Abortion, Every Day (8.16.23)

What to know about the mifepristone ruling

Mifepristone Ruling Tonight

You’ve likely seen by now that the Fifth Circuit of Appeals came down with their decision on mifepristone, ruling in favor of significant restrictions on the abortion medication. The Department of Justice announced that it will appeal the decision.

First and foremost: Abortion medication is still available thanks to a Supreme Court stay instituted in April. So for now, access to mifepristone remains unchanged.

The ruling, made by what Vox once called “the Trumpiest court in America,” would ban mifepristone from being mailed or prescribed via tele-health. (This would be a good time to re-read our explainer on the Comstock Act.) Law professor Greer Donley explains that if the decision is upheld, mifepristone would revert to its pre-2016 label in which the drug would only be approved through 7 weeks of pregnancy, and would require the medication to be prescribed and picked up in person: “This would eliminate virtual abortion clinics, overwhelm brick-and-mortar clinics, increase the cost of care, and dramatically change the patient experience.”

Abortion, Every Day will have more on the decision tomorrow, but in the meantime, read Chris Geidner at Law Dork who published a super clear rundown of the ruling and what it means.

In the States

Republicans are still reeling from their loss in Ohio, which sent yet another clear message: Americans support abortion. Voters rejected an effort to raise the standards on ballot measures, which would have made it harder to pass a pro-choice amendment, and near-impossible for citizen groups to get ballot measures in front of voters to begin with. The results mean that abortion rights advocates only need to get a simple majority when the amendment goes in front of voters this November. (This week, the Ohio Supreme Court rejected a lawsuit seeking to keep abortion off the ballot.)

Other states are looking at Ohio’s pro-choice win as a possible model for their own measures and political strategies: Arizona abortion rights advocates are eager to get a ballot measure in front of voters, for example; and Illinois may also push an amendment to enshrine abortion rights in the state constitution. (The state protects abortion rights through the Reproductive Health Act, but anti-choice lawmakers could reverse that with a majority in the legislature.) Virginia Democrats are also planning to double down on abortion rights in light of the election.

In Utah, however, the editorial board at The Salt Lake Tribune warns readers that they can expect to see attacks on democracy similar to those in Ohio—especially as the Utah Supreme Court hears arguments on whether or not the state constitution’s right to privacy protects abortion rights. Lawmakers, they write, “are primed to ignore the will of the people.”

New York Times columnist Jamelle Bouie also has a terrific, must-read piece on how the Ohio election shows just how far Republicans are willing to go to ban abortion, writing, “If the people stand in the way of ending abortion, then it’s the people who have to go.” Bouie also reminds us that conservative attacks on democracy aren’t likely to stop at abortion:

“For now, the anti-abortion project is an assault on one form of freedom. But don’t be surprised if, to secure whatever victories it gains, it becomes an attack on all the others.”

A few items out of Idaho today: ABC News has more on the lawsuit by college professors who say the law banning state employees from “promoting” abortion is a violation of their free speech.

As a reminder: state employees found to have referred, counseled on, or promoted abortion are not only barred from any future employment with the state, but could face 14 years in prison. Scarlet Kim with the ACLU says the law “has had an enormous chilling effect,” and teachers are already dropping readings and changing curricula.

Other professors, Kim says, are even hiding portions of their own research and academic history. One professor who brought the suit, for example, has scrubbed her professional profile of details about her scholarship for fear that her work could be interpreted a violation of state law: “And that's had a huge impact on just her academic profile; it makes it difficult for people to understand that she's an expert on these issues.”

In better news out of Idaho, the abortion ban isn’t stopping patients in the state from getting abortion medication via tele-health—much to the frustration of anti-abortion activists. Providers are also continuing to ship abortion medication to Texas patients who need them. This is largely thanks to shield laws in pro-choice states, which have made doctors less worried about mailing medication. Obviously, that’s something that would change drastically should the mifepristone ruling be upheld.

In the meantime, conservatives want to figure out a way to have providers in pro-choice states who ship the pills arrested. Amy O’Donnell of the Texas Alliance for Life told The Dallas Morning News they want to work on legislation to punish those “who would wish to illegally traffic those mail-order drugs to Texas women from within our state or from another state.” And the president of Idaho Family Policy Center, Blaine Conzatti, told Boise State Public Radio that there are legal precedents that should allow them to prosecute people out-of-state.

But providers at tele-health organizations like Aid Access say they have no plans to stop regardless of what the state law says. From provider Lauren Jacobson:

“We have backup plans so we’ll continue to provide mifepristone and misoprostol to all 50 states. We have backup plans to our backup plans, so that will continue to happen.”

Last week, a Nebraska judge rejected the legal challenge seeking to block the state’s ban on abortion and gender-affirming care. The ACLU of Nebraska sued over the combined law, which violates the state constitution’s rule that “no bill shall contain more than one subject.” The judge, however, sided with the state Attorney General, who said that the law only pertained to one subject because abortion and gender-affirming care are both health related. (Insert huge eye-roll here.) The ACLU says they plan to appeal the decision.

Finally, we’ve been following efforts in multiple states to stop anti-abortion centers from deceptive advertising and lying to patients—including Massachusetts, where lawmakers are considering legislation to regulate the fake clinics. WGBH has more:

Quick hits:

• Massachusetts is dedicating $1.5 million to the maternal health care crisis;

• The man who set fire to an Illinois Planned Parenthood was sentenced to ten years in prison;

• A Pennsylvania woman recounts her horrific experience with an anti-abortion center;

• And the Catholic Church is urging Ohio voters to oppose the abortion rights amendment being proposed in November.

In the Nation

The Ohio election, unsurprisingly, is making a national impact: Republicans are trying to play off the loss as having nothing to do with abortion, instead claiming it’s a sign that voters don’t want to change state constitutions. And national anti-abortion leaders like Marjorie Dannenfelser at Susan B. Anthony Pro-Life America claim that the issue is Republicans not being anti-abortion enough.

But Democrats—who have finally caught on to what feminists have been saying for years—know it’s much bigger than that. Axios reports that the Democratic Congressional Campaign Committee is circulating a memo about what the Ohio election means more broadly, and lays out how reproductive rights could help them take back the House in 2024.

The memo advises that Democrats should be reminding voters that “MAGA Republicans are focusing their power on advocating for dangerous and unpopular abortion bans.”

Ashley All, one of the strategists who worked on the Kansas campaign to defeat an anti-abortion ballot measure, tells POLITICO that Dobbs changed everything:

“People now see the real consequences of these bans. They see children having to cross state lines to get care. They see women almost dying in childbirth. So they don’t buy the arguments the other side is making.”

Related: NBC News has a rundown of all the elections where abortion rights have won. (Hint: It’s all of them.)

Republican Liz Cheney spoke out against Sen. Tommy Tuberville’s ‘protest’ against the Pentagon’s abortion policy this week, tweeting that he “is doing significant damage to American military readiness and national security.” One of the people whose promotion is held up is Admiral Lisa Franchetti, the first woman tapped to head the Navy.

Despite the continued block of military promotions and nominations, the Deputy Pentagon Press Secretary Sabrina Singh says, “We're not going to change our policy on ensuring that every single service member has equitable access to reproductive health care.”

Quick hits:

• The Washington Post on what it’s like selecting jurors for a trial about abortion;

• The Associated Press on the lawsuit seeking to bankrupt Planned Parenthood;

• And your regular reminder that the Heritage Foundation no longer decries teen pregnancy, only “non-marital” teen pregnancy.

Care Denied

My daughter turned 13 years-old yesterday, so it was with a particular pain in my gut that I read this TIME story about a Mississippi 13 year-old who was forced to give birth because of the state’s abortion ban. Ashley, in 6th grade, found out she was pregnant when her mother took her to the ER for continuous vomiting. After getting her blood taken, a nurse came in and said to Ashley: “What have you been doing?” (A quote that makes me want to jump through the screen and smack someone.)

Ashley, who was about 10 or 11 weeks into her pregnancy, had been raped. But as I’ve reported before, while Mississippi Republicans claim that the state has a rape exception, it isn’t real. Even if someone is able to jump through the necessary hoops to obtain care, there isn’t one doctor in the state willing to provide an abortion for a rape victim. And while there are abortion funds that can help—like the Mississippi Reproductive Freedom Fund—not everyone knows about those resources. (Part of the reason it’s so important that OBGYNs, reporters, and community members spread the word.)

There’s nothing I can write that will make sense of this horror, so I won’t even try. But I will remind you that for every Ashely that comes forward, there are dozens more who don’t.

Another story of care denied came out this this week, this time out of Kentucky. Bloomberg Law reports that a mother of five with cervical cancer was denied radiation and chemotherapy because she was 21-weeks pregnant. The woman went before a hospital panel to ask to qualify for a health- and life-saving abortion and was denied; the panel decided she didn’t meet the legal exception for medical emergencies.

Gynecologic oncologist Dr. Monica Vetter told Bloomberg, “She always told me that she wanted to be alive for the ‘kids she already had.’ It was heartbreaking.” Thankfully, the woman survived after being given a different kind of chemotherapy and delivering her baby early—but she didn’t receive the standard of care. And people with cancer shouldn’t have to fucking beg for treatment.

Listen Up

• NPR in Kansas looks at how Ohio and Missouri Republicans are using similar strategies to stop abortion rights ballot measures;

• FiveThirtyEight’s podcast on how abortion rights is influencing voters;

• And Here & Now on Sen. Tommy Tuberville’s blocks of military nominations and promotions.

2024

I’m sorry, but this is hilarious. Democratic presidential candidate Robert F. Kennedy Jr. told a reporter this past weekend that he supports a federal ban after the first trimester, giving a detailed explanation of his stance and saying, “Once a child is viable, outside the womb, I think then the state has an interest in protecting the child.” Soon after, his campaign released a statement saying that RFK Jr. “misunderstood” the question and that “Mr. Kennedy’s position on abortion is that it is always the woman’s right to choose.” You can smell the panic from here.

Meanwhile, SBA Pro-Life America’s president Marjorie Dannenfelser couldn’t resist an opportunity to weigh in using her favorite word, saying that Kennedy is “one of the few prominent Democrats aligned with the consensus of the people today.” Dannenfelser also called on Kennedy to not hide behind campaign consultants and just say what he means. For once, I agree with her.

More 2024 news:

• Nikki Haley says people need to stop “demonizing” women who have abortion—something I’m sure has nothing to do with people making abortion illegal and calling it murder;

• Mike Pence is gearing up to attack Donald Trump and Ron DeSantis during the GOP presidential debates on their unwillingness to explicitly support a federal abortion ban;

• And President Joe Biden’s team thinks that abortion rights could expand their electoral map.

Keep An Eye On: Republicans Bankrupting Clinics

If you’ve been following abortion rights for a long time, you likely know what TRAP laws are: onerous regulations for abortion clinics that aim to make it impossible for them to operate. Whether it’s the width of clinic hallways or hospital admitting privileges for providers, Republicans often implement a ‘death by a thousand cuts’ approach in states where abortion is legal.

In Florida right now, for example, the state is trying to shut down clinics by fining them into oblivion. Their latest move was fining an Orlando clinic nearly $200k for what they say was a violation of the state’s waiting period law. (In the weeks after the waiting period mandate was implemented, the clinic sought clarification from the Agency for Health Care Administration about the rule, only to be ignored.) The whole point is to drive clinics out of business, fine by fine, county by county. It’s disgusting, and we should plan to see a whole lot more of it.

Anti-Choice Strategy: Punishment

You likely remember Dr. Caitlin Bernard—the Indiana abortion provider who treated a 10 year-old rape victim from Ohio. Bernard was the victim of a year-long harassment campaign by the Indiana Attorney General Todd Rokita, who made it his personal mission to strip Bernard of her license because she had the temerity to speak out about the consequences of abortion bans. Luckily, that didn’t happen—she was just fined by the state medical board—but that didn’t stop Rokita and other Republicans from taking any chance they could to punish her.

The Columbus Dispatch reports that when Bernard was nominated recently for the state’s Torchbearer award—given to women who make a difference—her name was unceremoniously taken off the list by someone in state government without any explanation. Deb Chubb, executive director of the Indiana Women's Action Movement and one of the Torchbearer judges says, “It feels like the governor has said, women cannot be trusted to choose their own heroes…I think it’s just another kick in the gut to women in Indiana.”

It’s also another reminder that Republicans are petty assholes.