Abortion, Every Day (12.13.23)

Pharmacies are sharing patient records with law enforcement

Click to skip ahead in the newsletter: In Texas Cruelty, Republicans are too afraid to talk about Kate Cox. In the States, Missouri Republicans have dropped their latest anti-abortion bill, the New Mexico Supreme Court heard arguments in an abortion case today, Pennsylvania Dems want to put abortion rights in front of voters, and Missouri’s AG is up to his old anti-democratic tricks. In Stats & Studies, a new poll shows that voters increasingly support abortion throughout pregnancy (and that we’re not framing the issue correctly). In SCOTUS & Mifepristone, Grace gives a bit of background on the case, and reveals that pharmacies sharing patient records with law enforcement in Criminalizing Care. Finally, in 2024 news, Haley is hiding behind the word ‘compassion’.

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Texas Cruelty

Republicans are refusing to answer questions about Kate Cox, the Texas woman forced to flee the state for care after her pregnancy was diagnosed with a fatal fetal anomaly. There’s a reason for that! It’s not just because talking about Cox’s story reminds voters of the cruelty of abortion bans—but because they don’t want to admit that what happened to Cox was exactly what the law intended.

Put simply: Texas’ ban was written to ensure that women would be forced to carry doomed pregnancies to term; Republicans don’t want voters to know that.

Republican U.S. Sens. John Cornyn and Ted Cruz, for example, both dodged questions about the case. Cornyn—a U.S. Senator representing Texas—even had the nerve to say, “I’m not a state official, so I’m not going to comment on what state officials are doing.” Cruz straight up refused to answer.

I’d also like to know how Republicans feel about the fact that Cox’s husband could be sued by anyone in Texas for helping her to obtain the abortion. A criminal law attorney told NBC News, for example, “This is such a high-profile case that it will probably attract people who are interested in filing these lawsuits.”

If you need another punch to the gut, Dahlia Lithwick at Slate has a list of the people who got to decide what happened to Cox’s pregnancy. Hint: none of them are Cox, and nearly all of them are men.

Meanwhile, Center for Reproductive Rights lawyer Molly Duane tells The Washington Post that her inbox has been flooded with messages from women like Cox who have been denied care despite serious pregnancy complications. “She’s not the first person I’ve talked to in the middle of an emergency, she’s just the first person who filed a lawsuit,” Duane said.

Duane also told columnist Ruth Marcus something that’s incredibly important:

“The lesson the public should take is that there is no such thing as an exception to an abortion ban. If Kate Cox doesn’t get an abortion, if this bothers you, you should be against abortion bans entirely.”

Just a reminder for the people who argue that Cox should have just left the state, and that traveling for care is the easiest solution to those who need abortions: Yet another Texas city is considering implementing an abortion travel ban. The City Council in Amarillo had put the issue on pause after getting a whole lot of national media attention, but now they’re set to consider the ordinance on December 19th. (For more on abortion travel bans, read my column here.)

Finally, I have to mention that the anti-abortion movement is being absolutely unhinged in their cruelty around this case. Anti-choice leader Lila Rose, for example, went on a Twitter tear claiming that Cox is “killing” her “disabled child,” and slammed her for not choosing to have a c-section or undergo labor if her life is at risk. (I’ve written about this before, but it’s worth repeating: The anti-choice movement wants women to be forced into labor or a c-section when their life is at risk in order to deliver an “intact fetal body.”)

I mean, when even Ann Coulter thinks you’re an asshole, you have a real problem.

In the States

Missouri Republicans withdrew legislation that would have allowed the state to charge abortion patients with murder. State Rep. Bob Titus said, “The media has mischaracterized my interest as hostile toward women; nothing could be further from the truth.”

This is the same Titus, by the way, who told The Kansas City Star, “if you’re going to treat babies as humans and people then the penalties for taking an innocent life should be commensurate with that.” (Remember, this bill also could have made it possible for women to be brought up on murder charges if they used emergency contraception or IUDs!)

As expected, other Republicans and anti-choice groups tried to distance themselves from the legislation, claiming that it wasn’t in line with mainstream anti-abortion thinking. But that’s just not true: Republicans in multiple states—like Iowa, Georgia and South Carolina— have proposed similar legislation.

More in Missouri news: One of the things I’ve been tracking in the state is the absolute clusterfuck that is Attorney General Andrew Bailey and his attacks on democracy. (For some background, click here and here.) The short version is that Bailey has been throwing everything he can at the wall in an attempt to stop an abortion rights ballot measure from moving forward—including threatening to refuse to do his job if it were to pass.

Bailey said that because he wouldn’t enforce the pro-choice amendment, the state would have to hire outside counsel—which would cost $21 million. Naturally, he wanted that estimate included in the ballot information that voters see when they go to decide on the amendment. Essentially, it’s a way for him to make it seem as if the measure would cost the state a ton of money. He tried this before: the state Supreme Court had to force Bailey to sign off on a cost estimate for the measure after he claimed that it would cost the state billions of dollars to restore abortion rights.

Now, Bailey is fighting a subpoena of records about how exactly he came up with that $21 million number. (The subpoena is part of a lawsuit filed that challenges his estimate.) This week, Bailey asked a Cole County judge to block the subpoena, and for a protective order around the request. It’s almost as if he doesn’t have the facts to back up his bullshit!

Meanwhile, the New Mexico Supreme Court heard arguments today over whether it’s legal for towns to pass local anti-abortion ordinances in spite of state law protecting abortion rights. The four towns at the center of the case have passed ordinances that claim the federal Comstock Act bans the shipping of abortion medication and abortion-related materials. (Read AED’s Comstock explainer here.)

Aletheia Allen of the New Mexico attorney general’s office, says the ordinances violate state laws: “It flies in the face of what they’re allowed to do procedurally, as local governments.” For anti-abortion activists, the goal is to get a case about Comstock to the Supreme Court.

Law professor Mary Ziegler tells The Guardian, “Clearly a lot of people with power in the anti-abortion movement think that the Comstock Act is really important.” She says they think SCOTUS might just take their side, so “they’re just throwing up lots of opportunities.”

Fun fact: New Mexico Attorney General Raúl Torrez isn’t just asking the state Supreme Court to stop these local ordinances, but to find that abortion rights are protected in New Mexico’s constitution.

Speaking of abortion rights protections: Pennsylvania Democrats have introduced a bill that would protect reproductive rights in the state constitution, pending voter approval. Lawmakers held a Judiciary Committee hearing today, where they heard from doctors about just how complicated pregnancy is. From OBGYN Dr. Sarah Horvath, who noted that abortion restrictions hurt maternal health outcomes and lead to doctors fleeing anti-choice states:

“Every person should be able to come to me or one of my colleagues and have an honest, open discussion about the risks and benefits of pregnancy. This conversation should be unfettered by political interference, so that patients can build the families they want.”

Naturally, anti-abortion groups in the state have already started their messaging campaign against the proposed measure by repeating failed talking points from Ohio. A representative from the PA Family Institute said that the measure would “overturn all the protections we have, even restrictions on late-term abortions” and is “bad for women.” You know what’s really bad for women? Forced pregnancy and childbirth.

Quick hits:

• Rolling Stone on the Kentucky woman who is suing over the state’s abortion ban;

• Truthout on the Arizona Supreme Court hearings on the state’s 1864 abortion ban;

• The Orlando Sentinel on whether a case like Cox’s could happen in Florida;

• And Tennessee Planned Parenthoods are now helping patients using federal funds that the state lost after they implemented their state ban.

Stats & Studies

I want to talk about this Marist poll looking at how Americans’ views align with those of Republican presidential candidates. The results on abortion are really, really interesting. Namely, when voters were asked what kinds of restrictions they’d support if there was a national abortion law, the most popular answer was NONE.

Naturally, instead of highlighting that incredibly important takeaway, the report and accompanying media coverage has focused on the idea that most Americans want restrictions of some sort. But that’s a limited way of thinking—one that both overlooks the basics and discounts how people feel about abortion when you get into the nitty gritty of the issue.

The truth is, by breaking these questions down into weeks, we’re already accepting a Republican framework: the notion that there has to be some sort of regulation at all.

Given how Americans are responding to the horror stories coming out of anti-choice states, instead of asking voters about weeks, I’d love to see a poll that asks whether or not they want the government involved in decisions around pregnancy at all.

And instead of asking respondents if they believe abortion rights should be decided at national or state level—as this poll did—ask whether they believe abortion should be decided by patients and their doctors, or by the government. Because that’s what’s driving the national fury and backlash to bans.

In any case, these numbers are a big deal. We’re seeing polling like this more and more—voters understand that abortion needs to be protected throughout pregnancy. For more stats on public support for abortion rights, check out this roundup of polls I did last month:

America Supports Abortion

SCOTUS & Mifepristone

The Supreme Court announced this morning that they’ll hear the case challenging FDA approval of mifepristone, the first pill in the abortion pill regimen. This is the biggest case concerning abortion access since Dobbs.

What’s most important to know is that SCOTUS will not be looking at the original challenge to FDA approval of the drug. Instead, they’ll review the 2016 and 2021 changes to restrictions around mifepristone, and whether or not the Alliance of Hippocratic Medicine (the anti-abortion group who brought the lawsuit) has standing. 

In short, the legality of mifepristone shouldn’t be at risk, but access and availability of the medication is. Still, the restrictions they’re reviewing are meaningful ones—like tele-health access, the ability to receive abortion medication in the mail, and how far into pregnancy you can take the pills. (Right now it’s 10 weeks, these restrictions could put it at 7 weeks.)

According to Mini Timmaraju, president of Reproductive Freedom for All, this could potentially affect access for more than 64.5 million people—even in pro-choice states. Law professor and friend-of-the newsletter David Cohen laid out the two ways this case could go:

“The most likely outcome is that the Court rejects the plaintiff's case for lack of standing. If that happens, the case goes away, until the antis find another plaintiff that might be in a better position to challenge [mifepristone]. But if the Court finds standing, even though [mifepristone’s] approval isn’t at risk, telemedicine and mailing pills is. If the Court rejects those advances, that would strike a serious blow to the increased access we’ve seen over the past several years, especially for those for whom travel is difficult.”

For now, access to mifepristone remains in place at least until SCOTUS releases a decision, and Abortion, Every Day will keep you updated along the way. Grace is preparing an in-depth explainer that you can expect to see later in the week. (And in the meantime, you can read our existing explainers on the case here and here.)

Criminalizing Care

This is absolutely wild: A congressional investigation found that the nation’s largest pharmacies are giving prescription records to police and government investigators without a warrant. I don’t need to tell you why this is such a problem in a post-Dobbs world.

Pharmacies told investigators that only a subpoena is needed to share records, which can be issued by a government agency—say, the Texas state legislature, for example. And because pharmacy chains share information with each other, records held in one state’s store could be accessed by a store in another (more anti-abortion) state. Terrifying. 

We’ll have more on this soon, but in the meantime read the letter sent to Xavier Becerra, secretary of the Department of Health and Human Services.

2024

NBC News looks at how the GOP presidential candidates have responded to Kate Cox’s case—and several of them used the anti-abortion BINGO word that I flagged last month: “compassion.”

Nikki Haley said, for example, “We have to humanize the situation and deal with it with compassion.” And Florida Gov. Ron DeSantis said, “We have to approach these issues with compassion.” (Vivek Ramaswamy pivoted instead, saying this was a states’ issue.)

Please note, however, within all that “compassionate” talk, no one said that Cox should have been able to get the abortion she needed. Again, that’s because Texas’ law was doing exactly what it was meant to do.

In fact, when Haley was taken to task by CNN’s Dana Bash, who asked her how she turns that compassion into policy, Haley still didn’t answer the question directly. She said that she believed Texas should “tweak” their law so that women’s fertility and lives were protected—but Texas’ ban already purports to do that! The issue here wasn’t just Cox’s health and life, but the fact that she was being forced to carry a doomed pregnancy.

Also, this from Haley is just downright insulting: “When you do something in a state, it’s never perfect right off the bat. You learn how to tweak it.” The anti-abortion movement had FIFTY YEARS to come up with these laws—what we’re seeing aren’t mistakes. Their policies are doing exactly what they’re supposed to do.