Abortion, Every Day (4.13.23)

Nebraska Republicans admit abortion ban is about controlling women

In the states…

Let’s talk about the abortion ban that just advanced in Nebraska. The bill is essentially a 6-week ban; it prohibits abortion once a “fetal heartbeat” is detected. A reminder: There is no heartbeat at that stage because there is no heart, no heart valves, no cardiovascular system: What anti-abortion legislators are referring to is electrical activity, and doctors point out that the ‘heartbeat’ you hear is actually created by the ultrasound machine. This is what a 6-week pregnancy looks like.

There is a chance that Nebraska Republicans will accept an amendment that changes the bill to a 12-week ban, because of fears over public outrage and pushback. Sen. Teresa Ibach, co-sponsor of the legislation, said, “I do think the 12 week proposal would be a compromise.” I’ve said this many times, but we have to be so mindful of this language: They want to convince Americans that certain bans are ‘reasonable’. They’re not.

Two other notable things about this legislation that lay Republican hypocrisy bare: The ‘exception’ for a pregnant person’s health and life, and the allowance for IVF. The language around both are incredibly telling.

On IVF, the bill states that abortion will not be defined as including “the termination or loss of the life of an unborn child who is not being carried inside a woman's body.” That is a clear admission that this legislation is solely about controlling women! If conservatives believe that an embryo created via IVF is an “unborn child,” why would it be morally or legally acceptable to discard it? They are telling us straight out that they are only interested in legislating what happens to women’s bodies.

The ‘exception’ for the health and life of a pregnant person also makes legislators’ misogyny clear. Let’s compare the language used for pregnant women versus the language used for fetuses.

The bill says that an abortion will not be defined to include a “medical emergency means any condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the termination of her pregnancy to avert her death or for which a delay in terminating her pregnancy will create a serious risk of substantial and irreversible physical impairment of a major bodily function.” Whew. A lot, but wait—there’s more!

The legislation goes on to make clear that a medical emergency can’t include a mental health emergency—even a credible threat of suicide. It also requires a doctor who is providing a medically emergent abortion to “certify in writing that a medical emergency existed and explain the medical emergency in the written certification.” That’s a whole lot of qualifiers!

Now let’s look at the language for a fetus. The bill says that an abortion will not be interpreted to mean “an act done with the intention to save the life or preserve the health of the unborn child.” That’s it. Measures to save the health or life of an embryo require no clarifications, certifications or explanations. That one sentence in the bill tells you all you need to know. (For some added horror, please know that Nebraska Republicans also utilized the racist ‘Great Replacement Theory’ to argue in favor of the ban.)

I’m sorry to say that the Florida abortion ban has gotten its final approval in the legislature—now it heads to Gov. Ron DeSantis’ desk, where it’s expected to be signed. We knew it would happen, but that doesn’t make it any easier. The impact this will have on the South really can’t be overstated. Earlier this week, I told you about new data showing that Florida was one of the states that saw the biggest increase in their abortion rates—largely because of out-of-state patients traveling there for care.

The health center manager for Planned Parenthood’s Jacksonville clinic, Jessica Wannemacher, told The 19th that other states are going to be inundated with Florida patients, and those who would have gone to Florida had it not been for this new ban:

“They’re going to be overrun and overfilled. There they’re gonna have to take on the tsunami effect that we had to when Roe fell…hopefully they’re preparing for it right now.”

Meanwhile, pro-choice states are still struggling with how to interpret and deal with the mifepristone ruling. New Jersey Gov. Phil Murphy says, “We’re trying to consider what other states are also considering: whether or not we want to go out there and aggressively stockpile one or both of these pills.” Any pro-choice state that didn’t sign onto that Washington lawsuit (like New York, Massachusetts, and California) is dealing with this issue: They don’t have the same legal cover that the other states who did sign on currently have.

In Washington, a new bill would allow the state Department of Corrections (DOC) to distribute or sell mifepristone to clinics—a move to ensure that abortion medication is still available in the state even if the manufacturing of mifepristone pauses or is delayed because of the lawsuits around the medication.

Political leaders in Maryland and Vermont (states protected by the Washington ruling) are considering stockpiling abortion medication; Michigan abortion providers say they’re ready to go misoprostol-only if necessary, but worry about how rulings will impact telehealth, which is on the rise in the state; and Arizona abortion providers say that on advice on the state Attorney General, they will continue to provide medication abortions with mifepristone.

In other state news, New Hampshire Republicans defeated two bills today that would have expanded abortion rights: One would have eliminated criminal and civil penalties for those who violate the state’s 24-week restriction; the other would have stopped the state from putting further restrictions on abortion.

And in Wyoming, Secretary of State Chuck Gray is trying to join in on a case over the state’s currently blocked abortion ban. Along with other Republican lawmakers, Gray filed to join the case in order to defend the near-total ban. (An unusual move demonstrating just how much he wants to fuck over women!)

If you’re a regular reader, you know that Idaho has passed some of the most extreme anti-abortion legislation in the country, including their latest ‘abortion trafficking’ bill that makes helping a minor ending a pregnancy a crime punishable by two to five years in prison. Today in MSNBC, Idaho Senate Minority Leader Melissa Wintrow writes that Republicans there are “building an abortion police state.”

Sen. Wintrow also gets at something I’ve been pointing out a lot here: “Idaho Republicans are using smoke and mirrors to try to fool people into thinking that they fixed a problem when they just made it worse.” This is something we’re seeing across multiple states: conservative lawmakers passing or amending legislation and claiming that they’re ‘softening’ or ‘fixing’ any problems with their abortion bans. They’re not—they only thing they’re fixing is their messaging.

And if you need a reminder of the consequences of Idaho’s ban, listen to Idaho Matters at Boise State Public Radio about more data showing an exodus of OBGYNs and maternal fetal medicine specialists from the state:

Quick hits:

• Legislation to expand abortion rights in Maine is expected to pass despite GOP opposition;

• New York is seeing an increasing number of out-of-state abortion patients;

• Pennsylvania Democrats want to reduce funding for anti-abortion centers;

• What Idaho’s ‘abortion trafficking’ law might mean for other states like Washington;

• New Nevada legislation would stop any government restrictions on birth control (wish this wasn’t necessary but it’s a smart move);

• And I love this fact-check of the anti-abortion group in Ohio that is using anti-trans scare tactics against the pro-choice ballot measure heading to voters in November.

In the nation…

Before we launch into the latest on mifepristone, just a reminder: 53% of Americans want abortion medication to be legal, and that is a number taken before the rulings came down last week. Also crucial to remember: Right now mifepristone is legal.

If you are seeking an abortion but have questions about the law in your state, the organization If/When/How runs a legal helpline.

Onto the details: Overnight, the 5th Circuit Court of Appeals issued a ruling that would allow mifepristone to stay on the market, but only if it’s used before 7 weeks of pregnancy. The court also ruled that mifepristone cannot be dispensed through the mail or via telehealth, and that it can’t be given out by health care providers who aren’t physicians. (All steps that the FDA took recently to ease access to abortion medication.) You can read the full decision here.

Mark Joseph Stern, who has been doing terrific work over at Slate on the rulings, tells us that “the 5th Circuit embraced many of the most extreme and indefensible aspects of Kacsmaryk's lawless decision while striking a false pose of moderation.” He says the court “spun out a series of lies and legal contortions to justify blocking every action the FDA has taken to expand mifepristone access since 2016.”

But here’s some good news: The 17 states (and D.C.) that signed onto the Washington ruling don’t have to adhere to these new restrictions. Washington Attorney General Bob Ferguson says the ruling is “crystal clear.” and that “no judge in Texas or the 5th Circuit gets to override what a federal judge in Washington state has decided.”

In response to the 5th Circuit the Biden administration is taking the case to the Supreme Court. From Attorney General Merrick Garland:

“The Justice Department strongly disagrees with the Fifth Circuit's decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal. We will be seeking emergency relief from the Supreme Court to defend the FDA's scientific judgment and protect Americans' access to safe and effective reproductive care.”

Law professor Greer Donely, who Abortion, Every Day spoke with last week about Kacsmaryk’s ruling, has a pivotal twitter thread on what all of this means—especially for those 17 states and DC, and for the future of the Comstock Act and abortion. (Under a future Republican administration, even tools used in an abortion procedure could be illegal to ship.) We will keep you updated as things change—which they seem to be doing every fucking twelve hours!

Meanwhile, in not-so-surprising news, telehealth abortion providers are seeing a huge increase in patients and website visits since Kacsmaryk’s ruling. The Guardian reports that Carafem, has seen a 38% increase in people booking virtual appointments; Hey Jane has had a 30% increase in patients in the last week, and a 58% increase in website; and Plan C has seen almost double their normal website traffic.

Quick hits:

• Vox has an explainer on mifepristone and the current legal landscape;

• The Associated Press has a piece on how abortion providers are sorting out what to do on medication abortion in light of rulings, appeals and ongoing legal confusion; and another on how clinics are doing their best to reassure patients;

• ABC News examines the role that ‘judge shopping’ played in the ruling against mifepristone;

• And WIRED looks at how the legal fight over medication abortion could impact free speech.

Looking to 2024…

I told you yesterday that Nikki Haley, who is running for president, is changing her messaging up on abortion to sound more pro-choice (even though we know the truth).

Today, South Carolina Republican Sen. Tim Scott—who announced this week that he launched an exploratory committee for a 2024 presidential campaign—said that he supports a federal abortion ban after 20 weeks of pregnancy. “It makes total sense to me,” Scott said.

And now that Florida is passing that 6-week ban, presidential hopeful Gov. Ron DeSanits will also have to come up with something to say about the issue: It’s going to be hard to paint yourself as ‘reasonable’ when your own state has what amounts to a total ban. Nikki Fried, Chair of the Florida Democratic Party, says, “If there was any question about whether Ron DeSantis is in lockstep with anti-choice extremists pushing a nationwide abortion ban, this latest endorsement answers it.”

Fried pointed out that 6 weeks is before most women know that they’re pregnant, and that “Americans across the country deserve to know that this is the kind of MAGA extremism he would bring to the White House.”

Related: The New York Times has a roundup of where presidential candidates stand (or likely stand) on abortion

What conservative are saying…

Just a reminder that this was never going to stop at abortion. I’ve been raising the alarm about the radical anti-abortion group Students for Life, and the way they’re being painted as mainstream—they’re constantly quoted in the media, for example. So I appreciated this column in the Los Angeles Times—reminding us that Republicans are coming for birth control next—that highlighted the kind of conversations that were happening at the group’s 2019 annual conference.

Gabrielle Jastrebski of FEMM Health, an organization that hides its religious and political affiliations while spreading misinformation about hormonal birth control, told the conference audience, “contraception and abortion are inextricably linked to one another.” She continued:

“Contraception can really be seen as sort of the beginning of the road to abortion…We are told that in order to be pro-women, we need to be pro-contraception. This is absolutely false.”

We are going to see this kind of extremist language mainstreamed more and more. After all, just look at the anti-abortion rhetoric that made it into Kacsmaryk's ruling! Something to keep a very close eye on.

Today’s newsletter was compiled and written with Abortion, Every Day researcher, Grace Haley.