SCOTUS Left a Clue in Yesterday's Ruling

6.14.24

Click to skip ahead: More on the SCOTUS Mifepristone Ruling. Yesterday’s ruling also gave us hints on Anti-Abortion Strategy and how conservatives will use ‘conscience laws’ to deny women emergency abortions. I have some good news for you in Stats & Studies, but not so much in Travel Ban News. Ballot Measure Updates looks at growing intimidation campaigns from anti-abortion groups. In the Nation, some quick hits. In 2024 news, Donald Trump gives Republicans messaging advice on abortion. Finally, a Call for Louisiana Voices if you want to share your story.

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SCOTUS Mifepristone Ruling

Yesterday’s Supreme Court ruling has folks feeling pretty conflicted: On one hand, the people relying on abortion medication can rest easier knowing that access is unchanged for now; on the other, this ruling was far from a cure-all, and we know more attacks on mifepristone are coming.

You all know where I stand: We need to be able to celebrate our wins (however temporary they may be) in order to go on fighting another day, and we have to keep an eye towards future attacks.

That said, I share the frustration of abortion rights advocates who pointed out that much mainstream media coverage wasn’t quite accurate. By reporting that the Court ruled “in favor of abortion rights” or that the ruling “preserved access” to mifepristone, reporters are giving Americans the impression that the medication is safe.

The truth is that the ruling wasn’t really “in favor” of anything related to abortion; it was about standing and who has the right to challenge the FDA’s rules on medication. That’s why anti-abortion activists and groups aren’t more upset, and why they’re moving straight ahead with their other plans.

As Public Rights Project founder Jill Habig told NBC News, “I think there’s going to be a hunt for plaintiffs that can satisfy the court’s standing requirements.” And remember, Alliance Defending Freedom plans to move ahead with the same challenge, this time from three Republican-led states. And here’s what law professor Mary Ziegler told POLITICO:

“It just kicks the can down the road. The court didn’t say anything to suggest any skepticism of the plaintiffs’ claims on the merits. So these states could be back with virtually identical claims before the Supreme Court in a year or a year-and-a-half.”

For more coverage of the Supreme Court decision, check out the States Newsroom, Associated Press, NPR, PBS Newshour, The Washington Post, POLITICO, and NBC News. And for an in-depth breakdown of the case, listen to Imani Gandy and Jessica Mason Pieklo at their terrific podcast Boom! Lawyered.

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If you missed Abortion, Every Day’s coverage of yesterday’s ruling, read it here:

SCOTUS Ruling: Mifepristone Access Remains the Same, For Now

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Anti-Abortion Strategy: ‘Conscience’ Laws

There’s one more thing to talk about from yesterday’s ruling: what Justice Brett Kavanaugh wrote about EMTALA, the federal law that requires hospitals to give patients emergency life-saving and stabilizing care. (Remember, we’re expecting a ruling on EMTALA and abortion any day now.)

In yesterday’s decision, Kavanaugh wrote that the EMTALA “neither overrides federal conscience laws nor requires individual emergency room doctors to participate in emergency abortions.” He also asserted multiple times that federal conscience laws protect doctors who don’t want to perform abortions regardless of circumstance:

“[D]octors cannot be required to treat mifepristone complications in any way that would violate the doctors’ conscience…strong protection for conscience remains true even in a so-called healthcare desert, where other doctors are not readily available.”

As Slate’s Mark Joseph Stern points out, Kavanaugh is interpreting conscience laws so broadly that doctors wouldn’t be required to give a woman an emergency abortion “even if she’s bleeding out on the table, even if she is likely to die without care.” More from Stern, who did a deep dive on this conscience clause “poison pill” with Dahlia Lithwick:

“It’s a clever move: In this so-called victory for medication abortion, Kavanaugh slipped in a wildly expansive reading of the conscience clause that was, up until now, very much in dispute. He turned this case into an opportunity to expand conscience protections for anti-abortion providers.”

Scary stuff.

Stats & Studies

In better news, we got some really interesting news from a new Gallup poll this week. A record number of voters, 32%, say they’d only vote for a candidate who shares their view on abortion. What’s more, it’s predominantly pro-choice voters who hold this view—more than twice as many voters who support abortion, compared to those who oppose it, would only vote for a candidate who agrees with them on the issue.

In other words: Pro-choice voters are far more motivated than voters who oppose abortion. Check out this incredible graph:

The majority of Americans also continue to identify as ‘pro-choice’ and want abortion to be legal. The other important thing to note is something I’ve been harping on for a while: support for abortion throughout pregnancy, under any circumstance, has jumped by ten points in the last five years. Americans increasingly understand that pregnancy is too complicated to legislate, ever. That’s something Democrats should start taking to heart, instead of running from the issue.

Travel Ban News

New data from Guttmacher found that more than 171,000 patients traveled out-of-state for abortions last year, with fourteen thousand people traveling out of Texas and into New Mexico alone. (Check out The New York Times for some great graphics.)

That’s why I was so glad to see that the Amarillo City Council in Texas rejected an anti-abortion travel ban. The proposed ordinance would have made it illegal to drive someone out-of-state for an abortion using the city’s roads. Multiple counties in Texas have adopted near-identical policies, part of a growing (and chilling) legislative trend that seeks to limit women’s ability to leave anti-abortion states.

Other states like Idaho and Tennessee have passed travel bans that target minors, laws written so broadly that anyone who even lends a teen gas money or shares information about abortion could be labeled a ‘trafficker’. (Idaho’s law is currently blocked on free speech grounds.) The ordinances in Texas, however, dictate that ‘abortion trafficking’ is traveling with a woman of any age.

Like the state laws, the local ordinances are ridiculously broad. The Texas Tribune reports that anti-abortion activists told city council members that even companies covering abortion in their health plans would be liable for “aiding and abetting.”

I’m really happy for the folks of Amarillo, many of whom fought hard to make sure the ordinance didn’t pass. (NBC News published a short news documentary on their efforts.) That said, there’s still a chance that the issue goes to voters in November, so not a total win yet.

In other travel ban news, a Senate subcommittee held a hearing this week on the right to interstate travel. Lauren Miller of Texas spoke about her experience being forced to travel to Colorado for care after finding out that one of her twin fetuses wasn’t viable. “Every day that he continued to grow, he put his twin and myself at greater and greater risk,” she said.

Because of Texas’ ban, Miller had to leave her home state—and did so with an incredible amount of fear:

“The bounty laws in Texas scared us and we feared who could turn against us. Was it safer to attempt 12 hours in a car through rural Texas while I was violently sick? What if I got worse? We knew flying was faster, but what if I was pulled out of the security line and questioned—or not allowed on the flight because I was too sick? Should we leave our cell phones at home and rely on cash only to prevent being tracked?”

Absolute nightmare. And again, this is what 171,00 patients went through last year: being forced to leave their homes for basic healthcare. If you’d like to watch the hearing, click here.

“If you don’t think abortion is about the economy, you probably don’t have a uterus.” - Michigan Gov. Gretchen Whitmer

Ballot Measure Updates

Probably the biggest trend I’ve covered in abortion rights ballot measure news has been attacks on democracy. Most of the time, those attacks have been led by legislators—like Republicans trying to raise the standards on ballot measures or pushing through biased ballot summaries to confuse voters. But over the last few months, I’ve noticed an uptick in attacks and intimidation tactics from anti-abortion groups.

In South Dakota, voters who signed a pro-choice petition got calls from anti-abortion activists pretending to work for the secretary of state’s office, pressuring them to remove their signatures. In Missouri, voters got text messages warning them that pro-choice petitioners were trying to steal their personal data. A Florida anti-abortion group created a dedicated webpage where their followers could “report the precise locations” of pro-choice petitioners to make it easier to find and harass them. And just a few days ago, I told you how an anti-abortion group in Arkansas had doxxed nearly 80 pro-choice petitioners, putting their safety and lives in jeopardy.

Now, pro-choice signature-gatherers in Montana say they’re being similarly harassed. The Flathead Beacon reports that people petitioning for an abortion rights amendment have been followed, filmed and intimidated while collecting signatures. Wyatt Wildey, who has been gathering signatures in Flathead Valley says that the extremists harassing them are trying using intimidating tactics to stop people from signing. “Over the past three weeks, I’ve been through hell,” he said.

This isn’t just infuriating, it’s frightening. And I think the reason this kind of harassment is ramping up is because it’s become clearer and clearer to anti-abortion activists and groups that voters want abortion to be legal. They know that when given a chance to vote directly on the issue, people vote for abortion. They’re not willing to let that happen.

Quick hits: USA Today has a ballot measure map if you want to track some of the state efforts. In Arizona, a quick local segment on the final push to collect signatures for the pro-choice amendment, and NPR Politics Podcast asks if the abortion rights ballot measure will drive up voter turnout in the state. And in Maryland, anti-abortion activists insist their opposition to a pro-choice amendment is about ‘parents’ rights.’

In the Nation

• The House passed the defense bill chock full of anti-abortion policies today, trashing any chance of bipartisan support;

• Roll Call on how complicated and dangerous maternal health care has become post-Dobbs;

• CBS News reports that anti-abortion powerhouse Alliance Defending Freedom is going international;

• The San Francisco Chronicle on Republicans’ attacks against birth control;

• And USA Today fact checks the lie that praying grandmas are being arrested outside of abortion clinics.

2024

If you’re reading this newsletter, chances are you don’t need any convincing that the presidential election matters for abortion rights. But in case you need some info to share with any friends on the fence, consider the huge plans anti-abortion activists have for another Donald Trump presidency.

Here’s what Students for Life president Kristan Hawkins, who wants to make birth control illegal, told The Washington Post:

“It’s the top of our agenda, the top of every letter we’ve sent to the president’s campaign: what his appointments will be to FDA, HHS and DOJ.”

Remember, the new head of the FDA could restrict or possibly repeal access to abortion medication and the DOJ could use the Comstock Act to enforce a national backdoor ban. These appointments matter.

Meanwhile, Donald Trump spoke to House Republicans this week, advising them on how to talk abut abortion rights. In addition to focusing on his position that abortion is now a state issue, Trump wants the GOP to message around ‘exceptions’ and the idea that Democrats are radicals who “support abortion so far along that nobody supports that.”

This is precisely why I’ve been hammering on Democrats to 1) get off the defensive on abortion throughout pregnancy and 2) talk about how exceptions aren’t real. We have so much ammunition on both issues—including polling that shows Americans don’t want the government involved in abortion ever. Not at 6 weeks, not at 26 weeks. There’s no more time to waste being hesitant.

Call for Louisiana Voices

As part of an effort to bring greater attention to the experiences of people living in states with abortion bans, former Planned Parenthood president Cecile Richards and reproductive health advocate Kaitlyn Joshua will be in Louisiana next weekend recording audio and video testimonials of people impacted by the state's hostile abortion laws.

The interviews, conducted in partnership with StoryCorps Studios and Tulane's Newcomb Institute, will take place on June 21st and 22nd in New Orleans, and June 23rd and 24th in Baton Rouge. Storytellers may choose to share their experiences publicly or anonymously. If you or someone you know would like to share a personal story of the impact of Louisiana's abortion ban or receiving abortion care since it took effect, please reach out to resistanceandresilienceteam@gmail.com.