Abortion, Every Day (11.2.23)

Florida AG wants the state Supreme Court to stop a pro-choice ballot measure

Click to skip ahead! Lots of news in our In the States section today, from ballot measure updates to the latest from Idaho. In the Nation, Grace outlines some movement on Tuberville’s block of military nominations and promotions. And in The Care Crisis, a short video on the OBGYN exodus from anti-choice states.

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In the States

Lots going on in ballot measure news today. If you’ve been reading for a while, you know that Republicans have been trying all sorts of tactics to quash pro-choice amendments—including drafting misleading ballot summaries.

In Ohio, for example, the GOP was successful in including a bullshit summary: when Ohioans vote on Issue 1 next week, they’ll see incendiary language crafted specifically to trick them out of supporting the pro-choice amendment.

Republicans in Missouri are hoping to do the same thing for a 2024 abortion rights amendment. For months, Republican Secretary of State Jay Ashcroft has been in a legal battle to keep his false summary attached to multiple ballot measures. (Pro-choice groups haven’t decided which version of their amendment to move forward with yet.)

Ashcroft’s summary says the amendments would allow for “dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice.”

In September, a judge ruled that the language was “problematic” (putting it mildly!) and rewrote the summaries—but Ashcroft appealed the decision. This week, the Republican—who is also running for governor—was dealt another blow. A Missouri appeals court decided against Ashcroft and upheld the language written by the lower court judge. The new summaries will tell voters that the amendments would remove the state’s abortion ban and “establish a right to make decisions about reproductive health care, including abortion and contraceptives.”

Ashcroft, of course, plans to appeal the ruling. But for now: we win!

Unfortunately, there’s more. Republicans in Missouri are also trying to stop the amendment by inserting ridiculous claims about how much restoring abortion rights would cost the state. Attorney General Andrew Bailey wanted the cost estimate to be in the billions of dollars, and had to be forced by the state Supreme Court to sign off on a realistic estimate. Now Bailey is saying that if the amendment passes, he’ll refuse to enforce it and would have to hire outside counsel to the tune of $21 million—a number he wants included in the ballot summary.

Finally, Missouri Republicans are deciding when the ballot measure will go in front of voters. Republican Gov. Mike Parson gets to decide if the pro-choice amendment will go on the ballot in August or November 2024, and the state GOP is sorting out which one is better for them and when it will be least likely to pass. St. Louis Public Radio reports that Republicans are worried about having abortion on the ballot in November, when the issue could drive more Democrats to the polls in a general election. But, the GOP also wants to increase the standards on ballot measures to require more than a simple majority. If they let voters decide in an August election, it doesn’t give them much time to make that happen.

All of which is to say: They are working, every single day, to figure out how to stop voters from having a say on abortion. (In better news, Missouri just became the 14th state with a majority-women state Supreme Court!)

More in ballot measure news today, this time from Florida. Attorney General Ashley Moody wants the state Supreme Court to keep a pro-choice amendment off the ballot entirely. Because like every other Republican these days, she’s terrified to let voters have a say on abortion. Moody argued in a filing this week that this “effort to hoodwink the Florida electorate should be rebuffed.” Hoodwink!

We knew this was coming. Last month, I told you that Moody had filed a brief challenge (as a placeholder while she wrote out this substantive one), and argued in an op-ed that the amendment’s language on ‘viability’ was deliberately misleading and meant to trick voters. As I pointed out, the tactic is shitty but smart. Abortion rights activists have been including ‘viability’ standards in some pro-choice ballot measures to preempt any criticism that they’re supporting abortion ‘up until birth’—even though ‘viability’ is an arbitrary standard. Now Moody is using that against them.

Amy Weintraub of Progress Florida tells Prism, however, “We are very, very confident that the language that has been drafted for this constitutional amendment will hold up in court.” Abortion rights advocates at Floridians Protecting Freedom are also feeling good about signature collecting: They need a little over 890,000 signatures by February to get the amendment on ballot; right now they have over 400,000.

Idaho has filed a motion to dismiss the lawsuit against the state over their abortion ban. In September, the Center for Reproductive Rights filed a suit against Idaho on behalf of women who were put in danger after being denied abortion care. The state, along with Gov. Brad Little, Attorney General Raúl Labrador, and the Idaho State Board of Medicine, argue that CRR doesn’t have grounds to sue because the state Supreme Court already ruled that the Idaho constitution doesn’t contain a right to abortion. From CRR lawyer Gail Deady:

"The Attorney General's Office has fundamentally misconstrued plaintiffs' claims in this case and has conveniently ignored that under the Idaho constitution, every Idahoan has an inalienable and fundamental right to enjoy life and to pursue happiness and to secure her safety.” 

Also in Idaho: If you missed Abortion, Every Day’s piece about the ‘abortion trafficking’ arrest in the state, you can read it below—along with this update about what it means to report on abortion criminalization and all the accompanying messiness.

Idaho's first 'abortion trafficking' arrest

Today, the prosecutor at the center of the case issued a statement to the Idaho State Journal claiming that the charges have nothing to do with ‘abortion trafficking’. Senior deputy prosecutor Erin Tognetti said, “The kidnapping charges…result from their coercion of the child and secreting her out of the state without permitting her to communicate with her parents.”

Tognetti also told the publication that “the child's abortion is not an element of the charged offense.” In fact, it is named in the charged offense. In the kidnapping charge, the criminal complaint accuses the teen’s boyfriend and his mother of concealing K.B. from her parent “by transporting the child out of the state for the purpose of obtaining an abortion.”

The documents associated with the case also center abortion in the investigation: from cell phone records placing the teen at the clinic, to the inclusion of details about her clinic visit that echo anti-choice talking points. The detective on the case, for example, reports that the teen was taken to a specific Planned Parenthood because of a lack of parental consent in the state, reports that K.B. was asked by the clinic if the pregnancy was a result of rape, and outlines her physical symptoms in detail—including how long she bled—after ending the pregnancy.

Most tellingly, the detective also attests to reviewing K.B.’s medical records from her Planned Parenthood visit—even detailing the document in the affidavit, including listing what kinds of abortion medication she was given. Which begs the question: Why would the police need someone’s clinic records in a case that has nothing to do with abortion?

In the coming weeks, Abortion, Every Day will publish a series of pieces on abortion criminalization, including further examination of who law enforcement targets and how, as well as guest posts from those who work in the field.

One more interesting tidbit on Idaho from Grace: The prosecutor’s office who brought this case forward is also involved in one of the ongoing anti-abortion lawsuits in the state. A Bannock County prosecutor is listed as a co-defendant with two other county prosecuting attorneys, and the Idaho Attorney General, in the lawsuit against the state’s No Public Funds for Abortion Act—the law that censors teaching, discussion, and scholarship about abortion at Idaho’s public universities.

Since AED’s story, there’s been coverage of the case in CBS News, The Guardian, The Cut and more.

In Indiana, Attorney General Todd Rokita—who launched a year-long campaign of harassment against the abortion provider who helped a 10 year-old rape victim—is getting a public reprimand. The state Supreme Court ruled that Rokita engaged in “attorney misconduct” when he claimed on Fox News that Dr. Caitlin Bernard had a “history of failing to report” sexual violence. Rokita will have to pay a $250 fine, which obviously is a slap on the wrist—but I’m glad to see him publicly reprimanded in at least some small way for his role in disparaging Dr. Bernard.

Good news out of California! You may remember that the Electronic Frontier Foundation, a digital civil rights group, has been pressuring the state to stop sharing license plate data with out-of-state law enforcement—noting that the information could be used to prosecute abortion cases. Well, this week they were successful: The California Attorney General’s office released guidance on how the data must be shared, noting that it can’t be given to out-of-state agencies.

Dave Maass of EFF applauded the move in a statement, noting, “This guidance will protect abortion seekers, immigrants, and indeed anyone who drives a car in the Golden State from abusive surveillance.”

In so-so news, parts of Michigan’s Reproductive Health Act have passed—but not all of it. The 24-hour waiting period for abortion care remains in the state, as does the ban on Medicaid funding for abortion. Some sections of the law, however, did go through—including a repeal on onerous and arbitrary requirements for abortion clinics.

Because there is so much state news this week, I couldn’t fit in everything today—even after sending a separate email earlier today! So consider today’s quick hits a preview of what I’ll be writing about tomorrow. Whew.

Tomorrow in Abortion, Every Day:

• Abortion rights advocates in Nebraska have filed language for a proposed ballot measure to restore abortion rights in the state;

• In a victory for abortion rights advocates in Kansas, a judge has blocked several anti-abortion laws in the state, including a 24 hour waiting period;

• A federal appeals court said Arizona doctors physicians can challenge the state’s ban on abortions for genetic abnormalities;

• And Wisconsin Democrats have introduced a package of bills that would repeal most of the state’s anti-abortion statutes (more on this tomorrow).

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For what’s happening in Ohio, Virginia, and Pennsylvania, check out the newsletter sent earlier in the day:

Abortion on the Ballot

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In the Nation

Yesterday, a group of Republican Senators attempted to confirm 61 military promotions amid Sen. Tommy Tuberville’s obstruction over the Pentagon’s abortion travel policy. Republican Sens. Dan Sullivan, Joni Ernst, Lindsey Graham, Mitt Romney and Todd Young asked for unanimous consent for each confirmation over hours last night on the chamber floor. Tuberville objected to every nomination, and said that he wouldn’t stop until the Biden administration repealed the policy. 

This is the most visible clash within the party over Tuberville’s months-long block. While on the floor, Romney accused the Alabama lawmaker of “an abuse of the powers we have as senators,” and other senators touted their pro-life stances while saying the holds were a poor strategy and a national security concern. On the other side of the aisle,Democrats are pushing for a potential resolution by temporarily bypassing Tuberville’s hold. We’ll keep you updated as this continues to develop. 

The Senate also passed its first batch of government funding measures yesterday ahead of a looming government shutdown. The Republican House, led by newly-elected Speaker Mike Johnson, is set to vote on opposing bills in the coming weeks that include several anti-abortion riders, including a revised Labor-HHS-Education appropriations bill.

The new rider would prevent federal funds from going towards hospitals or other medical programs that provide required abortion trainings (even though residency programs allow for those with objections to opt out). Another rider attempts to block funds from being used on proposed DHHS anti-discrimination measures for LGBTQ+ individuals’ healthcare. A clash between the two chambers is inevitable before the November 17 deadline. 

Quick hits:

• Here & Now talks to POLITICO about the anti-abortion rider banning mifepristone-by-mail in the upcoming agriculture spending bill;

• Rolling Stone on House Speaker Mike Johnson’s history attacking birth control;

• More on the Senate-led push urging the Biden administration to mandate that private insurers cover the new over-the-counter birth control pill;

• And AED friend Jill Filipovic writes in CNN that “the right-wing’s opposition to abortion is not about saving or protecting women lives.”

The Care Crisis

Finally, one of the major post-Roe trends AED has been following is the exodus of OBGYNs from anti-abortion states. Doctors don’t want to practice or live in a place where they could be arrested for doing their jobs—or be denied care themselves. And who can blame them?

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Today’s In the Nation section was written by AED researcher Grace Haley.