The Week in Abortion

8.28.23 - 9.1.23

The War on Abortion Travel

Since Roe was overturned, the abortion rate has gone down—but not by nearly as much as the anti-abortion movement would like. Americans in anti-choice states are still able to have abortion medication mailed to them, and women are frequently traveling to pro-choice states for care. Republicans want to end all that. 

Their plan to stymie access to abortion pills is already well underway, but stopping people from getting out-of-state abortions is not so easy. Conservative lawmakers and anti-abortion organizations can’t say outright that they want to prevent women from traveling—plus they have that pesky Constitution to deal with. And so they’re relying on the same chipping away approach that they used to limit abortion (and now birth control).

What started in earnest with the anti-abortion ‘trafficking’ law in Idaho—which prohibits taking a minor out-of-state for abortion care—is now making its way to Alabama and Texas.

In Texas, small towns are passing ordinances that make it illegal to transport anyone out-of-state for an abortion, labeling it as—you guessed it!—‘trafficking’. Driving a friend from or through one of these towns in order to get care outside of Texas opens a person up to civil suits—something that’s become a hallmark of Texas abortion bans. As I’ve written previously, you don’t have to ban travel outright if you simply make people too afraid to lend a friend gas money to get out of the state. The point is too instill fear.

It’s just as bleak in Alabama, where abortion providers and funds are suing Attorney General Steve Marshall to ensure that he can’t charge them for helping patients get out-of-state care. (The suit is a response to a radio interview Marshall gave where he said volunteers who helped a Louisiana woman travel out-of-state for an abortion would face “conspiracy” and “accessory” charges in Alabama.) In a motion to dismiss the case this Monday, Marshall not only argued that it’s illegal to help someone leave the state for abortion care—but that the state could also legally restrict a woman’s right to travel for abortion.

I don’t know why I haven’t seen one other publication cover this, but it sure seems important! Essentially, Marshall argues that because it’s not unreasonable to require a sex offender to tell law enforcement when they change residences, it wouldn’t be unreasonable to enact the same kind of restrictions on someone leaving the state for abortion care. Yes, seriously.

I have more details in this Twitter thread and in yesterday’s column (below), but it’s vital that we’re paying attention to every single thing these maniacs say and write—because they’re consistently giving up the game.

You're Not Overreacting

Attacks on Democracy

A law went into effect in Texas yesterday that allows for the removal of district attorneys who decline to prosecute abortion cases. The law targets elected officials by letting citizens petition for the removal of prosecutors who don’t use their county’s money, time and energy to go after people’s private health decisions.

As I wrote this week, consider what that means in a state where everyday citizens have already been deputized to enforce abortion bans: The asshole who sued his ex-wife’s friends for allegedly helping her obtain abortion medication, for example, is now also able to petition for the removal of a district attorney who won’t pursue criminal charges against those same women.

In related news, Rolling Stone spoke to one of the prosecutors who might lose his job.

Republicans are still undermining democracy in Ohio, where voters are set to decide on a pro-choice ballot measure this November. Given that their efforts to raise the standards for ballot measures were unsuccessful, and their lawsuits failed—the Ohio GOP has now attached a false and inflammatory summary to the amendment. The goal is to mislead and scare voters about what the measure would actually do. (Find more info on the summary—which Ohioans United for Reproductive Rights calls “propaganda”—in last week’s coverage.)

In response, abortion rights advocates filed a lawsuit with the state Supreme Court this week, asking that the entire amendment be included so that voters can see the language for themselves, and that the ballot board correct the inaccuracies in the summary. “Ohioans are constitutionally entitled to ballot language that allows them to make an informed decision about how they will cast their votes,” the complaint reads.

But conservative lawmakers don’t want voters to make an informed decision—because they know they’ll lose.

Meanwhile, Wisconsin Republicans have been strategizing on how to keep newly-seated state Supreme Court Justice Janet Protasiewicz from restoring abortion rights in the state. A challenge against Wisconsin’s abortion ban is making its way through the courts, and will almost certainly end up in front of the state Supreme Court—which is now under liberal control. To prevent the Court from overturning the state’s ban, Republicans are planning to remove Protasiewicz from cases where they claim she’s ‘biased’—and impeach her if she refuses to recuse herself. As Wisconsin Sen. Kelda Roys said, they want “to try to overturn the clear will of the voters.”

State Updates

The New Mexico Supreme Court will hear oral arguments in a case against “Sanctuary City for the Unborn” ordinances (bans passed by local governments in spite of abortion rights protections in the state). These laws— the work of the same activist passing ‘trafficking’ ordinances in Texas—are a strategy to bring a Comstock Act case before the Supreme Court.

South Carolina’s all-male Supreme Court declined to rehear the challenge to the state’s abortion ban, which they recently ruled could go into effect. (Law professor Mary Ziegler has a must-read piece in CNN about the decision and what it means for abortion rights more broadly)

Next week, the Florida Supreme Court will hear arguments in the legal challenge to the state’s 15-week abortion ban—a ruling which will determine the future of the state’s recently-passed 6-week abortion ban.

Abortion is playing a big role in the upcoming state Supreme Court election in Pennsylvania, which will likely end up being the most expensive state Supreme Court election the state has ever had.

In the wake of enshrining abortion rights in the state constitution, Michigan is getting rid of some of its anti-abortion TRAP laws. But the state is holding off on repealing its parental consent mandate. The move is likely about the upcoming ballot measure fight in Ohio, where anti-abortion activists have claimed the amendment would allow for minors to have abortions and gender-affirming care without parental permission. (If Michigan repeals parental consent after passing a pro-choice amendment, it allows conservatives to argue the same would happen in Ohio.)

Speaking of ballot measures: Abortion rights advocates in Colorado are pushing for a pro-choice amendment in order to end the state’s ban on public funds for abortion care.

And in Virginia, Gov. Glenn Youngkin plans to revive his proposal for a 15-week abortion ban, which—of course—he’s calling a ‘consensus’ limit.

National News

Earlier this year, the company that makes a generic version of mifepristone sued West Virginia over its abortion ban. GenBioPro argued that federal law (aka the FDA’s approval of the medication) takes priority over any state law that conflicts with it, and that the ban violates their right to interstate commerce. This week, however, a federal judge ruled that West Virginia can restrict the sale of abortion medication, and that the state’s ban takes precedence.

This week, a jury found five anti-abortion activists guilty of violating the Freedom of Access to Clinic Entrances (FACE) Act when they deliberately blocked access to a D.C. clinic. Good news, but also remember that the FACE Act is being used by the Biden Administration to target pro-choice activists for isolated incidents of graffiti on anti-abortion centers—a concession to Republicans calling for an end to so-called ‘pro-choice violence’.

Republican women are backing meaningless protections for birth control in an attempt to protect themselves against voters who may be angry about abortion bans. What’s notable, however, is that the legislation they’re pushing defines pregnancy as starting at fertilization rather than implantation. That’s exactly the tactic conservatives have been using to argue that certain forms of contraception—like IUDs and emergency contraception—are abortifacients. (I just wrote about this strategy a few days ago!) That means their ‘protection’ for contraception actually enshrines the idea that some of the most common forms of birth control cause abortions.

‘Reasonable’ Republicans in 2024

With 2024 around the corner, GOP presidential candidates like Nikki Haley and Donald Trump are trying to paint themselves as the ‘reasonable’ Republicans on abortion. (Apparently the other candidates haven’t seen the writing on the wall—or any fucking recent poll.)

Haley’s comments on abortion rights in the Republican presidential debate sparked glowing reviews from political pundits who claimed she came across as moderate, and predictions that voters would now take her more seriously. Vanity Fair writer Mark McKinnon even called Haley “Republicans’ Last, Best Hope for 2024.”

But what everyone seemed to miss was that Haley’s abortion stance is actually substantively no different than her opponents’—she’s just better at messaging! In fact, she signed a pledge to ban abortion at 15 weeks. My full column on Haley’s actual abortion position (and why she’s so dangerous) here:

No, Nikki Haley Isn't Reasonable on Abortion

Trump, on the other hand, is all in on abortion ‘exceptions’ as a way to distinguish himself from the other candidates. The disgraced former president—who blamed Republicans’ abortion extremism for their losses during the midterms—has refused to explicitly endorse a national 15-week ban, and is frequently hammering on the GOP’s latest abortion talking point—the “three exceptions.”

The idea is that by talking about exceptions for rape, incest, and the life of the pregnant person, voters will somehow be able to put aside their distaste and anger over abortion bans. That’s why it’s more important than ever that Democrats are talking about how abortion ban exceptions aren’t real.

I’ve said this so many times, but I will repeat it any chance I get: It’s not enough to say that exceptions have too many hurdles or are difficult to access. They’re fucking imaginary. It shouldn’t be a hard message to relay: we have proof of that fact every single day.

Just this week, an investigation found that hospitals in Indiana won’t provide rape victims with abortions despite an ‘exception’ that supposedly allows survivors to access care.

We know that Trump, and others, will be desperate to prove themselves as reasonable on abortion—and that they’re going to use ‘exceptions’ to do it. Democrats have plenty of time to lay the appropriate groundwork with voters, explaining that these so-called exemptions don’t exist. The only question is: will they actually do the smart thing?