Abortion, Every Day (12.12.23)

The GOP's Ballot Measure Strategy

Click to skip ahead in the newsletter: In Texas Cruelty, an update on Kate Cox and what the state Supreme Court’s ruling means. In the States, three state Supreme Courts are hearing abortion-related cases this week. The GOP’s Ballot Measure Strategy is going to be all about language, all the time. In Ballot Measure Updates, I look at Florida, South Dakota, and Missouri. And In the Nation, Grace takes us through Supreme Court case updates and more.

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Texas Cruelty

I know we’ve all been thinking about Kate Cox and everything that Texas has put her through this past week. I’m so glad that she’s getting the care that she needs, but I’m also heartbroken over all she’s been forced to suffer through. I’ve heard from a lot of you about how difficult watching this case has been—I think for a lot of us it’s a reminder that we’re not seen as fully human. So I hope everyone is taking care of themselves.

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If you missed my column about how Republicans’ ‘compromise’ 15-week ban would do to us what Texas did to Cox, read it here:

A Country of "Walking Coffins"

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As you probably know by now, the Texas Supreme Court ruled late yesterday against Cox, repealing the emergency order that would have allowed her to get an abortion in her home state. You can read the full ruling here, but here’s what stuck out to me: The justices essentially argue that because Cox was well enough to bring forward a case, her life can’t possibly be at risk. It’s almost an implied threat to anyone who brings a challenge: if you’re so sick, why are you in court and not at a hospital? Total nightmare shit.

The justices also punted the issue back to doctors—doctors who Attorney General Ken Paxton had just threatened with criminal prosecution:

“A woman who meets the medical-necessity exception need not seek a court order to obtain an abortion. Under the law, it is a doctor who must decide that a woman is suffering from a life-threatening condition during a pregnancy, raising the necessity for an abortion to save her life or to prevent impairment of a major bodily function.”

Remember, doctors are operating under the threat of prison time—so the Court pushing the issue back to them is just straight up cowardly. As Cox’s lawyer, Molly Duane, told Michelle Goldberg at The New York Times, “I think it’s the clearest message you could have possibly received from an anti-abortion state that they never meant the medical exemption to mean anything at all.”

Law professor Mary Ziegler writes that the case will discourage doctors from treating patients—and that issues around pregnancy are obviously time-sensitive, so “merely delaying a procedure for someone like Cox might stop an abortion from taking place at all—never mind what the law says about exceptions.” Which, I’m sure, is the point.

For more coverage on Kate Cox and Texas’s abortion cruelty, check out this Vox explainer for background; listen to Cox’s lawyer, Molly Duane, speak to Michel Martin at NPR; watch MSNBC’s Mika Brzezinski tears into Ken Paxton here; and read Jennifer Rubin at The Washington Post, who writes that Republicans “should prepare to reap the political whirlwind in 2024.”

In the States

The Arizona Supreme Court heard arguments today over whether to reinstate an abortion ban from 1864—a law that would criminalize any abortion unless its to save someone’s life. (Right now, the state’s 15-week ban is in effect.)

Thankfully, the state Supreme Court is down one anti-abortion activist. Justice Bill Montgomery, who called Planned Parenthood “genocidal” and protested in front of the organization, recused himself earlier this month. Montgomery had originally declined to recuse himself, arguing that he wasn’t biased—but reversed course a few days after an Abortion, Every Day story on the justice went viral.

In the meantime, Arizona Democrats are doing what they can: Gov. Katie Hobbs filed an amicus brief in support of Planned Parenthood back in October, saying, “I made a promise to Arizonans that I would do everything in my power to protect reproductive freedom, and I’m working every day to follow through on that promise.” You also may remember that Gov. Hobbs filed an executive order transferring prosecutorial power on abortion cases to Attorney General Kris Mayes‚ who has made clear she won’t target abortion-related ‘crimes’.

Polling also reveals strong support for abortion rights in the state: a 2022 poll showed that 90% of Arizona voters want abortion legal in some form, with 41% supporting abortion in any circumstances. (It makes sense that pro-choice advocates are pushing to get a ballot measure in front of voters in 2024.)

Phoenix-based abortion provider Dr. Gabrielle Goodrick told The Guardian, “I really, truly believe that the people of Arizona do not want a total ban. We’re not going to go back to 1864, where women were property.”

Also in Arizona news: Senate candidate Kari Lake is suddenly a lot less vocal about her anti-abortion extremism, and The Wall Street Journal says Arizona is the next big battleground state on abortion.

Two other state Supreme Courts—in Wyoming and New Mexico—have abortion-related cases this week. New Mexico’s Supreme Court is hearing arguments about the legality of anti-abortion ordinances passed by some small towns in the state. As you know, anti-abortion activists have been getting towns and counties to make abortion ‘illegal’ despite state law protecting abortion rights. The ultimate goal is to bring the Comstock Act all the way to the Supreme Court. (AED’s Comstock explainer here.)

In Wyoming, the state Supreme Court heard arguments today on whether an anti-abortion group and two Republican lawmakers can intervene in the suit challenging the state’s two abortion bans. (Yes, the state has two bans: One is a broad ban on abortion, the other is a specific ban on abortion medication.) The case comes after a lower court judge ruled that the lawmakers—who actually co-sponsored those bans—should stay out of the suit.

I told you last week about the Kentucky woman suing to have an abortion in spite of the state’s ban. Jane Doe, along with the local Planned Parenthood and ACLU, argued that the state’s ban violates the state constitution’s right to “privacy and self-determination.” Today, attorneys for Doe shared that her pregnancy isn’t showing any early cardiac activity, though declined to say whether or not she still needed an abortion. The ACLU of Kentucky did say, however, that they are continuing on with the case—and are still looking for plaintiffs in what they’d like to be a class action suit.

Finally, in Missouri, Planned Parenthood is supporting Democratic House Minority Leader Crystal Quade’s bid for governor. Quade has made abortion rights a central part of her campaign, recounting knocking on the door of a 67-year-old white Republican who usually opposed abortion but was pissed off about how far Missouri had gone:

“He just went off on how this is an attack on freedoms, talking about rape and incest victims, talking about how government has no business doing this. I really do think Missourians as a whole are the type of people who don’t like government meddling in their business.”

Quick hits:

• The Indiana Court of Appeals is set to rule on whether the state’s abortion ban violates religious freedom;

• Louisiana’s Democratic Gov. John Bel Edwards says he has “no regrets” over the state’s abortion ban;

• Michigan Gov. Gretchen Whitmer signed repealed law yesterday that required a separate insurance rider for abortion coverage;

• And I don’t know about you, but I’m still thinking about how Missouri Republicans want to pass a law that would allow abortion patients to be charged with murder.

The GOP’s Ballot Measure Strategy

Anti-choice activists and politicians are increasingly worried about ballot measures—as they should be. Republicans are getting their asses handed to them, even when they use every dirty trick in the book to stop voters from having a say. (Ohio, I’m looking at you!)

That’s why there’s a lot more conservative chatter about what kind of strategies lawmakers and activists should be using to fight back. This article in LifeNews, for example, advises that Republicans push out more personal stories from women who regret their abortions. They know that abortion storytelling has done extraordinarily well for Democrats—not just around ballot measures, but in general. An ad featuring a young woman talking about being raped as a child, for example, has been credited with winning Gov. Andy Beshear his reelection in Kentucky.

Naturally, they also encourage people to give more money to anti-choice groups, pointing out that abortion rights organizations out-spent them in Ohio on Issue 1. (At some point I’m going to write a column about the absolute con job anti-abortion groups are doing on Republicans, who just keep giving them money despite all of the bad advice and election-losing.)

We know what the GOP’s real ballot measure plan is: Attacking democracy. And while Republicans won’t say that outright, they come pretty damn close. Consider this NBC News interview with Florida Gov. Ron DeSantis’ on the night of the last Republican presidential debate. DeSantis admitted that “pro-lifers in particular have a big problem on these referenda,” and that the proposed amendments are even getting support from Republican voters.

DeSantis said that conservatives need to “be strategic” in how they’re responding to the measures, slipping in a hint about what that strategy might actually be:

“If the [abortion] issue is presented the way it is, they’re willing to vote for what from a pro-life perspective was a very extreme, very expansive pro-abortion amendment. (Emphasis mine)

And that’s the rub: they don’t want abortion rights ‘presented’ in an accurate, pro-choice way. Which means we can expect to see a lot more biased ballot summaries, and Republicans using whatever state power they have to change the language that voters see about proposed amendments—especially the language they see on election day.

After all, that’s what happened in Ohio, where voters didn’t see the language of Issue 1 itself—just a Republican interpretation of it. And we watched for months as Missouri Republicans tried to push through incendiary and false ballot summaries. (So far, the state Supreme Court has stopped that from happening.)

Now, in Florida, Republican Attorney General Ashley Moody has petitioned the state Supreme Court to reject a pro-choice ballot measure, claiming that its language around ‘viability’ is deliberately misleading.

But if you had any lingering doubts that movement is going all in on ballot measure language, check out what anti-abortion leaders told Fox News this week. From Kelsey Pritchard, the public affairs director at Susan B. Anthony Pro-Life America:

“Deception is the common theme in every abortion ballot measure. Abortion activists have repeatedly used unclear language to mislead voters into embedding unlimited abortion in their state constitutions.”

SBA’s Vice President Stephen Billy also used the word ‘deceptive’ (twice!), lauding Republicans like Moody in Florida for “mak[ing] sure there's clarity for the voters in their states about how radical these amendments are…”

It’s a slick move—claiming that anti-democratic attacks on ballot summaries are simply efforts to ‘clarify’ Democrats’ misleading amendments. Definitely something to keep a close eye on.

Ballot Measure Updates

Speaking of Florida’s pro-choice ballot measure, activists in the state have gathered close to 700,000 signatures—they need about 891,000 signatures by February to get abortion on the ballot in 2024. They’re making a big final push, and you can help by donating to Floridians Protecting Freedom or encouraging folks you know in the state to sign. (Fun fact: voters overwhelmingly support the proposed amendment, including a majority of Republicans.)

There’s some disagreement among reproductive rights activists in South Dakota around the pro-choice ballot measure effort. Both the ACLU of South Dakota and Planned Parenthood North Central States don’t support the amendment proposed by Dakotans for Health; they say that as written, it wouldn’t adequately protect abortion rights in the state.

The proposed measure would allow regulations on abortion after the first trimester if they’re “reasonably related to the physical health of the pregnant woman.” The measure would also allow a ban on abortion in the third trimester, with exceptions for the life or health of the pregnant person.

Pro-choice disagreement over ballot measure language has become pretty common these days—especially as it relates to ‘viability’ standards. That’s what we’ve seen in Missouri, for example, where no one version of a pro-choice measure has garnered broad support from abortion rights groups. Today, Robin Utz writes in the Missouri Independent that if advocates really want to see an end to government interference in pregnancy, they need to back a measure that does just that.

In 2016, Utz’s pregnancy was diagnosed with a fatal fetal condition; but because Missouri’s abortion ban at the time had a 22-week cut-off, her ability to get care was in jeopardy:

“The weight of Missouri’s callous disregard for the complications of pregnancy, or my health and safety, felt heavy. I felt judged, stigmatized and disregarded. And this was all under the ‘protections’ of Roe.”

Utz blasts pro-choice activists in the state for pushing ‘viability’ limits, “which are medically inaccurate, dismiss individual circumstances like my own, and let politicians continue to tamper with our healthcare decisions.” Read the whole piece; it’s worth it.

Also in ballot measure news, Ballotpedia says that 16 abortion-related measures may be on state ballots in 2024. They have a good breakdown, including maps—which I’m truly a sucker for.

In the Nation

The Supreme Court posted their order list yesterday, letting the public know which cases they plan to hear and which they plan to kick back to a lower court. Notably, the Texas abortion medication case was not on it. Remember: Anti-abortion groups want to force the FDA to reverse their approval of mifepristone, and appeals have been brought by the Biden administration and the abortion pill’s drugmaker, Danco. For a refresher, check out the Abortion, Every Day explainer on the case here. 

So far, the Court has signaled that they haven’t decided whether (or how) to take up the case. As you may recall, the case got a little more complicated after three state attorneys general in Kansas, Missouri and Idaho, filed a petition to join the lawsuit to provide a “state interest” perspective. On the bright side: This also means that the Supreme Court stay that keeps mifepristone accessible remains in place for now. 

In more Supreme Court/abortion rights news: The Court declined to hear a challenge to clinic buffer zones brought by a Catholic “sidewalk counselor.” The suit sought to overturn a 2000 decision allowing states to enact laws creating protective zones around patients walking into abortion clinics. The fight isn’t over yet, but we’re taking good news where we can.

A group of public interest law advocates from across the country are calling on the Biden administration to stop states from funneling Department of Health & Human Services funding towards anti-abortion crisis pregnancy centers. The Department has already issued guidelines that Temporary Assistance for Needy Families (TANF) funds should not be used on anti-abortion centers, but the group of advocates hope the White House will strengthen that proposed rule.

Quick hits:

• Democratic leaders in Congress and the Biden campaign have come out in support of Kate Cox;

• Nikki Haley refused to answer whether she thinks Cox should have been able to obtain an abortion, saying she doesn’t know the details of the case;

• And NBC News reports that Biden’s reelection campaign plans to tie Donald Trump to every post-Roe nightmare story that’s come out. And they should! But as AED has said many times over, Biden needs a plan that’s pro-abortion rights, not just anti-Trump.