Tag Archives: reproductive rights

Abortion groups are raising more money than ever. Where exactly is it going? 

Originally published in Vox on September 30, 2024.
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In some ways, there have never been more dollars flowing into abortion rights organizing, with philanthropies finally stepping up and more Americans activated over freedoms they previously doubted were really at stake. With hundreds of candidates vying for office and abortion rights on the ballot in 10 states, advocates have been busy raising money to spend through November. In June, the ACLU pledged more than $25 million to protect abortion rights; this was followed by $40 million weeks later from Planned Parenthood, then another $100 million from a new coalition of national groups.

But even as money flows toward protecting abortion rights, the financial burden of accessing abortion services has grown more severe, as bans force people to travel further and delay procedures until they are riskier and more expensive.

This strain is overwhelming the nation’s 100 abortion funds, which are mostly volunteer-led organizations that help people end unwanted pregnancies by paying for their abortions as well as practical support like travel costs — and the tab for this kind of aid quickly adds up.

Though cheaper methods to safely end a pregnancy have emerged over the past two years, many abortion seekers lack knowledge of these new, more affordable options. Funds and clinics also don’t always provide clear guidance on alternatives, driven by a mix of financial and legal self-interest, as well as a belief that in-person abortion care should be prioritized.

“What we’re seeing is patients are very comfortable embracing telemedicine as an option, but people within our movement have not been as flexible,” said Julie Kay, the co-founder of the Abortion Coalition for Telemedicine, which formed in 2022 after the Supreme Court overturned Roe v. Wade.

This past year, abortion funds say they’re fighting for their lives, unable to raise enough money to meet demand. A few are fundraising with new state-level partners, but increasingly, funds have had to tell callers they’ve run out of resources, leaving people to scramble for other options or carry unwanted pregnancies to term.

In general, all the money flowing to the 2024 election in the name of reproductive rights feels very siloed from their work paying for abortions, said Alisha Dingus, the development director at the DC Abortion Fund.

“There is an alarming disconnect between abortion funds … and large national organizations that are advocating for access,” a group of over 30 funds wrote collectively in the Nation in early August. “The national organizations … fundraise endlessly, siphon support from institutional funders and grassroots donors, capitalize on the Dobbs rage donations, and funnel that money into campaign bank accounts.”

Another challenge is messaging. Abortion funds have always positioned themselves as more radical and unapologetic when it comes to abortion care, priding themselves on avoiding stigmatizing language, whether that’s by using gender-neutral terms or elevating stories of people ending unwanted pregnancies for no traumatic, exceptional reason.

But given the increasingly desperate funding environment, these activists are being forced now to reconsider how they appeal to a public that is broadly supportive of reproductive rights but is still more moderate on abortion.

“In my experience on ballot campaigns, abortion funds have been incredibly challenging as partners in states that weren’t blue,” one leader involved with multiple post-Roe ballot measures, who requested anonymity to speak candidly, told Vox. “If you’re only communicating in very extreme messaging about abortion access, you’re not broadening your base of donors, you’re just talking to the 12 people who already agree with you. A lot of people who would love to donate to funds and probably don’t understand the need are turned off before they even get in the door by the language and behavior.”

These kinds of criticisms vex Dingus, who wrestles with whether abortion funds should be more “acceptable and digestible” to the public, as she put it.

“I came from a more traditional philanthropy space where you had to make sure you never hurt anyone’s feelings or made anyone angry because you might lose a dollar,” she said. “Abortion funds I’ve always found to be more liberated spaces where we can speak truth to power and push for change and not have to worry about one funder here or one funder there. But we are also seeing the reality of people not getting the care they need, people are going to be forced to give birth, so I think it’s tough.”

Tensions are rising within the movement as disagreements over a scarce resource — money — intensify. These battles among leaders reflect practical and ideological divisions about the future of abortion access and underscore the messy, unsettled questions that loom over activists more than two years after Americans lost their national right to end a pregnancy.

The 2024 election is dominating abortion-related donations

When it comes to donations this year, it’s mostly going to one place.

Despite earlier concern that abortion rights ballot measures would struggle to raise enough money, organizers say those fears have mostly not been realized, and tens of millions of dollars are flowing into the state contests as the election draws near.

These contests are “expensive and high-impact,” said Kelly Hall, the executive director of the Fairness Project, a national progressive group. “We are very grateful that organizations and in-state donors are seeing the opportunity with state ballot measures and are investing the resources that are needed to win.”

One newer member of the abortion rights political ecosystem is the House Majority PAC’s Reproductive Freedom Accountability Fund, a $100 million investment to mobilize voters in swing districts sympathetic to abortion rights. “In 2022, 42 percent of our ads mentioned abortion, and I think it will be that much again if not higher,” said C.J. Warnke, a spokesperson for the congressional PAC.

Still, making sense of the amount of abortion-rights money flowing into political campaigns can be difficult.

Some lower-profile elections, like two high court contests in Arizona, have struggled to raise money, despite their importance for reproductive rights. And in June Planned Parenthood, one of the largest abortion rights advocacy groups, announced it would be spending $40 million during the 2024 cycle, less than the group spent in either of the previous two election cycles. Their announcement came shortly after it announced it would also need to reduce its subsidies for abortion care through its Justice Fund program.

Planned Parenthood says it can spend less simply because other organizations are spending more and because candidates themselves are more emboldened on reproductive rights. But elections are more expensive now and there are more political contests to fund than during the midterms, so the explanation is puzzling. (The group also declined to share details of its Justice Fund or to direct patient assistance broadly, citing “disclosure policy” restrictions.)

In some ways, this is likely to be the last big year for spending on abortion rights ballot measures, simply because there aren’t many additional states that allow for such citizen initiatives. “It’s not an either-or” on funding, said Ashley All, who led the communications strategy for the winning Kansas abortion rights ballot measure in 2022. “We have to do these ballot campaigns because if we don’t then people will lose access to care.”

Still, while national activists and fundraisers are spinning things in a more positive light, emphasizing that more money will be available to fund direct services soon, many local abortion fund leaders are skeptical things will really improve financially when election season ends.

According to Lexis Dotson-Dufault, executive director of the Abortion Fund of Ohio, no new donors contributed to the organization following the passage of Issue 1, the abortion rights ballot measure that prevailed in Ohio last year by a 13-point margin.

“We have seen nothing but an increase in need and we got no new funders from Issue 1,” she told Vox. “In 2022, we saw about 1,200 folks, in 2023 we saw about 4,500, and this year so far between February and August we’ve seen almost 4,000 people.”

Dingus, of the DC Abortion Fund, said election season has made their financial challenges more difficult. “It’s tough to see, not just the ballot measures but the Zooms for Harris that raised millions of dollars in 30 minutes,” she said. “It can be really demoralizing to see that and then look at our budgets and know we continually have to cut back and maybe will have to get rid of staff.”

Cheryl Wolf, an organizer with Cascades Abortion Support Collective in Portland, Oregon, said it’s been hard to convince the public that donating to small local funds over large political campaigns is a more reliable way to ensure their money directly supports abortion care.

“When they make their donations to national organizations, so much of it goes to overhead, salary, campaigning, advertising,” she told Vox. “Rather than directly into the hands of abortion seekers.”

This pressure has all been exacerbated by recent national funding cuts; since July, the National Abortion Federation, along with Planned Parenthood, announced they’d only be able to subsidize up to 30 percent of abortion costs, down from their previous cap of 50 percent.

Wolf described these cuts from the National Abortion Federation as “detrimental,” particularly because most of the collective’s money comes from small one-time or monthly donations from individuals. “We are definitely not raising enough,” she added, noting they bring in about $500 every month and spend about $9,000. “We’re definitely looking at running out of money in the next couple months if we don’t have some kind of miracle.”

As travel costs rise, some abortion rights leaders say the movement has been too focused on elevating travel for those living in states with bans.

Kay, of the Abortion Coalition for Telemedicine, formed her more critical perspective while working in Ireland when abortion was criminalized. “The Irish solution to abortion bans was travel, but not everyone has the privilege or means to travel,” she said. “It’s alienating, stigmatizing, and expensive.” Prioritizing travel today, Kay thinks, reflects a movement that hasn’t “pivoted to the reality of what we’re living in now” with more options and more restrictions.

A difference of philosophy — and why it matters

Across the abortion rights movement, leaders are grappling with how best to engage voters and donors while also debating how much compromise is acceptable in the pursuit of broader support.

In 2023, when Ohio activists were pushing for an abortion rights ballot measure, leaders with the Abortion Fund of Ohio were frustrated by compromises these ballot measure activists were willing to make. “I’m not really ever into hearing things about trimester limits or viability standards, or hearing language that’s very trauma-focused,” said Dotson-Dufault. “Something I say is a lot of the reason you feel the need to use that type of language is because we haven’t been doing the deep community destigmatization work.”

In other states, abortion fund staff and volunteers are experiencing similar discomfort. In South Dakota, a local abortion fund has publicly criticized the abortion rights ballot measure citizens will be voting on this November, even as the red state has a near-total abortion ban. Other funds are wrestling with messaging choices. “A lot of campaigns like Yes on 4 [the Florida abortion rights ballot measure] use gendered language, while we always use ‘pregnant people’ or ‘people who are pregnant,’” said Bree Wallace, the director of case management at the Tampa Bay Abortion Fund.

When I asked Brittany Fonteno, the president and CEO of the National Abortion Federation, how her organization balances their more bold, progressive rhetoric with their recent funding cuts to local affiliates, she said it comes down to “investing time and energy in educating people, and helping them to evolve their own perspective.” Fonteno then cited her own journey growing up in a more conservative and religious environment, and her path to abandoning abortion stigma. “It took time for me to evolve and become someone who is not pro-choice but pro-abortion, pro-reproductive freedom,” she said.

Yet rejection of terms like “pro-choice” from activists like Fonteno stands in sharp contrast to how most Americans who support reproductive rights feel about it. Election pollsters have also found that some of the most effective abortion rights-related messages with voters are the same ones that activists argue are too gendered, stigmatizing, and patronizing (like that the decision to end a pregnancy should be “between a woman and her doctor” or that “victims of rape and incest would be forced to give birth.”)

In 2022, under pressure from activists, the House Pro-Choice Caucus circulated new talking points that warned “choice” is “harmful language” for reproductive rights, and should be replaced with the “helpful” alternative of “decision.” This generated some ridicule, but other aides and leaders were upset that activists would seek to ditch the well-known and popular “pro-choice” label at such a high-visibility moment, and without real survey research to support it.

There are no simple answers to the movement’s future direction, though progressive activists rightly note that public opinion is increasingly shifting in favor of abortion rights. Some activists are wary about prematurely abandoning the long-held goal of restoring accessible in-person clinic care nationwide, while others worry that leaders’ refusal to adapt to new realities will come at the expense of pregnant people.

Wallace, of the Tampa Bay Abortion Fund, said that after Roe v. Wade was overturned, her fund received 755,000 individual donations, but by 2023, that number fell to 272,000. “People are donating more toward the election and Yes on 4 right now, and we all want Yes on 4 to pass, but people don’t understand that even if it does, people still don’t have money for abortion, people still don’t have ways of traveling to their appointments,” she said. “Next year is going to be all about holding people to account.”

How IVF exposed fissures in the Republican coalition

Originally published in Vox on September 26, 2024.

Donald Trump is struggling with female voters and occasionally acts like he knows it.

With the November election fast approaching, Republican political consultants have been bemoaning the fact that their presidential candidate continues to publicly boast about overturning Roe v. Wade — something a majority of Americans oppose. Trump’s openly anti-abortion pick for vice president, JD Vance, also continues to attract attention for his deeply unpopular insults of women who don’t have biological children.

These dynamics are exacerbated by the fact that the economy — typically Republicans’ strongest issue — continues to improve; the Fed recently cut interest rates and inflation has fallen to its lowest point in three and a half years, with gas and grocery prices plunging.

To help improve his chances, Trump has been trying to dispel fears. At the September presidential debate, when asked if he would veto a national abortion ban, Trump repeatedly dodged the question, insisting it wouldn’t be necessary since abortion rights are now under state control. This is only half-true: Trump is right that he’s unlikely to face a national abortion ban from Congress in the next four years.

But most anti-abortion leaders weren’t counting on that, anyway. The anti-abortion movement has been banking on more appointments of friendly federal judges and taking control of key federal agencies that could use executive power to heavily restrict reproductive freedom.

“We don’t need a federal abortion ban when we have Comstock on the books,” Jonathan Mitchell, the legal architect behind a 2021 law in Texas that effectively banned abortion, told the New York Times earlier this year. Mitchell was referring to the Comstock Act, an 1873 federal law that could prohibit anything associated with abortion from being sent in the mail. Such a ban could mean not only restricting abortion medication, the most common method used to end a pregnancy in the US, but also any medical equipment used during surgical abortion, like speculums, suction catheters, and dilators.

The Comstock Act was rendered moot by Roe v. Wade in the 1970s but never formally repealed, and now, with Roe gone, some conservatives, including Mitchell and JD Vance, are pushing for its revival. “I hope [Trump] doesn’t know about the existence of Comstock, because I just don’t want him to shoot off his mouth,” Mitchell added, urging anti-abortion groups to also “keep their mouths shut as much as possible until the election.”

Things seemed to be mostly going according to Mitchell’s plan, with Trump avoiding answering reporters’ Comstock Act questions and publicly insisting abortion was now a state duty. That is, until August, when Trump — seemingly more nervous about his election chances — announced on Truth Social that his administration would be “great for women and their reproductive rights.” He also finally told the media he would not use the Comstock Act to ban mailing abortion drugs, and on top of that, announced his administration would mandate health insurance companies cover the hefty cost of in vitro fertilization (IVF).

Trump’s new stances have not been clarifying or convincing enough for most voters — indeed, on the heels of him promising free IVF, he said he thought Florida’s six-week ban was too strict, and then announced he’d be voting against Florida’s proposed abortion rights ballot measure in November. That measure would legalize abortion up to viability to protect the patient’s health, as decided by their provider, and polls show most Floridians back it.

Still, Trump’s new rhetoric of (somewhat, sometimes) embracing reproductive rights has antagonized parts of his conservative base, who feel he’s taking the anti-abortion movement for granted and that he’s having his “Sister Souljah moment” with the segment of the electorate that helped deliver his victory in 2016. The immediate question is whether these conservatives will sit out in protest in November, and if they do, whether Trump can make up for it by drawing in more voters elsewhere. The larger, more enduring question is whether this portends an emerging split in the Republican coalition on the question of abortion, just a couple of years removed from the anti-abortion faction’s greatest victory.

Why Trump’s IVF announcement is causing problems with parts of his religious base

While opposition to abortion has been a fragile part of the GOP coalition for years, IVF emerged this year as a new point of tension among conservatives.

After Trump announced in late August that he’d back free IVF, anti-abortion groups immediately urged him to retract his stance. At first glance, it may seem puzzling that a faction of voters who identify as “pro-life” would oppose technology that helps people with infertility become parents. About 2 percent of births in the US are done through IVF, which involves fertilizing eggs outside of the body and then transferring embryos to a womb.

But the opposition makes more sense when IVF is understood as conflicting with “fetal personhood” — a core goal of a faction within the anti-abortion movement that seeks to grant fetuses (and embryos) full human rights and legal protections.

“Human embryos are created and discarded or frozen by dozens in most IVF procedures,” Matthew Yonke, a spokesperson for the Pro-Life Action League, told me. “It’s no way to treat human beings, and the federal government should not subsidize it.”

(Louisiana remains the only state to outright prohibit the destruction of embryos, requiring patients to either pay forever to store their unused embryos, or donate them to a married couple. Most states allow patients to decide what to do with any excess genetic material.)

Some social conservatives also lament that contemporary IVF treats parenthood like an individual right instead of a responsibility or privilege for committed couples, and others object to the ethical implications of sex selection and optimizing for certain characteristics, such as eye color or intelligence.

Ever since February, when Alabama’s Supreme Court issued its unprecedented legal decision that invoked God to claim frozen embryos count as “children” under state law, policymakers and prospective parents have been realizing how vulnerable IVF is in the United States, even as politicians scramble to assure voters it’s not actually at risk.

For religious conservatives who oppose IVF, the last seven months have provided a fresh opportunity to make their case against the assisted reproductive technology. In some states they’ve made political gains: the North Carolina Republican Party adopted a platform in June that opposes the destruction of human embryos. Also in June, the Southern Baptist Convention, the largest Protestant denomination in the US, approved a resolution against IVF.

Anti-abortion leaders are prepared to fight for their long-term goal of fetal personhood, just as they did for decades to overturn Roe v. Wade. In many ways, these new IVF battles are just beginning: This past spring, a supermajority of justices on Florida’s Supreme Court signaled openness to a future fetal personhood challenge, suggesting that “pre-born children” are “persons” entitled to the right to life under the Florida Constitution. Regardless of whether Trump wins in November, these fights over reproductive technology will continue to embroil conservatives and the Republican Party.

Fiscal conservatives are getting ticked off, too

It’s not just the ethics of IVF that are causing fissures — Trump’s promise that the government would foot the bill has also sparked concern among conservative budget hawks.

The average out-of-pocket cost per IVF cycle stands at $24,000, according to a federal fact sheet, or $61,000 in total per successful live birth, since people often need multiple IVF cycles. While Trump’s team has refused to provide any financing details for his plan, some experts believe it would require significant new Congressional spending.

Ira Stoll, a prominent conservative columnist, tried to make the fiscally conservative case for Trump’s IVF policy in the Wall Street Journal. He argued the proposal would be less expensive than it seems since the costs of low birth rates “far outweigh the costs” of adding IVF to insurance companies. “The roughly $15,000 price of an IVF procedure is nothing compared with the priceless potential of an individual human being,” Stoll added, though existing research suggests IVF would not significantly increase the birth rate.

However, for most conservatives concerned with federal spending and rising deficits, the government mandating taxpayer-funded IVF treatment feels like a bad joke. National Review editor Philip Klein argued that the expensive Trump proposal would amount to a significant expansion of Obamacare and drive up health insurance premiums for all.

Vance Ginn, the chief economist at the Office of Management and Budget during the Trump administration, came out to blast the IVF proposal. “I’m for IVF, as we’ve used it for two of our beautiful kids, but nothing is ‘free,’” he wrote on X. “Can we stop handing out things to win votes like it’s candy when we’re running $2T[rillion] deficits and not abiding by the limited roles outlined in the US Constitution?”

Fiscal conservatives in Congress have also been concerned. Sen. Lindsey Graham (R-SC) rejected the free IVF proposal on ABC News, saying there would be “no end” to its cost. Sen. Thom Tillis (R-NC) was more restrained with NBC News. “I’m a little bit hesitant on an insurance mandate. Is there some other way that we could incent[ivize] these sort of coverages through the private sector?” he asked. “We got a lot of things we’ve got to pay for next year by extending the tax provisions.”

Sen. Rand Paul (R-KY) opted to be less diplomatic, calling the idea “ridiculous.” The “government has no money,” he said. “We’re $2 trillion in the hole, so I’m not for asking the taxpayer to pay for it.”

Even before his promises for free IVF, fiscal conservatives were growing increasingly frustrated with Trump, as he’s been virtually silent on the mounting federal debt, and issuing new campaign pledges like ending taxes on overtime pay and Social Security benefits, and exempting tips from taxes. Trump’s disregard for deficit spending could turn off some of these budget hawks in November, too.

Will social conservatives stick with Republicans in the future? And will that even matter?

Evangelical voters were a critical part of Trump’s path to victory in 2016, and his campaign in 2020, and most political strategists say he’ll need to earn at least 80 percent of white evangelicals nationally to win in November.

A recent Fox News poll showed him at 75 percent with this group, a number that could sink lower given his recent flip-flops. Al Mohler, president of Southern Baptist Theological Seminary in Louisville, Kentucky, has been warning — in recent op-eds, speeches, and podcast interviews — that the Republican Party is making a huge mistake by potentially motivating religious voters to stay home. Mohler has been urging Trump to clarify how he’ll restrict abortion in the Oval Office, just as Trump promised evangelicals before that he would work to overturn Roe v. Wade if elected.

Tony Perkins, president of the right-wing Family Research Council, has been making a similar argument that Trump needs to give religious voters something to be genuinely excited about. “It’s just on the margins, but it’s the difference in many elections,” Perkins argued in Politico.

For now there’s no clear survey evidence on whether Evangelicals really are planning to stay home in November, though Lila Rose, a prominent anti-abortion activist, has been urging her followers to withhold their votes unless Trump changes his tune. But Mohler, for his part, said he’s likely to stick with Trump in November because he trusts that Trump will ultimately stack his administration with anti-abortion leaders, regardless of what he says on the campaign trail.

“I have a high degree of confidence that a lot of people in crucial roles in a Trump administration would reflect that pro-life sentiment,” he told the New York Times. “I believe the opposite about a Kamala Harris administration … I have to look at a longer-term strategy. And I think the most responsible pro-life figures in the United States think similarly.”

IVF in particular is popular in the US, with 70 percent of adults supporting access to the treatment. Even among Christian and Republican voters, clear majorities believe IVF access is a good thing.

That’s why, even as Republican lawmakers continue to vote against federal bills to protect access to IVF, they have been publicly stressing their support for the technology. Pennsylvania’s Republican Senate candidate Dave McCormick is running on a $15,000 tax credit for fertility treatment, and in September, a conservative super PAC started funding a major ad campaign in support of IVF.

Public backing for abortion rights also continues to loom over Trump and the Republican Party; polls show voters have grown even more supportive of abortion rights than they were before the Supreme Court overturned Roe. Among women in particular, many say abortion rights are their top issue this November. A recent New York Times poll found that for women under 45, abortion is even more important to them than the economy. Another poll by Galvanize Action showed that 82 percent of white moderate women specifically plan to factor in a candidate’s stance on abortion when voting.

Whether this late-stage gamble by Trump to send mixed messages on reproductive rights pays off is anyone’s guess, but even if it does, the internal fights within the GOP coalition will likely remain — unresolved, festering, and ready to resurface after November.

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

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

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

For now, access to the drug remains unchanged.

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

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

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

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

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

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

The availability of the drug will ultimately be decided by higher courts. But if mifepristone were to be pulled off the market, the consequences for access to abortion would be severe. Medication abortion — referring to the combination of mifepristone and misoprostol — accounts for more than half of all abortions in the US, and is used typically within the first 10 to 12 weeks of a pregnancy. It’s become the most common method for ending pregnancies in the United States, partly due to its safety record, its lower cost, diminished access to in-person care, and greater opportunities for privacy.

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

What is mifepristone?

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

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

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

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

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

Why is there a lawsuit attacking mifepristone?

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

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

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

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

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

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

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

What are the implications of the decisions?

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

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

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

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

What options for abortion are still available right now?

For at least the next week, nothing will change,

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

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

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

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

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

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

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

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

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

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

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

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

The anti-abortion movement’s next radical legal argument

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The sole US supplier of a major abortion pill said it would not distribute the drug in 31 states

Originally published in Vox.com on March 17, 2023.
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Earlier this month, Politico broke news that Walgreens, the nation’s second-largest pharmacy chain, assured 21 Republican attorneys general that it would not dispense abortion pills in their states should the company be approved to dispense them. The decision was met with sharp protest by Walgreens customers, abortion rights activists, and Democrats, who accused the pharmacy of caving needlessly to pressure.

But fear of state prosecution is not the only factor shaping Walgreens’ decision-making. Another previously unreported constraint on the company is that its sole supplier of Mifeprex — the brand-name drug for the abortion pill mifepristone first approved by the Food and Drug Administration in 2000 — circulated a list to its corporate clients in January naming 31 states that it would not supply the abortion medication to. Vox spoke with two sources who had reviewed that list recently.

The sole US distributor for Mifeprex is AmerisourceBergen, one of the largest pharmaceutical distribution companies in the world. (The federal government is currently suing AmerisourceBergen for allegedly distributing opioids while knowing they would later end up on the illegal market. The Pennsylvania-based company has denied this.) Back in January, AmerisourceBergen created its list of 31 states using as a source the website of the Guttmacher Institute, a reproductive research organization that tracks state abortion restrictions, according to sources with knowledge of the list’s origin.

The list’s existence underscores the precarious state of abortion rights in the US in the wake of Dobbs v. Jackson — the 2022 Supreme Court ruling that struck down Roe v. Wade, effectively leaving abortion rights to each state. Walgreens drew condemnation for saying it would not dispense abortion pills, even in states where it’s currently legal to do so. AmerisourceBergen’s list indicates another reason influencing Walgreens’ stance: a distributor — it’s the only one for this drug — had signaled that it would not supply pharmacies with abortion pills.

Walgreens and Danco Laboratories, the manufacturer of Mifeprex, declined to comment. A source with knowledge of the contractual agreement between Walgreens and AmerisourceBergen told Vox that the parties are legally barred from talking publicly about the supplier, but that advocates have been trying to persuade AmerisourceBergen to adopt a less risk-averse stance on abortion-pill distribution.

Lauren Esposito, a spokesperson for AmerisourceBergen, told Vox over email that the situation “is dynamic and ever evolving. Any information that you’re referring to from January is certainly out of date by now. Additionally, as I’m sure you can appreciate, for contractual purposes we are not able to discuss specific products.” The company later released an additional statement, emphasizing that AmerisourceBergen does not “independently decide what medications should be available to health care professionals as part of their treatment plans” and does “not make clinical decisions or values-based judgements on which FDA approved products it distributes.”

Vox asked Guttmacher about the supplier’s list and its reported use of the institute’s site as a guide for compiling the list. “We would like to understand what data AmerisourceBergen is basing these claims on, as we are not aware of any policies that would prevent the shipping of mifepristone to such a large number of states,” said Elizabeth Nash, a Guttmacher policy analyst. “Private companies should be extremely careful not to limit access to mifepristone in response to threats from anti-abortion groups or politicians.”

Abortion rights advocates and consumers responded with outrage to the Politico report, calling for a boycott of Walgreens until it reverses its stance. At particular issue is the fact that four states on Walgreens’ list — Montana, Kansas, Iowa, and Alaska — have restrictions on pharmacists that are blocked in court. California Democratic Gov. Gavin Newsom announced he would not renew a multimillion-dollar contract with the pharmacy chain to signal his disapproval.

Walgreens spokesperson Fraser Engerman maintained the company’s position hasn’t changed, and that they still intend to dispense mifepristone “in any jurisdiction where it is legally permissible to do so.”

In January, the Food and Drug Administration announced that brick-and-mortar pharmacies could apply for certification to sell abortion medication at their stores, a move hailed as an important step toward expanding access to the safe and effective drug that has become the most common method for ending pregnancies in the United States.

Representatives from CVS and Rite Aid, which like Walgreens said they would seek certification, have remained conspicuously quiet on the issue for the last two weeks, and did not return requests for comment. (No drugstore has yet been certified, and it is not clear how long the process will take.)

The ongoing debate over what pharmacies like Walgreens can and should do when it comes to dispensing mifepristone reflects the political challenge of navigating the patchwork of conflicting state abortion restrictions in the post-Roe era. With a bevy of new laws and litigation, individuals, abortion providers, and companies are left to make consequential decisions in a highly fraught and confusing legal environment — which, in the case of Walgreens and AmerisourceBergen, means inaction in the face of uncertainty.

Pharmacists are caught in the middle

Caught in the middle of this legal and political tug-of-war are abortion providers. While it’s easy for Democratic governors in states like Illinois and California to tell companies they should dispense medication abortion, it’s harder to insist that they should put their pharmacists at risk.

“Violating the has-to-be-done-by-a-physician requirements in some of these states is punishable by jail,” a Walgreens spokesperson told the New York Times. “In other states, it’s punishable by a civil fine, and in a number of them it’s punishable by licensing sanctions. And so these are restrictions that present real risks to pharmacists.”

The 21 states where Walgreens has said it will not dispense mifepristone fall into a few different categories, explained Nash of Guttmacher. Some have banned abortion entirely, while others have laws requiring physicians to dispense drugs in-person, or require in-person counseling and ultrasounds, making the prospect of dispensing mifepristone through a pharmacy impractical. And still others, like Alaska, should feasibly be able to dispense through a pharmacy, Nash said.

“Overall there’s a lot of confusion in the marketplace as pharmacies and pharmacists try and follow all the laws and regulation and litigation,” said Ilisa Bernstein, the interim CEO of the American Pharmacists Association. “It’s unsettled right now.”

Bernstein told Vox that beyond legal risks, members are grappling with new safety issues: “Pharmacy team staff safety is a concern, whether it’s getting into the pharmacy and going through people who may be demonstrating and picketing outside or in the pharmacy, where team members want to be sure they’re in a safe space when they’re working,” she said. Recently anti-abortion activists protested Walgreens’ annual shareholder meeting, casting drugstores as the new abortion clinic.

Next week the American Pharmacists Association is holding its annual meeting where hundreds of delegates from across the country plan to revisit the group’s policies on mifepristone and reproductive health care.

Regardless of what pharmacists want their group’s policies to be, they will remain bounded by the FDA’s Risk Evaluation and Mitigation Strategies (REMS) list, a restrictive designation the federal government places on mifepristone over the objections of groups like the American Congress of Obstetricians and Gynecologists. Pharmacists will also be circumscribed by the lawyers of their companies, and other actors involved in the medication abortion supply chain, like drug distributors and lawmakers.

Esposito, the spokesperson for AmerisourceBergen, told Vox, “We continue to make FDA-approved medications, including reproductive health medications, available to health care facilities and providers in all 50 states and territories that meet local, state, and federal requirements to distribute and dispense.”

But whether AmerisourceBergen will let Walgreens and other drugstores sell Mifeprex in all the locations pharmacies would be willing to dispense them from is another question.

How abortion rights advocates won every ballot measure this year

Originally published in Vox on November 11, 2022.
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Americans voiced their preference for abortion rights on Tuesday, casting votes in support of reproductive freedom everywhere they appeared on the ballot: Kentucky, Michigan, Vermont, Montana, and California.

Counting a pivotal ballot measure Kansas voters weighed in on in August, reproductive rights have been on the ballot in six states since the Supreme Court overturned Roe v. Wade in June. Each time, abortion rights supporters have won.

While Democratic candidates running on abortion access also did extremely well in their contests this week, the vote tallies indicate that the ballot initiatives were often able to draw even more support than the Democratic candidates, garnering votes from individuals who otherwise cast ballots for Republicans, libertarians, or no candidate at all.

“Organizers communicated in a nonpartisan way and that was key,” said Ashley All, who served as communications director for the pro-choice coalition in Kansas. “Their messaging around personal liberty and reproductive freedom and protecting the constitutional rights of women to make the decisions for themselves resonated because it’s shared American values.”

The organizers also succeeded in winning over voters who may personally oppose abortion or have reservations about it. While a majority of Americans say they believe Roe v. Wade should be upheld, roughly one-third of those backing legal abortion do not personally support it. And many who support abortion rights believe it should only be legal in cases of rape or a threat to a woman’s life.

Ethan Winter, the research and strategy director for Families United for Freedom, an abortion rights political action committee, emphasized that the ballot measure campaigns all leaned heavily on persuasion tactics.

“Montana is a heavily Republican state, Kentucky is a heavily Republican state,” he told Vox. “All of these victories depend on Republicans voting for you, on people who self-identify as ‘pro-life’ voting for you.” In Kansas, where Trump won handily in 2020 and registered Republicans outnumber Democrats almost two to one, the pro-choice side won by a nearly 20-point margin. Even California’s measure codifying abortion rights in the state constitution passed this week with roughly 6 percent more support than other Democrats currently have on the statewide ballot.

Abortion rights organizers say they hope their successes this year across diverse states inspires other leaders to follow suit. How to get issues on the ballot varies from state to state; in some cases citizens can collect signatures, while in others lawmakers have to approve turning issues over to voters. In Michigan, activists collected more than 750,000 signatures to get their abortion rights measure on the November ballot. In Montana, Kentucky, and Kansas, by contrast, Republican lawmakers had voted to place their anti-abortion measures on the ballot.

“Our resounding victory now provides a model for the future of coalition-based reproductive ballot initiatives all across the country,” declared Nicole Wells Stallworth, the executive director for Planned Parenthood Advocates of Michigan, in a press conference on Wednesday.

“I’m hoping other states are looking at the outcomes of last night,” Jodi Hicks, the head of Planned Parenthood Affiliates of California, told Vox. “And looking at what they too can do and really start polling, message-testing, and laying the groundwork.”

Voters don’t like big status quo disruptions, and overturning Roe was just that

This past summer when Kansas voters went to cast their ballots, advocates for abortion rights were cautiously optimistic they’d have one advantage on their side: status quo bias.

Americans tend not to like big, disruptive changes, which is why political science researchers believe they observe a “status quo bias” when people weigh in on ballot initiatives. Voters often reject measures they perceive as introducing major change.

Anti-abortion politicians in Kansas had proposed an amendment to the Kansas constitution that would have overruled a Kansas Supreme Court decision affirming Kansans’ right to end a pregnancy. Passing the amendment would have given state lawmakers the power to ignore this ruling and legislate a total abortion ban in the wake of the Dobbs decision.

Activists in Kansas, in other words, could frame the amendment as an effort to take away rights Kansans currently enjoyed under their state constitution, something they called extremist, radical, and disruptive. This general electoral instinct to avoid major shifts to the status quo, organizers believe, helped them defeat the amendment in August.

While the abortion ballot choices on Tuesday weren’t quite as straightforward as asking voters whether they want to remove an existing state constitutional protection, organizers did lean on “status quo bias” messaging in their respective campaigns. In Michigan, for example, though Proposition 3 was an affirmative amendment to codify reproductive freedom in Michigan’s constitution, activists framed their language around the idea of restoring the rights of Roe v. Wade, of bringing back the reality Americans had known for five decades.

In Kentucky activists similarly emphasized a theme of restoration. “We focused our messaging on restoring access and making sure things do not go any further in the extremist direction,” explained Rachel Sweet, who led the Kentucky coalition organizing to defeat the anti-abortion amendment.

Abortion rights organizers used state-specific messaging to win

Activists and researchers experimented with different messages and messengers to win their ballot initiative campaigns, deploying themes that were specific to the histories and values of each state.

In Montana, for example, organizers looked to capture the deep sense of pride voters have in their state’s right to privacy. “Montanans of every ideology here are deeply proud of our constitution which enshrines the right to privacy,” said Hillary-Anne Crosby, a spokesperson for the coalition organizing to defeat Montana’s anti-abortion ballot measure. “This amendment really came down to private medical decisions.”

Montana’s referendum — known as LR 131 — was spurred by a bill Republican lawmakers passed last year asking voters to affirm that an embryo or fetus is a legal person with the right to medical care if it survives an abortion or delivery. Under the law, health care providers could face up to 20 years in prison and a $50,000 fine if they failed to provide such care.

While Republican lawmakers framed the measure as a moral choice for anyone opposed to abortion, reproductive rights advocates argued that the proposal itself had little to do with abortion and everything to do with palliative care and compassion for bereft parents.

That’s because infanticide is already illegal in Montana, and the idea that infants were being killed after an abortion is intentionally misleading, part of a longstanding effort by anti-abortion leaders to depict “botched abortions” that they say can result in live births.

Under current Montana law, if an infant has a fatal prognosis parents can spend those final and few moments holding their dying child and saying goodbye. Under LR 131, a doctor would have been obligated to take the infant away to attempt medical treatment, even if they knew nothing would work.

In mobilizing support against the referendum, advocates chose to de-emphasize abortion, often not mentioning the word at all. They ran ads featuring neonatologists, obstetricians and pediatricians, and grieving parents who said elected officials wanted to politicize their tragedies. Leaning in on status quo bias, doctors gave media interviews explaining how the proposed amendment would threaten the existing rights of parents and criminalize “the current practice of medicine.”

“We’re not trying to pull the wool over anyone’s eyes, we’ve been clear that one of the values of Compassion for Montana Families is uplifting and empowering reproductive and sexual health care,” Crosby told Vox. “But we felt abortion language was a misleading, deceptive thing to be talking about, and we wanted to accurately reflect what the bill in question would mean.”

This doesn’t mean Montana advocates aren’t celebrating the outcome as a victory for reproductive rights. “Conservatives tried to make abortion a boogeyman and people didn’t buy it,” Crosby added.

Vermont organizers also emphasized, in their campaign messaging, doing things “the Vermont way” — referring to the state’s independent and nonpartisan ethos.

“Vermont is sometimes seen as this very liberal place because of Bernie Sanders or whatever, but historically Vermont has held a Republican majority as well as the governor’s seat, and Vermonters regularly split their tickets,” said Lucy Leriche, a spokesperson for the abortion rights coalition in Vermont.

Vermont, unlike most other states, also enjoyed 50 years of unlimited and unrestricted reproductive freedom. While states were permitted under Roe v. Wade to restrict pregnancies after viability (typically around 24 weeks in a pregnancy) Vermont lawmakers never did.

“The [anti-abortion] side is very quick to talk about all the bad things that would happen if you don’t restrict abortion rights, but in Vermont we never had any restrictions, so those arguments really do fall flat,” Leriche told Vox. “They don’t stick because we know better.” The measure to codify reproductive rights in Vermont’s constitution passed on Tuesday with 77 percent of the vote.

Abortion rights activists haven’t historically focused on state ballot measures

Shoring up abortion rights on the state level was not something reproductive health advocates prioritized when Roe v. Wade provided a nationwide constitutional protection. Anti-abortion activists would occasionally push state ballot measures, often in deep red states, but fighting them at the polls seemed less critical than challenging them in court for violating Roe.

“Ballot measures are a space where there hasn’t been a ton of money on the pro-choice side and I think Families United for Freedom is indicative of more money moving in, and what I hope to be a larger trend,” said Winter. Families United for Freedom raised about $2 million this cycle, contributing $600,000 in Kansas, $275,000 in Kentucky, $500,000 in Michigan and $275,000 in Montana. Rachael Bedard, the PAC’s executive director, told Vox that they partnered with and supported local grassroots organizations, providing them with polling and media support, and avoided “a super-imposed national strategy.”

Sweet, who managed the campaigns in both Kentucky and Kansas, told Vox that their success was driven by the expertise of these local grassroots leaders. “We also had a lot of volunteers who have never knocked doors for a candidate, and they don’t consider themselves super politically active,” Sweet said. “But they are concerned and motivated by this one issue.”

One key research point Families United for Freedom found is that even among voters who supported the overturn of Roe v. Wade, a majority of them want abortion to be legal to save the life of the mother and in the case of rape and incest. Even in a hypothetical scenario in which abortion was illegal, the group found, 16 percent of those who said they approve of the Dobbs decision wouldn’t want the woman who had an abortion to face penalties.

“In other words,” Bedard said, “they disapprove of abortion but less than they disapprove of criminalization.” Winning on these abortion ballot measures, Bedard said, means creating the space for someone to continue living their life as a “pro-life” person, while emphasizing that doesn’t extend to making their neighbor’s choice for them.

“We need to let voters have their own personal feelings about abortion, but invite them to join us in the fundamental belief that women should make the decisions for themselves,” added Ashley All, who joined Families United for Freedom after defeating the Kansas ballot measure. “That is pro-choice and that is a way to really bridge the gap.”

The coming legal battles of post-Roe America

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

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

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

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

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

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

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

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

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

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

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

There is little legal precedent for these questions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It’s a safe option for most patients

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

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

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

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

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

Paying attention to legal risks and criminalization

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

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

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

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

It hasn’t gone mainstream, yet

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

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

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

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

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

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

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

Arkansas Legislature Introduces Texas-Style Abortion Ban

Originally published in Rewire News on December 8, 2021.
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As Arkansas launched a special legislative session Tuesday nominally dedicated to passing income tax cuts, a leading anti-choice Republican in the state senate introduced a copycat version of Texas SB 8, legislation that effectively bans abortions after six weeks and allows any citizen to sue those who help a pregnant person get the procedure.

Reproductive rights advocates have been bracing for this moment for several months, ever since Republican Sen. Jason Rapert, who has sponsored some of the most aggressive bills to restrict abortion access over the last few years, came out in September to praise SB 8.

“What Texas has done is absolutely awesome,” he proclaimed when it first went into effect. The U.S. Supreme Court heard arguments against SB 8 on November 1.

ROE HAS COLLAPSED AND TEXAS IS IN CHAOS.

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Earlier this year, Rapert pushed through an abortion ban that only permitted abortions to save the life of the pregnant person, but did not provide any exceptions for those impregnated by rape or incest. A federal judge in July preliminarily blocked the law, but it was just one of 20 abortion restrictions Arkansas passed this year alone.

In early October, Rapert, who did not return requests for comment for this story, announced that he would be filing a version of Texas SB 8 as soon as Arkansas’ special session launches, which at the time lawmakers thought would be on October 25.

“I am filing the Arkansas Heartbeat Protection Act with a civil cause of action—just like Texas,” he tweeted then. “I invite [Republican Gov. Asa Hutchinson] to put the bill on the call and legislators to co-sponsor.”

According to the state’s legislative rules, since Hutchinson did not include abortion on his “call,” Rapert had to rally two-thirds of his colleagues in order to have his bill considered in the special session. Rapert expressed confidence earlier in the fall that he could reach that support threshold. He also insisted that he must continue to be “creative” in his legislative pushes against abortion access, given that other bills he’s authored have been struck down in court. 

SB 13 was filed Tuesday afternoon with Rep. Mary Bentley as the bill’s other primary sponsor; 28 other Republicans co-sponsored it, clearing the two-thirds threshold.

Hutchinson had declined to say what he would do if the legislature passes copycat SB 8 legislation, but he said he thinks lawmakers should wait to see the decisions the Supreme Court hands down on SB 8 and Dobbs v. Jackson Women’s Health Organization, Mississippi’s 15-week abortion ban that the Court heard a week ago. Rapert has said he’s frustrated with Hutchinson’s stance.

Holly Dickson, the executive director of the ACLU of Arkansas, said trying to bring up a sensitive bill like this outside of the state’s regular legislative session is “unorthodox.” The ACLU has been monitoring the possibility of a Texas copycat law ever since Rapert issued his first threat.

“We’ll oppose any effort to do that and have been advising legislators against this blatantly unconstitutional move,” Dickson said.

Public opinion is somewhat mixed on the idea. In late September, a survey from Talk Business & Politics and Hendrix College, which polled 916 likely Arkansas voters on their opinions of Texas SB 8, found about 46.5 percent of voters would support a similar bill in Arkansas, and about 49.5 percent would oppose it. Only 4 percent of respondents said they didn’t have an opinion at the time. The pollsters found opposition was particularly strong among those under 30 years old, and among people of color.

In early November, the 23rd annual Arkansas Poll was released, which conducted 800 telephone interviews with randomly selected adults across the state, and found 41 percent of all very likely voters support laws that would make it harder to get an abortion. More than a quarter of very likely voters think abortion should be illegal under all circumstances, the highest percentage ever found in this poll, according to Charisse Dean of the Little Rock-based Family Council, a conservative research and advocacy group

Last month the national anti-abortion organization, Americans United for Life, ranked Arkansas as “the most pro-life state” in the country for the second year in a row. Arkansas already requires individuals seeking abortion to undergo a mandatory 72-hour waiting period, as well as to get two in-person visits at an abortion facility. Telemedicine for abortion is banned in Arkansas, and patients can access abortion only up to 20 weeks postfertilization, or 22 weeks’ gestation.

In mid-October, Planned Parenthood Great Plains Votes announced it would be launching an “aggressive statewide campaign” in Arkansas to defeat the proposed Texas copycat abortion ban. Among other things the organization said it had hired additional organizing and communications staff dedicated to the effort, would be hosting in-person and virtual events across the state to educate voters, and would be contacting over 20,000 state residents to discuss the implications.

“We’ve also really been targeting the legislature to help them understand the human impact,” said Emily Wales, the interim president and CEO of Planned Parenthood Great Plains.

Following the passage of SB 8 in Texas, visits by abortion-seekers into Arkansas jumped significantly. In September, Texas patients comprised 19 percent of Little Rock Family Planning Services’ caseload, after being less than 2 percent in August.

Many people are also traveling from Texas to Oklahoma for abortion care, though Oklahoma has passed its own wave of new abortion restrictions. In September, Planned Parenthood filed a lawsuit to block five of these new restrictions, which were set to take effect in November. The litigation has been successful; all five of the Oklahoma laws have been temporarily blocked so far.

More public-facing organizing against a Texas copycat law, Wales said, was delayed in Arkansas because the special session was pushed back from October. Advocates had said in mid-November that they expect in-person events against a copycat ban to pick up if and when Rapert’s bill is formally introduced.

“We will have in-person rallies outside the capitol,” Wales said. “If Texas has taught us anything it’s that you have to be really visible about what the outcomes are. We’re seeing patients in Texas who are shocked that their legislature passed [SB 8] and they weren’t paying attention before.”

In late September, a Republican state representative in Florida introduced the first copycat Texas bill, which almost identically mirrors SB 8. But reproductive rights advocates in Florida say they are less concerned that the bill will become law anytime soon, given the repeated failure of Florida lawmakers to pass a six-week abortion ban.

Karen Musick, the co-founder and vice president of the Arkansas Abortion Support Network, an all-volunteer nonprofit that helps Arkansans access abortion care, said they’ve definitely seen an uptick in donations since Texas SB 8 was passed but that their attention has largely been focused on organizing volunteers.

“People have really come out of the woodwork and said, ‘My home is available if someone needs a place to stay, if someone needs help getting to another place I will take them,’” Musick said. “We’re collecting all these people who have benefited from abortion care in the past and want to do as much as they can now to ensure the next generation has access too.”

Musick said that while there’s less they can do to stop the current legislature from passing new restrictions, they can at least focus on organizing people.

“Our job is to forge as many contacts as we can,” Musick said. “We need to build a base of transportation volunteers, escort volunteers, money and counseling volunteers.”

In The Fight for Reproductive Rights, Don’t Forget the Medicaid Gap

Originally published in The Intercept on October 1, 2021.
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IN ONE OF the grimmest periods ever for reproductive rights, advocates are scrambling to react to a spate of new restrictions on abortion. The Biden Justice Department filed a lawsuit against Texas in the wake of S.B. 8, the state’s new law that invites private citizens to enforce abortion bans through civil litigation. House Democrats passed the Women’s Health Protection Act, a bill that would protect abortion providers and remove barriers for patients. And some advocates see hope in medication abortion, a combination of two drugs — mifepristone and misoprostol — which people can take to safely end pregnancies.

But many states still restrict where providers can mail drugs, and most groups still only service states with relatively friendly abortion laws. Last week, a Republican state representative in Florida introduced a bill that mirrors S.B. 8, and lawmakers in other GOP-controlled states have signaled interest in following suit. The U.S. Supreme Court has refused thus far to block Texas’s notorious statute, and the Women’s Health Protection Act stands little chance of passage in the Senate.

As long as the Senate filibuster remains in place, and the U.S. Supreme Court maintains its anti-abortion majority, advocates in the South say there’s little that Washington can really do to aid their plight. There is one crucial method, though, which often falls off the radar: Medicaid expansion.

“What people have forgotten is [in] this entire swath of the southeast, from Texas and Georgia and Florida, we never got Medicaid expansion, so there’s a lot of people, especially people capable of becoming pregnant, unable to access any sort of insurance,” said Robin Marty, a journalist, activist, and head of operations for West Alabama Women’s Center, an independent abortion clinic in Tuscaloosa. “We need national organizations to remember that we’re still five steps behind. While they’re trying to get new medication abortion programs standing, we’d like to even use the [Affordable Care Act] birth control mandate.”

As Congress considers proposals to include in the upcoming reconciliation bill — a $3.5 trillion social spending package that Sens. Kyrsten Sinema, D-Ariz., and Joe Manchin, D-W.Va., are threatening to derail — Democrats are weighing at least two measures that would expand Medicaid access in the 12 states that have refused. One pathway, led by Democratic Sens. Raphael Warnock and Jon Ossoff of Georgia and Tammy Baldwin of Wisconsin, would create a program that’s like Medicaid but administered by the federal government rather than by individual states. Their proposal would require the Centers for Medicare and Medicaid Services to offer coverage to those eligible in the 12 holdout states. Texas Democratic Rep. Lloyd Doggett also has a bill that would allow cities and counties to expand Medicaid in states that have refused. And some powerful lawmakers, including House Majority Whip Jim Clyburn, D-S.C., have cited Medicaid expansion as a top priority for inclusion.

Sen. Jon Ossoff, D-Ga., speaks on Medicaid expansion and the reconciliation package during a press conference with fellow lawmakers at the Capitol in Washington, D.C., on Sept. 23, 2021.

The cost for expansion so far is estimated at potentially $250 to $300 billion, but the price could shrink if legislators put an expiration date on their plans. Clyburn suggested last week that he would back a few years of Medicaid expansion, which he said could be harder to strip away once it’s in place.

Lawmakers are under pressure to reduce the cost of the reconciliation package — despite the fact that the $3.5 trillion price tag would be spread over 10 years and partially covered by raising taxes on the wealthy — and several health care priorities are competing for space. These include expanding Medicare, bolstering Obamacare subsidies, and ensuring access to in-home care for the elderly. A Washington Post report on Thursday made the chances for a permanent Medicaid expansion look less likely: Some advocates and Democratic senators expressed concern that it might reward recalcitrant GOP lawmakers, or even incentivize states that have expanded Medicaid to reverse course, potentially forcing the federal government to pick up the tab for states that had previously expanded Medicaid.

THERE ARE MORE than 2 million poor, uninsured adults in the so-called Medicaid gap. Of those, roughly 800,000 are women of reproductive age. Most people who fall into the gap are unlikely to afford insurance on the individual marketplace because they’re ineligible for premium subsidies, which help offset high monthly costs. And while the Affordable Care Act applies to most private insurance plans, according to the Guttmacher Institute, 13 percent of workers in 2019 were enrolled in “grandfathered” plans exempt from the ACA’s protections — including the mandate for contraception coverage.

In Washington, D.C., and 38 states that have expanded Medicaid since 2014, public health researchers found an immediate and large increase in insurance coverage for low-income women of reproductive age. Health and economics researchers also found that low-income women in expansion states were more likely to use effective birth control methods during their postpartum period than their counterparts in holdout states, and were more likely to use long-acting reversible contraception, considered among the best methods for preventing unwanted pregnancies. The proposed Medicaid expansion plans would increase access to birth control and reproductive services in the remaining 12 states.

On Tuesday, Planned Parenthood Federation of America issued new fact sheets detailing what Medicaid expansion would mean for each state that has until now resisted broadening coverage. In Alabama, for example, Planned Parenthood says 51,000 women of reproductive age would gain access to affordable health insurance, including more than 20,000 Black women. In Texas, more than 324,000 women of reproductive age would gain affordable health insurance and access to services, including 48,000 Black women and 1930,000 Latina women.

“I can’t tell you how many people I’ve seen who wanted birth control and were not able to get it,” said Marty. “The county health departments are booked two to three months in advance, so by the time they get there it’s too late; and then we have patients who do have private doctors, but the doctors are denying them the coverage.”

Jamila Taylor, the director of health care reform and a senior fellow at the Century Foundation, said expanding Medicaid could definitely help support women who fall into the coverage gap, who lack insurance or access to comprehensive maternal services. “We know this affects people not ready to be parents, and those who are ready to have children,” she said.

So if either the Ossoff-Warnock-Baldwin plan or the Doggett proposal passes, the changes could expand access to contraception for thousands of currently uninsured people. But would they allow Medicaid to cover solutions like medication abortion? Thanks to the Hyde Amendment — a prohibition on using federal funds to cover abortions outside of the exceptions of rape, incest, and endangerment to a woman’s life, which Congress has reauthorized every year since 1976 — the answer is still no.

There is legislation pending in the House and Senate, called the Equal Access to Abortion Coverage in Health Insurance Act of 2021, or EACH Act, that would overturn the Hyde Amendment — but like the Women’s Health Protection Act, it stands little chance of passage with the filibuster in place. On Wednesday, Manchin told the conservative National Review that he was open to considering Medicaid expansion as part of reconciliation — but only if the package includes the Hyde Amendment. States can, however, still opt to use their own Medicaid funding to cover abortions, and 16 primarily blue states already do.

As long as the Hyde Amendment remains in place, those living in regions at odds with reproductive health access will have to rely on more difficult and sometimes risky measures to terminate their pregnancies. If the amendment were repealed, Medicaid funds could potentially be used to prescribe medication abortion, offering an alternative in places where clinics are closed. But many hostile states have broadened their anti-abortion measures to cover mifepristone and misoprostol. Since April, lawmakers in Republican-led states, working closely with anti-abortion groups like the Susan B. Anthony List, have moved to pass even more restrictions on medication abortion.

Marty, who authored “Handbook for a Post-Roe America” in 2019, said for now people should consider obtaining medication abortion pills before they are pregnant, a process known as advanced provision. Some are are already doing this in Texas through Aid Access, an organization based in Europe that a Dutch doctor started in April 2018.

“At this point [activists] do not believe that someone who takes this step is under threat of a lawsuit because pregnant people are explicitly excluded from [SB8], but it could be a potential lawsuit if that person who ordered it gave it to someone else,” said Marty.

But shipping pills from Europe can result in delays. “Hypothetically, there might be people who try get ahold of medication abortion from one of these online retailers despite living in a different city,” said Marty, referring to U.S.-based telehealth organizations like Abortion on Demand. In those cases, which could also present legal risk, women might ask contacts they know living in more abortion-friendly states to obtain the medication and then quietly mail them the pills.

“As an author and activist, I firmly believe that all people need to be [ready] for when abortion is completely illegal and inaccessible,” said Marty. “It’s become clear to me that abortion will mostly disappear in red states.”