, unwritten policy,” DNC executive director Sam Cornale wrote in a letter to the CEOs of AT&T and T-Mobile. “As we have explained, in the wake of unprecedented voter disenfranchisement efforts, text messages have become a critical tool in combatting misinformation and attempts to disenfranchise in real time. … The health of our democracy demands you act now to change this harmful policy.”

Scott Goodstein, who led Barack Obama’s pioneering texting program during the 2008 cycle and was the lead digital adviser to Bernie Sander’s 2016 campaign, said the Democratic committees’ defense of unsolicited messages is short-sighted.

“The DNC has no incentive to think about this differently,” he told Vox. “Spamming fundraising donor lists works and helps politicians raise a few extra bucks, but spamming low-turnout voters may not help these politicians communicate with this transient but critical portion of the electorate. What if we went into these communities and held different events to get opt-in? It’s a lot more work but that’s the point. They’re thinking short-term and not long-term.”

10DLC is the mobile carrier solution to spam text messaging

There’s little question anymore that people are being flooded with unsolicited texts: Aside from just being annoying, government agencies say the increased spam is leading to higher rates of fraud. In 2020, criminals stole at least $86 million through frauds originating in spam texts — with examples like targeting seniors on Medicare, claiming to offer extended warranties for cars, or impersonating Covid-19 contact tracers. The median amount customers lost was $800.

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to stop robocalls and auto-dialers that contacted individuals without their consent. But organizations that send texts have been able to operate in a legal gray area, by having individuals press “send” on mass-texting tech platforms — thus blurring the line between automated and human outreach.

Mobile carriers say their new 10DLC policy is a response not only to customer dissatisfaction but also to a political climate that’s been urging more serious intervention.

Sen. Richard Blumenthal and Rep. Raja Krishnamoorthi, both Democrats, wrote separate letters to the Federal Communications Commission over the last year urging greater attention and action on the issue of spam calls and texts.

The 10DLC policy was supposed to be rolled out last year but was delayed following requests from members of Congress to wait until after the 2021 elections. The changes took effect in March.

Mike Donoghue, the co-founder and CEO of Subtext, a company that connects media organizations, artists, and other creators with audiences over text, said his company has welcomed 10DLC and thinks it will help build and retain trust with the public.

“A lot of other players have tried to ignore it or pretend it’s not going to happen but it’s already happened and we’re not going back,” he told Vox.

Goodstein, who now runs a progressive digital marketing agency called Catalyst Campaigns, says he doesn’t actually believe the 10DLC regulations will be effective in controlling political spam texts, in part because the penalties are so weak and there’s little stopping a company from just contacting individuals who complain or opt-out from a different long-code number.

“It’s just whack-a-mole with 10DLC until there’s real pain,” Goodstein said, noting that with CAN-SPAM, a 2003 federal law passed to block unsolicited email, violators faced hefty fines, prosecutions, and even jail time. “Which is why you didn’t get spam from Pizza Hut,” he added.

Advocates warn 10DLC will lead to voter suppression

Progressive advocacy groups and Democratic campaign leaders have been working for over a year to try and convince mobile carriers to exempt them from 10DLC rules. Democratic lawyers have thus far urged federal campaigns to not register, in part to avoid conceding the point that 10DLC should include political groups.

In a letter sent to the CEO of AT&T, Congressional Black Caucus PAC chairman Rep. Gregory Meeks argued that the proposed 10DLC policies “will lead to the disenfranchisement of minority voters across the country” by limiting their ability to do voter education outreach.

And in February, in joint letters to T-Mobile and AT&T’s CEOs sent by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee, the Democratic Governors Association, the Democratic Legislative Campaign Committee, and the DNC, the executive directors collectively urged against implementing the opt-in requirement for political texts.

Doing so “would have catastrophic implications for the ability of political parties, candidates, and other political committees to engage with their volunteers to communicate regarding voter education, GOTV messaging, and other essential political speech,” they wrote. “You are proposing to drastically curtail political expression at the core of our democratic system, speech that is at the very heart of First Amendment protections.”

The executive directors pitched what they saw as a compromise plan, where political campaigns and committees would still register with the Campaign Registry, but not be subject to any opt-in requirement so long as they give individuals the option to opt-out. Requiring opt-in “would undermine our democratic process and hinder access to the polls,” they wrote.

Five months later, on July 12, Anthony Russo, vice president of legislative affairs for T-Mobile, wrote back rejecting this idea, saying requiring opt-in is essential to protecting customers. “There is no confusion about this requirement — simply unwillingness to abide by it,” Russo wrote. “While many political, civic-oriented, and other non-profit organizations have the laudable intentions, T-Mobile’s primary concern is for its customers and ensuring they receive only those messages they want to receive.”

Elvin Bruno, the director of mobile fundraising at Grassroots Analytics, a firm that helps Democratic candidates raise money, told Vox the rollout of 10DLC has had a dramatic impact on campaigns so far, especially smaller campaigns on the local and statewide level.
“The regulations have been inconsistent, poorly communicated, and all the deadlines and dates have changed,” he said. “I can’t stress enough how bureaucratic and unclear it has been to navigate, even for folks like us who are working with the largest political operations in the country.”

Republican campaigns haven’t made as much noise against the proposed regulations, though they say 10DLC is part of a larger threat rooted in the power of technology companies to discriminate.

“From Google suppressing Republican GOTV and fundraising emails to mobile carriers censoring and policing political speech, Big Tech is blatantly trampling on First Amendment rights,” said Emma Vaughn, a spokesperson for the Republican National Committee. “Republicans will continue leading the fight to protect our rights against Big Tech billionaires. For them, it’s all about power and control — if they can silence political candidates, they can silence you.”

Mobile carriers, and their trade association, CTIA, say they’ve continuously engaged with political groups and collected feedback throughout the process, but stand by 10DLC and enforcing industry best practices.

“We believe customers should be able to control which entities send them bulk text messages, which is why we’re requiring bulk message senders to acknowledge they have recipients’ consent before participating in our program as a registered sender,” said Alex Byers, a spokesperson for AT&T. “This approach enables customers to receive messages they want and protects them from unwanted robotexts.”

When asked about the concern about blocking get-out-the-vote text messages ahead of the November election, Byers noted that customer complaints are the primary metric carriers would look at to determine if a message is unwanted or spam. “Our experience is that informational texts like these would be highly unlikely to generate many complaints,” he said.

Donoghue of Subtext thinks the professed concern that 10DLC will inhibit voters from learning things like changes to their polling location are largely smokescreens, and most political groups simply resent the idea that they should get consent before texting.

“If you randomly sampled 10 text messages from a given campaign, I suspect the vast majority are going to be asking people to do something, like signing a petition or making a donation,” Donoghue said. “But campaigns shouldn’t want to send messages that people find annoying. I think a lot of folks are starting to realize that.”

The FCC has flipped-flopped on the issue, though more federal intervention may be coming

Back in 2012, Goodstein and his firm Revolution Messaging petitioned the FCC to clarify that the Telephone Consumer Protection Act did not distinguish between emails that turned into texts, and regular texts. This was a texting loophole popular at the time, and Goodstein saw his crusade as a consumer protection mission, given that individuals pay for the cost of receiving text messages, unlike receiving political flyers in the mail, or emails. Even if your phone plan includes unlimited texts, senders are not privy to that information ahead of time.

In late October 2012, just before the presidential election, a Virginia marketing firm that had represented Republican candidates began sending out anonymous texts with attacks against Barack Obama. “If re-elected, Obama will use taxpayer money to fund abortion. Don’t let this happen,” read one of the messages. “Medicare goes bankrupt in 4000 days while Obama plays politics with senior health,” read another. By using the email-to-text loophole, the marketing firm was able to bypass the TCPA requirement for opt-in consent. When reporters eventually figured out who was behind the unsolicited texts, the founder of the firm claimed they were exercising their First Amendment rights.

In 2015, then-FCC chair Tom Wheeler finally ruled on the petition, and clarified that “consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.” It was a win for Goodstein and those who believed political texts without opt-in consent were TCPA violations and simply unethical.

But in 2018, the P2P Alliance, a coalition of providers and users of peer-to-peer (P2P) text messaging, filed a new petition with the FCC, asking for exemption from TCPA’s rules. In June 2020, the FCC, chaired by Ajit Pai, issued a ruling affirming P2P was distinct from autodialing, a win for campaigns and advocacy groups that wanted assurance they could contact people without opt-in consent.

Goodstein says the FCC must reverse this decision and close the loopholes that allow political spammers to run amok. The new 10DLC rules, he believes, won’t be enough to stop bad actors. The P2P Alliance spent over $130,000 lobbying in 2021, and over $50,000 this year.

Representatives from the Democratic political committees welcome the FCC’s attention in this area, but they say expecting action ahead of the 2022 elections is unrealistic.

Will Wiquist, an FCC spokesperson, pointed to a proposal the agency’s chairwoman, Jessica Rosenworcel, circulated to her colleagues last October. Rosenworcel proposed launching a rule-making process to require mobile wireless providers to block illegal text messaging. If adopted, the rule-making would explore steps like network level blocking and applying caller authentication standards to text messaging.

“The item has yet to be adopted and remains up for a vote by the full Commission,” said Wiquist.

Heading into November, some progressive advocates and Democratic leaders say the 10DLC rules pose an existential threat to a free and fair election. Restrictions on text messages will enable more voter suppression, they warn, and opportunities for misinformation to spread, unchallenged. Goodstein says the opposite is true, that allowing unsolicited political texts to flow freely will annoy people to the point where they just tune out everything.

“Just like sending hundreds of robocalls a few days before elections, some portion of these undecided voters are going to become disenfranchised,” he said. “They’ll be confused on what to believe, and less motivated to engage.”

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.

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.
—-

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 centersprotect 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.
—–

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.

https://3c3b1ac13e6383333d21e8282d59b5b6.safeframe.googlesyndication.com/safeframe/1-0-38/html/container.html

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.
—–

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 opinionJustice 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.

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.’”