Abortion, Every Day (11.10.23)

Travel bans & 'abortion trafficking' take center stage

Click to skip ahead in the newsletter: In Criminalizing Care, news about the Idaho ‘abortion trafficking’ case and travel ban attempts in Alabama. Election Fallout & Analysis looks at how the anti-abortion movement is dealing with this week’s losses. In the States, Kentucky’s Gov. wants to add exceptions to the state abortion ban & Nebraska’s ballot measure push. Language Watch gets into conservatives’ lawsuit seeking to overturn Michigan’s abortion rights amendment. In the Nation, Grace covers the latest on Tuberville and spending bills. And in 2024, a post-debate analysis.

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Criminalizing Care

Let’s start with some news out of Idaho tonight, where a federal judge has blocked the state’s ‘abortion trafficking’ law from being enforced while a legal challenge makes its way through the courts. This is good news, of course, but it’s also expected.

The block on the law comes less than two weeks after Abortion, Every Day broke the news that Idaho brought forward its first ‘abortion trafficking’ case. That timing isn’t coincidental: Remember how the county prosecutor declined to bring ‘abortion trafficking’ charges specifically, instead copy and pasting the statute’s language into different, kidnapping charges? This is why! As law professor Greer Donley told The Cut, “the idea is that even if a judge temporarily enjoins that law, they still want to be able to move forward with the prosecution.”

The public defender assigned to a teenager and his mother—who are accused of pressuring a young teen into an abortion and bringing her into Oregon without parental permission—filed a motion this week to remove the language about the abortion. David Martinez pointed to the fact that the prosecutor claimed the charges had nothing to do with abortion: “The prosecutor kind of made that an issue by including that…It’s not an element of the crime so there was no reason for it to be in there in the first place.”

I’ll keep you updated as I find out more. For background on the case, you can read AED’s coverage here, here, and here. And for more information on how abortion criminalization works, read reports from If/When/How and Pregnancy Justice.

In other dystopian criminalization news, the Justice Department announced their support for the right to travel across state lines to receive an abortion. (Incredible that this is necessary.) The statement is related to the ongoing lawsuits in Alabama, where abortion funds are asking a court to preemptively rule that state Attorney General Steve Marshall can’t prosecute them for helping people get out-of-state abortions.

As you may remember, Marshall hasn’t just argued that it’s illegal for people to help someone leave the state for abortion care—but that the state could restrict women themselves if they wanted to. (He argued that because states can restrict sex offenders from leaving the state, they could do the same with women who want abortions.)

The filing from the Justice Department indicates that DOJ lawyers might get involved in the suit.

Election Fallout & Analysis

In the wake of Tuesday’s pro-choice wins, Republicans are struggling with what to do next and Democrats are gearing up to double down on abortion rights. Elisabeth Smith, director of state policy at the Center for Reproductive Rights, told the Associated Press that the anti-abortion movement is “on their heels”:

“It’s become clear that the majority of Americans support abortion rights and want to see abortion remain legal and accessible, and the anti-abortion side knows that.”

They sure do. But that hasn’t stopped anti-abortion activists from suggesting that the real problem is that Republicans didn’t give enough money and support to the cause. Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said Ohio’s pro-choice win is a “warning sign” to Republicans:

“The true lesson from last night’s loss is that Democrats are going to make abortion front-and-center throughout 2024 campaigns. The GOP consultant class needs to wake up. Candidates must put money and messaging toward countering the Democrats’ attacks or they will lose every time.”

This is very similar to what Kristan Hawkins, president of Students for Life, said in her post-election email to supporters:

“We must demand that the GOP and their consultant class, those who all told us that reversing Roe was impossible, get their head of the sand and join us by getting on offense with their dollars and leadership.”

Hawkins went on to say that Republicans need to stop just paying “lip service” to the anti-abortion movement with 15-week bans, and come out in support total abortion bans. I think we’re going to be seeing a lot of this from the anti-abortion movement: claims that the issue isn’t that Americans oppose abortion, but that Republicans aren’t being hardcore enough in their opposition to abortion. Which, honestly, is so absurd.

I understand why anti-choice activists think this is their only way forward—they can’t exactly admit that their issue is a loser. But are Republicans really going to fall for it again? After all, one of the reasons they lost so badly this week is that they bought into the misleading polls being pushed by anti-choice groups. These groups wanted candidates to believe that a 15-week ban was going to be seen as a ‘compromise’ that most voters could get behind—but that was never really what the polls said.

Still, Republicans just don’t seem to get it. An advisor to Virginia Gov. Glenn Youngkin’s campaign told a reporter, for example, that Republicans need to be clearer on where they stay, “otherwise you will be defined, and it will be a ban…[which] is one of the most electric phrases in American politics right now.”

But the word ‘ban’ isn’t the problem, the policy of bans are! As Lauryn Fanguen of Planned Parenthood Action Fund said, “You can’t message an unpopular policy that people do not support.”

This reminds me of this absolutely brilliant from Washington Post humorist Alexandra Petri:

In the States

In the wake of Ohio Republicans making clear that they’re unwilling to accept the results of the election on Issue 1, Gov. Mike DeWine claims “we accept the results of Issue 1.” But DeWine also said he didn’t support Democrats repealing abortion bans (which go against the new amendment), and made sketchy comments about the enforcement of Issue 1: “We always continue to evaluate how things are working. Most Ohioans are somewhere in the middle.”

But most Ohioans voted for the amendment! As it is! Per usual, AED will keep you updated as this shitshow unfolds.

A day after being re-elected, Kentucky Gov. Andy Beshear called on the legislature to add rape and incest exceptions to the state’s abortion ban. (Beshear campaigned on abortion rights, specifically those for rape victims.) Now, you know how I feel about exceptions. But I also understand that in a state like Kentucky, there are limited actions that Beshear can take. So I hope that in addition to calling for ‘exceptions’, Beshear and his administration work to ensure that those exceptions are actually usable—by ensuring that doctors feel safe performing abortions, for example, or making sure that victims don’t need to jump through legal hoops in order to get care.

Michigan Democrats haven’t been able to pass the best version of the Reproductive Health Act, a legislative package that sought to overturn the remaining anti-abortion restrictions on the books. A joint statement from Planned Parenthood of Michigan and the ACLU of Michigan says that Democrats passed “a watered-down version of the Reproductive Health Act that lacks key policy reforms that are both desperately needed and widely supported by voters across the state.”

The biggest disappointments was that they were unable to repeal the ban on Medicaid funding for abortion and the 24-hour waiting period. The latter has been increasingly important as pro-choice states see more out-of-state abortion patients: many are forgoing Michigan because the waiting period means more time away from work, an extra night of lodging, etc. (That means pro-choice states surrounding Michigan are seeing even more patients.)

The group trying to get abortion rights on Nebraska’s ballot says they’re going to start collecting signatures next week. Ashlei Spivey with Protect Our Rights Nebraska, the coalition pushing for the pro-choice ballot measure, says, that Ohio proved “that when you take abortion to the ballot, voters will vote to protect their rights.”

Spivey went on, “We are excited and looking forward to bringing that same opportunity here to Nebraskans to ensure that they have the right to access abortion care.” Nebraska passed a 12-week abortion ban in May that doubled as a ban on gender-affirming care for minors.

Oklahoma Republicans are pissed off that they’ve lost millions in federal funding for their Title X program over their abortion gag rule. As was the case in Tennessee, the state refuses to abide by the federal rules that say even if they have an abortion ban—health centers getting Title X funding have to at least tell people about their out-of-state abortion options when asked. But Oklahoma Republicans would apparently not let people have family planning funding at all than even talk about abortion.

Quick hits:

• Indiana abortion providers have brought another challenge against the state’s ban;

• Iowa’s Attorney General Brenna Bird filed an argument with state Supreme Court in defense of the state’s abortion ban;

• The Virginia GOP is blaming the Republican National Committee for their loss, claiming that the RNC didn’t give them enough money;

• And the Fifth Circuit Court of Appeals heard arguments this week on whether the federal government can require hospitals in Texas to perform life-saving abortions. (Because, of course, the state doesn’t want them to.)

Language Watch

I told you earlier today about Ohio Republicans’ plan on Issue 1, which basically amounts to overturning the will of the voters. They don’t like that Ohioans enshrined abortion rights, and so they’re willing to undo democracy in order to keep abortion banned. Now, the GOP in Michigan is taking similar efforts against their state’s pro-choice amendment, which was passed last year.

Republican lawmakers, along with a group of anti-abortion organizations like Right to Life Michigan, are suing over the amendment, challenging its validity. And you’re going to love their argument.

The groups and legislators are asking a federal court to issue a permanent injunction of the pro-choice amendment because, they say, it creates an unconstitutional “super-right” to abortion. A SUPER-RIGHT.

The complaint says, “At no time in our nation’s history has such a super-right, immune from all legislative action, ever been created by a popular vote outside of the checks and balances of a republican form of government.”

Paula Thornton Greear, president of Planned Parenthood Advocates of Michigan, called the lawsuit “nothing but a brazen political attempt to overturn the will of the people and impose dangerous anti-abortion policies on an electorate that doesn’t want them.”

I am willing to bet that we’ll see more of this “super-right” language in the months and years to come as more states pass pro-choice measures. I’d love to know if there are any other rights Republicans believe are “super-rights,” or if it’s just those that have to do with women.

One more thing on language: Why oh why is NBC News falling for this? Republicans are not being urged to campaign against a national ban! The National Republican Senatorial Committee is telling candidates to say they oppose to a national abortion ban while articulating “their support for reasonable limits on late-term abortions.” As you know if you’re a regular reader: “reasonable limit” = “national abortion ban” and “late term” = anything after 12 weeks. I am *begging* mainstream media outlets to stop taking Republicans’ word for it. (And if you need a refresher on the anti-abortion movement’s war on language, check out my piece here.)

“When we focus on these really horrific, dire, exceptional stories, they have that power to really disgust, recoil, upset people and really crystallize why something seems so inane, but it also tends to lead to policy outcomes that focus on the exception.

And that’s something that we should be mindful of as we try to advance the broadest range of reproductive freedom possible.”

-Mini Timmaraju, president of Reproductive Freedom for All, in The New York Times

In the Nation

A number of House Republicans are publicly pulling their support from the GOP government funding plan amid concerns over anti-abortion riders in the bill. Especially after abortion rights wins this week, moderate Republicans are coming out to oppose to the riders. Republican Rep. John Duarte, for example, told reporters that they’re “sick of every appropriations bill being a vehicle for some off the wall abortion policy.” 

Just this week, two spending bills were abruptly pulled at the last minute by House GOP leadership before coming to a vote on the chamber floor—all because of a lack of Republican support for the provisions that attack abortion access. 

As you may recall, Speaker Mike Johnson needs to prevent a government shutdown by next week, and has struggled to find consensus within his party. Senate Democrats—and now a sizable group of moderate Republicans—have made clear that the anti-abortion riders are dead-ends. 

It’s also important to note that the House GOP has also added a slew of anti-trans riders to the spending bills, attacking a scope of gender-affirming care policies. These riders mimic the anti-abortion provisions—an interesting move considering how much money was wasted in the lead-up to Tuesday’s election by trying (and failing) to use anti-trans fear-mongering.

We’ll keep you updated as things continue to develop.

Despite this week’s abortion wins, Sen. Tommy Tuberville told reporters on Tuesday that he is continuing his block on hundreds of military promotions over the Pentagon’s abortion policy but will allow promotions for "people who really need to be promoted.” This is the first kind of movement Tuberville has shown on the issue, and comes after Senate Republicans put increasing pressure on the Alabama Senator.

POLITICO reported that he’s working to find solution with five Republican senators, with options that include bringing the abortion policy to court, releasing uniformed officers from the hold (shifting Tuberville’s block solely to civilian nominees), or putting an anti-abortion rider in the annual defense bill (here we go again). Democrats are already nixing the idea the Alabama Senator floated to gut the abortion policy via the defense bill. As Washington Rep. Adam Smith said, “Screw him.”

Meanwhile, Democrats are making moves to bring a potential resolution to the Senate floor that temporarily bypasses Tuberville’s hold. The resolution, which would need bipartisan support, would allow for groupings of military promotions to be confirmed by the year-end. No Republican Senators have endorsed the temporary rule change in public yet. 

Quick hits:

• Speaker Mike Johnson has ties to the far-right anti-abortion New Apostolic Reformation;

• STAT News on the abortion clinic in Cancun looking to help abortion patients from anti-choice states in the U.S.;

• Mika Brzezinski called out Chris Christie for his mischaracterization of abortions later in pregnancy;

• And HSS Secretary Xavier Becerra hosted a roundtable with reproductive health researchers and doctors to discuss strategies to increase post-Dobbs access to birth control.

2024

If you braved the GOP presidential debate this week, you know that moderators didn’t ask about abortion until 9:45pm—the debate ended at 10pm. Treating abortion rights as an afterthought would have been ridiculous in any circumstances, but given Republicans’ massive losses on Tuesday, the last minute question was straight up journalistic malpractice.

The candidates were also allowed to spew lies about abortion: Vivek Ramaswamy’s claimed, for example, that the abortion rights amendment in Ohio “codifies abortion all the way up until the moment of birth without parental consent.” Sigh. No real surprise there, I suppose.

What does continue to shock me is the way that pundits and reporters continue to fall all over themselves when it comes to Nikki Haley and abortion. She really has the most basic—and dishonest—position. Haley is working overtime to position herself as the moderate on abortion rights, while having the exact same stance as the other candidates. She’s just better at soft-peddling! But these days, with Republicans getting absolutely creamed on abortion rights, political strategists are looking for anything different. Even conservative pollster Frank Luntz says, “Nikki Haley has the best Republican answer on abortion. The GOP would be stronger if they used her language.”

Quick hits:

• Anti-abortion activists are protesting Donald Trump;

• New York Magazine says the GOP needs to get their act together and come up with a message on abortion rights;

• And both CNN and NBC News point out that the candidates really didn’t have a cohesive message when they finally were asked about this week’s losses.

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Thanks to Abortion, Every Day researcher Grace Haley for writing In the Nation today.