Abortion, Every Day (12.27.22)

In the states…

Texas Republicans and anti-abortion activists continue to be some of the cruelest around. In addition to their extreme abortion ban, which also allows private citizens to sue over abortion, conservatives in Texas are trying to find innovative ways to stop women from leaving the state to end their pregnancies. Republicans are already pushing legislation that would prohibit companies from getting tax subsidies if they offer coverage for out-of-state travel for abortion, and have been eyeing abortion funds (which help those seeking abortion coordinate money and logistics to leave the state).

The Intercept points out that the next step in Texas is allowing the state’s ‘bounty hunter’ mandate to apply to those traveling to pro-choice states: Meaning that private citizens could sue anyone who helps a patient travel or pay for travel, which would have a chilling effect on pro-choice states. From law professor Mary Ziegler:

“We saw the threat of litigation alone from SB 8 freeze abortion care in Texas. If the same strategy is applied to out-of-state travel, it could prevent patients from leaving the state and could cause doctors in other states to feel exposed and liable to lawsuits.”

In Wisconsin, Republicans are debating whether or not to propose anti-abortion legislation with rape and incest exceptions—weighing Gov. Tony Evers’ lawsuit against the ban, along with the fact that Evers has said he’d veto any bill that kept the ban in place. Some conservative lawmakers say they’re not willing to do the work for legislation that the governor is just going to veto, while others want to move forward anyway—likely to make Evers out to be unreasonable on the issue. And it’s already working; the Associated Press writes that Evers reiterated his pledge to veto anti-choice legislation, “even if it would mean that victims of rape and incest could not get abortions in Wisconsin.” But as I’ve written again and again; rape and incest exceptions are not real. They are allowances in name only, so it seems to me that Evers is doing the right thing.

In Oklahoma, there’s a clear link between abortion bans and anti-trans legislation: Republicans are proposing bills that would jail health care providers trying to help people, and one proposed law would allow any citizen to sue over someone receiving gender-affirming healthcare—similar to conservative strategy on abortion.

And Ohio’s Governor Mike DeWine said in a local television interview that abortion will be put to the voters of the state, but neglected to mention that his Republican cohorts are trying to rig the game by making it harder for ballot measures to pass.

Montana is trying to stop low-income women from being able to use Medicaid to end their pregnancies: A proposal from Department of Public Health and Human Services wants patients to get pre-authorization proving that their abortion is medically necessary, along with redefining what constitutes ‘medically necessary’. Right now, abortions can be reimbursed by Medicaid if the pregnancy is the result of rape or incest; if an abortion is needed to save someone’s life; or if a pregnant person’s life isn’t in danger, but the procedure is medically necessary.

The state takes issue with those suffering with mental health issues using Medicaid for abortion reimbursement, and claims that “the Medicaid program is paying for abortions that are not actually medically necessary, but are, in fact, elective, nontherapeutic abortions.” The health department wants to limit reimbursement for those with serious physical condition, something Planned Parenthood of Montana president Martha Fuller says is another example “of the government inserting itself between the patient and the provider.” She says, “The fact of the matter is it is up to the provider to figure out whether or not something is medically necessary.”

I’ve already told you about how Virginia Gov. Glenn Youngkin allocated money to the Department of Corrections as part of his proposal to ban abortion after 15 weeks (a stark reminder that people will go to jail). And while the governor’s team claims no women will be arrested over abortion, and tries to play down their legislation—trying to position a 15-week ban as somehow moderate—Charlottesville newspaper The Daily Progress urges readers to “think of it as mission creep among the forces of forced pregnancy.” They point out that nearly 98% of the abortions in Virginia happen before the 15th week of pregnancy, so the point of the legislation actually has nothing to do with abortions after that time:

“[The goal] is to gain a foothold and gradually take away a woman’s right to choose. Fifteen-week bans give way to 12-week bans, which give way to six-week bans, and before you know it, abortions will be outlawed entirely.”

That’s why there’s no such thing as a ‘reasonable’ abortion ban.

Quick hits:

• An end-of-the-year rundown on reproductive rights wins and losses in Michigan;

• Abortion rights will be a top priority for Democrats when the Minnesota legislature reconvenes;

• And abortion providers in Illinois are seeing a record number of patients, many of them from out-of-state.

In the nation…

Back in September, I told you about how Plan B could be in danger because of a labeling error: Essentially, the FDA label said that the medication could prevent a fertilized egg from implanting, which recent studies show is untrue. And as you know, conservatives have long tried to target emergency contraception and IUDs as ‘abortifacients’ using the claim that anything that stops implantation ends a pregnancy. That’s not true—the American College of Obstetricians and Gynecologists says “a pregnancy is considered to be established only after implantation is complete.”

So the good news is that the FDA has changed the label to make clear that the drug doesn’t impact implantation—it prevents pregnancy by stopping or delaying an ovary from releasing an egg. That’s important. But here’s the bad news: Every single news outlet I’ve seen covering the label change has a headline along the lines of “FDA changes label to say it’s not an abortion pill.” But the label has always made clear that emergency contraception doesn’t end an existing pregnancy—and by framing the change as a clarification about abortion rather than implantation, the media is accepting the false conservative claim that anything that prevents implantation is an abortion. Mainstream media outlets need to get their shit together. Because just like their tendency to paint abortion as something Americans are evenly split on, rather than the truth that abortion rights are incredibly popular, mistakes like this are dangerous. They are doing conservatives’ work for them, and making it that much easier for anti-abortion activists to redefine pregnancy as an egg being fertilized.

A legal battle to pay attention to: You may remember that the Biden administration sued Idaho over their abortion ban, saying it violated the Emergency Medical Treatment and Labor Act which mandates that doctors provide life-saving care, including abortions. Bloomberg Law says that this question will likely end up before the Supreme Court. So let’s keep an eye on that.

Another thing to pay attention to in 2023 is prosecutorial power in states where abortion is illegal—because whether or not people go to jail will largely be at the discretion of district attorneys. And while some have already said that they won’t go after abortion cases, we’re already seeing conservative governors—like Florida’s Ron DeSantis—try to remove state attorneys who won’t use their office to prosecute abortion. Former civil rights prosecutor Jill Habig writes at The Hill that voters should be contacting their state and local leaders to tell them they don’t want the government prosecuting abortion cases, and that they’ll support those who deprioritize criminalization:

“Voters can thank officials who are clear allies for abortion rights and criminal justice reform—and when the next election is here, vote for those who prioritize reproductive justice and prosecute crimes that truly threaten public safety.”

Quick hits:

• The Guardian gives an overview of what’s happening with abortion rights across the country—from how bans are being enforced to the rise in medication abortion;

• The New Republic looks at the post-Roe fallout;

• NBC has a roundup of states looking at abortion-related ballot measures;

• We can plan on seeing more religious freedom arguments in lawsuits against state abortion bans;

• And abortion is conspicuously missing from Republicans’ outreach to young voters, as they realize just how pro-choice Gen Z is.

What conservatives are saying…

VICE has a piece about what anti-abortion activists might focus on in the new year, and what I found most interesting is the idea that anti-choicers could use the Comstock Act to limit abortion:

“Technically meant to block people from sending ‘obscene’ materials through the mail, though it did not define what, exactly, counted as ‘obscene,’ the Comstock Act was essentially a cudgel that could be wielded against all efforts to expand information and access to birth control and abortion. Now, some abortion opponents have seized on the 19th-century law, arguing that the federal provision trumps any state laws to protect abortion rights.”

This isn’t one of the main attacks I’m worried about: I’m keeping a closer eye on moves to limit or ban medication abortion and legislation targeting local abortion funds. That said, we need to pay attention to all the anti-abortion efforts, even those that seem outlandish or bound to fail (like their focus on banning abortion in small towns in pro-choice states).

You love to see it…

The Root has an interview with Oriaku Njoku, the executive director of the National Network of Abortion Funds, who explains the origins and meaning of the term ‘reproductive justice’. She says, “The reproductive rights movement focused…on this binary choice to be a parent or not be a parent, when we’re making choices it has to do with our race and our gender, and the environment that we live in.” In contrast, reproductive justice includes “the right to have a child, the right to not have a child, and the right to parent a child in a safe and healthy environment.”

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