Abortion, Every Day (11.28.23)

Ohio woman arrested & charged after miscarriage

Click to skip ahead in the newsletter: In Criminalizing Miscarriage, a horrifically familiar story out of Ohio. A brief recap of the lawsuit against Texas’ abortion ban in Texas v. Women. In the States, Idaho is fighting for their right to deny life-saving abortion care. And in Anti-Abortion Influence, a look at ProPublica’s important new investigation into anti-choice groups’ power over state lawmakers. In the Nation, Grace looks at competitive House races and the role of abortion rights. I have a New Talking Point Alert on anti-abortion activists, and in Stats & Studies, researchers find that nearly two-thirds of family medicine residents are training in anti-choice states. Finally, some Anti-Choice Strategy for you—this time, it’s a renewed focus on national media.

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Criminalizing Miscarriage

I don’t know how I missed this nightmare story out of Warren, Ohio, but thank you to The Mary Sue for flagging it: A 33 year-old woman who had a miscarriage is being charged with “abuse of a corpse” because of the way she disposed of the fetal remains.

The woman miscarried at 22 weeks while on the toilet, after a premature rupture of membranes. The prosecutor’s office decided she should be charged, he claims, because the fetal remains clogged the toilet. “This 33-year-old girl, with no criminal record, is demonized for something that goes on every day,” said Traci Timko, the woman’s defense attorney.

Incredibly, even though a forensic pathologist testified that the fetus had died before it passed through the birth canal and that “this fetus was going to be non-viable,” Warren Municipal Court Judge Terry Ivanchak found probable cause to continue the case. An assistant prosecutor argued that the issue wasn’t what caused the miscarriage, but that the fetus “was large enough to clog up a toilet, left in that toilet and she went on [with] her day.”

So because she wasn’t upset enough and because her toilet clogged, they’re going to try to ruin this woman’s life. And while I won’t name the woman at the center of the case, it’s important to note that she’s Black—and we know that women of color are disproportionately criminalized over their pregnancy outcomes.

I’ve been writing about abortion criminalization a lot lately, and this case is exactly the kind of targeted prosecution we’ve watched happen for years: a woman of color arrested, accused of being callous about her pregnancy, and charged with a crime that’s seemingly unrelated to abortion. (Pregnancy Justice has tracked this over decades.)

Remember: just because a charge doesn’t cite abortion specifically doesn’t mean it’s not completely about abortion. In If/When/How’s latest report on the criminalization of self-managed pregnancy, for example, the legal group outlines how prosecutors use charges like “those related to handling or disposal of fetal remains…unlawful practice of abortion or medicine, child abuse or endangerment, and homicide.”

And if you have any remaining doubt that this Ohio case is about abortion and the state trumping fetal rights over women’s, consider what Judge Ivanchak said in his ruling:

“There are better scholars than I am to determine the exact legal status of this fetus/corpse/body/birthing tissue/whatever it is…Matter of fact, I’m assuming most of these Issue 1’s all about at what point something becomes viable.”

Charming. And telling.

Texas v. Women

The Texas Supreme Court heard arguments today in a suit brought by 22 women against the state after being harmed by its abortion ban. Zurawski vs. State of Texas was brought by the Center for Reproductive Rights (CRR) on behalf of women who were unable to get adequate care because of the state ban—from Amanda Zurawski, who went septic after being denied an abortion, to Samantha Casiano, who was forced to carry a dangerous and doomed pregnancy to term and watch her baby die.

Lawyers for Texas claim that the plaintiffs have no standing because they’re not currently pregnant—as the Houston Chronicle put it, the state is arguing that “the past is in the past, and their concerns moving forward are hypothetical.” Lovely.

For background on the case, check out stories from The Guardian, NPR and Reuters. You can also read CRR’s detailed outline of the case and the stories of the women bringing the suit here. NowThis also has a brief video about the case if you’re looking for something to share on your socials:

In the States

The ballot measure rush continues on—this time in Arkansas, which has a total abortion ban. Sadly, state Attorney General Tim Griffin rejected the language of a proposed abortion rights amendment today, a measure that activists wanted to get on the 2024 ballot.

Griffin joined the ranks of other anti-abortion Republican AGs using the power of their office to quash the voice of voters, arguing that the language of the measure wasn’t clear. From Little Rock Public Radio:

“Each ballot proposal has a short ‘popular name’ and a longer title describing the amendment. The popular name of the amendment is the The Arkansas Reproductive Healthcare Amendment.”’ The longer title contained phrases to which the attorney general objected.

The title says that the legislature cannot ‘restrict access to abortion.’ Griffin felt this could be confusing since the title doesn’t explain what it means by the word ‘access.’ Later, the ballot title says of life saving abortions, ‘protect the female's life or health.’ Again, Griffin thought this was too vague.”

His bullshit reasoning goes on and on. Something to know about Griffin: he is one of the AGs who fought to get access to women’s out-of-state abortion records, and threatened Walgreens over abortion medication. He’s also been a keynote speaker at organizations like Americans United for Life and is endorsed by Susan B. Anthony Pro-Life America. So, yeah.

The proposed amendment would protect abortion rights up to 18 weeks of pregnancy, as well as abortions for sexual assault victims, those whose health or lives are at risk, and those whose pregnancies are diagnosed with fatal anomalies. Arkansans for Limited Government, the group that proposed the amendment, responded to the news with a statement saying they’re “committed to supporting a ballot proposal that is clear for Arkansas voters.”

Idaho news, the short version: the state is fighting for the right to deny women life-saving abortions. I wish that was hyperbole.

Idaho is asking the Supreme Court to let its total abortion ban to be fully enacted—a ban which violates a federal law requiring health care providers to provide emergency treatment. You may remember that the federal government brought a case against the state over its abortion ban, arguing that the law violated the Emergency Medical Treatment and Labor Act (EMTALA)—which mandates that hospitals provide life-saving and stabilizing care, even if that means providing an abortion.

Ever since a District Court judge ruled last year that the ban needed to be put on hold because its “broad scope” could prevent healthcare providers from following that federal law, Idaho has been fighting it out in court. The state, which is being represented by the Alliance Defending Freedom (the group who brought the case that overturned Roe), wants the Supreme Court to put a lower court ruling on hold so their ban can be enacted while the legal battle continues.

Something worth noting about the state’s legal argument, made by ADF’s Erin Hawley. CNN notes that Hawley (yes, that Hawley) argues in her SCOTUS brief that EMTALA “is silent on abortion and actually requires stabilizing for the unborn children of pregnant women.” Essentially she’s using a fetal personhood argument to claim that because the EMTALA requires doctors give patients life-saving and stabilizing treatment, that they must treat fetuses like patients and protect them.

Imagine how dangerous that argument could be if applied broadly: Doctors would be legally bound to provide emergency “life-saving” treatment to fetuses? What would that mean for the people carrying those pregnancies? As we know, people like Hawley don’t really give a shit.

St. Louis Public Radio has a segment today on the abortion rights ballot measure fight in Missouri:

And in Indiana, the South Bend Tribune reports that most Hoosiers want abortion to be legal—but that with the Republican hold on the state, it might not matter much what voters want.

Quick hits:

• An Oklahoma Republican has proposed legislation to restrict the federal government from aiding in the provision of abortion (the Hyde Amendment already bans federal dollars from being used to support abortion);

• The Daily Montanan on the proposed abortion rights ballot measure in Montana;

• A California man has been sentenced to 18 months in federal prison after making threats to a Planned Parenthood;

• And even though New Jersey is pro-choice, multiple counties lack adequate abortion access.

Anti-Abortion Influence

Yesterday, ProPublica published an incredible investigative piece about the influence anti-abortion groups have over state lawmakers—and how that power was used to stop multiple states from passing abortion ban exceptions for women’s health. I am so glad to see a piece like this—it’s an incredibly important and underreported issue.

If you’ve been reading Abortion, Every Day for a while you may remember when I followed the fight in Tennessee over passing an exception for women’s lives (that’s right, there was no life exception). Essentially, Republican lawmakers in the state wanted to pass an exception—but they were so completely under the thumb of Tennessee Right to Life that it took months to implement an exemption so watered down, they might as well have done nothing.

Reporter Kavitha Surana looked at Tennessee and eleven other anti-choice states where anti-abortion groups successfully exerted pressure on lawmakers. Surana found that only four of those states made changes to their bans, and that the changes were “limited and steered by religious organizations.” None of the states she investigated passed exceptions for the health of the pregnant person.

It’s a must-read piece—not only because it’s vital that people understand how much influence anti-abortion groups have on state legislators, but because it reveals just how little these groups and activists give a shit about ‘life’:

“Their fervor to protect the laws reflects a bedrock philosophy within the American anti-abortion movement: that all abortion exceptions—even those that protect the pregnant person’s life or health—should be considered the same as sanctioning murder.”

Read ProPublica here.

In the Nation

Abortion will be a defining factor for Democrats trying to win control over the House in 2024: Republicans, defending their 5-seat majority, are going to try to balance their abortion extremism with proposed ‘moderate’ messaging.

We’ll be watching how the candidates in competitive House races in New York, New Jersey, California, Colorado, Michigan, and Washington talk about the issue (these are some of the races necessary for a path towards a Democratic majority). These House races will also act as one more line of defense against a national abortion ban, especially given the incredibly tight races for control of the Senate and the White House.

Vice President Kamala Harris spoke about the fight over abortion rights in red states yesterday, during an outreach event for Latino voters in Houston, Texas. Harris focused on broader attacks on freedoms, including the criminalization of healthcare and laws that “punish women for simply exercising bodily autonomy.” Harris’ speech coincides with the lawsuit brought by 22 women against the state for their abortion ban. 

The event, hosted by the Congressional Hispanic Caucus, is part of a broader effort to highlight the Biden Administration’s accomplishments to Latino communities. We expect more events like this as 2024 continues to develop, and we’ll keep a close eye on how the Biden administration frames abortion and these elections.

Sen. Tommy Tuberville told CNN’s Manu Raju that “nothing has changed” in response to his months-long block against military promotions over the Pentagon’s abortion policy. Tuberville said that the only way he would stop his obstruction is for the National Defense Authorization Act to include language that eliminates the program that provides resources to help military members receive out-of-state abortion care. This comes after Senate Democrats have been making moves to bring a potential resolution to the Senate floor that temporarily bypasses the Alabama Senator’s hold.

Quick hits:

• California Gov. Gavin Newsom will be debating presidential candidate and Florida Gov. Ron DeSantis on Thursday, where abortion is sure to take center stage;

• KFF Health News details the policy considerations around the FDA’s approval of over-the-counter contraception ;

• More on Trump’s strategy to appear ‘moderate’ on abortion, and how voters are picking up on his messaging;

• And a 9th Circuit judge on the US Court of Appeals says he resigned in part because of the Supreme Court’s Dobbs ruling.

New Talking Point Alert

With Republicans getting creamed at the polls, the anti-abortion movement is desperately seeking the perfect talking point—the messaging that will make Americans forget just how horrified and angry they are over abortion bans. Their efforts to eradicate ‘ban’ and focus on the word ‘consensus’ weren’t very successful, nor was the move to paint a 15-week ban as a ‘reasonable compromise’. (Mainstream media outlets might have fallen for it, but voters decidedly did not.)

Given the horror stories streaming out of anti-choice states, Republicans know whatever messaging they go with needs to make them seem more moderate and less misogynist. So in keeping with the anti-abortion movement’s tradition of feigning concern for women’s wellbeing, here’s their latest talking point:

“The new Republican message must be clear. No woman should ever be subjected to an unwanted abortion.”

David Reardon of the Charlotte Lozier Institute—the ‘research’ arm of Susan B. Anthony Pro-Life America—writes at The Hill that this message is how Republicans can “build consensus,” because “no one is openly in favor of coerced abortions.”

It’s a message that aligns with the anti-abortion movement’s broader move to pretend that all of their restrictions and bans are simply attempts to protect women. In this case, the idea would be to push laws that create more waiting periods and multiple mandated ‘counseling’ sessions under the guise of screening for coercion. The hope is that by doing so, they can put Democrats on the defense. (Reardon writes that lawmakers “who oppose laws defining negligent pre-abortion screening are protecting the profits of the abortion industry at the expense of women.”)

The good news is that, for the most part, this kind of message has failed with voters. We’ve seen the anti-abortion movement claim that their efforts to ban out-of-state travel, for example, is simply about preventing ‘trafficking’, and that their case against mifepristone is about protecting women’s health. So far, voters haven’t really bought it.

That doesn’t mean the messages aren’t dangerous, of course—lies like these have been successfully used to pass all kinds of restrictions. But like everything else, the more we know about it beforehand the better.

Side note: If Reardon’s name sounds familiar, it’s because he’s one of the fake researchers that the anti-abortion movement trots out to pretend as if they have any scientific or medical credibility. Reardon has a degree from an unaccredited online university that was shut down as a diploma mill, yet his ‘research’ is used by lawmakers to defend abortion restrictions.

Stats & Studies

A new study published in the Annals of Family Medicine reports that nearly two-thirds of residents in family medicine programs are training in states with some kind of abortion restriction, and nearly one-third are training in states with heavy abortion restrictions or outright bans.

The researchers warn that this will have a serious impact on residents’ understanding of and experience with reproductive health care, and that “family physicians, regardless of the political environment in which they practice, need to be able to care for patients seeking abortions or follow-up care.” They note that this is especially true post-Roe, with more and more people self-managing their abortions with medication. The researchers also connect their results to the OBGYN exodus:

“Programs in these states may experience a reduction in qualified applicants who instead want to train in states where they can receive comprehensive training. This is supported by the recent finding that OB/GYN residency programs in states with total abortion bans saw the largest decrease in applicants last cycle, 10.5%, more than double the national average.”

The study recommends that the Accreditation Council for Graduate Medical Education establish explicit family medicine requirements around comprehensive reproductive health care, regardless of their state’s law. (OBGYN residents, for example, as required to be trained in abortion care.)

In other Stats & Studies news: Amnesty International has a new report out about how reproductive healthcare workers and activists are targeted with abuse, arrest, prosecution and imprisonment across the globe. From Sarah Shaw, MSI Reproductive Choices’ Head of Advocacy:

“For many sexual and reproductive health providers this harassment and abuse has come to feel like just part of the job, but we cannot allow this to become the new normal. Enough is enough. It’s time to recognize abortion providers as human rights defenders and stand up for those who put their lives on the line to make choice possible.”

You can read the full report here.

Anti-Choice Strategy: Attacking the Media

The anti-abortion movement is nothing if not delusional. In response to their election losses this month, major organizations are encouraging Republicans to put more money and more energy into their anti-choice efforts. Something I wanted to flag, though, among all of this absurd posturing: In an interview with Catholic News Agency last week, Stephen Billy, Susan B. Anthony Pro-Life America’s vice president of state affairs, said that the group plans to focus on the national media.

Billy claims that reporters have been deceiving voters about what the movement actually stands for, and that there is “a lot of energy” and “a lot of effort” going into their media strategy heading into 2024.

What that means to me is that SBA and similar organizations are going to continue their attempts to get media outlets to do away with the word ‘ban’, and to otherwise pressure publications around their supposed pro-choice ‘bias’. (If only!)

Something else worth watching: Anti-abortion groups are reorganizing their strategy before 2024 really starts taking off. Some leaders have signaled that they’re pivoting their long-game away from individual high-profile national elections, and shifting their energy towards federal agencies, federal courts, and rule changes within state legislatures. 

That last focus, of course, will have a lot to do with making it harder for voters to enact ballot measures. Americans United for Life, for example, has already pushed Florida, Mississippi, and Oklahoma to try to require legislative referrals for any amendments going forward, instead of bringing the vote to the people.

As law professor Mary Ziegler put it to KFF Health News, “[Anti-abortion groups are] going to the points of access you have, which are state legislatures and federal courts. There’s a sort of underlying, ‘How much do we care about voters?’ divide.”

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Abortion, Every Day researcher Grace Haley wrote today’s In the Nation and contributed to Anti-Choice Strategy: Attacking the Media.