Abortion, Every Day (9.6.23)

75% of Oklahoma OBGYNs are either leaving or considering leaving the state

Hey, it's Grace Haley, Abortion, Every Day researcher and I am bringing you the newsletter. Fantastic news today: Mexico’s Supreme Court decriminalized abortion nationwide by ruling that state laws prohibiting the procedure are unconstitutional and violate women’s rights. Así se hace, México! Let’s get started with the rest –

In the States

I wanted to start today’s newsletter by highlighting that the Florida Supreme Court could strip away reproductive rights that are explicitly guaranteed by the state’s constitution. As Jessica told you yesterday, the Florida Supreme Court is scheduled to hear oral arguments on the state’s 15-week abortion ban this Friday—a case that will also determine the future of the 6-week ban passed in April. 

Legal experts argue that state Supreme Courts like Florida’s have taken on new significance after Roe was overturned by diverting from decades-long precedence. Florida was supposed to be a state where women had an explicit constitutional right of privacy that “encompasses a woman’s right to choose to end her pregnancy”—as quoted from the same Court that is expected to ignore or overrule its own precedent by upholding the state’s abortion ban.

Some Florida abortion history: the state Supreme Court ruled in 1989 that Florida’s right to privacy in the state constitution “is clearly implicated in a woman’s decision of whether or not to continue her pregnancy.” The justice wrote, “We can conceive of few more personal or private decisions concerning one’s body that one can make in the course of a lifetime.” Similarly in 2017:

“Florida voters have clearly opted for a broader, explicit protection of their right of privacy. Indeed, Florida voters rejected a constitutional amendment in 2012 that would have interpreted Florida’s explicit constitutional right of privacy as being no broader than the implicit federal constitutional right of privacy.”

Florida abortion providers cite this history in their challenge to the state’s ban, but the court has signaled they’re more than willing to overturn Florida’s abortion rights protections. The justices (five of whom were newly appointed by Gov. Ron DeSantis) have a history of anti-abortion views—including being married to a co-sponsor of the six-week abortion ban legislation, doing pro-bono legal work for anti-abortion crisis pregnancy centers, and being supported by the anti-abortion Florida Family Policy Council. The hearing will be broadcast live on Friday.

More court news: Montana abortion providers are suing the state over a new TRAP law that puts onerous requirements on clinics.  The new law, signed by Gov. Greg Gianforte, is Republicans' way to get around abortion rights protections in the state. (Montana has a constitutional right to privacy which encompasses abortion.) From Aileen Gleizer, a spokesperson for the two independent clinics that brought the suit:

“What we're seeing here is lawmakers trying to single out abortion. They haven't been able to outlaw it, and so they're trying to come up with kind of fictionalized bureaucratic barriers to make it untenable for clinics to operate.”

The law, which has nothing to do with patient safety, targets abortion providers with unique mandates that other health clinics don’t have to deal with. The law requires clinics, for example, to get a license from the state health department—and directs the health department to establish certain rules around equipment, staff, and even the “architecture” of a clinic. The law goes into effect in October; we’ll keep you updated on the suit in the meantime. 

A lawsuit challenging the abortion ban in Missouri had its first hearing this morning, with abortion rights advocates seeking to block the state from enforcing the law. The suit is one of the multiple religious freedom lawsuits filed by Jewish, Christian and Unitarian Universalist leaders that point out co-sponsors of the abortion ban “openly invoked their religious beliefs” during the legislative process, and “imposed those beliefs on others who don’t share them.”

You would think that since Wyoming Republicans want to ban abortion, they’d be prepared to answer a few questions about why—and exactly how their ban would work. But in the legal challenge against the ban, the state has been fighting against answering any questions about their law, arguing that to do so would be “burdensome.”

The questions that are too difficult to answer? The abortion providers and women challenging the law simply want the state to explain the government interest that the bans support, and to provide justification for the restrictions it places on women’s right to make decisions about their own health. They also want Republicans to explain how, exactly, the law would work in practice. From the Casper Star-Tribune:

“Many of the group’s other questions asked the state to explain the language of the bans and the process a doctor should go through when determining if they can legally provide an abortion. They questioned what qualifies as ‘a substantial risk of death’ for a pregnant woman, as well what illnesses or circumstances would contribute to the ‘serious and permanent impairment of a life-sustaining organ of a pregnant woman.’ They also asked the state to identify what medical information and guidelines doctors should rely on when trying to make their decisions.”

All of which seems like pretty important information if you’re going to ban abortion in the state! The good news is that last month, Judge Melissa Owens ordered the state and the Wyoming Attorney General’s Office to provide substantive answers to those questions—and to turn them over by today.

Wisconsin Democrats are launching a $4 million campaign to fight back against Republican efforts to impeach newly-appointed Justice Janet Protasiewicz. Jessica wrote about the state GOP’s strategy a bit last week: Republicans want to stop the pro-choice judge from weighing in on a case that could restore abortion rights in the state, and so they’re pushing for Protasiewicz to recuse herself from abortion-related cases. If she doesn’t, they’ve threatened to move forward with impeachment. From Democratic Secretary of State Sarah Godlewski:

“They’re deliberately trying to overturn the will of the people. We have to understand the risk this is posing. It’s a potential reality that would put Wisconsin’s democracy in jeopardy.”

In response, Democrats plan to mobilize voters, launch television and online ad campaigns, and get back into the door-knocking that won them the Supreme Court to begin with.  

Quick hits:

• State officials in Arkansas are seeking designs for a monument to commemorate "unborn children aborted" that will be featured at the state Capitol;

• The Richmond Times-Dispatch released a video recording of another Virginia swing district Republican saying he wants to outlaw abortion; 

• Kansas gives $2 million unplanned-pregnancy contract to a new anti-abortion nonprofit led by former state legislators who are collaborating with a similar effort in Texas;

• And law professor Mary Ziegler’s MSNBC piece on the Alabama Attorney General’s abortion travel restriction argument.

In the Nation

The Meta Oversight board published their findings today about Facebook’s removal of abortion-related posts. One pro-choice user, for example, posted about proposed legislation in South Carolina that would make abortion punishable by the death penalty, and joked “so pro-life we’ll kill you dead if you get an abortion.” Facebook removed the post under their policy around death threats. Gizmodo reports that the Board found that the posts were wrongly removed. They also asked for the data Meta uses to evaluate the enforcement of these policies in order to further investigate how the company accounts for online violence. 

If Sen. Tommy Tuberville keeps up his protest of the Pentagon’s abortion policy, nearly 90% of the military’s promotions could be blocked. It's estimated that 650 of the 852 general and flag officers positions will be left vacant, including the Army chief of staff, the chief of naval operations, and the commandant of the Marine Corps. The senator wrote on social media over the weekend:

“I didn’t start this. The Biden Admin injected politics into the military and imposed an unlawful abortion policy on the American taxpayers. I am trying to get politics out of the military.”

The term for the highest-ranking military officer expires on October 1, which will draw more pressure to the issue. This weekend, the secretaries of the Navy, Air Force and Army co-wrote an op-ed in The Washington Post yesterday, calling on Tuberville to stop his “dangerous hold on senior officers.”

Quick hits:

• Planned Parenthood is challenging a whistleblower law used by the anonymous anti-abortion activist in their $1.8 billion Medicaid lawsuit in Texas;

• The representation gap of state high court judges has deep implications for abortion, LGBTQ+ rights and voting rights;

• And how abortion could bring out pivotal votes in swing states in 2024.

The Care Crisis

Doctors are warning that the “system will collapse” for labor and delivery care in rural areas, as the post-Roe care crisis worsens across the country. In multiple pieces today, OBGYNs paint a picture of just how delicate the ecosystem is for obstetrics and gynecology—and how abortion bans have damaged these fields.

The New York Times, for example, reported that more than half of Oklahoma’s counties are considered maternity care deserts—and that 75% of the state’s OBGYNs are either planning or considering leaving the state. And in Idaho—where we’ve been covering the OBGYN exodus for months—rural hospitals have been unable to withstand the strain and “legal and political climate”, thus shuttering their maternity and delivery wards. The Times also points out something we reported back in April: that the state disbanded their Maternal Mortality Review committee. It cost basically nothing—$15,000 that the federal government paid for—yet conservatives called it an “unnecessary waste of tax dollars.”

Highly skilled doctors (including those who specialize in handling complex and high-risk pregnancies) are leaving their practices across the country in states like Idaho, Florida, Texas, Oklahoma, and Tennessee—like Dr. Rachel Rapkin, who tells the Tampa Bay Times that she is leaving Florida to open a training program in New Zealand amid fears of prosecution. 

Some are moving their practices across state lines—like Dr. Wes Adams, who Stat News reports postponed retirement and moved his abortion clinic from Tennessee to southwestern Virginia to ensure abortion access on the state border.

And they are terrified of punitive abortion laws and hostile state legislatures—like Dr. Leilah Zahedi-Spung, a maternal-fetal specialist who left Tennessee because of the “affirmative defense” requirement in the state’s abortion ban that would have forced doctors to prove in court that an abortion they had performed was medically necessary (similar to how a defendant in a homicide case would have to prove self defense). She hired her own criminal defense lawyer before moving to Colorado.

We know that the gap in care caused by the mass OBGYN exodus forced by abortion bans will only grow as more restrictions shake out in court. And patients will bear the brunt of this gutting trend.

Quick hits:

• Medical schools and programs in Indiana are now sending their doctors out of state to access abortion training after its abortion ban went into effect earlier this summer;

• A new study shows that the number of out-of-state patients seeking abortions in Massachusetts after Roe was overturned increased by almost 40%.

Anti-Abortion Strategy: Crisis Pregnancy Centers

Something to keep an eye on: Pockets of the anti-abortion movement are arguing that leaders should change tactics and shift focus from restrictions and bans to anti-abortion crisis pregnancy centers. This comes as the anti-abortion movement is trying to find ways to reframe their work in the eyes of the American public (who doesn’t like them much right now) after the string of major political and legal losses since Roe was overturned.

Abortion, Every Day has documented the massive increase in funding for anti-abortion centers—state funding that makes its way into the hands of crisis pregnancy center conglomerates and nowhere near the women and families who need it most. Most recently we’ve seen this in places like Kansas, Missouri and Texas—which use state funds to create a statewide network of crisis pregnancy centers.

Still, despite the very real impact that abortion bans are having on their communities (see: the care crisis), conservatives believe they can use anti-abortion centers as a way to revamp their public image. The conservative efforts to redefine abortion and abortion bans in the public view aren’t just about legal and political battles—but cultural ones, too. The work they’re doing around anti-abortion centers is part of that broader strategy. 

The state-funded anti-abortion programs capitalize on the idea of presenting themselves as ‘alternatives to abortion’, for example—Republicans highlighting their support for foster care and adoption services. But as Jessica pointed out yesterday, a new report showed that these centers are much more interested in dissuading women against abortion and spreading misinformation than talking about adoption or proactive services for the people who visit. 

What’s most distressing is that the hyperfocus on crisis pregnancy centers coincides with maternal care deserts and horrific health outcomes from abortion bans. The movement is laying a foundation to convince the public that their (state-funded) centers are the only solution to a care crisis created by their abortion bans.  

Correction for Abortion, Every Day (9.5.23): In yesterday’s newsletter, while covering ballot measures in Missouri, we wrote that pro-choice groups in the state believe one of the measures would “enshrine the right to deny contraception in the state constitution.” Jamie Corley, author of the measures, told AED today that this is false: “The sections that read that the state shall not deny or interfere with the fundamental right to refuse or choose contraceptives apply to individuals accessing contraception, not health care providers who prescribe medication.” You can read the petitions here.