Senate Democrats slowly consider their options after Roe

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recently introduced legislation includes bills to stop disinformation from crisis pregnancy 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.
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As some states have moved to fully ban abortion in the wake of Dobbs v. Jackson Women’s Health, new questions emerged about abortion pills: Do states have the legal authority to outright ban drugs that have been approved by the U.S. Food and Drug Administration?

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

The FDA approved mifepristone for use in 2000. Over the next 18 years, more than 3.7 million women in the United States used the medication — sold under the brand Mifeprex — to end an early pregnancy. In 2016 the FDA reported mifepristone’s “efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.” Three years later the agency approved GenBioPro’s generic version.

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

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

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

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

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

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

What it means to “pre-empt” the FDA

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

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

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

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

This idea — that federal regulation of drugs would take precedence, and a state cannot ban a drug that has been given federal approval — is known as the preemption argument.

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

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

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

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

What’s next for the GenBioPro lawsuit

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

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

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

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

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

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

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

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

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

The coming legal battles of post-Roe America

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

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

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

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

In his concurring Dobbs 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.’”

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s a safe option for most patients

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

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

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

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

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

Paying attention to legal risks and criminalization

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

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

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

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

It hasn’t gone mainstream, yet

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

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

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

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

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

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

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

Evictions are life-altering — and preventable

Originally published in Vox on June 14, 2022.
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When Susan Brewer’s wife lost her job during the pandemic, her family, living on the South Side of Chicago, fell behind on rent. Brewer had been supplementing her wife’s salary with the disability income she received from Social Security, but on its own it wasn’t enough to pay their bills.

In December 2021, Chicago opened up a new round of applications for renters needing emergency aid. But Brewer’s landlord — who was then threatening them with eviction —wasn’t interested. Normally, that would have been the end of it: If a landlord refuses to participate in a government program, their tenants won’t get help. But in this case, Brewer was able to apply for and receive the money directly. She picked up her check from City Hall, paid off all her outstanding rental debt, and her wife eventually got her job back.

“Becoming homeless was one of my greatest fears,” she recalled. “I’m 64 years old. I can’t be out in the streets. I’m still struggling to get the weight back I lost from all that stress.”

Brewer was able to stay in her home because, about a year before she got her aid, the federal government had taken an unprecedented step: It decided to help people at risk of eviction stay in their homes. The Emergency Rental Assistance Program — or ERAP — marked a fundamental departure from virtually all previous housing aid programs. Tenants could get money directly, the eligibility process was streamlined, and the categories of people who qualified were intentionally broad.

Nearly 1 million people are evicted in the US each year, mostly for nonpayment of rent. Between 2000 and 2016, according to the Eviction Lab at Princeton University, one in 40 American renter households was evicted, and more than twice that share were threatened with it. The experience of losing one’s home to eviction has been linked to all sorts of adverse consequences, including higher job lossdebtsuicide, and reduced credit access.

Many evicted families are forced to relocate to lower-quality homes in neighborhoods with more crime. Evicted children experience higher food insecurity and lower academic achievement than other low-income kids living in rental housing, partly as a result of having to shuffle between schools and their parents’ declining mental health.

But even as research mounted on the prevalence and harms of eviction, the federal government did little to help families avoid it. “Before the pandemic, evictions were happening and there was a crisis, but we weren’t thinking about federal intervention in that space in a real way,” acknowledged Peggy Bailey, the senior adviser on rental assistance at the US Department of Housing and Urban Development. The federal government would sometimes take action if the eviction violated the Fair Housing Act, but not otherwise.

The situation changed only when the pandemic hit, and orders to “stay at home” grew louder and more urgent. You can’t stay at home if you lose your home.

Initially plagued by bureaucratic hurdles, the rental assistance program eventually succeeded in reducing evictions. Although twice as many renters reported being behind on rent in mid-2021 compared to pre-pandemic times, eviction levels remained well below historic averages by the end of the year. They did not rebound to expected levels even after the Supreme Court struck down the CDC’s federal eviction moratorium. The money also largely reached the vulnerable tenants it was intended to help. Among those renters, researchers have found, the experiment was associated with a host of benefits, including less debt and physical stress.

But now, as federal ERAP dollars dry up, evictions are beginning to climb again.

The country faces a pivotal choice to build on what communities have learned. Before the pandemic, almost 8 million renters spent more than half of their incomes on housing. With more funding, the government could create a permanent program to help those who, living paycheck to paycheck, might need emergency assistance to cover temporary shortfalls on rent. A bipartisan bill in the Senate would do just that.

“What we know now from ERAP is that we can play a role in preventing evictions due to nonpayment of rent,” Bailey said. “Just a little bit of housing assistance can go a long way to saving money and a lot of aggravation for families.”

“We put a lot of effort into building the [rental assistance] plane while we were flying,” added Dave Thomas, the president of the Philadelphia Housing Development Corporation. “And now that it’s built, we have to figure out: Does it last, or was it a lot of energy for nothing?”


The federal CARES Act from March 2020 included money that states and cities could use to assist renters. But it was in December 2020 that Congress authorized $25 billion for its first initiative dedicated exclusively to helping renters stay in their homes. A second round of funding in March 2021 brought Congress’s total ERAP spending to $46.5 billion.

The money was directed to states and localities to distribute to newly created rental assistance programs. These built-from-scratch, decentralized programs, which number over 500 today, had varying rules and requirements for tenants and landlords to apply. Natasha Leonard, a housing specialist with the National League of Cities, said much of her work during the pandemic was spent trying to spread awareness about what other cities were doing for rental assistance. For months, the program was blasted for administrative hangups, shifting and confusing guidelines, and sending money to renters too slowly.

ERAP was administered by the Treasury Department, not the Department of Housing and Urban Development. HUD has more experience developing targeted funding formulas, but Treasury has experience sending money out quickly. It also exists outside of the traditional federal housing bureaucracy, so some leaders felt it was better positioned to innovate and take risks.

Over time, Treasury did innovate. It loosened ERAP rules and clarified its expectations. Jurisdictions scrambled for new technology and staff and for nonprofit partners to help spread awareness among eligible renters.

In 2021, 3.8 million payments were distributed to eligible households. By April of this year, per a Treasury spokesperson, that number had reached 5.7 million. In all, more than $30 billion in assistance has been distributed or obligated, and the remaining money is expected to be spent in the next few months. Activists and reporters are now warning of the funds running out too quickly.

Researchers have found that, by and large, the funds went primarily to communities hit hardest by the economic impacts of the pandemic — places with steeper job losses, higher shares of renter households, and more residents of color. Treasury data published in late February reported that over 80 percent of program funds went to very low-income households, defined as those earning 50 percent or less of area median income, and primarily reached Black, Latino, and female-headed households.

“It was unlike anything — and at a scale unlike anything — we’ve seen in our lifetime,” said Greg Heller, a former Philadelphia Housing Development Corporation official who helped lead the aid distribution for his city.

Claudia Aiken, a policy researcher at the University of Pennsylvania, has already found clear results from Philadelphia. Receiving emergency rental assistance was associated with a lower likelihood of incurring debt, a lower share of tenants reporting that they worried frequently, and a significant decrease in the amount of rent owed among those behind on payments. Other studies on preliminary impacts in Atlanta and Baltimore have found receiving rental aid is associated with reduced risk of homelessness and lower debt.


As states and cities cobbled together their rental assistance programs, policymakers quickly ran into several issues. Landlords weren’t always eager to participate because accepting the money sometimes came with requirements to forgive past penalties, interest, and court costs; or because participating barred landlords from chasing payments for anything outstanding in the months they received aid. Some states capped available rental assistance so low that many landlords saw accepting it as consenting to de facto rent cancellation while they were dealing with their own cash flow problems.

Some programs tried to grease the wheels to induce more participation. A Pennsylvania rental assistance program in place before ERAP launched had a monthly cap of $750, regardless of what rent was owed. But only 44 percent of landlords participated, so Philadelphia policymakers decided to pair state aid with CARES money to offer landlords up to $1,500 per month. This boosted Philadelphia participation to 63 percent.

Still, many landlords just wouldn’t bite. In a national survey of rental assistance programs conducted in spring 2021, 44 percent of program administrators said landlord responsiveness was a challenge. That number rose to 67 percent in summer 2021, and 74 percent in late 2021. As one ERAP administrator explained, “many landlords are not looking to keep unreliable tenants; some refuse to work with us; [and] others are not willing to renew leases.”

Landlord resistance is nothing new in federal housing policy. But to address the issue, Treasury took an unprecedented step. It said that programs must send money directly to tenants when their landlords don’t cooperate, and clarified that programs can even provide direct assistance to tenants before trying to engage the landlord. Not all programs embraced the idea, but many did.

“ERAP operated under the idea that we should help everyone who has a need, and that’s just a radical departure and mindset from our other existing housing programs,” said Aiken.

ERAP’s goal to assist needy tenants was so explicit, and so unlike any past federal program, that Treasury officials even clarified that aid should be delivered to anyone experiencing hardship during the pandemic, not just due to Covid-19.

Federal policymakers have contemplated the idea of distributing rent money directly to tenants, but they’ve only really tried it once before, via a small program that ran in a dozen cities in the 1970s.

“Tenants are the program’s primary beneficiaries,” explained Noel Poyo, the deputy assistant secretary for community economic development at Treasury, who led the department’s implementation of ERAP. “It is a low-income household that meets these tests. The program doesn’t exclude tenants with landlords who don’t want to participate.”

Another defining characteristic of the program was its gradual embrace of unusual strategies to get money out the door. In distributing public funds, governments have an obligation to ensure that the dollars really get to those who need them. But fraud mitigation can go too far, requiring so many bureaucratic hurdles that the aid never reaches those it was meant to help.

Some ERAP programs took dramatic steps to cut down on paperwork. Instead of submitting official records, people could simply affirm, under penalty of perjury, details of their personal circumstances, like their income or address. Administrators were also allowed to verify income by cross-referencing applicants’ statements with other population-level data in the same geographic region.

Others embraced “categorical eligibility”: the idea that if you qualify for one existing welfare program, and that program verified your personal details, then you should be considered automatically eligible for another. Researchers found that programs with fewer and more flexible requirements were able to distribute their rental assistance funds faster.

Watchdogs have thus far produced little evidence of fraud. Eight months into California’s pandemic rental assistance program, housing officials identified 1,800 fraudulent applications out of nearly 500,000 — or 0.0036 percent — and none of those applications were paid. California officials explained they had learned a lot about detecting fraud after the state’s costly unemployment fraud debacle. Other states that disclosed data — such as Utah, Arizona, and New York — reported virtually no rental assistance abuse, either. In Montgomery County, Maryland, auditors wrote in October, “We ultimately found no specific instances of fraud,” though they acknowledged that self-attestation made it difficult for them to discern who might be lying.

In February, federal auditors with the Government Accountability Office warned Congress that they did not think Treasury had implemented enough monitoring controls for its ERAP program, and stressed fraud was a risk. A spokesperson for Treasury said all ERAP grantees must have in place procedures to prevent, investigate, and address fraud. Rich Delmar, deputy inspector general of the Department of the Treasury, the division responsible for oversight, could not provide specifics on ERAP fraud allegations, but said when they receive tips of abuse through their hotline, they investigate them.

Even with Treasury’s encouragement, some local administrators resisted easing up on their program requirements, fearful of the potential for scandal or backlash.

But Poyo, from Treasury, said that ERAP demonstrated governments could reduce unnecessary barriers to aid while still using identity verification tools to evaluate applications. “It is not a zero-sum game between supporting access for vulnerable populations and ensuring strong program integrity,” he said.


ERAP was clunky at times. Local program leaders said the continually shifting Treasury guidance made distributing money more challenging, as did the IT demands and lack of qualified staff and volunteers. It took time to build up coordination with local court systems that handled evictions, too.

“There was a perception at first that if you just dump loads and loads of money that local governments should have some way of getting it out,” said Heller. “But to get hundreds of millions of dollars — in Philadelphia, we had over $250 million — requires a huge amount of infrastructure, a lot of IT backbone, a lot of training.”

While the program overall did a good job reaching needy areas, some struggled more than others. Elizabeth Kneebone, the research director for the Terner Center for Housing Innovation at UC Berkeley, has been studying communities that were more readily able to deploy this federal assistance, which tended to be denser urban areas. Suburbs and rural communities — with fewer nonprofits, diminished or nonexistent local media, and less institutional capacity in their local governments — tended to have a harder time, even as the need for help persisted.

“With the suburbanization of poverty, we need to ask, how do we make these areas more flexible and responsive to the ways needs can change?” Kneebone said.

Experts and policymakers say they are not exactly sure what happens now. Federal funds are drying up and most programs are no longer accepting new applicants. Researchers are continuing to publish new reports on ERAP lessons learned.

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There is a consensus among housing leaders that the next year will be critical in determining whether all this pandemic-era knowledge is sustained and expanded upon, or buried and forgotten.

The National Low Income Housing Coalition, an advocacy group, is focusing on rising eviction rates and the need to establish a permanent emergency rental assistance program, said Sarah Gallagher, the group’s senior project director. “We need it both for individuals in emergency situations because of personal crisis, as well as to prepare for another pandemic,” she said.

If Congress was planning to reallocate new dollars, then local officials would work to invest in infrastructure and staff, just like they do for other permanent housing programs. But at this point, communities don’t know if they’ll be using their ERAP systems again, or be forced to dismantle them.

Meanwhile, HUD is now considering an eviction prevention strategy and is beginning to think through how to start tracking eviction data nationally. In recent federal appropriations acts, Congress tasked the housing agency with considering the feasibility of developing some sort of national eviction database, and three bills have been introduced to increase federal analysis of evictions.

“I think you can make an extremely strong defense that investing in eviction prevention provides a positive economic and social return to the country,” said Gene Sperling, the American Rescue Plan coordinator for the Biden administration. “So even on that hard-headed basis, eviction strategy is the type of wise investment that people think of like quality preschool — especially when you consider the economic scarring, emotional trauma, and heartbreak these policies can prevent.”

The uncertainty surrounding future funding makes this all particularly confusing for local housing leaders. Right now, some communities are still distributing their ERAP funding, which doesn’t expire until September 2025. Localities are also tapping into remaining state and local recovery funds to help sustain their programs.

But these funding streams will, eventually, be gone. On the congressional level, there’s a bill to establish a permanent Emergency Assistance Program. While its proposed $3 billion in annual funding is fairly low, housing advocates say passing the legislation would be an important seed that could help motivate HUD to continue building on ERAP lessons. For now, though, passage looks unlikely.

In the meantime, activists are fighting to press for broader reforms to the housing market.

Gallagher suggested making ERAP recipients automatically eligible for other programs through categorical eligibility. “Some of the households that received ERAP are in need of longer-term subsidies, and now that households have been engaged, we don’t just want to walk away,” she said. “We’ve already deemed them eligible, there should be a way to transition those folks to additional resources, using self-attestation.”

Bailey, from HUD, noted it was her agency that first encouraged Treasury to consider self-attestation as a strategy because HUD knew from experience how hard it can be for homeless populations to receive government assistance when they lack certain documents. She acknowledged, though, that currently no HUD programs, including even its own homeless assistance programs, allow for that flexibility.

Some communities, like Philadelphia and Chicago, have used their ERAP dollars to bolster adjacent housing assistance efforts, like expanding access to lawyers for low-income tenants and encouraging alternatives to eviction through so-called court diversion programs. The White House is encouraging these kinds of efforts and held a summit on court diversion in the summer of 2021, something Sperling said was done partly to accelerate a conversation around long-term eviction reform.

While federal funds certainly enabled Philadelphia and Chicago to run more successful diversion programs (landlords are much more likely to agree to an eviction alternative if there is money available to pay them rent) local leaders say they don’t plan to abandon their diversion efforts even if ERAP dollars dry up. “As our resources have diminished, we’ve tried to be a little more intentional … and do a little more targeting,” said Thomas, of the Philadelphia Housing Development Corporation.

“We used $8 million of our ERAP funds to launch a right-to-counsel pilot because we want this to be not a one-time emergency measure, but to help create infrastructure that can be lasting,” said Daniel Kay Hertz, the director of policy with the Chicago Department of Housing.

“The primary crisis we have now is how many people continue to need assistance, and not having enough money for them,” he added. “But the secondary crisis is that Chicago and dozens or hundreds of jurisdictions gained an enormous amount of administrative capacity to do a direct relief program, and we aren’t sure yet what that will mean.”

A program that helps millions of hungry kids is about to expire

Originally published in Vox.com on June 1, 2022.
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One of the most fundamental and intuitive facts about learning is that it’s hard to focus, or really do much of anything, if you’re hungry. There’s a hierarchy of needs, and stomachs come out on top.

Yet youth advocates are staring down a chilling deadline. June 30 is the last day for Congress to reauthorize a series of waivers that have allowed public schools to creatively deliver meals to students during the pandemic.

Originally passed in March 2020, the waivers granted schools the flexibility to navigate not only the challenges of remote learning and Covid-19, but also the supply chain crisis, the school labor shortage, and steep inflation at the grocery store. The waivers also expanded eligibility for school meals, enabling an additional 10 million students to access free breakfast and lunch each day.

Education leaders assumed Congress would re-extend the meal flexibility for one more year. The waivers, which expire at the end of June, were extended twice before on a bipartisan basis. In February, Democratic Reps. Abigail Spanberger and Suzanne Bonamici and Republican Reps. Brian Fitzpatrick and John Katko introduced the Keeping School Meals Flexible Act to extend them one last time through June 2023, but when Congress passed its $1.5 trillion spending bill in March, the language for school meals was missing. Advocates were stunned, and say this decision alone has already jeopardized access to summer meals for nearly 7 million children.

“There is no urgency and political appetite to even have this conversation,” said Jillien Meier, director of the No Kid Hungry campaign. “Frankly this is not a priority for Congress and the White House. People are really focused on having a ‘return to normal’ … folks aren’t talking about it and they have no clue that this crisis that is looming.”

Many people would certainly like to see the waiver authorizing universal free meals made permanent, reducing the stigma for children and administrative burdens on parents and school districts. But advocates say that’s not what this fight is about. Instead, they’re seeking just one more year of flexibility to help schools weather the inflation and supply chain crises, and to contact the millions of families who have not filled out school meal application forms for the last 2.5 years.

“Usually that outreach starts in the fall and you get the sign-ups going for the following school year,” said Katie Wilson, the executive director of the Urban School Food Alliance, which works with large school districts. “How do you educate these millions of families that that needs to be done again, and over the summer? It just won’t happen.”

Decades of research have shown how child nutrition programs aid academic achievementschool attendance, and student health outcomes. But the consequences of not extending the waivers will not be limited to families penalized by paperwork. Schools will also have less money to meet rising food prices and will face steeper financial penalties for not meeting all federal nutrition requirements, a challenge amid widespread product shortages. Some schools may decide to cut back on food offerings and even stop providing meals altogether. Others may slash budgets for their classrooms.

School lunches are not immune to the supply chain and inflation crisis

In normal times, the federal nutrition standards serve as important guidelines to ensure healthy options are available to students. Schools can only be fully reimbursed for the meals they serve if said meals meet those quality standards.

But these are not normal times, and school nutrition directors nationwide say they’ve never had so much difficulty stocking their cafeterias with basics like milk, meat, and vegetables. It’s become common for food orders to simply not arrive, or to be only partially filled.

A survey from the US Department of Agriculture released in March found 92 percent of School Food Authorities reported supply chain challenges, with products like chicken and bread among the most difficult products to procure. Nearly three-quarters of SFAs also reported staffing challenges, with acute shortages of cooks, drivers, and food prep employees.

Nutrition directors have had to get creative in finding emergency substitutes, including making shopping trips at 4 am to Costco and Kroger. Other school districts have cut back to one meal option, instead of the three or four they used to have. Without the federal waivers, schools could face financial penalties for all these decisions, if they opt to continue providing food at all, and would be under more pressure to hound families for unpaid school lunch debt.

Thanks to the waivers, the federal government has covered more of the cost of school meals than usual. This reimbursement flexibility has still just barely allowed school districts to tread water. “Ninety percent of schools are using the waivers and only 75 percent of them are breaking even,” Stacy Dean, USDA deputy undersecretary, told the Washington Post in March.

Without an extension, the average reimbursement could drop by nearly 40 percent. And this drop would occur as schools continue to face higher costs for food and labor. Grocery prices were 10.8 percent higher year-over-year than in April 2021, and are expected to increase substantially this year.

“We literally believe we’re going to go off a cliff June 30,” said Wilson. “And we simply don’t have the labor to go back to doing what we did [pre-pandemic]. We have school districts that are missing hundreds of people, so to expect them to account for every kid and what their family income is ridiculous.”

Congress could extend the waivers easily

Hundreds of advocacy groups, school districts, and elected officials have urged Congress to reauthorize the waivers for the next school year, at a price tag of roughly $11 billion.

Senate Agriculture Committee Chair Debbie Stabenow (D-MI) told Politico that the last-minute opposition to including school meal waivers in their March spending bill came from Republican Minority Leader Mitch McConnell. A few weeks following this surprise, Stabenow introduced the Support Kids Not Red Tape Act to extend the waivers, but so far, it has formal backing only from Democrats, plus Republicans Lisa Murkowski and Susan Collins. Even moderate Democrats Joe Manchin and Kyrsten Sinema support the extension.

But Republican support might be higher than co-sponsorship suggests. Senate Agriculture Ranking Member John Boozman told Vox that he’s been meeting with school nutrition professionals, child hunger advocates, and other leaders about ensuring access to healthy meals at school. “Both sides of the aisle in the Senate want that outcome, and we remain engaged in good-faith talks about the best path forward,” he said, adding that he appreciates “the frequent input I receive from those on the front lines working tirelessly to feed children in need.”

McConnell has declined to comment publicly on the issue, and his office did not return Vox’s request for comment. But a GOP leadership aide told Politico that they do not see pandemic-era flexibilities as necessary anymore, and blamed the Biden administration for failing to include an extension of the meal waivers in its formal Covid spending bill request and 2023 budget request. Agriculture Secretary Tom Vilsack says he had been personally pressing Congress to extend the waivers for one more year.

Some child hunger activists suspect a crisis is being orchestrated to hurt Democrats in the midterms.

“It’s political. [Republicans] know this is going to explode in the summer, and there’s an election in November,” said Wilson. “So people are going to get outraged, families are going to have huge lunch debt, and they’re going to blame the legislators. No one is going to know Senator Stabenow submitted a bill to avoid this; they’re going to want to know why their kids are starving.”

Summer meal programs have already been affected

The federal summer meals program, established in 1975, operates in places where at least 50 percent of children in a geographical area have family incomes low enough to qualify for free or reduced-price meals during the regular school year. As the American Prospect noted, this program was designed with concentrated urban poverty in mind, and has always been less accessible to low-income children living in rural areas.

But the pandemic waivers exempted meal providers from this density requirement. Even in urban communities, the waivers have allowed providers to distribute summer meals to families in bulk, sparing parents from having to make daily trips to pick up food for their kids.

Thousands of sites that distributed federally subsidized meals last summer have already backed out from participating in the coming months, due to Congress’s dithering on extending the waivers.

“Many, many small, particularly faith-based organizations have said, no, we’re not going to go from ‘feed all children until June 1’ and then after that say now we need to know your family’s income to serve you,” said Wilson. “If the groups have to start identifying kids, that’s a nightmare.”

According to USDA data, there were 67,224 open sites providing summer meals in 2021. The No Kid Hungry campaign estimates that 1 out of every 5 of those sites will be unable to serve meals to all kids this coming summer, jeopardizing access for nearly 7 million children.

“Congress could fix this through so many avenues,” said Meier. “They don’t need a big relief package like Build Back Better. Congress can increase the flow of food to families and right now is just refusing to pull those levers.”

Are active shooter drills worth it?

Originally published in Vox.com on May 28, 2022.
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When one Robb Elementary teacher heard gunfire explode down the hall, she shouted for her kids to get under the desks as she sprinted to lock the classroom door. “They’ve been practicing for this day for years,” the teacher told NBC. “They knew this wasn’t a drill. We knew we had to be quiet or else we were going to give ourselves away.”

Lockdown drills (or “active shooter drills”) have become standard fare in American public schools, used in more than 95 percent of schools and mandated in more than 40 states. But despite their ubiquity, there’s no federal guidance on exactly how these drills should run, creating significant variation — and controversy — across the country.

For-profit companies with big marketing budgets sell their own preparedness programs to schools, despite limited evidence for the effectiveness of these companies’ approach. Some students have reported feeling traumatized after the drills, though others say it gives them a relative sense of empowerment. In recent years, anecdotes have emerged of overzealous tactics, like shooting teachers with plastic pellets, simulating gunfire, and using fake blood.

While reporters continue to stitch together the specifics of what went down at Robb Elementary, it’s clear that the school went into lockdown — teachers locked classroom doors, turned out lights, and moved the class out of sight from the hallway and remained quiet.

In the Uvalde Consolidated Independent School District, all schools use the Standard Response Protocol for lockdowns, a set of clear instructions promoted by the “I Love U Guys” Foundation, which parents launched in 2006 after their daughter was killed in a Colorado school shooting. The protocol instructs teachers to lock doors and ensure students stay out of sight and stay quiet.

A fourth grader who survived the shooting told the CBS affiliate KENS of San Antonio that when he heard the shooting, he urged his friend to hide under something. “I was hiding hard,” the child said. “And I was telling my friend to not talk because [the shooter] is going to hear us.”

These experiences suggest the lockdown drills really did help students and staff respond effectively. Evidence so far suggests children and educators in Uvalde followed their lockdown training well, and it was local police who failed to follow protocol. For now, most experts say if we’re stuck living in a society where school shootings are threats communities must deal with, then schools should plan for drills but be more conscious of how they’re executed, and take steps to mitigate needless harm.

The case for lockdown drills

More schools began practicing lockdown drills after the 1999 high school massacre in Columbine, Colorado, but the number ticked up quickly following the shooting at Sandy Hook Elementary School in Connecticut in 2012. Even though youth homicides are far less likely to occur in schools than other locations, school leaders and politicians face immense pressure to proactively respond to these frightening incidents.

Research has suggested that lockdown drills are important tools, said Jaclyn Schildkraut, a professor of criminal justice at the State University of New York at Oswego, who studies school lockdown drills. One reason is that the more a school practices, the better students and staff get at remembering to execute all the steps.

“This is particularly important as [emergency] drills … are designed to build muscle memory, which allows a person to perform certain functions in chaotic situations, such as an active attacker, when their mind is still trying to process what is taking place,” she wrote in a 2020 paper. Other research has found disaster trainings help students develop skills, and the National Association of School Psychologists has also endorsed lockdown drills as a way to prepare for emergencies.

Schildkraut’s findings indicate that staff and students who participate in lockdown drills feel more prepared and more empowered for an emergency. The trade-off, she found, is that students also felt less safe in school — potentially as a result of having to think about the risk they might one day face.

Some critics have said it’s not necessary to subject young students to the drills when they could just listen to their teachers’ instructions in the event of an emergency. A common comparison is flying on an airplane; passengers are directed on where to turn for information if there is a crisis, but they are not required to practice the emergency protocols before their flight takes off.

Schildkraut said a difference is that teachers are often the first people to be killed in a school shooting. “You can’t remove the only people with the information and then expect anyone else to do it,” she told me. “Everyone has to have the tools to stay safe in the moment.”

Supporters of lockdown preparedness also point to the Parkland, Florida, shooting in 2018, where students at Marjory Stoneman Douglas High School had received no active shooter training and the school had no established lockdown procedures.

This lack of training, experts say, was one reason teachers and students on the third floor of Marjory Stoneman Douglas had evacuated their classrooms when they heard a fire alarm. (The alarm had been set off by discharge coming from the shooter’s gun.) When the shooter reached the third floor, he murdered five students in the hallway and one teacher who was holding their classroom door open.

But little federal guidance exists on best practices for lockdown drills, despite repeated calls for such assistance. In 2013, federal agencies endorsed a controversial practice known as “Run, Hide, Fight,” encouraging school staff unable to hide or run in an active shooter incident to try to “incapacitate” the perpetrator with “aggressive force” or nearby items like fire extinguishers. The federal training did not clarify how and if educators should practice such tactics.

In the final report of the Federal Commission on School Safety established after Parkland, the authors recommended federal agencies develop guidelines for active shooter trainings, but to date those have not materialized. A spokesperson for the Department of Homeland Security did not return request for comment; a spokesperson for the Department of Education provided links to guidance on active shooter and emergency events, but not to drills specifically.

A suite of companies and consultants have stepped into the breach, touting so-called “options-based” approaches they claim are superior to traditional drills. These include training staff in more tactics, like barricading doors or even actively confronting an armed shooter. The most recognized player in this space is Alice, the largest for-profit provider of active shooting training in the US. Armed with big marketing budgets, the company can travel across the country to promote its model, even with limited research available to support it.

“There’s no requirement on what model to use, and right now it’s everyone trying to figure it out,” Schildkraut said.

How lockdown drills can cause harm

Given the steady stream of anecdotal news stories about active shooter drills inspiring child fear and even employee injury lawsuits, advocates have urged more attention on whether lockdown drills provoke trauma or are even necessary. Psychologists say establishing drill standards is especially important for children, whose brains and coping strategies are still developing. Others urge more focus on preventive safety strategies, like improving mental health supports and developing anonymous tip lines for students.

Scant high-quality research exists on the mental health risks of lockdown drills, though in 2021, Georgia Tech researchers, in partnership with Everytown for Gun Safety, published a study analyzing social media posts before and after the drills in 114 schools across 33 states.

The researchers found the drills associated with increases in depression, stress, anxiety, and physiological health problems for students, teachers, and parents, and suggested leaders rethink schools’ reliance on them. “We provide the first empirical evidence that school shooter drills — in their current, unregulated state — negatively impact the psychological well-being of entire school communities,” the authors wrote.

Other experts say the drills may even be counterproductive, given that most school shooters tend to be current or former students of those schools. The drills might spark “socially contagious” behavior, some critics warn, or deter school leaders from making other proactive safety investments.

Alice’s methods, which include alarming simulations, have drawn particular scrutiny. But in December 2021, when a shooter murdered four students at Oxford High School in Michigan, leaders noted they had prepared for such an attack using an Alice drill two months prior. The CEO of Alice claimed Oxford would have seen dozens more deaths without the training.

One study published in 2020, led by a criminal justice professor at Xavier University in Cincinnati, found roughly one in 10 students reported experiencing a negative psychological outcome following an Alice training, but over 85 percent of students said they either had no change in feeling or felt more prepared, confident, or safe. The professor who led that research — Cheryl Lero Jonson — published a study in 2018 arguing that “options-based” approaches like Alice were “more effective civilian response[s]” to active shooter incidents than traditional school lockdown drills. Critics note Lero Jonson is a certified Alice instructor and say her findings were not sufficiently independent.

Schildkraut, who primarily studies the Standard Response Protocol method, told me she would not feel comfortable saying if one model is better or worse, but that she does feel advocates of Alice-like approaches mislead the public when they suggest traditional lockdown drills don’t involve choices.

“When we train students, we don’t say this is your only option. If you’re in an open area or by an exit door, your best option is to get out of the building,” she said. “The reason why there’s a heavier focus on the lockdown as an option [and the ‘L’ in Alice stands for lockdown] is because kids remember things in a very linear fashion, and the best thing a student can do is shut the door and get out of the way.”

How to mitigate drill harm

To reduce the risk of trauma, a growing number of experts and advocates have stepped up to issue recommendations for lockdown drills.

In August 2020, the American Academy of Pediatrics (AAP) announced its opposition to high-intensity active shooter drills, issuing recommendations including to eliminate deception in the exercises, and to incorporate student input in their design. The AAP recommended making accommodations for students who may have had prior traumatic experiences or are otherwise at higher risk for negative reaction.

A month later, the National Education Association, the American Federation of Teachers, and Everytown for Gun Safety issued their own recommendations for school safety drills, including removing students from them altogether. If students do have to participate, the teachers unions and Everytown suggest giving parents notice, eliminating simulations that mimic an actual shooting, and using age-appropriate language developed in partnership with school-based mental health staff.

In May 2021, the National Association of School Psychologists, the National Association of School Resource Officers, and Safe and Sound Schools released their own new guidance on school lockdown drills, recommending, among other things, getting parental permission and training staff to recognize trauma signs.

And this year, partly motivated by the new Georgia Tech research, lawmakers in Washington state passed a bill prohibiting school lockdown drills from involving lifelike simulations or reenactments that are not “trauma-informed and age and developmentally appropriate.” The law takes effect in June.

Researchers say more high-quality studies are needed to understand the long-term impacts of lockdown drills and to develop more standardized approaches that could minimize risk. More leadership from the federal government would help.

Pandemic school reopenings were not just about politics

Originally published in Vox.com on May 23, 2022.
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Almost as soon as some schools reopened for in-person learning in the fall of 2020, research was suggesting a tidy, albeit dark, conclusion about why they did: politics. Early analyses indicated that Covid-19 health factors had virtually nothing to do with reopening decisions, and partisan politics could explain nearly all the variation.

There were early signs that this narrative didn’t explain the full story. If allegiance to former President Donald Trump (in schools that opened) or teacher unions (in those that stayed closed) were all that mattered, why did support for reopening schools also drop among Republican voters over the summer? And what about the conflicting recommendations coming from federal health and education departments at that time? Nevertheless, the idea that Covid-19 was not a real factor was repeated by some of the nation’s most influential journalists and media outlets, and framed as though the question was generally settled.

This is typical in policy research: Initial waves of data often attract lots of attention, and can quickly ossify into conventional wisdom. When subsequent, often deeper inquiry reveals alternative or more nuanced explanations, it tends to receive far less notice.

That’s what’s been happening with research into school closures. More recent studies have found that, far from being irrelevant, Covid-19 indicators were among central factors predicting whether schools would reopen.

Researchers say they also still haven’t fully understood how other factors — like school governance and parent preferences — influenced Covid-19 school decisions. A new study, published recently by two education researchers from George Mason University, replicates some earlier findings and explores new potential variables. All in all, it continues adding to a picture that’s more complex than the early analyses suggested.

This debate might seem moot: Schools have been back to in-person learning this school year, and parents largely report satisfaction with their child’s progress. But the consequences of these decisions continue to linger. Many educators say things have not yet returned to normalEmpirical research suggests some of the most negative academic effects were experienced disproportionately by low-income students and students of color. Moreover, future pandemics remain a threat, and district leaders may one day again be charged with navigating similar circumstances.

A new study reinforces that school opening decisions were complicated

The narrative that school reopening decisions were all about politics coalesced early. One of the first pieces of evidence came from a Brookings Institution blog post published in July 2020, where senior fellow Jon Valant found “no relationship” between school districts’ reopening plans and their per-capita Covid-19 cases, but a strong one between districts’ plans and county-level support for Trump in the 2016 election. The implication was that communities that take their cues from then-President Trump were more willing to resume in-person instruction.

Additional research emerged in the following months reiterating that health concerns were not a significant factor. “We find evidence that politics, far more than science, shaped school district decision-making,” concluded political scientists Michael Hartney and Leslie Finger in an October 2020 analysis.

But as time passed, and more schools reopened, the picture grew more complicated. A July 2021 analysis compared fall 2020 reopening factors to those in spring 2021. Tulane economists Douglas Harris and Daniel Oliver found Covid-19 rates were one significant predictor of fall school reopening. Over time, the role of both politics and health factors declined, Harris and Oliver observed, while the demographics of a given community remained a strong predictor throughout the year. (This was knotty, they note, given the “close interplay between demographics, parental work situations, and COVID health risks.”)

The latest addition to the research literature was published this month by two George Mason professors, Matthew Steinberg and David Houston. Their working paper — which has not yet been peer-reviewed — affirmed some of the core findings of earlier studies: Higher rates of in-person instruction during fall 2020 occurred in areas with weaker unions and that leaned Republican, and rates of Covid-19 were correlated with reopening decisions.

The new paper looks at how factors predicting in-person schooling changed over the course of the 2021-21 academic year. Covid-19 case and death rates, political partisanship, and teacher union strength became “less potent predictors” over time. As the year stretched on, Steinberg and Houston also observed that communities with a history of higher standardized test scores grew significantly more likely to reopen school buildings than their lower-achieving counterparts.

“This pattern may help us understand the widening test score gaps that have emerged in the wake of the pandemic,” they write.

Sarah Reckhow, a political scientist at Michigan State University who was involved in a study that found local school district decisions were heavily tied to political partisanship and union strength, called Houston and Steinberg’s study “great” — and noted the importance of replication in policy research.

While her own research found school reopening to be less tied to Covid-19 severity, she said there was still a relationship to Covid-19 rates observed in some aspects of their model.

Harris told Vox he agreed with the new working paper’s conclusions — that reopening was about more than just politics — which largely mirrored his prior research. He also praised the new study for tracking how factors that seemed to drive in-person instruction changed over time. “That was novel and interesting and important,” Harris said.

Steinberg and Houston’s study leveraged county-level data from a private firm, Burbio, which tracked in-person and virtual learning for nearly half of all public school students during the pandemic. Covid-19 case and death rates, and partisanship measured by presidential vote share, are also all reported at the county level. Most counties, however, contain multiple school districts, which is why other researchers have preferred a school district-level analysis.

“There are a lot of analytic choices that go into descriptive analyses of imperfect data, and we do not have a strong bone to pick with the other studies,” Steinberg told Vox, but emphasized that many of these minor choices can have “nontrivial implications” for interpreting results.

Brad Marianno, an education policy researcher at the University of Nevada Las Vegas, told Vox he is skeptical of Burbio’s ability to accurately capture in-person instruction rates, and thought a school district-level analysis (like one he published earlier this year) would have been better than a county-level approach. Still, he praised the new paper, including for performing its analysis over time. “We need multiple efforts at the question, especially efforts that employ similar and different datasets and measures, to really triangulate a data-driven answer,” he said.

Sarah Cohodes, a Columbia University economist who has studied pandemic differences between charter schools and traditional public schools, said there is no right or wrong answer when it comes to measuring by county or school-district levels. “You’re damned if you do and damned if you don’t,” she told me, though she reiterated that it depends on the research question.

Local support for teachers may have made it easier to reopen schools

One of the most novel elements of Steinberg and Houston’s study is their suggestion of a previously unexplored factor predicting in-person instruction: local support for teachers. Using multiple surveys with different sampling strategies and question wordings, the George Mason professors found that pre-pandemic support for increases in educator pay was consistently associated with higher rates of in-person instruction during the pandemic. In other words, areas where the public was more supportive of raises for teachers were also more likely to have in-person learning.

Other education policy scholars told Vox they’d need more time to consider that connection. Reckhow called it “a really intriguing result” but one that left her with “many questions” about the underlying mechanisms that might explain the finding. “Without more information, it’s hard for me to develop a fully satisfactory explanation,” she said.

Steinberg stressed that what he sees as so “revelatory” about this finding, which was based on data from two different nationally representative surveys, is that it suggests to him there was something about communities that valued their teachers more highly that potentially made it easier for schools to open for in-person learning.

“Some of these little p-politics in communities matter, and whether or not there is preexisting trust could make the logistical complexity of reopening manageable for leaders or unmanageable,” he said.

As time marches on, it can be easy to forget just how acute the uncertainty was for school administrators during the 2020-21 school year, particularly before vaccines were available. Everything looks crisper in hindsight. But given the tremendous implications for students, schools, and families — and that administrators may one day again find themselves in similar positions — researchers will likely study those decisions for years to come.

Breaking the Cycle

Originally published in Suffolk University Magazine‘s spring 2022 issue.

When Boston’s new mayor Michelle Wu announced in early December her decision to move people living in tent encampments at the intersection of Massachusetts Avenue and Melnea Cass Boulevard into nearby transitional housing, she stressed the city would deploy a “public health and housing-first approach.” The goal: Develop a sustainable strategy so that those living in tents would no longer need to return. As many as 140 people were living in the encampment, most of them contending with addiction, mental illness, or both.

Over the next few weeks, city teams vacated individuals from the area—an effort blasted by some homeless advocates as intimidating and reckless, and praised by others who felt the city had to take humane action before winter arrived. Meanwhile, an interdisciplinary team of Suffolk University faculty—all women, and experts in law, policy, sociology, criminal justice, and related disciplines—and several likeminded researchers and social workers were following the mayor’s moves closely. The group had first joined forces in early 2021 under the banner of the Women and Incarceration Project (WIP) to oppose construction of a new women’s prison in Massachusetts. This time, the group came out in support of Wu’s Mass and Cass plan, as the first of many steps needed to break the cycle that places so many women who lack housing at increased risk for incarceration. What was needed, the group argued, is an approach that addresses the fundamental human rights issues that underlie homelessness and incarceration.

WIP members met with public officials. They wrote op-eds. They published resources outlining what a safe move from the encampment could look like. Any housing plan, they argued, must include more than just a roof overhead. It must also provide the support needed to rebuild relationships, manage healthcare, and pursue educational and work goals. Above all, the Suffolk professors stressed, the formerly homeless need to know they’re not one small mistake away from eviction.

LIVING ON A KNIFE’S EDGE

Susan Sered, chair of Suffolk’s Sociology and Criminal Justice Department, understands how minor missteps can cascade into catastrophic outcomes—particularly for women.

Consider the case, she says, of a woman living in transitional housing who has no car but must travel miles to meet with her probation officer. Should she beg a ride from her abusive ex-partner who is still using opioids, putting her safety and sobriety at risk? Perhaps she’ll be forced to trade sexual favors for the bus fare that amounts to almost one-tenth of her monthly disability income. Or she could skip the meeting, triggering an automatic revocation of her parole. Any of these options could erase the progress she’s made to get her life and family relationships back in order, and send her back into the vortex of the criminal justice system.

Sered says these kinds of impossible choices are so common among the women she studies that whenever she provides an incentive for involvement, they always request the same thing: a transit pass. Such a basic need is easily overlooked, but addressing it is key to helping those who live on the knife’s edge between independence and institutionalization.

“On the face of it, the tent encampment at Mass and Cass is not a women and incarceration issue,” Sered says. “But when you dig a little deeper, you find out that many of those women have standing warrants and open cases. So in the process of moving them out, some of them were actually whisked off to the counties in which they have open cases.”

Sered is one of the co-founders of the Women and Incarceration Project, which seeks to educate policymakers, journalists, and the general public on issues affecting the 1.2 million women under the supervision of the criminal justice system. Between 1980 and 2019, the number of incarcerated women jumped by more than 700% nationally, according to The Sentencing Project, a D.C.-based think tank.

“We believe that empirical research is a powerful tool for opposing the U.S. epidemic of incarceration,” the group states on its website.

APPLYING A HUMAN RIGHTS FRAMEWORK

WIP is housed at Suffolk’s Center for Women’s Health & Human Rights, which was founded in 2003 by Amy Agigian, an associate professor of sociology and the center’s director. When viewed through a health and human rights framework, she says, seemingly intractable policy issues like homelessness and women’s incarceration can yield very different approaches and solutions. “We look at the failure of the state to fulfill people’s human rights as a fundamental cause of a lot of the problems,” she explains.

For Agigian, these human rights include not only familiar freedoms guaranteed by the Constitution but also things like access to healthcare, housing, and poverty relief. Many incarcerated women, she adds, are mothers. “So when they get sent away,” she says, “that has a profound impact on children.”

While many more men are imprisoned nationwide, how women experience incarceration often differs from men, and so helping those women often necessitates different strategies. For example, a higher percentage of incarcerated women struggle with substance use than men (potentially related to the fact that women are more likely to receive prescription medication). Indeed, drug-related arrests of women increased 216% over the past decade, compared to a 48% increase for men. Incarcerated women also report significantly higher rates of abuse, chronic illness, and mental health challenges than incarcerated men and nonincarcerated women. “What people find most surprising is that almost all incarcerated women have been victims of violence in their lives,” Sered says. “And for women, the strongest predictor of incarceration later in life is to have been a victim of childhood sexual abuse.”

WIP includes transgender women in its research, Agigian says, “because trans women go through the same kinds of life experiences as any other women, and may be even more likely to have traumatic experiences and be victimized than other women.”

AN INCARCERATION ‘POLICY WINDOW’

Massachusetts is an interesting state for a project like this to launch: While the growth rate for female imprisonment has been twice as high as that of men since 1980, over the last decade the Bay State has seen a steady decline in the number of incarcerated women. As of 2019, Massachusetts had the lowest incarceration rate of females in the country.

But Massachusetts is also home to MCI-Framingham, the second-oldest women’s prison in the U.S. When it opened in 1877, MCI-Framingham was regarded as a pioneering improvement over the carceral status quo, in which women who were jailed alongside men regularly faced violence and sexual abuse. Its early champions included feminist leaders like Clara Barton, founder of the Red Cross. But nearly 150 years later, the facility stands in disrepair, and in early 2020 the Massachusetts Department of Correction announced it would close the prison by 2024. State officials said they would build a new “trauma-informed” and “therapeutic” prison for women, at an estimated cost of $50 million—even though fewer than 200 women are currently incarcerated at MCI-Framingham.

WIP researchers saw this moment as an opportunity to lend their multidisciplinary expertise, and began advocating against the construction of a new women’s prison. Local activists with Families for Justice as Healing, a Boston-based grassroots organization, were already fighting back against the state’s proposed plan, holding rallies and filing transparency complaints.

Central to WIP’s case is the lack of evidence supporting the effectiveness of prison-based mental health or trauma treatment programs. Instead, the researchers argue that for a fraction of the cost both to incarcerate women annually and to construct a new facility, lawmakers could redirect resources to strategies actually proven to help, such as secure housing. They have also advocated for strategies that would release a large majority of the over 160 women currently held at MCI-Framingham under existing state policies, and for several pending bills in the Legislature that could decarcerate the state even further.

Rachael Cobb, chair of the Political Science & Legal Studies Department, and a political scientist involved in the project, calls this moment an incarceration “policy window” because so many people and institutions are talking about criminal justice from different perspectives—from police commissioners raising alarms about crime, to Black Lives Matter activists calling out patterns of systemic racism, to progressive district attorneys advocating for bail reform.

“We have an opportunity to get out there, because this is a time when op-eds can make a big difference,” Cobb says. “I think people are receptive to the kind of public airing of ideas and sharing of information about incarceration in a way they might not have been a few years ago.”

COMMUNITY-BASED, COMMUNITY-INSPIRED SOLUTIONS

Many Americans have spent little time thinking about incarcerated women, beyond watching Netflix’s award-winning comedy-drama Orange Is the New Black. WIP scholars say a lot of their time is spent trying to simply educate the public and correct misconceptions. “Women who have criminal records really, really struggle to get jobs,” says Sered, who has been following the same cohort of women released from MCI-Framingham for more than a decade.

While men with criminal records face barriers to employment too, they typically find success in jobs, such as furniture moving, that don’t involve client-facing work. Child care, education, and working with the sick and elderly are all typically female-dominated professions, but can be very hard for women with criminal records to access or re-enter.

Over the next year, WIP plans to disseminate its research further, and expand its work with more local community organizations, activists, and legislators. Some ideas they suggest to reduce incarceration include decriminalizing pain-reducing substances and sex work, and having well-trained and resourced medics and social workers on mobile crisis-intervention teams, instead of police, respond to mental health emergency calls.

Suffolk University Law School Professor Erin Braatz, who works in the areas of criminal law and penal reform, says one goal of the WIP effort is to expand the conversation about what exactly punishment should look like in the 21st century. “To even have a hearing in front of the legislature where people are invited to share their ideas on that question would be a success,” she says. What makes the Women and Incarceration Project both unique and valuable, Braatz says, is that it’s “based in the community, and attempting to reckon with a problem that can only truly be addressed through learning from and collaborating with members of that community.”

Then again, she adds, working together on a local level to respond to the needs of the community has long been a Suffolk strength. “I truly believe that real criminal justice reform can only be achieved through these types of local-level projects,” Braatz says. “For that reason, Suffolk is ideally positioned to play a role in shaping these debates and conversations and moving them forward.”

The leaders involved in the effort say they feel lucky to work for a university that values this kind of public engagement, and that encourages scholarly activity beyond the realm of academic publishing. “This work is actually respected at Suffolk,” Sered says. “Nothing that I write is just for academic journals alone. We’re all really committed to getting this research out into the world.”

The abortion provider that Republicans are struggling to stop

Originally published in Vox on May 7, 2022.
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In 2018, more than two decades after Dutch physician Rebecca Gomperts first became an activist to deliver abortion pills around the world, she turned to the United States. For years she had dedicated her life to working in countries where the procedure was illegal, and was firm in her refusal to avoid the US, where safe, legalized access was still available. “I think this is a problem the US has to solve itself,” she explained in 2014.

But following the election of President Donald Trump, the desperate requests she received from Americans went up, and the cost barriers in the US were glaring.

So Gomperts launched a new nonprofit organization based in Austria — Aid Access — with the goal of providing affordable and accessible abortion services to people in the US.

Over the past four years, Aid Access says it has delivered abortion medication — mifepristone and misoprostol — to more than 30,000 Americans across all 50 states, including the 19 conservative states that currently ban telemedicine abortion.

The organization plays a unique role in the US reproductive rights ecosystem by successfully exploiting legal loopholes that make it easier for an overseas doctor to care for American patients in restrictive states — a role that could become even more key if Roe v. Wade is struck down.

If the right to an abortion does get overturned, Aid Access staff say they feel confident their services could continue, in the same way they’ve been able to operate in red states that have barred other abortion groups.

So what’s the catch?

For now, the biggest one may be the big tech platforms. Aid Access needs to spread awareness about its services, and quickly. The pills, when shipped from overseas, can take two to three weeks to arrive, and Aid Access prescribes the two medications up to the first 10 weeks of pregnancy. But because it operates outside the formal US health care system, Aid Access says it has been penalized by search engines and social media giants that have tried to tackle the spread of Covid-19 misinformation.

Aid Access still pops up on Google if you search the organization’s name, but most users had come to the site while searching for terms like “abortion by mail” and “abortion pills.” Following a series of algorithm updates beginning in May 2020, Aid Access says it no longer shows up in top results for general medication abortion searches — and that ads from its sister organization, Women on Web, which serves countries all over the world, are frequently removed or rejected from Facebook and Instagram for dubious reasons, like “language … that is likely to offend users.”

Republicans might not be able to stop Aid Access right now, but it appears that Silicon Valley can.

How Aid Access works

The Aid Access model goes like this: If you need an abortion, you fill out an online consultation form. If you’re early enough in your pregnancy and deemed eligible, then you’re referred to a provider. People living in the country’s more liberal states and Washington, DC, are referred to a US-based provider who fills prescriptions that ship typically in two or three days. For women living in the 31 states that Aid Access counts as having tighter abortion restrictions, Gomperts sends the prescriptions to a pharmacist in India, who then mails the pills directly to patients in the US. (Aid Access chooses India in part because the country produces regulated, high-quality generics, Gomperts has said.)

Gomperts and the women she prescribes pills for operate in something of a legal gray area. As a result of being registered to practice medicine in Austria, she is subject to Austrian law, and therefore exempt from specific rules and regulations affecting doctors in the US, like state requirements for ultrasounds or 72-hour waiting periods. And while personal imports of drugs from other countries are usually against US law, the Food and Drug Administration (FDA) has said it generally avoids going after individuals who bring medicines in for personal use.

It’s a model Gomperts developed first in 2005 with Aid Access’s older sister organization. Since its founding, Women on Web says it has delivered abortion pills to more than 100,000 women across the world, reaching pregnant patients in countries with restrictive laws, like Sudan, Hungary, and Brazil. In 2018, Gomperts set up Aid Access under a separate corporate structure, to serve the US while protecting Women on Web from the aggressive US anti-abortion movement.

Activists note that medication abortion is far safer than many painkillers easily purchased over the counter, and the World Health Organization maintains that individuals can self-administer the drugs without direct supervision of a health care provider during their first trimester. New Lancet research published in February affirmed the safety of the Aid Access model, which also provides the medication at significantly lower cost than in-person surgical abortions or even the new crop of US startups like Hey JaneAbortion on Demand, and Carafem.

Aid Access says its work will continue in a post-Roe environment, and that requests for pills and information tripled in the wake of Monday’s leaked Roe opinion draft.

Christie Pitney, a midwife who fills prescriptions for Aid Access patients in California, Massachusetts, Oregon, and DC, said that while patients in some states with trigger bans may have to switch from US-based providers like Pitney to Gomperts, Aid Access will keep serving them. “We’ll still be here,” she said.

“We’re pretty nonplussed, to be honest,” Pitney told Vox. “I don’t see a route [to stopping us]. It’s not to say that it’s impossible, I just don’t see a route for politicians to eliminate access to Aid Access; they just don’t have the jurisdiction to criminalize an international doctor.”

Other international doctors could also join Aid Access if Roe were struck down to help Gomperts prescribe the abortion pills, though she told Vox that thus far she has not been approached by any physicians.

A struggle for internet traffic

Despite the unique strategy Aid Access and Women on Web deploy, over the past two years, the organizations say they have been fighting against search engine algorithms that deprioritize their services, and opaque social media policies that limit or block their posts.

Earlier this year, in an interview with the New York Review of Books, Gomperts said that “the algorithms of Google are suddenly becoming the de facto gatekeeper to access to safe abortion services in the US.” When Google set out to correct Covid-19 misinformation and started elevating more health sites that were officially government-sanctioned, Gomperts said it had the side effect of demoting sites like hers.

Searches like “abortion by mail” and “online abortion” no longer led users to Gomperts’s groups, she says. Women on Web, for example, says it saw a 90 percent drop in daily global traffic after Google rolled out a new update on May 4, 2020. A subsequent update brought back some of what had disappeared, doubling its now-minuscule traffic, but then a third algorithmic update six months later took 40 percent of what remained. “We’re back to pretty low,” said Venny Ala-Siurua, the executive director.

Ala-Siurua told Vox that deprioritization in internet search results remains one of their biggest barriers. Google “keep[s] pushing up traditional health providers, brick-and-mortar clinics, but they’re missing what’s happening in the digital world today,” she said. “The algorithm is not neutral. It was built and written usually by white men in the Bay Area who might not really be in tune with what the needs are here.”

Aid Access isn’t alleging Google is intentionally restricting access to its site specifically, but Gomperts told the New York Review of Books that they might eventually launch a lawsuit over this. “The algorithms are making it much harder to find the places where you can obtain these medicines,” she said. “That is what people don’t realize: It’s Google that is filtering people’s access to information.”

Lara Levin, a Google spokesperson, told Vox that their search ranking systems “are designed to return relevant results from the most reliable sources, and on critical topics related to health matters, we place an even greater emphasis on signals of reliability.” Levin added that no update is made to benefit or penalize any one site. “We give site owners and content producers ample notice of relevant updates along with actionable guidance,” she said.

The Facebook and Instagram accounts for Women on Web have had spending restrictions placed on them for more than a year, after their ads were flagged or hidden by other users who oppose their work or who found their content “to be offensive … violent, [or] about a sensitive topic.” Some of their ads for medication abortion have also been rejected, with rationales like “Ads must not promote the sale or use of unsafe supplements, as determined by Facebook in its sole discretion.” One Women on Web Instagram post that read, “You can now order abortion pills BEFORE you are pregnant,” and included a link for advanced provision was taken down for not following “community guidelines.”

A Women on Web Instagram post that was taken down this spring for not following “community guidelines.”

Facebook did not respond to a request for comment on the Women on Web ads specifically, but pointed Vox to company policies from Meta (Facebook and Instagram’s parent company) including ad prohibitions for direct sales of prescription drugs, and for ads promoting reproductive health products or services to people under age 18. In November 2021, Facebook also announced it would remove ad targeting options for topics people may perceive as “sensitive” — including health-related causes.

But at least one of the examples Women on Web showed Vox — the one about ordering pills before you’re pregnant — wasn’t an ad. It was a regular post to the group’s Instagram profile that they didn’t pay to amplify or target.

The algorithmic battles playing out reflect broader challenges faced by tech companies, which are under pressure to crack down on misinformation and propaganda and to take clearer stands on polarized political issues that users may be researching. The last few years have also brought greater attention to the ways in which machine learning and AI more broadly can reflect bias and discrimination, even while purporting to be objective and neutral.

“We have to be careful not to frame questions as one of adapting to technology,” said David Broniatowski, a professor at George Washington University who has studied anti-vaccination communities online. “The technology is out in the world, so we should ask how to remake technology so we can achieve goals that are of best benefit to society.”

Aid Access has withstood legal challenges, so far

Aid Access has faced one regulatory challenge, in 2019, when the FDA sent the group a cease-and-desist letter, claiming that its generic mifepristone drug represented a “misbranded and unapproved” drug that posed risk to consumers. (The FDA approved one brand of mifepristone, Mifeprex, in 2000, and in 2019 approved a generic version.)

Aid Access, in turn, sued the FDA, alleging the agency was impeding Americans’ constitutional right to an abortion and that its drugs were, in fact, approved. Aid Access also maintained that the FDA had no legal jurisdiction over Gomperts. The case was dismissed in part because the FDA never took action following its letter.

The Biden administration has taken a friendly stance toward medication abortion, but a change in the White House in 2024 or beyond could mean new challenges from the FDA or other agencies. Legal threats against Aid Access without the constitutional protection of Roe might make things even more complicated.

Anti-abortion activists and lawmakers have been ramping up their efforts to crack down on abortion pills, an unsurprising development given that medication abortion accounted for 54 percent of all US abortions in 2020. In 2022 alone, according to the Guttmacher Institute, lawmakers in 22 states have introduced new legislation to restrict the drugs.

Rather than punish those who seek abortions, the slew of anti-abortion laws introduced over the past decade has targeted physicians, clinics, and anyone else who helps to “aid and abet” someone who has an abortion, as Texas’s recent ban put it. Abortion activists have worried about the criminalization of patients, but so far efforts have been limited and largely unsuccessful.

Whether any of these new laws could affect Aid Access’s operations or the patients who seek out its services remains an outstanding question. It’s hard to know what abortion access in the US will look like in a year, or five.

But for Americans seeking to end their pregnancies now — whether they live in red states with heavy abortion restrictions or in blue states with more liberal laws but heavy financial barriers — Aid Access represents a lifeline. If they can find it.