December 27, 2023

Access to abortion pills has grown since Dobbs

Originally published in Vox on December 27, 2023.
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Eighteen months after the Dobbs v. Jackson decision that overturned the constitutional right to abortion, and with a new Supreme Court challenge pending against the abortion medication mifepristone, confusion abounds about access to reproductive health care in America.

Since the June 2022 decision, abortion rates in states with restrictions have plummeted, and researchers estimated last month that the Dobbs decision led to “approximately 32,000 additional annual births resulting from bans.” Journalists profiled women who carried to term since Dobbs because they couldn’t afford to travel out of their restrictive state.

The total number of abortions in the US, however, has increased since the overturn of Roe v. Wade, driven by more people ending pregnancies in states that have laws friendly to abortion care. And often lost in this conversation is the fact that access to medication abortion has actually expanded in significant ways since the overturn of Roe v. Wade, both in terms of lower costs and avenues to obtain the pills quickly. The problem is many people who would be able to take advantage don’t know about it.

Taking a combination of mifepristone and misoprostol within the first 12 weeks of a pregnancy was already the most common method for abortion in the United States before the Dobbs decision, partly due to its safety record, its lower cost, diminished access to in-person care, and greater opportunities for privacy. The popularity of medication abortion has only grown since then: A poll released in 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 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.

A June report from the Society of Family Planning found abortion via telemedicine “increased by 85 percent compared to the pre-Dobbs period, going from comprising 5 percent of all abortions to 9 percent.” And this is likely an understatement, Dana Northcraft, the founding director of Reproductive Health Initiative for Telehealth Equity and Solutions, told Vox. “That number does not include telehealth visits by providers who also do brick-and-mortar visits, [and] it does not include self-managed abortions outside of the formal medical system,” she said.

Getting the word out about medication abortion has been difficult for activists, especially with headline-grabbing news stories about new efforts to restrict the pills and punish those seeking to bypass state bans. In the early months following the Dobbs decision, if you lived in a state that banned abortion, your best bet was probably ordering pills from overseas, via the reproductive health care nonprofit Aid Access, even though their shipments could take two to three weeks.

Today, though, providers and new organizations ship pills directly from the US to pregnant people living in more restrictive states, dramatically reducing the amount of time it takes to send the medication through the mail. International volunteer networks have also expanded to help women end their pregnancies, and campaigns to destigmatize misoprostol-only abortions, a common method used around the world, have accelerated.

“We’re trying to shout this all from the rooftop,” Elisa Wells, the cofounder of Plan C, told Vox. “People are worried and there’s a lot of questions out there — is this all legit? Are the pills actually going to arrive? And we’re trying to say yes, these really are real routes of access.”

How “shield laws” have transformed the distribution of abortion pills

One of the biggest expansions to access since Dobbs is via broader access to telehealth abortion care in the US, even for those living in states with bans. Telehealth abortion care means a patient can consult virtually with a provider, either on an app or in a phone call or videoconference. Following that consultation, the provider would fill a prescription for the medication, and it would be delivered via mail.

Efforts to expand telehealth abortion care existed prior to the overturn of Roe v. Wade. Over the objections of groups like the ACLU and the American Congress of Obstetricians and Gynecologists, the Food and Drug Administration had long barred doctors from prescribing mifepristone without an in-person health care visit first. The Biden administration eased up on this rule during the pandemic, and in December 2021 the FDA permanently lifted its restriction on telemedicine for mifepristone. (State-level restrictions on abortion telemedicine still exist.)

“I think Dobbs just lit a fire under the innovations that were already underway,” Kirsten Moore, the director of the Expanding Medication Abortion Access project, told Vox. “[Telemedicine] was already happening during the pandemic and then in the post-Dobbs world everyone started thinking, ‘Oh wait, this is what we’ve got to do.’”

One major facilitator of expanded telemedicine is the profusion of new so-called “shield laws” that would protect blue-state abortion providers who send pills to people living in states where abortion is illegal. Today, six states — New York, Massachusetts, Vermont, Washington, Colorado, and California — have such telemedicine abortion shield laws, though not all have taken effect (California’s won’t until January 1). Julie Kay, the co-founder of the Abortion Coalition for Telemedicine, told Vox these laws are already facilitating the distribution of pills to 6,000 patients per month in states with bans. One major advantage is that shipping pills from a US state with a shield law is much faster than shipping pills from overseas. The medication can arrive in days, rather than weeks.

Kay said the effort to pass shield laws was led by the medical community, not traditional pro-choice advocacy groups. “Our focus has really been on serving marginalized communities in red states that have been denied abortion, West Virginia all the way through Texas,” she said. “A lot of people living there are not able to travel but do not know they have another option.”

While these laws have yet to be tested in court, providers expect legal challenges eventually and have been taking steps to protect themselves, like avoiding travel to states with abortion bans in case a prosecutor tries to arrest them for violating their criminal statute.

Some providers living in states with shield laws are interested in stocking and shipping the medication themselves. Others say they’d be interested if they could send prescriptions to a pharmacy that would handle the mailing for them. Starting in the new year, one online pharmacy based in California, Honeybee Health, aims to help abortion providers living in states like New York and Massachusetts serve more patients nationally.

“We think people, including the media, are less familiar with the idea that you can have an abortion by mail and that the service of telehealth abortion is available in every single state — even those with bans,” said Wells, of Plan C. “That didn’t exist before Dobbs. That is the big change that’s happened. People find it unbelievable, but it’s also fantastic.”

Wells says the big shift really happened in June 2023, when Aid Access became the first organization to start leveraging the new shield laws in the US. No longer would a pregnant person in Texas or Oklahoma searching for Aid Access online be routed to an abortion provider in Europe or need to wait for a pharmacist in India to mail them medication. Shortly thereafter, a new US organization, Abuzz, launched to provide telemedicine abortion to 30 states, followed in September by the Massachusetts Medication Abortion Access Project, which also utilizes shield laws for telemedicine care.

The e-commerce marketplace for abortion medication has expanded, and the cost for pills has fallen dramatically

Outside of telemedicine options, there are over two dozen e-commerce websites that sell and ship medication abortion to the US. This international supply chain has grown significantly since Dobbs and most of these sites do not require prescriptions and do not require people to upload their IDs or have medical consultations. Plan C has vetted 26 of these sites, including testing their pills to ensure they’re “real products of acceptable quality.”

Seven of the sites Plan C has vetted offer pills for prices ranging from $42 to $47, with delivery times between two and nine days. The sites are typically selling generic medications originating from India, with the help of US-based shippers.

One unexpected development this year was that many of these e-commerce websites ultimately dropped their prices by hundreds of dollars, in an effort to get higher placement on Plan C’s website.

Another pharmaceutical provider — ProgressiveRx — provides a prescription, pills, and a telehealth consultation all for $25, though its shipments from India typically take three to four weeks to arrive. Wells says ProgressiveRx is a great option for women living in restrictive states to stock up on pills in advance. (Mifepristone has a shelf life of about five years, and misoprostol about two years.)

The New York Times estimated in April that international suppliers were likely to provide abortion pills to about 100,000 Americans in the year after Dobbs was decided, or “enough pills to cover about 10 percent of the country’s annual abortions.” Anti-abortion groups have acknowledged the difficulty in stopping the flow of abortion drugs into the US.

Volunteer distribution networks have expanded

Community support groups, also known as “companion networks,” have grown since the overturn of Roe v. Wade and now actively provide free abortion pills to people living in states with bans on reproductive health care. These groups, some of which can be found on sites like Plan C and Red State Access, mail medication abortion and offer doula support.

“You communicate with these groups via [encrypted messaging apps like] Signal, and you don’t need a credit card or a bank account, which can be especially important for young people who might not have those resources,” Wells said. “We know the volunteer networks well and we have no hesitation in recommending them.”

Some of the volunteer companion networks are aided by activists in Mexico. The most prominent Mexican activist group is Las Libres, which was founded in 2000 to serve Mexican women. Abortion access in Mexico has improved, though, and in 2021 Las Libres pivoted to helping Texas women who were newly subject to the state’s six-week ban. The group’s US focus expanded further after Dobbs, and after Mexico’s Supreme Court decriminalized abortion nationwide in September 2023. In 2022 alone, Las Libres helped terminate roughly 20,000 pregnancies in the United States.

How medication abortion access could change in 2024

Earlier this month, the US Supreme Court announced it would hear a challenge to mifepristone, the abortion medication that anti-abortion groups claim was unlawfully approved back in 2000.

While abortion advocates doubt the justices will go so far as to pull mifepristone off the market, as a federal judge in Texas attempted to do earlier in 2023, they are bracing for the possibility that the court might reimpose medically unnecessary restrictions on access, like bans on prescribing mifepristone via telemedicine.

Even if that happens, though, most of the aforementioned options for accessing medication abortion would remain intact. It’s not clear if the FDA would even abide by such a Supreme Court ruling, but if it did, providers using shield laws could still legally ship misoprostol to patients in banned states.

“A Supreme Court ruling wouldn’t affect the community-based networks, ProgressiveRx, or the e-commerce websites that sell pills at all, and so there would still be ways of getting mifepristone and misoprostol in the mail,” Wells said. “The Supreme Court could affect services like Aid Access and Abuzz, but they could also switch to misoprostol-only abortions and that’s what they’re planning to do.”

While not FDA-approved, misoprostol-only abortion is a method backed by the World Health Organization, and a common way of ending pregnancies around the world. 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.”

Kay, of the Abortion Coalition for Telemedicine, told Vox that some abortion providers will probably continue to ship mifepristone even if the Supreme Court reinstates the ban on mailing the pills, given that the combination of mifepristone and misoprostol is slightly more effective than misoprostol-only abortions. (Both options are considered safe for patients, but studies show using just misoprostol is effective at ending pregnancy about 88 to 93 percent of the time, versus 95 to nearly 100 percent for the two-drug regimen.)

A bigger threat to medication abortion access than the Supreme Court may be the election of a Republican to the White House next November, who would control appointments to key federal enforcement agencies like the Justice Department, the Department of Health and Human Services, the US Postal Service, and the FDA.

Anti-abortion groups have already declared medication abortion their top priority if Donald Trump or another Republican is reelected. While GOP lawmakers in Congress might not have enough votes for a federal abortion ban, activists see new executive orders as an alternative way to restrict pill distribution. Anti-abortion activists say they intend to track the views of potential GOP appointees, rather than press Republican presidential candidates on their specific regulatory plans.

Moore, of Expanding Medication Abortion Access, said one risk is that the government will raise the threats of criminal or financial penalties against providers, dissuading more clinicians from offering care.

How abortion rights activists are working to further improve access to pills

Though the cost of medication abortion has dropped substantially since Dobbs, the price is still out of reach for some who need it, and activists are working to help more pregnant people cover the cost of their care.

Kay told Vox the Abortion Coalition for Telemedicine is working on a project dedicated to funding abortion pills for those who can’t afford to pay, something the organization hopes to launch in early 2024.

Moore said leaders need to do more to support women in the two or three days after they take the abortion drugs. “Medication abortion can be an ongoing process for 24 to 48 hours, and we can get people their pills really quickly but helping them manage the process does require more time and investment,” she said. “To be honest, I think we’re still building out the infrastructure for that part of the care.”

Even as activists work to expand access, anti-abortion lawmakers plan to continue their efforts to restrict access to medication abortion, including by exploring new strategies banning website visits to Aid Access and Plan C and making health care providers newly liable for disposing of aborted fetal tissue. Some lawmakers want to test the limits of their extraterritorial powers, and are exploring how they might retaliate against providers in other states, even those operating under shield laws.

Despite these threats, the odds of shutting down all these avenues for abortion medication is low, and the bigger challenge is really helping more people learn about their evolving options. Sometimes that means activists battling big tech platforms over what abortion-related content they’re censoring, and sometimes it means media outlets doing a better job of conveying new information to the public.

Northcraft, of Reproductive Health Initiative for Telehealth Equity and Solutions, added that while telehealth can alleviate many of the expenses associated with getting an abortion — such as travel costs, taking time off work, and lining up child care — there is still more work needed to ensure equity, like ensuring that platforms and providers communicate in multiple languages.

“At the end of the day medication abortion is safe, effective, and what people want,” Kay said. “And it’s going to be available by licensed medical professionals, by people who are mission-driven but not medically certified, or through a for-profit thing on the world wide web. We know it’s not going away.”

Posted in Uncategorized
Tagged abortion, abortion medication, abortion pills, aid access, dobbs v jackson, mifepristone, misoprostol, plan c, Roe V Wade, supreme court
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December 27, 2023

Republicans can’t sugarcoat their losses on abortion rights anymore

Originally published in Vox on November 8, 2023.

Even before Tuesday’s elections, many progressives insisted the question of whether protecting abortion rights wins elections was already asked and answered. Democrats made abortion rights the centerpiece of their campaign advertising during the 2022 midterms, a cycle where Democrats outperformed expectations, kept control of the US Senate, and staved off a red wave. Polls last year also found abortion rights to be a significantly motivating issue for both independent and Democratic voters.

Abortion rights ballot measures won in all six states where they appeared in 2022, including states like Montana, Kentucky, and Kansas that otherwise elected Republican candidates. Democrats have been winning in special elections where they ran on abortion rights, and surveys suggested voters have grown even more supportive of abortion rights since the repeal of Roe v. Wade in June 2022.

Anti-abortion groups argued in turn that liberals were mistaking correlation for causation; they maintained that confidence in abortion rights messaging was misplaced, and voters would ultimately punish Democrats for their maximalist positions. They pointed out that Democrats tried and failed to unseat anti-abortion governors in the midterms, and applauded winning federal candidates who “went on offense” on abortion, like Sen. Marco Rubio and Ohio Sen. J.D. Vance. The lost referendums, anti-abortion groups insisted, stemmed largely from Republican leaders failing to campaign hard enough and from being outspent, something they promised to never let happen again.

The polling on abortion rights, meanwhile, could be complicated and seem contradictory: Voters sometimes express support for second- and third-trimester bans while signaling strong opposition to restricting access to abortion.

The 2023 election cycle represented a big test: Were abortion rights activists right? Or were anti-abortion leaders correct that the earlier post-Roe losses stemmed from insufficient investment and mealy-mouthed campaigning?

A decisive 13-point victory for protecting abortion rights in red Ohio, wins for Democrats in the Virginia legislature where GOP candidates campaigned on rolling back abortion access to 15 weeks, and the decisive reelection of Kentucky Democratic Gov. Andy Beshear, who made protecting abortion rights in his red state central to his campaign, provide the clearest evidence to date that voters of all political persuasions do not support the nationwide attack on reproductive freedom and are voting accordingly.

Anti-abortion leaders tested a host of new tactics this cycle — from rebranding abortion bans as “limits” to claiming the Ohio abortion rights ballot measure was really about curtailing parents’ rights. None of them worked. Republican strategists had been banking on November 7 providing them with proof that voters were sick of Democrats talking about abortion. Virginia was supposed to be a proof of concept that would let Republicans run on a “consensus” position on 15-week bans next year while changing the subject to other topics like crime and immigration.

So Tuesday’s results really were a resounding victory for Democrats and abortion rights supporters — but there are still some caveats and reasons for caution in 2024.

How abortion rights won in Ohio

Anti-abortion leaders recognized how important a win in Ohio would be to changing the narrative ahead of 2024. “A win here would show those other states that will have these ballot measures in the years to come, ‘Hey, these battles can be won,’” Peter Range, the executive director of Ohio Right to Life, told the 19th News in October. The anti-abortion movement threw everything they had at the campaign and still fell far short.

Instead, last night 57 percent of Ohio voters cast their ballot in favor of the constitutional amendment to codify abortion access, despite a significant array of obstacles in a solidly Republican state where Republican elected officials had come out uniformly against the measure.

“Generally speaking, ballot measures in Ohio don’t tend to win,” said Jonathan Robinson, the director of research at Catalist, a liberal voter data analytics firm.

Passing affirmative ballot measures is even harder. In the other conservative states where ballot measures won, abortion rights campaigners organized voters against anti-abortion proposals. Political scientists find it can be easier to be on the “no” side of ballot measure campaigns, since voters have a bias toward maintaining the status quo.

“The reality is Ohio is among the tougher states that we have worked in,” said Joey Teitelbaum, a pollster involved with the Ohio abortion rights campaign, who also worked on winning ballot measures in Colorado, Kansas, and Kentucky. “We stayed focused on a broad values-based message that went beyond partisan politics.”

Though polls indicated Ohio voters were broadly supportive of the proposed amendment, abortion rights advocates were dealing with new hurdles, including an expensive August special election that sought to raise the ballot measure threshold to 60 percent, voter roll purges led by the anti-abortion secretary of state, a misleading intervention from the state’s Republican attorney, and vocal campaigning from the state’s Republican Gov. Mike DeWine, who urged Ohioans to vote no in a TV ad.

The Ohio Ballot Board also drafted its own summary language of the proposed ballot measure, using more politically objectionable terms like “unborn child” instead of “fetus” and refusing to state that the amendment would protect not just access to abortion but also to contraception, miscarriage care, fertility treatment, and continuing pregnancy. Researchers know that the specific language that appears on a ballot can have a significant impact on how voters vote, and a poll released in late October found support for the amendment dropped considerably when voters were presented with the edited language.

“I have never encountered such complete opposition by the state government,” said Ashley All, who served as communications director for the winning pro-abortion rights ballot measure campaign in Kansas and has since consulted on other post-Roe ballot referendums.

Anti-abortion advocates raised millions more dollars than they had in previous ballot measure campaigns, and worked to cast the Ohio amendment as an “anti-parent” measure that would effectively create a new right to gender-affirming surgery for minors. Legal scholars said the fear-mongering about parental consent was unjustified, given Ohio case law and the Republican-controlled state Supreme Court.

That abortion rights won so decisively against all these odds — and that so many Trump voters proved willing to cross party lines to vote in favor of the amendment — is a sobering result that anti-abortion leaders will struggle to dismiss. For now, the Susan B. Anthony Pro-Life America group is saying it lost because voters incorrectly believed pregnant patients could be denied life-saving medical care. But even in states with exceptions to abortion bans, doctors have been denying or delaying care, fearing funding cuts or criminal prosecution.

How abortion rights won in Virginia

Though Virginians were not casting votes on a ballot measure, it was no secret that the Virginia legislative elections were largely being fought over abortion.

“It almost feels like we’re running a single-issue campaign on this one,” J. Miles Coleman, of the UVA Center for Politics, said last week. Among women voters, who make up more than half of Virginia’s election, 70 percent rated abortion as a “very important” issue, up 47 percent from 2019.

All 140 seats in the Virginia General Assembly were up for grabs, and Democrats not only retained control of the state Senate but flipped control of the Virginia House.

Youngkin and anti-abortion groups bet that if they could win in Virginia by running emphatically on a 15-week abortion ban, something they cast as a “reasonable” and “consensus” position, then they could prove to Republicans nationwide that abortion need not be a political loser for their party. (The ban, which they called a “limit,” also would have exceptions for rape, incest, and the life of the mother.) They also hoped that staking out this position would allow them to more easily change the subject to topics they had advantages on, like crime and the economy.

Prior to the fall of Roe, national polls showed broad support for restricting abortion after 15 weeks, but since the Dobbs decision, voters have been signaling more opposition to the idea. A poll released in mid-October from Christopher Newport University found 54 percent of Virginians opposed the idea of a 15-week ban, and another October survey from the Washington Post-Schar School found 47 percent opposed and 46 percent approved.

Another way to understand the question in Virginia is whether voters would support lawmakers cutting short the window of legal abortion by 12 weeks, since abortion is currently permitted up to 26 weeks and 6 days of a pregnancy in the state.

Voters, though, had good reason to be suspicious Virginia Republicans really would stop at 15 weeks. In Florida, Republicans passed a 15-week ban on abortion in 2022, only to turn around and pass a six-week ban in 2023. Other GOP-led states like South Carolina, Georgia, and Ohio have passed six-week bans.

Multiple videos also emerged of Virginia Republicans admitting they’d likely push for more than they’ve publicly let on. In 2021, an activist secretly recorded Youngkin saying he’d go “on offense” if elected but needed to speak minimally about the topic during campaign season. Two months ago videos surfaced of a House of Delegates candidate saying he’d support a “100 percent” and “total” ban on abortion, and more recently a video of a candidate in a Virginia Senate race showed her saying she’d be interested in pushing beyond a 15-week ban.

A Washington Post-Schar School poll from October found that 51 percent of registered Virginia voters trusted Democrats to handle abortion, compared to 34 percent who trust Republicans.

There are real grounds for abortion rights optimism in 2024

The news out of Ohio is auspicious for those organizing abortion rights ballot measures next year in Arizona, Nevada, Florida, South Dakota, Nebraska, and Colorado. Abortion rights have had a 7-0 winning streak on the ballot since Roe v. Wade was overturned, and Republicans’ fear-mongering rhetoric about parents’ rights and abortion “up until birth” seemed to have failed. While Americans tend to be more uncomfortable with abortions later in pregnancy, voters seem to understand they are extremely rare, and typically associated with fetal anomalies, threats to a mother’s life, and barriers to care that delay access to the procedure.

Evidence continues to mount that voters are willing to cross party lines when it comes to protecting access to reproductive health care. If abortion rights campaigners can continue to frame the issue in a nonpartisan way, their odds of success in the next round of ballot measures look good. Democratic Gov. Andy Beshear’s strong reelection in Kentucky is also an encouraging signal that Democrats can campaign openly on abortion rights in red states and still win.

It’s hard to overstate how much the loss in Virginia complicates’ Republicans’ 2024 campaign plans. Virginia was supposed to show that Republicans could cast Democrats as extremists, proactively pursue reductions in abortion access, and still win, even among Biden-leaning voters. The GOP wanted to show Republicans could “neutralize” the abortion issue, so that swing voters would feel more comfortable voting on other topics they trusted Republicans on. Youngkin insisted voters are “ready to move on and talk about topics besides abortion.”

The fact that Republicans failed so spectacularly doesn’t mean Republicans won’t try this strategy again next year, but it does represent a rather clarifying result — and one that should make GOP strategists pretty nervous, especially given that most voters think Republicans want to ban abortion in all or most cases.

How things could still go poorly for abortion rights in 2024

While things have gone well for abortion rights campaigners thus far, most will admit they were certainly not sure things would play out as they did. And, as anti-abortion leaders are quick to point out, Democrats tried and failed to unseat anti-abortion governors like Brian Kemp in Georgia, Kim Reynolds in Iowa, Mike DeWine in Ohio, and Ron DeSantis in Florida last year, showing that it’s not dispositive that politicians will pay a price for restricting access to abortion.

“In the midterms, yes, abortion mattered in certain places, and democracy issues mattered on certain races. But not all of them,” Ashley All told Vox. “Florida voted exactly as Florida does. Political observers and pundits want to make blanket statements about how things will impact an election, but everyone who works on campaigns knows it doesn’t work like that.”

Another concern is that Youngkin’s prediction was just premature and that voters will in fact grow more tired of hearing about attacks on abortion rights the further out from Dobbs the country gets. Republicans bet wrongly on that happening in 2022 and 2023, but experts admit it’s hard to know what will be animating voters a year from now, especially given how exhausted the electorate seems to be these days.

“Generally people seem a little burnt out,” said Robinson, of Catalist. “The level of political donations for Democrats and Republicans is down a lot, which suggests a sag in interest in politics. Interest in the Republican presidential primary is really low.” Though turnout on November 7 was high, the abortion rights measure in Ohio received nearly as many votes as Republican Sen. J.D. Vance did in 2022.

Reproductive rights campaigners also say the public should not underestimate how tough a fight they faced this year in Ohio compared to the previous six ballot measure campaigns in 2022. Anti-abortion politicians are likely to continue their efforts to curb access to the ballot, and invest heavily in TV and digital advertising aimed at confusing voters. This year abortion rights activists benefited from Ohio being the only ballot measure campaign in the country, helping them to raise three times as much money as their opponents, with most money coming from out of state.

Next year, when there are more expensive ballot measures competing for both media attention and political donations, on top of a surely consuming presidential contest and a bevy of congressional and gubernatorial elections, advocates say the fundraising landscape for abortion rights referendums may be much more difficult.

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Tagged 2023midterms, abortion, ballot measure, dobbs, dobbs v jackson, elections, kentucky, midterms, republicans, Roe V Wade, virginia
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October 23, 2023

The anti-abortion movement insists everything is really fine

Originally published at Vox on August 24, 2023.
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The anti-abortion movement is at a political crossroads.

Last year, abortion rights won in all six states with abortion ballot measures, including in red states like Kentucky and Montana that otherwise elected Republican candidates. Earlier this month, activists suffered yet another defeat when Ohio voters cast ballots decisively against a referendum that would have made it harder for constitutional amendments, including an upcoming vote this November on abortion rights, to pass in the future. Abortion was not on the ballot, but anti-abortion groups campaigned heavily in favor of the Ohio measure, and they lost.

Even the Republican presidential primary, which the anti-abortion movement had been planning to dominate, has been something of a mixed bag, and there are signs that the movement’s influence is wavering. During Wednesday night’s GOP debate, Fox News moderator Martha MacCallum argued that “abortion has been a losing issue for Republicans since the Dobbs decision.” A recent New York Times/Siena poll shows that more than a third of Republican primary voters think abortion should be legal all or most of the time, and in a CBS poll this week, most didn’t think it was very important for Republican candidates to talk during the debate about their plans to restrict abortion.

Some candidates, including former Vice President Mike Pence, are still eagerly courting support from the movement, but others appear less willing to take their campaign cues from those anti-abortion organizations.

Donald Trump, for example, has resisted calls from the leading activist group, Susan B. Anthony Pro-Life America, to endorse a national 15-week ban on abortion. He’s also refused to say if he supports the type of six-week abortion ban that Gov. Ron DeSantis signed in Florida. Trump would say, however, that “many people within the pro-life movement feel that that was too harsh.”

And when DeSantis was dismissive of federal abortion restrictions in late July, saying he believed the anti-abortion movement would see more success from states and local communities, SBA Pro-Life America criticized his stance as “unacceptable.” DeSantis’s campaign didn’t seem to care, countering that the governor “does not kowtow to D.C. interest groups.”

Does that mean the anti-abortion movement is planning to rethink its own aggressive post-Roe strategy of trying to limit abortion as much as possible in as many places as possible? For now, the answer is broadly no. Instead, leaders argue that any losses they’ve suffered over the last year have not been because their agenda is unpopular, but because it hasn’t been pursued boldly and strategically enough. If anything, they say, winning will require an even stronger commitment to restricting abortion.

GOP presidential candidates are divided on federal abortion bans

Leading groups opposing abortion rights are divided on what they want to hear from federal candidates.

SBA Pro-Life America has said it will not support anyone who does not express at least a commitment to restricting abortion at the federal level after 15 weeks. Meanwhile Students for Life made clear that they oppose such a 15-week litmus test, given that more than 90 percent of abortions occur within the first 13 weeks. Instead, they asked each candidate to lay out their proactive vision for a post-Roe America, and emphasized that their own blueprint includes granting legal protections to unborn children, defunding Planned Parenthood, banning the distribution of medication abortion by mail, and reimposing other restrictions on abortion pills that were relaxed under the Biden administration.

During the first GOP primary debate, however, most candidates declined to do any of these things, and appeared divided on whether the federal government should limit abortion at all. DeSantis dodged a question on whether he’d support a six-week ban, former South Carolina Gov. Nikki Haley stressed the fact that there’s little chance of getting something through Congress, and North Dakota Gov. Doug Burgum claimed a federal ban would violate the 10th Amendment of the US Constitution. Of the eight candidates on stage, only Pence and South Carolina Sen. Tim Scott backed a 15-week restriction.

Yet while some GOP political consultants quietly worry about electoral backlash to abortion bans that voters consider too extreme, anti-abortion groups have urged candidates to stay the course, and to champion the post-Roe successes the movement has achieved so far.

“A year after Dobbs, 25 states have put pro-life protections into law — half the country,” SBA Pro-Life America stated after the Ohio election. Rejecting the idea that abortion rights were helpful to Democrats in 2022, they touted the midterm wins of Florida Sen. Marco Rubio, North Carolina Sen. Ted Budd, and Ohio Sen. J.D. Vance. Catherine Glenn Foster, president of Americans United for Life, offered a similar rosy post-midterms reflection, noting that public officials who backed or enforced abortion restrictions were reelected in nearly 20 states. “Democrats didn’t crack state governor, state attorney general, or state house seats in red states that have enforced abortion limits since [Dobbs],” she argued.

The movement against abortion rights isn’t admitting defeat

While the attempt to make it harder to pass ballot measures — known as Issue 1 — lost by 14 percentage points in Ohio, anti-abortion groups say that does not mean they’ll face a similar fate when abortion is actually on the ballot in November. The proposed Ohio amendment would restore the right to an abortion up to the point of fetal viability, and permit abortions beyond that point if a patient’s doctor deems it necessary to protect their life or health.

In their post-mortem memo, SBA Pro-Life America said they lost for two reasons: they didn’t start their campaign against Issue 1 early enough, and some voters were motivated to vote no because of concerns about democracy and other policies, like the minimum wage or legalizing marijuana. The group claims it does not see support for abortion rights as a key reason for Issue 1’s failure.

Anti-abortion groups have also blasted Republican elected officials and business leaders for not campaigning hard enough. “The silence of the establishment and business community in Ohio left a vacuum that was too large to overcome,” SBA Pro-Life America argued. “So long as the Republicans and their supporters take the ostrich strategy and bury their heads in the sand, they will lose again and again.”

Terry Schilling, leader of the conservative American Principles Project, likewise slammed GOP donors for not spending heavily enough on the Ohio election, and he blamed Republican presidential candidates and national party leaders for downplaying its importance. Another national anti-abortion group, Students for Life, made similar arguments, noting that being outspent by opponents almost 5 to 1 “certainly helped create the confusion about what was at stake.”

While groups supporting abortion rights frame the Ohio results as a clear-cut victory for their cause, election analysts caution we don’t yet fully understand who voted for Issue 1 and why, and it is possible that voters who cast their ballot against the Issue 1 referendum in August will also vote against expanding abortion restrictions in November.

Students for Life has recently launched a “3-step plan” for defeating the abortion rights amendment, largely by mobilizing youth voters. The group is arguing that voters in states like Kansas are experiencing “buyer’s remorse” for approving a state constitutional amendment for abortion rights last year, and they claim they’ll dissuade Ohioans from making the same mistake. When asked for evidence of such remorse, spokesperson Kristi Hamrick told Vox it’s based on her group’s “lived experience [and] talking with people on the ground.”

Early polls on the November amendment bode well for abortion rights supporters; one from June found nearly 60 percent of Ohioans support the idea of an amendment for reproductive freedom. But political researchers say it’s generally harder for affirmative ballot measures to pass, given what’s known as a “status quo bias.” To pass the Ohio amendment, advocates may copy the playbook from Michigan, where abortion rights activists framed their winning 2022 ballot measure around the idea of restoring the rights of Roe v. Wade — bringing back the reality Americans had known for five decades. Opponents, meanwhile, will claim activists are trying to radically expand rights.

Anti-abortion leaders are already running with this strategy, claiming that Ohio’s proposed abortion rights amendment’s language is so broad that it would create a new right to gender-affirming surgery, and therefore invalidate the state’s requirement for parental consent.

In its post-mortem memo, SBA Pro-Life America argued that advocates in Ohio must stick with “a simple message,” framing the upcoming referendum as “an attempt by ACLU to eliminate parental rights and legalize abortion on demand in the Ohio constitution.” The amendment would only permit abortions past the point of fetal viability to protect a patient’s life or health, but SBA Pro-Life America is urging advocates to claim it will “legalize unrestricted access to abortion until the moment of birth, paid for by Ohio taxpayers.”

Anti-abortion groups note that the ACLU has long opposed parental consent laws, and an ACLU Ohio lawyer in February said existing laws that conflict with a constitutional amendment “should not be enforced.” Still, Ohio case law generally requires parental consent for youth medical care, and the amendment could only affect parental consent laws if someone were to successfully challenge the rules in court as unconstitutional. Given that Ohio’s state Supreme Court is controlled by Republicans, legal experts think a more sweeping interpretation of the abortion rights measure is unlikely. Andrew Everett, an ACLU spokesperson, told Vox in July they “have no plans to challenge parental consent laws in Ohio.”

Even the most unapologetic anti-abortion groups recognize they need to work on the movement’s image

While leading national groups insist there’s no real proof candidates should back away from abortion restrictions, activists are talking more about the need to speak more compassionately to the needs of mothers and children — driven partly by media coverage showing pregnant women and new mothers have suffered under new anti-abortion laws.

SBA Pro-Life America urged lawmakers to support legislation that requires child support payments to begin when a fetus is in the womb, and to expand the child tax credit and parental leave support. Students for Life similarly emphasized the need to better support pregnant moms and parents on campuses. Route Fifty reported that at least four states have approved new tax exemptions for pregnant people and anti-abortion centers, and nearly a dozen more are considering them.

A few dissenting voices in the anti-abortion movement have recently urged more compromise. Schilling, of the American Principles Project, said candidates should stick with 15-week bans that allow for exceptions for rape, incest, and protecting the life of the mother. “Abortion limits need to be reasonable and popular,” he told Politico. “15 weeks, build a genuine culture of life, revisit,” echoed Duncan Braid, a staffer at the conservative think tank American Compass.

But for now these are minority voices, and the anti-abortion movement is broadly urging lawmakers to get bolder, lest they meet the same electoral fate as failed Republican Senate candidates Mehmet Oz in Pennsylvania and Adam Laxalt in Nevada — who SBA Pro-Life America claim ran from abortion in their midterm races and subsequently lost. “Going on offense is essential for any candidate who wants to win in 2024,” said the group’s president, Marjorie Dannenfelser, at the conclusion of Wednesday’s debate.

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Tagged abortion, anti-abortion, dobbs, gop, pro-choice, pro-life, republicans, Roe V Wade
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June 14, 2023

Republicans’ abortion bans are nothing like those in Europe

Originally published in Vox.com on June 6, 2023.
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Republicans scrambling to address mounting backlash to abortion bans have landed on what they hope they can market as a moderate political compromise: limiting abortion after 12 weeks of pregnancy.

Over the last month, Republicans in North Carolina and Nebraska have passed 12-week abortion bans, a dramatic reduction in access for states that previously allowed abortion up until 20 weeks and 22 weeks, respectively.

North Carolina’s ban would permit abortion for rape victims through 20 weeks, for life-threatening fetal anomalies through 24 weeks, and to protect the life of the mother throughout. Nebraska’s new ban would permit exceptions for rape and to save the life of the mother, but not for fatal fetal anomalies. (Health of pregnant person exceptions have been notoriously confusing for doctors in practice, who fear criminal sanctions for violating the vague statutes.)

Republican politicians are casting these new 12-week bans as “mainstream,” comparing them to even more extreme GOP-led states that have banned virtually all abortion, and pointing to other countries, particularly in Europe, that also impose gestational age limits at 12 weeks.

The rhetorical strategy of invoking other countries to justify banning abortion will sound familiar to those who followed the overturn of Roe v. Wade. In that case, Dobbs v. Jackson, Mississippi lawmakers defended their 15-week abortion ban by pointing out that most European countries have even earlier restrictions.

In the Dobbs Supreme Court hearing itself, Justice John G. Roberts claimed the proposed 15-week ban mirrors “the standard that the vast majority of other countries have.” In his majority opinion, Justice Samuel Alito cited a study published by a leading anti-abortion group that argued the US was out of step with the rest of the world in terms of abortion after 20 weeks.

The study, published by the think tank arm of the Susan B. Anthony Pro-Life America, said 47 out of 50 European nations limit “elective” abortion before 15 weeks, meaning before then doctors are not required to attest to a particular justification for the abortion.

But differences between the US and European countries are more complex than that simple comparison suggests. In practice, abortion limits in the United States are far more restrictive than what exists in most of the Western world, including in nations with gestational age limits at 12 weeks, like Germany, Denmark, Belgium, and Italy.

This distinction between “elective” abortions (or “abortion on demand,” as it’s more provocatively called) and “therapeutic” abortions, which are done for medical reasons, might seem like a key distinction between the US and Europe. But in practice, the line is much blurrier. All abortions are ultimately elective — no one is forced to end a pregnancy, even if a doctor recommends it. Plenty of elective abortions are done for therapeutic reasons.

Moreover, European countries that have 12-week limits on “elective” abortions still make it fairly easy for women to get abortions later on, with relatively broad exceptions for mental health or socioeconomic circumstances. Republicans have aggressively fought against similar exceptions, and in particular have worked to bar consideration of mental health risk — even the risk of suicide if a pregnancy continues — as a factor.

And in other ways, European countries make it easier to get an abortion than in even relatively permissive jurisdictions in the United States. Across Europe, abortion services are covered under national health insurance, meaning the cost of accessing care is a far lower barrier for pregnant people facing time constraints.

By contrast, in the US, cost is one of the biggest hurdles to ending a pregnancy. Even though more than 90 percent of abortions occur within the first 13 weeks, roughly 75 percent of all US abortion patients are low-income according to 2014 numbers, and researchers find Americans needing care in the second trimester tend to be those with less education, Black women, and women who have experienced “multiple disruptive events” in the past year, such as losing a job.

Republican lawmakers are also bucking international trends in working to aggressively restrict access to telehealth abortion care and medication abortion generally — which allows patients, especially those who live in remote and rural areas, to get the abortion services they seek on a faster timeline. Both North Carolina and Nebraska have fully banned abortion via telehealth, despite research affirming its safety and efficacy.

Across the globe, the clear trend has been to expand access to abortion, decriminalize the procedure, and loosen restrictions. While restrictive policies, including earlier gestational limits, still present barriers for international abortion care, per the Center for Reproductive Rights, nearly 60 countries have liberalized their laws and policies on abortion since 1994. Only four — the US, El Salvador, Nicaragua, and Poland — have further restricted rights.

Even with earlier gestational limits, abortion in Europe is broadly affordable and accessible. This is not the paradigm Republicans are proposing in the United States. They are fighting to keep abortion expensive, particularly for low-income patients who rely on Medicaid; to limit the reasons like mental health for which patients can access legal abortion; and to restrict access to care, all while imposing bans on telemedicine, ramping up criminal penalties for providers, and shortening the legal timeline for pregnant people to raise funds, arrange travel, and book mandatory medical appointments.

Understanding international abortion access in practice

Republicans have been eager to point to countries that restrict “elective” abortion after 12 weeks to justify the supposedly mainstream nature of their new bans. But in 21 countries across Europe, the cost of abortion care is fully paid for by federal governments, making first-trimester abortions simply easier to do. Abortions in the US can easily exceed $500 out of pocket, and only 17 states currently cover abortion under their Medicaid programs, which they must do with state funds, not federal dollars, as Congress prohibits it.

Another difference is that abortion exceptions for “health of the pregnant woman” in Europe take into account mental health, too. In Germany, for example, while abortion is permitted upon request throughout the first 12 weeks, someone can seek legal abortion through 22 weeks if it would help them “avert the danger of grave impairment to [their] physical or mental health.”

In Britain, which allows legal abortion up to 24 weeks, it’s similarly clarified that a pregnant person can access care if it’s determined that ending the pregnancy would cause less damage to the patient’s physical or mental health than continuing to carry.

“This is always granted [by doctors] under the correct assumption that continuing a pregnancy is always more dangerous than terminating, and that continuing an unwanted pregnancy is always detrimental to a person’s mental health,” said Maria Lewandowska, a reproductive and sexual health researcher at London School of Hygiene and Tropical Medicine.

Any doctor can provide this authorization, she said, and in practice, patients often get approval directly from doctors at abortion clinics. Advocates in the UK have been encouraging the government to authorize nurses and midwives to grant this permission, too.

Some countries don’t explicitly state “mental health” in their statute, but recognize that maternal health includes psychological health. The author of France’s 1975 abortion law clarified during legislative hearings that “the very term ‘health’ covers, it seems to me, the mental aspect as well as the physical aspect.” The World Health Organization’s definition of “health” includes “mental health.” In Canada, leaders make no formal distinction between physical and mental health, which Joyce Arthur, executive director of the Abortion Rights Coalition of Canada, says allows providers to “better integrate abortion care into the broader health care system.”

Meanwhile, research on the psychological harm associated with carrying unwanted pregnancies continues to mount. The Turnaway Study, a longitudinal study on the effects of unwanted pregnancy on patients’ lives, found that the mental health of women able to end unwanted pregnancies was significantly better than that of women forced to carry to term. Another report published in 2022 found that suicide is a leading cause of death for pregnant people during pregnancy and the first year following it.

Anti-abortion activists in the US, for their part, continue to dismiss these studies. “Having an abortion will not mitigate mental health issues,” said Laura Echevarria, a spokesperson for the National Right to Life Committee, which has lobbied state legislatures to exclude mental health.

In addition to providing exceptions for mental health and paying for abortion care, pregnant people in European countries can also seek legal abortion beyond their country’s 12- or 14-week limit for broad socioeconomic reasons, like feeling too young or too old to have children, feeling consumed by existing children, being a single parent, or lacking a stable housing or financial situation. The Center for Reproductive Rights counts at least 16 European countries that permit abortion on socioeconomic grounds.

In Denmark, for example, though the country has a 12-week ban on paper, it’s considered relatively feasible for residents to get approval for abortion beyond that. In 2021, 803 pregnant people applied to get an abortion in Denmark beyond 12 weeks, and 750 were approved.

Thousands of pregnant women living in countries with 12-week abortion bans travel internationally to end their pregnancies

Even with broader grounds for legal exceptions and greater financial assistance available in countries with earlier gestational age limits, first-trimester bans in Europe still force thousands of pregnant people to travel internationally every year to end their unwanted pregnancies. (A French parliamentary report from 2020 estimated that as many as 4,000 French women traveled abroad for abortion annually due to gestational limits. In 2022, French legislators extended their limit to 14 weeks.)

One study published in March looked at people who traveled from countries like Austria, Bulgaria, France, Germany, and Italy to the Netherlands or England for later abortion care. Over half of the pregnant people surveyed hadn’t learned they were even pregnant until they were at least 14 weeks along, when they had already surpassed the limits in their home countries.

The reasons participants cited for not knowing they were pregnant hold strong relevance for pregnant people in the US living in states with new 12- or six-week bans. The participants all said they would have preferred earlier abortion care but didn’t know they were pregnant due to reasons like irregular periods, lack of clear pregnancy signs, misinformation by doctors about contraception, or their gestational age.

While European passports make travel to other EU countries relatively easy, pregnant people then have to shoulder the cost of travel and the abortion, as national governments only fund abortion care for their own residents. Feminist activists help fundraise for pan-European surgical abortion, as well as the distribution of medication abortion to regions where it’s illegal, but second-trimester abortions for non-Dutch residents can cost up to 1,100 euros. Abortion travel also delays care, which increases a pregnant person’s health risks.

Twelve-week bans in the US won’t end the need for abortion care in the second trimester, because there will always be women who lack the knowledge that they’re pregnant before then. But if Republicans wanted to reduce the need for abortion after 12 weeks, they could back straightforward policies to make the procedure more accessible and affordable.

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Tagged 12-week abortion ban, 12-week ban, abortion, dobbs, Europe, first trimester, Roe V Wade
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November 11, 2022

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.”

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July 2, 2022

The coming legal battles of post-Roe America

Originally published in Vox on June 27, 2022.
—–

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

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

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

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

In his concurring Dobbs 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.’”

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Tagged abortion, dobbs v jackson women's health, extraterristial prosecution, reproductive rights, Roe V Wade, surpreme court
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July 2, 2022

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.”

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Tagged abortion, advanced provision, aid access, mifepristone, misoprostol, reproductive rights, Roe V Wade
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December 8, 2021

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.”

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Tagged abortion, Arkansas, Planned Parenthood, reproductive rights, Roe V Wade, sb8
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March 11, 2019

Strategies for a Post-Roe America — and for Post-Roe American Women

Originally published in The American Prospect on March 11, 2019.
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Independent journalist Robin Marty, one of the nation’s top reporters covering reproductive rights, has published a new book—Handbook for a Post-Roe America—with practical advice for women who might actually need to terminate a pregnancy in the future and for people who support abortion rights. While reproductive choice is at risk regardless of what happens at the Supreme Court, there’s little question in Marty’s mind that the landscape will soon look different in a world where Roe is overturned. The faster people accept that, she argues, the faster people can start preparing. This conversation has been edited and condensed.

Rachel Cohen: So, to get started, do you think we are headed for a post-Roe America?

Robin Marty: I am so certain at this point that I will even tell you it will be overturned in 2021. Abortion opponents already have all the cases they need, I’m fairly certain at this point it will be a case on banning D&E [dilation and extraction, a surgical abortion procedure typically performed during the third trimester or the later part of the second trimester] and that will be the case they use to overturn Roe. We know the Fifth Circuit is looking at it right now, and we’re pretty sure that court is going to say it’s not unconstitutional for Texas to do a D&E ban. And that would leave a split circuit decision, which would let the Supreme Court weigh in.

The Supreme Court will pick a case where lawyers can be extraordinarily gruesome. Abortion opponents love D&E bans because they’re so grotesque and no one can defend them without saying you have to pull out a limb.

I expect 2021 because they won’t have a case before the next presidential election, they know that’s the only way they can get the same evangelical voters out to get Trump re-elected. Once the election is over, they will go ahead and move as quickly as possible.

You’ve notably said you think the end of Roe would be a good thing.

I’m quite excited. Roe being overturned is the best thing that could happen to our movement. We’ve been treading water since 2010, we’ve seen all these red states that have been chipping away at access, but it took until Trump was elected and Roe was in honest-to-God jeopardy for all the really privileged and white people to understand that abortion could be cut off for everyone, not just the people who have already lost access. Ending Roe will put everyone on the same level.

Does that mean you supported Gorsuch’s and Kavanaugh’s confirmations?

Oh God, no! They are such a disaster for civil rights and more, even beyond just abortion.

Don’t you think privileged women in states like Massachusetts, New York, and California will continue to feel like the rollback in access doesn’t mean much for them personally?

But they will still be able to see the impacts more directly. Just being able to see people put in jail for accessing their own care—I mean people will get abortion pills, people will get caught, and there will be stark consequences—I think that will be the turning point. It’s like [in 2012] in Ireland when Savita [Halappanavar] died from a septic miscarriage after having been denied an abortion. That was a turning point for the country.

When we go post-Roe, what we’re going to have to decide as a movement, and as activists in general, is what is our new standard? What is accessible? Why does it have to be at a clinic? Why does it have to cost $500 out of pocket at a minimum? We’ve been so busy trying to protect this right that honestly isn’t that great. Is it worth protecting anymore? I don’t know that it is.

Would you say this is a mainstream view among pro-choice leaders?

It’s not a mainstream view, per se, but it’s something that I’ve been talking to audiences about as I’ve done my book tour. Everyone’s first thought is: How could you say Roe coming to an end is a good thing?! And then we talk about it, how now everyone will be in the same position as these marginalized communities that have one clinic in their state and a 72-hour waiting period, and once people understand that abortion is already inaccessible, and maybe it’s time to just get rid of Roe and start fighting for the human right to decide, people get it.

National organizations don’t like any of this, it would be dismantling the power of national organizations and effectively redistributing those resources to local groups. A lot of my work is about why we need to take abortion outside of clinics.

You mean to do more abortions at home?

Yes. In some way, what we’re seeing is the same debate we saw around home births and midwives. This isn’t very different from that, but there’s a resistance to the idea that we don’t need to do this procedure at a clinic, that we don’t have to have formal medical intervention. A lot of this can be left up to us. If we’ve already proven it’s not dangerous—which we have at this point, over and over—then we should be more forceful in pushing for that.

Your book was very practical and concrete. Can you talk about some of the specific suggestions you laid out for emergency contraception?

Emergency contraception was actually how the book started. As soon as [Justice Anthony] Kennedy announced his retirement, I saw a ton of people saying online they were going to give money to Planned Parenthood and stock up on emergency contraception. And my first thought was, “Whoa, now.” That led to a Huffington Post piece where I tried to say how you can do things like that in a more responsible way, which turned into this book.

Sterilization came up in your book as one way women could prepare for a post-Roe America. I was a bit surprised to see that. In your research, are you finding that’s already happening?

Yes, I am finding that women who have already decided they would not be interested in having children, or more children, are looking at this. The problem is it’s quite difficult to get sterilized—doctors don’t like to do it. It’s kind of a paternalistic thing, like saying you surely haven’t met the right man, or you’ll regret not being a mother. There are also a lot of rules—like you have to give consent for the procedure two weeks before you get it done. I have kids and I’ve also been sterilized.

In a chapter focused on organizing, you urged readers to focus on city councilmembers. I feel like the conversations around abortion restrictions has been focused heavily on state legislators and the U.S. Supreme Court.

The reason this book exists is to help take our attention off the bigger picture—which we’ve been paying attention to for a really long time. But national solutions are just not the best place for us to use our resources right now. My book is about drilling down as local as you can get, investing in your state, in your city, and in your local clinics.

One thing we’ve noticed about how power works is the more directly you’re involved in the area in which you can have real power, the more exponentially powerful that is. So for city councils, we’ve seen they are often the last bastion of protecting or ending access to abortion. We saw that when Whole Woman’s Health was trying to open a medication abortion clinic in Indiana. At first it was the city council that tried to block it, then the mayor overrode it, and then the city council tried to block it again. It’s now still going through lawsuits.

City councilmembers have say over things like zoning and noise ordinances, ensuring that buffer zones can be upheld. If there is a city council that is friendly toward abortion rights, that often impacts how the police will deal with people who protest and attend clinics.

Can you talk about the Pregnant Women’s Dignity Act?

The one thing we really need to do is get abortion out of the criminal code. One way to do that is through this law, the Pregnant Women’s Dignity Act, which is promoted by the Public Leadership Institute. It says if a person has any kind of poor birth outcome—it’s not her fault, it’s not something that should be investigated, this is not something that has a place of blame. It doesn’t matter if she did it on purpose, if it was by accident—it’s just a personal medical thing that has occurred and it does not involve the police or the courts.

You explore the idea of creating a new kind of infrastructure of housing, transportation, safety, and financial support for women who need to travel to get abortions in a post-Roe America.

I’ve been thinking about this a lot. Say that Roe is overturned and in Kentucky the state makes abortion completely illegal, and there’s just one remaining clinic. What happens to that clinic? Would that be a good place that you can then set up a hostel for women who need to then travel out of state to get an abortion? If Roe is overturned there will be no abortion in the entire Gulf area, no abortion in most of the Rust Belt. We’re talking about humongous chunks of the country. People are talking about how to make states like New York and Colorado these safe havens where people can go, but what’s the best way we can get people together so they can actually do it efficiently?

Can we bring all the people in the state of Kentucky together so they can all take a bus to Chicago together? Then none of them will have to worry about needing to drive. We have to think about how to work with systems that will be left, and how best to use it especially for those who aren’t going to have the funds to do long-distance travel.

Do you think we’ll increase the number of clinics in the future?

I’ve heard some people say, “Okay, we should build abortion clinics next to airports, so people can get off, get the procedure, and go right back home,” and my first thought was: Have these people tried to open a clinic lately?!

Just last [month] there was a piece in The Austin Chronicle about Whole Woman’s Health losing their Austin office, and they had spent months trying to find a new place they could move into. And this is in liberal Austin! There’s just so much pressure, no one wants to sell or lease their property to an abortion clinic.

I think for the most part what we have for clinics is as much as we’re going to get. And I don’t think that matters—I don’t think we should need as many abortion clinics. If people could just do it at home, as they should be able to especially with telemedicine, then we just need to have enough clinics that people can do follow-ups for later abortion or for people who can’t do it.

But haven’t studies shown that women prefer surgical abortion if they have the choice?

I totally understand why people would choose surgical abortion—you don’t have to worry about the follow-up, you don’t have to see the procedure, but if you look at Iowa, they had an extraordinarily successful telemedicine abortion program until [legislators] took it down. And what they discovered in Iowa was it didn’t increase the number of people having abortions, they just were able to have them earlier.

Your book also looks at the question of civil disobedience and direct action in a post-Roe America.

Yes, I think we’re going to see a lot more civil disobedience. There was a Mother Jones article recently about a woman who sold medication abortion online for years, and that finally got shut down by federal agents. The only thing that made the police finally get involved was because a man used the medication he bought from her to commit a crime.

As I was reading it I thought, how many people would need to start online websites, offering medication abortion for sale, before the FDA threw up their hands and said I can’t keep up with them all? That’s the kind of thing I’m thinking about. What’s the critical mass where so many people are breaking the law that it’s no longer feasible for authorities to keep up? And who are the right people to do it and how do we organize en masse?

What are some other examples of civil disobedience that you can imagine?

There’s a bill that was just reintroduced in Congress, and it comes up every year, the Child Interstate Abortion Notification Act, or CIANA, which would make it a crime to transport a minor across state lines to get an abortion without parental consent. One of the best things NARAL ever did was they dubbed this the “Jail Grandma law.” They brought to mind a picture of a young girl who goes to a different state to get an abortion, and for some reason her parents couldn’t take her so her grandma takes her across the border. Are we really going to throw grandma in jail? That ground everything to a halt, and that is a perfect example of why we need old white ladies to do civil disobedience.

So the last thing I wanted to ask you about was surveillance, and why being conscious of that will be important in a post-Roe America.

One of the reasons it’s really important to pay attention to what you’re saying over open phone lines, over what you’re searching on Google, over text messages, is that when Purvi Patel was arrested in Indiana for allegedly inducing her own abortion, the state went back and forth on is this murder? Is this feticide? A lot of what they used against Patel were texts in her own phone. We need to be aware that if we do decide that it’s time to organize outside the legal bounds, or if someone is going to try to do an abortion outside of a legal clinical setting, that person will need to be really careful about what they put down in writing.

I’m someone who generally hated being pregnant, I did not have comfortable pregnancies. I don’t know how many times I texted someone saying, “God, I wish I wasn’t pregnant.” If I had had a miscarriage, what would stop some suspicious doctor or some overzealous prosecutor to say, hm, she had a miscarriage, I wonder if she induced her own abortion, and then found that text?

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Tagged abortion, Planned Parenthood, reproductive rights, Roe V Wade
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September 7, 2017

A Legal War in Arkansas Threatens Abortion Rights Everywhere

Originally published in VICE on September 7, 2017.
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When Donald Trump ran for president, despite his long history of pro-choice positions, he essentially offered evangelical Christians a deal: Help elect me, and I will appoint pro-life, conservative justices to the Supreme Court. Sure enough, less than three months into his presidency, Trump’s first SCOTUS appointee—Neil Gorsuch—was confirmed, and anti-choice advocates seemed to be one step closer to their ultimate goal of overturning Roe v. Wade.

It may take another appointee to truly tilt the scales of justice against reproductive rights in America’s highest court. But in the meantime, conservatives have been eyeing the Eighth Circuit Court of Appeals, based in St. Louis, Missouri, as a vehicle to bring such a challenge. That’s where, in 2015, appellate judges urged the nation’s highest court to revisit existing abortion jurisprudence, and turn matters over to the states, as conservatives have long dreamed.

Now that same federal appeals court, which may be more hostile than any other to abortion rights, is getting a bunch of new opportunities to go after a woman’s right to choose in Arkansas—and maybe even set the stage for the end of Roenationally.

Over the past several years, legislators in Arkansas—one of seven states under the Eighth Circuit’s purview—have passed some of America’s most restrictive abortion laws. Already in 2017, Arkansas passed a statute that would criminalize doctors who perform dilation and evacuation (the most common second-trimester procedure), and also permit husbands to sue to doctors to prevent their wives from obtaining abortions—with no exceptions even for rape or incest.

Set to go into effect on July 30, the law was blocked after the American Civil Liberties Union, the ACLU of Arkansas, and the Center for Reproductive Rights sued over it and three other recently-passed abortion restrictions. Lawyers brought the suit on behalf of a physician working at one of the last two abortion clinics in the state, and argued the laws posed unconstitutional burdens on a woman’s right to choose.

On July 28, federal judge Kristine Baker blocked the laws’ enforcement, and Arkansas Attorney General Leslie Rutledge filed for an appeal two weeks ago. A spokesman for the AG did not return multiple requests for comment.

What should worry abortion-rights advocates is that there’s plenty of reason to suspect the Eighth Circuit will be sympathetic to Rutledge’s challenge. In March 2016, Judge Baker issued another injunction against a 2015 Arkansas lawrequiring physicians who prescribe abortion-inducing drugs to secure contracts with doctors with hospital admitting privileges—a high bar to meet in the increasingly conservative state, and one the American College of Obstetricians and Gynecologists and the American Medical Association said had no medical basis. This past July, the Eighth Circuit lifted Baker’s injunction, ruling she would need to more concretely prove that a sizable number of women will face harm under that law.

In an interview with VICE, Steve Aden, chief legal officer and general counsel for Americans United for Life, said he felt the Eighth Circuit’s request for “some real math” was reasonable. He also defended the admitting privileges requirement as a common-sense measure to protect women’s health, noting that other outpatient surgical procedures generally require it. “If you or I go to a clinic and get Lasik or a colonoscopy, chances are really good that the doctors will have admitting privileges,” he said.

Meanwhile, the US Supreme Court last year heard arguments for Whole Woman’s Health v. Hellerstedt, widely considered to be the most significant reproductive rights case in nearly 25 years. In a 5-3 decision, the justices ruled that a package of Texas abortion restrictions imposed an unconstitutional burden on women seeking to end their pregnancies.

Fatima Goss Graves, the president and CEO of the National Women’s Law Center, told VICE anti-abortion opponents haven’t been much deterred by that outcome. On the contrary, she said, they are eagerly working to put more abortion cases before the Supreme Court as soon as possible. “They are still purposely trying to pass extreme laws that conflict with Whole Women’s Health, with Roe, so they’ll [then] be challenged in court,” she said. “That is the strategy.”

Another Arkansas case that could reach the Supreme Court concerns conservative boogeyman Planned Parenthood. In 2015, following the release of doctored videos purporting to show Planned Parenthood illegally profiting from the sale of fetal tissue, Arkansas Republican Governor Asa Hutchinson announced he would be terminating Medicaid contracts with the women’s health organization. Judge Baker blocked the move that September, but last month, a three-person panel on the Eighth Circuit decided Arkansas could cancel its Medicaid contract with Planned Parenthood—a notable departure from rulings in the Fifth, Seventh and Ninth Circuits. On August 30, the plaintiffs appealed to make their case again before the entire Eighth Circuit.

Aden, of Americans United for Life, thinks this case stands a shot of reaching the Supreme Court given the Eighth Circuit’s first decision diverged so sharply from other Appeals Courts nationwide.

I asked Bonyen Lee-Gilmore, a spokesperson for Planned Parenthood Great Plains (an affiliate overseeing Arkansas, Kansas, Missouri, and Oklahoma), if they would appeal to the Supreme Court, should the full Eighth Circuit uphold the Medicaid ruling. “When it comes to next steps in the legal world, we really play it one step at a time,” she said. “Every time a decision comes down, we’re evaluating all our legal options, and the reality is we could end up in the Supreme Court, but we’re not there yet. Right now we’re just seeing if we can successfully secure an en banc appeal.” (To hear a case ‘en banc’ means before the entire bench of judges, rather than a three-person panel.)

It’s worth noting that even though Arkansas’s governor cancelled state Medicaid contracts with Planned Parenthood over the 2015 fetal tissue videos, three Republican-led congressional investigations and 13 state-level probes—including one by a Texas grand jury—found no evidence of wrongdoing.

Gillian Metzger, the Stanley H. Fuld Professor of Law and vice-dean at Columbia Law School, thinks the Eighth Circuit “has really pushed the envelope” on constitutional retraction of reproductive rights in America. But whether these specific cases make it to the Supreme Court, she said, comes down—as always—to how willing justices are to engage with the abortion issue again. “The bigger question is does the Court have an appetite for this after 2016? And my guess it might wait a little bit to see how the Whole Women’s Health decision plays out,” she said.

In the meantime, President Trump will have the opportunity to fill three vacancies on the Eighth Circuit. If all are confirmed, according to longtime legal writer Rox Laird, only one of the Eighth Circuit’s eleven judges will have been appointed by a Democratic president, making it “the most ideologically lopsided of all the US Court of Appeals.”

Even if pro-choice advocates secure Medicaid funding for Planned Parenthood and defeat this round of abortion restrictions in the Eighth Circuit—by no means a safe bet —advocates aren’t expecting legislators to slow down their anti-abortion efforts any time soon. In mid-August, Planned Parenthood Great Plains and the ACLU argued yet another case in Arkansas federal court, protesting a law mandating the suspension of an abortion provider’s license for any minor error found during an inspection. That rule doesn’t apply to any other licensed health center in the state.

“We’ll be on high alert when the legislature returns in 2019 and continue to fight these extreme attacks on women and their rights,” said Rita Sklar, the executive director of the ACLU of Arkansas. “Often, the only way to get Arkansas politicians out of the exam room is to take them to court.”

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Tagged abortion, eighth circuit, Planned Parenthood, reproductive rights, Roe V Wade
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Rachel M. Cohen

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