The Week in Abortion
SCOTUS & EMTALA
The biggest abortion rights news this week was the Supreme Court case on EMTALA, the Emergency Medical Treatment and Active Labor Act. If you’re looking for comprehensive overviews of Moyle v. United States,, I’d recommend reading KFF’s explainer along with their breakdown of what’s at stake. The short version is that Idaho claims the state’s ban doesn’t conflict with EMTALA, the federal law requiring life-saving and stabilizing treatment in hospital emergency rooms. The Biden Administration argues that the ban does prevent doctors from adhering to EMTALA—as evidenced not just by the consequences of the law itself, but the fact that doctors are leaving en masse because they can’t treat their patients with the standard of care.
The oral arguments were definitely animated, with liberal justices asking Idaho attorney Josh Turner pointed questions about the ban and under what circumstances women can get care. As I said earlier this week, it’s pretty discouraging to watch the nation’s highest court hear arguments over just how sick you have to be, or just how many organs you can lose, before hospitals are legally required to give you care. Moira Donegan put it best at The Guardian:
“What was really at stake was the status of American women, who now have to beg before the courts not to face legally enforced medical negligence that will kill and maim them.”
We’ll likely get a decision in June. In the meantime, it’s important that we’re reminding our communities what EMTALA is and what this case means. That’s because new polling from Navigator showed that 85% of Americans have heard little to nothing about EMTALA. Once voters do learn about the federal law, however, they support it. The poll found that 78% of Americans believe that states with abortion bans should have to follow EMTALA—including 67% of Republicans!
Perhaps the grossest response to the arguments at SCOTUS came from Idaho Attorney General Raúl Labrador. First, he falsely accused doctors of lying about airlifting patients out of the state for abortion care. Labrador claimed that the hospitals and doctors were lying to make a “political statement.” His comments align with a broader conservative trend that I’ve been warning about since 2022: blaming doctors in order to shirk responsibility for the serious harm their bans are causing.
But Labrador didn’t stop there. On Friday, Abortion, Every Day uncovered a podcast where the Republican AG complained that the (female) Supreme Court justices were “relentless” during oral arguments, even calling Justice Sonia Sotomayor “shameful.” Honestly, he might as well of just called them shrill and gotten it over with.
Republicans: No Time Off for Abortion Patients
Let’s talk about behavior that’s actually shameful. Earlier this month, the Equal Employment Opportunity Commission (EEOC) said the Pregnant Workers Fairness Act requires employers to give workers “reasonable accommodations” related to pregnancy, childbirth or abortion—including time off. Keep in mind, this isn’t a mandate for paid time off, just the ability to get time off without losing your job.
But Republicans couldn’t stand the idea of treating abortion patients with even a little bit of humanity or empathy: Seventeen conservative Attorneys General filed a suit against the EEOC, claiming that the Biden administration is mandating that employers “facilitate abortion.”
As I pointed out this week, with bans forcing women to leave their home states for care—sometimes for health- and life-saving treatment—abortion patients need time off more than ever. And if Republicans somehow want employers to know whether or not a worker is getting an ‘elective’ abortion, it would mean employees having to somehow prove to their bosses that they’re sick enough to ‘need’ an abortion.
In the end, this is a super moderate and reasonable policy; Republicans are just desperate to punish abortion patients at all costs.
Pretending to be Pro-Choice
Perhaps biggest anti-abortion strategy news this week is what Republicans are doing with fake ‘pro-choice’ ballot measures. Anti-abortion lawmakers know that their bans are extraordinarily unpopular and that abortion rights amendments keep winning elections—so they’ve decided to propose some of their own. Disguised as initiatives to protect abortion rights, these measures would actually trick voters into codifying Republican bans.
Republicans in Nebraska have already launched an effort, and the Arizona GOP is considering doing the same. They’re even thinking about using names like the “Arizona Abortion Protection Act” in order to make their amendment seem as pro-choice as possible.
Read about the GOP’s new tactic below:
End of Arizona’s 1864 Ban?
After a widespread national backlash, Arizona lawmakers are taking steps to repeal the state’s 1864 abortion ban. This week, Democrats in the Arizona House were able to pass repeal legislation after three Republicans voted alongside them.
Those GOP votes came after a lot of pressure from U.S. Senate candidate Kari Lake and national Republican leaders (including Donald Trump), who are terrified over what voters’ pro-choice anger might mean for 2024. Anti-abortion groups and the Republicans who didn’t vote for the repeal, however, are pissed—accusing the three legislators of ditching their ‘pro-life’ values in the name of politics.
The Senate is expected to pass the repeal next week, and Gov. Katie Hobbs will sign the legislation. There’s a chance that the law will be in effect for a short period of time, even if it’s repealed, because nonemergency bills don’t take effect for 90 days after the legislature adjourns. So Gov. Hobbs and Attorney General Kris Mayes have launched a website to keep Arizonans updated on the status of the ban and reproductive rights in the state.
If the repeal goes through, Arizona’s 15-week ban will go back into effect. Come November, Arizonans will have an opportunity to repeal that 15-week ban if they pass a pro-choice amendment to protect abortion rights until ‘viability’. (And assuming they’re not tricked by Republicans’ fake ballot measures.)
Travel Ban Updates
In other important state news this week, Tennessee’s travel ban is headed to the governor’s desk to be signed. The so-called ‘anti-trafficking’ bill won’t just criminalize bringing a teen out-of-state for an abortion, but helping them get care in any way—whether it’s lending them gas money or texting the url to a clinic. Similar legislation is advancing in multiple states, and a near-identical law was passed in Idaho where a judge blocked it for violating free speech rights.
Republicans don’t plan on stopping with teenagers, minors are just the canaries in the coal mine. Multiple Texas counties have made it illegal to help a woman of any age leave the state for an abortion, and Alabama Attorney General Steve Marshall has argued that the state could restrict pregnant women’s travel in the same way they restrict a sex offender’s.
As I’ve written so many times before, what scares me the normalization: they’re not even really hiding what they’re trying to do. In fact, Florida Republican Rep. Mike Beltran said plainly this week that he would support a ban on travel for abortions if it wasn’t for the fact that it would be challenged in the courts.
State News
In addition to their travel ban, Tennessee Republicans have also advanced legislation to require public schools to show an anti-abortion video, and have cut lessons about birth control from sex education curricula.
In Kentucky, Rep. Lindsey Burke shared her abortion and pregnancy loss story, an especially powerful move given that Republicans in the state are trying to mandate patients with doomed pregnancies be directed to anti-abortion centers. (Find out more about this broader conservative effort in my “Calculated Cruelty” series.)
Abortion rights groups are spending big money in North Carolina right now in the hopes that it will help win the gubernatorial race and drive votes for Biden. Planned Parenthood Votes South Atlantic will spent $10 million on digital ads, new field offices and a canvassing operation.
In more good news: Maine Gov. Janet Mills enacted new protections for those seeking and providing abortions and gender-affirming care. Kansas Gov. Laura Kelly rejected $2 million in funding for anti-abortion crisis pregnancy centers. California Gov. Gavin Newsom has proposed a law that would allow Arizona doctors to provide abortions in the state and has launched a powerful ad campaign in Alabama against Republican travel bans. And in New York, Democrats and Gov. Kathy Hochul are establishing a $25 million fund for nonprofit groups that offer abortions.
New Privacy Protections
Speaking of good news, the Biden Administration is expanding and strengthening HIPAA in order to protect abortion patients and providers. The new rule will stop abortion patients’ records from being disclosed or shared with law enforcement. The new rule will also protect patients who leave their anti-choice state for abortion care—a vital move, given that it wasn’t so long ago that 19 Republican attorneys general moved to ensure they had access to women’s out-of-state abortion records.
If you missed my column this week about new polling on Republican women (and making sure they hear post-Roe horror stories), you can read it below:
Ballot Measure Updates
With Florida’s 6-week abortion ban set to take effect on May 1, abortion providers are hurriedly seeing as many patients as possible beforehand—and abortion rights activists are urging voters to support Amendment 4.
National anti-abortion groups see Florida as their chance to stop the incredible momentum of pro-choice amendments: Every time abortion has been on the ballot, abortion rights has won. Conservatives are eager to break that winning streak of abortion rights ballot measures and to give anti-choicers a much-needed mental boost.
Kelsey Pritchard of Susan B. Anthony Pro-Life America told the Catholic News Agency, “If we win Florida, I think it can really turn the tide on these ballot measure fights.” The reason they think they have a chance given their terrible record is that Florida is the first state where abortion rights activists will need to get 60% of the vote, as opposed to a simple majority.
The group pushing a pro-choice ballot measure in Arizona, Arizona for Abortion Access, says that enthusiasm for their amendment has grown significantly since the state Supreme Court ruled in favor of an 1864 abortion ban.
An anti-abortion group in Minnesota has invested in a seven-figure ad buy in the state, kicking off with a television ad that claims a pro-choice ballot measure would enshrine ‘abortion up until birth’ in the state constitution.
And The Washington Post published a piece on the ballot measure effort in Arkansas, where Arkansans for Limited Government are pushing for an amendment to protect abortion rights through 18 weeks after fertilization.
Stats & Studies
The Harvard Youth poll shows that young people—young women, especially—will be supporting President Biden’s reelection, and that reproductive rights is a top issue for Gen Z.
A new survey shows that abortion is Americans’ third most important issue as they head to the polls this November. The report, from the University of North Florida’s Public Opinion Research Lab, also shows that among women voters, abortion is the second most important issue.
A poll from from POLITICO, shows that 6 in 10 independent voters are unhappy that Roe was overturned—as are nearly 4 in 10 Republican voters.
New data from the Center for American Progress shows that people driving the longest distances to get abortion care are more likely to have lower incomes, and that those living in districts with Republican representatives have travel times more than twice as long as those in districts with Democratic representatives.
What has never made sense to me is the fact that these republican voters miss the fact that granting control over women’s reproduction means she doesn’t own that right; the state does. And if the state owns the right then the state can determine if you are allowed to start a family, how many children you can have, when you will be sterilized, how you will deliver your children, all in the way it serves the state. That’s not a democracy. In democracy, the state serves the people; not the other way around.
This week has destroyed me