Tennessee Sued Over Travel Ban

6.25.24

Click to skip ahead: In Forced & Doomed Pregnancies, some context for the infant mortality study out of Texas. In the States, a challenge against Tennessee’s travel ban and news from Kentucky, New Jersey, Virginia and more. Anti-Abortion Strategy examines new language from SBA Pro-Life America. In Ballot Measure Updates, a look at the campaigns in Arkansas and Arizona. In the Nation, some quick hits. In Care Crisis news, an abortion funding nightmare. And 2024 gears up for Thursday’s debate.

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Forced & Doomed Pregnancies

Let’s talk more about the study I reported on yesterday, which showed a huge increase in infant mortality in Texas. (A jump, by the way, that anti-abortion activists knew was coming: CNN reported on an increase in infant death in the state last year.)

This report isn’t just about one state, but a broad anti-abortion strategy that will impact the whole country. The biggest jump researchers found, for example, was a 23% increase in infant deaths to due to congenital anomalies—a spike caused by Texas’ mandate that women carry doomed pregnancies to term. And while anti-abortion organizations and activists know that’s an extraordinarily unpopular and cruel requirement, they’ve been doubling down regardless.

In addition to working to eradicate ‘exceptions’ for fatal fetal abnormalities, these activists and lawmakers are also enacting restrictions on existing ‘exceptions’ to make them impossible to use. Some, for example, will include a deliberately vague definition of what constitutes a ‘fatal’ abnormality. Others require women who’ve been given a devastating diagnosis to be directed towards what they’re told are ‘prenatal counseling’ centers or ‘perinatal hospice care.’ In truth, they’re being sent to anti-abortion crisis pregnancy centers that will do anything to convince women to carry to term—including lying to them about the risks of abortion and telling them that their diagnosis could be wrong.

Indeed, when faced with the study showing increased infant death, Texas Alliance for Life spokeswoman Amy O'Donnell didn’t just co-opt disability rights language—saying that the law prevents “discrimination” against disabled children—but also told CBS Austin, “we know that sometimes those diagnoses are wrong.”

That’s a tactic I’ve written about before: claims that prenatal testing is unreliable and that women might be ending a healthy pregnancy. What makes that strategy so frightening is that these groups are paving the way to actually restrict prenatal testing. After all, the best way to ensure someone doesn’t end a doomed pregnancy is to keep them from finding out it’s nonviable to begin with.

Again, this isn’t just about one state. Study author Alison Gemmill from the Johns Hopkins Bloomberg School of Public Health told The Guardian, “Texas is the harbinger of potentially what’s to come with Dobbs.”

To read more about this quiet campaign to force patients to carry nonviable pregnancies, check out my 2023 investigation:

Calculated Cruelty

In the States

A Democratic lawmaker and abortion rights attorney are challenging Tennessee’s anti-abortion travel ban, arguing that it violates the First Amendment and puts them at risk for criminal prosecution.

The travel ban, which goes into effect July 1, makes it illegal to help a Tennessee teen obtain an abortion in any way. GOP legislators call it ‘anti-trafficking’ law, claiming it will protect minors from sexual abusers who might take them out-of-state. But the law is written so broadly that an aunt who lends her niece gas money, or a grandmother who texts the url to a clinic could be arrested as a ‘trafficker.’ Parents could even sue each other if one helped their child get an abortion without the other’s permission. In short: it’s a mess.

The good news is that a near-identical law in Idaho was blocked on First Amendment grounds; hopefully that means a judge in this case will do the same. (Fingers and toes crossed.)

The lawsuit was brought Democratic Rep. Aftyn Behn and Nashville attorney Rachel Welty, who argue that the law puts them in danger of being arrested for free speech. Welty, for example, is also an abortion rights advocate and member of an abortion fund. The suit says that “Ms. Welty’s advocacy for safe and healthy access to legal abortion care is not hidden, and it is not intended to be,” and that her advocacy is not limited to adults.

And Rep. Aftyn Behn was straight up threatened on the Tennessee House floor: After the Democratic lawmaker tweeted that she would help a young person obtain an abortion, Republican Rep. Jason Zachary said, “that is what recruitment looks like.”

The pair released a statement saying that the travel ban was intended to scare people from helping each other:

“It’s not working. We’ll still be here supporting each other, loving folks who’ve had abortions, and providing people with key information about their options.”

Okay, this is hilarious. At a Virginia rally commemorating the anniversary of Dobbs and stoking support for President Joe Biden, state Sen. L. Louise Lucas gave a pitch perfect quote about her political fights with Republican Gov. Glenn Youngkin:

“Now, you all know why I walk with this cane. I had total knee surgery for keeping my foot up Glenn Youngkin’s ass all the time.”

The best. (Remember, Youngkin tried to pass a 15-week ban in Virginia and vetoed birth control protections.)

Kentucky doctors are speaking up about the ramifications of the state’s total abortion ban, with one OBGYN saying it “has been terrifying to witness.” Another OBGYN, Dr. Callyn Samuel, says it’s not just that patients are being forced to carry more complicated and dangerous pregnancies—but that the bureaucracy is putting patients’ lives in danger.

“We as providers now also have to fill out quite lengthy paperwork for patients who come in with simple things (like) ectopic pregnancies—that are emergencies at times—and even to the point where we’re having to fill this paperwork out before we’re able to provide care to them.”

New Jersey Democrats are pushing for new abortion protections—like eliminating copays for the procedure. Republicans, of course, say the legislation is “unnecessary” because the state is already pro-choice. This has become a go-to talking point from conservatives in blue states; they simply claim that voters have nothing to worry about and that abortion is safe. That’s what they said about Roe!

Quick hits:

• The OBGYN exodus in Idaho continues to put women’s health and lives at risk;

• In Kansas, an abortion rights leader warns that the right to travel for abortion care is next on the chopping block;

• Pennsylvania has seen an increase in out-of-state abortion patients;

• And Oklahoma abortion rights advocates rallied on yesterday’s anniversary.

“Women have different rights depending on the state that they live in. That’s unfathomable.” - Tucson, Arizona Mayor Regina Romero

Anti-Abortion Strategy

If you’re a regular reader, you know that Susan B. Anthony Pro-Life America is perhaps the most powerful anti-abortion organization in the country. They set the agenda for Republicans on abortion and lead the movement on strategy and talking points. (The group also regularly misleads legislators about how unpopular bans are, but that’s a story for another day.)

So it’s always good to pay attention to what kind of language they’re using.

To commemorate the Dobbs anniversary this week, SBA highlighted their interactive map of “protections” (aka abortion bans) and offered some new messaging. Much in the same way the group calls bans “consensus” legislation or the “will of the people” to distract from the fact that they’re passing laws Americans don’t want, SBA is now focusing in on idea of Democrats “forcing” abortions:

“Joe Biden and the Democrats are hell-bent on banning protections for unborn children, spreading fear and lies, and forcing all-trimester abortion any time for any reason—even when babies can feel pain—as national law. With total power in Washington they will rewrite the rules of the Senate, enact their woefully misnamed Women’s Health Protection Act, end the pro-life majority on the Supreme Court and shut down the pro-life safety net so that abortion is the only option left.”

I’ve been raising the alarm about language around ‘force’ or ‘coerced abortion’, so this isn’t necessarily a surprise—but it is super telling. I mean, the projection is so bad it’s almost impressive! The term ‘all trimester abortion’ is a new one for them, however; it makes me wonder if their polling on ‘late’ abortion wasn’t going as well as they hoped.

SBA also announced yesterday that they’d be spending $92 million to “protect life across America” with a focus on battleground states, and shared personal stories from two women who say they’re glad anti-abortion laws kept them from ending their pregnancies.

As you know, Democrats have done well with women sharing their experiences of being denied care; conservatives hope they can mimic that success. From SBA president Marjorie Dannenfelser:

“The stories of women like Neesha and Ashley and their children, who are thriving today and give credit to pro-life laws for a more joyful life than they could have imagined, are beautiful and deserve to be shouted from the rooftops.”

I just don’t think this tactic is going to work the way they’re hoping it will. There’s nothing compelling, touching or resonant about the story of someone being forced or coerced to carry a pregnancy. In fact, it’s just depressing. I’m also willing to bet that if these women were asked directly if they believe others should be forced to carry a pregnancy to term, they’d waver.

That’s because there’s a big difference between talking about how glad you are that your kid exists, and insisting other women should have no choice.

The women speaking up about being denied abortion care aren’t just giving quotes for press releases; they’re passionate, energized and furious about the issue, traveling around the country to share their stories. The anti-abortion movement is not going to be able to replicate that.

Ballot Measure Updates

The abortion rights group behind the ballot measure campaign in Arizona says that they’ve collected over 800,000 signatures to get abortion on the ballot. Cheryl Bruce of Arizona for Abortion Access says, “Arizonans from across the state have made it clear that they want to see this on the ballot.” The deadline to turn in signatures is July 3.

Arizona was in the spotlight after its state Supreme Court ruled in favor of an 1864 abortion ban. After a huge backlash—and pressure from the national GOP and Donald Trump who were worried about November—three Republican lawmakers in Arizona joined Democrats to repeal the legislation.

USA Today looks at pro-choice conflict over the abortion rights measure in Arkansas, which would protect abortion up until 18 weeks. Organizations like the ACLU and Planned Parenthood have declined to support the initiative, saying it isn’t strong enough. They want to spend a few more years organizing on the ground to build support for better protections.

The organizer for Arkansans for Limited Government, however, say that 18 weeks is what they believe Arkansas voters will support—and that Republicans are working to make it harder to introduce and pass ballot measures. They’re afraid if they wait, it will never happen.

Axios has a short piece today on the 25 states where voters can’t push citizen-led ballot initiatives. In other words: half of the states in the country have no way for voters to have a direct say on abortion rights.

Finally, all eyes are on Florida as the Amendment 4 vote grows nearer. State Democratic Party Chair Nikki Fried says, “we’re going to work every single day from now until November to take our rights and our freedoms back.”

In the Nation

• Law professor Mary Ziegler is in The Los Angeles Times with ideas on how the anti-abortion movement will move forward in the wake of their SCOTUS ‘loss’;

• Rachel Maddow did a segment on just how pissed off voters are over abortion bans;

• The 19th reports that the number of abortions have gone up, but care has become harder to get;

• 28 million women are living in states with abortion bans;

• And The Guardian has more about study I covered last week on travel bans for women on parole and probation.

Care Crisis

Alanna Vagianos at HuffPost has a vital piece on abortion funding, which is at a serious crisis point. ‘Rage-giving’ has died down over the last few months at the same time that costs for care are dramatically increasing. Because of the travel now necessary to get an abortion, transportation, lodging, childcare costs and more have gone up.

Making matters worse, both the National Abortion Federation and Planned Parenthood’s national Justice Fund have announced that they’ll be putting a 30% cap on costs for abortion patients, down from the current 50% limit. There’s no overstating how devastating this will be for patients, funds, and the clinics that serve them.

The abortion rights advocates I’ve spoken to are also feeling a lot of understandable frustration that there’s so much money going towards pro-choice politicians while patients are still struggling to get care.

Speaking of patient impact, NBC News spoke to some of the women who sued Texas after being denied abortions:

Finally, an interesting bit of news from MedPageToday, which spoke to Dr. Daniel Grossman, the director of Advancing New Standards in Reproductive Health (ANSIRH) at the University of California San Francisco. Dr. Grossman says that some doctors in anti-abortion states are finding ways to work around bans—and that certain facilities are taking the lead in providing health- and life-saving care.

“In some of these states there are a few facilities that have stepped up and…set up policies to provide care in these situations with fewer barriers. Now, about 2 years in, people have figured out where those places are, and they can…funnel patients to those places.”

In other words, there are some doctors and institutions willing to take legal risks to give patients abortions. It’s heartening, but also heartbreaking. I can’t believe we’re in a place where doctors have to know the ‘right’ places to send patients so they’ll actually get the care they need.

“In the case of stealing reproductive freedom away from the women of America, Donald Trump is guilty.” - Vice President Kamala Harris

2024

There’s a presidential debate this Thursday night, where we’re sure to hear a lot about abortion rights. (Take a drink every time Trump says ‘post-birth abortion’.) I’m actually curious to see if the Supreme Court will hold off on announcing their EMTALA decision as to not give Biden any ammunition for the debate.

Meanwhile, we know what Trump’s talking points will be. In addition to claiming that Democrats are the real extremists, the disgraced former president will continue to insist that he gave abortion ‘back to the states.’ Trump spokesperson Karoline Leavitt told The New York Times this week, “Some states will be more conservative and some will be more liberal” and that Trump “supports the rights of individuals to determine their laws.”

I know I’ve taken about a hundred victory laps on this particular prediction, but I really can’t get over how he did exactly what I thought he would. Here’s a bit from my column last year:

“What better way to appease Republican women who have been horrified by all the post-Roe horror stories they’ve been reading? By focusing on returning abortion to the states—applauding whatever outcome once that happens—Trump is giving those female voters a gift: The illusion that that they still have a choice.”

And here’s Trump in April:

“Now all of the states are making their decision…and this is what people have wanted. The people are voting, they’re voting all over the country. Sometimes it’s conservative, sometimes it’s not conservative. We were able to do that…It’s tailor made and it’s really working out well for people and they’re very very happy.”

If I was on the Biden team, I’d be splashing that “very very happy” line across ads featuring every post-Roe horror story that’s come out in the last two years.

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