Abortion, Every Day (8.17.23)

2 in 3 Americans would codify abortion rights into their state constitutions

Hey, this is Grace Haley, Abortion, Every Day researcher and I am bringing you the newsletter today. I wanted to start with yesterday’s ruling in the Texas mifepristone lawsuit and what it means for the Comstock Act, fetal personhood, and the point of abortion bans.

The Mifepristone Ruling

There were two important pieces to yesterday’s mifepristone ruling from the 5th Circuit Court of Appeals: the majority opinion that aims to roll back tele-health access to mifepristone and would prohibit shipping the medication; and an even more extreme dissenting minority opinion from Judge James Ho, who wanted to invalidate mifepristone’s approval altogether.

I want to highlight Ho’s opinion because it shows the true colors of the anti-abortion movement. In a particularly telling section, Ho argues that the anti-abortion doctors who brought forward the mifepristone lawsuit have standing to do so because of the aesthetic injury caused by abortions:

“Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients–and experience an aesthetic injury when they are aborted.”

In other words, patients should be denied vital healthcare so doctors don’t feel bad. As Moira Donegan put it on Twitter, “men’s emotions matter more than women’s safety and dignity.”

Moreover, Ho felt it necessary to deny the FDA’s approval of mifepristone because the agency only has the authority to approve “drugs that treat serious or life-threatening illnesses,” which Ho argues does not apply to pregnancy—an astounding claim, given maternal health and mortality statistics.

Ho writes that pregnancy is “not a bad or unhealthy condition of the body,” but a “natural consequence of a healthy and functioning reproductive system.” Even though there are conditions during pregnancy that result in illness, he argues, it does not give the FDA the authority to approve abortion pills. As we constantly say in this newsletter, the cruelty is the point.

Beyond the misogyny, what’s also notable is that Ho also cites the 1873 Comstock Act, which the majority panel declined to address. And as law professor Mary Ziegler points out, he goes beyond affirming Comstock and uses language ”reminiscent of claims for constitutional fetal personhood.” In other words: A national ban via Comstock is not the final conclusion; it’s fetal personhood.

Quick hits on mifepristone:

• An overview of the decision (with contributions from friends of the newsletter Greer Donley and Mary Ziegler);

• What the ruling means for patients and how access to mifepristone remains unchanged for now;

• More details on the majority opinion and the restrictions it aims to impose on mifepristone;

• And the case’s path to the Supreme Court once the Department of Justice files its appeal.

In the States

Exciting news out of Nebraska, where abortion advocates are laying the groundwork for a pro-choice ballot measure in 2024: A political campaign committee, “Protect Our Rights,” filed papers with the state to start the process of getting abortion in front of voters. Andi Curry Grubb, the executive director of Planned Parenthood Advocates of Nebraska, told the Nebraska Examiner, “Protect our Rights is a grassroots coalition who believe that all Nebraskans have a right to the freedom to make their own decisions about pregnancy and abortion, without government interference.”

This filing comes after a judge rejected a challenge to the state’s abortion ban, though Curry Grubb says the ballot measure push doesn’t mean they’ll stop fighting to overturn the law.

Clearly, in the wake of abortion rights winning every time the issue is put directly to voters, more and more states are looking to ballot measures as a way to restore or protect abortion. 

One of those states is Arizona, which is gearing up for an amendment right now. Until then, though, Democrats are looking to limit the damage the state’s abortion ban could cause: Arizona Attorney General Kris Mayes held a roundtable talk with abortion rights activists this week about ways to educate the public on how to protect their internet data—including phone location, search history, and reproductive health information—from those seeking to prosecute abortion. While Governor Katie Hobbs has transferred prosecution power to the pro-choice AG’s office (much to the chagrin of local anti-choice prosecutors), Mayes pointed out that some county prosecutors have vowed to violate that order. 

Conversations about protecting digital data—through strategies like avoiding period tracking apps and only using secure messaging—are more important than ever, especially in the wake of  Facebook messages being used to prosecute a Nebraska teen  for self-managing an abortion. 

Good news out of Colorado today, where the state medical board finalized their decision on ‘abortion pill reversal’. Earlier this year, Colorado banned the so-called treatment and classified it as unprofessional conduct—but Democrats were dealt a blow when the state’s medical board released a draft rule that wouldn’t ban the practice.

After more debate, the new and final decision states that ‘abortion reversal’ operates “outside the generally accepted standard of practice,” and that those who offer it will be subject to investigation. The language doesn’t go quite as far as abortion activists and Democrats would have liked—which would have been to make the practice automatically considered unprofessional conduct—but it’s still a win.

Conservative leaders are worried that an Iowa judge will recuse herself (again) from the case facing the state’s Supreme Court concerning their 6-week abortion ban. The Iowa Supreme court declined to allow an earlier ban from going into effect after deadlocking in a 3-3 decision, and Republicans fear their new ban may meet the same fate. One anti-abortion activist told NBC news, “there’s a good chance that we’ll get another 3-3 tie,” calling the likelihood disappointing. (Law professor Mary Ziegler has also written that in the wake of elections like the one in Wisconsin, the justices may see voting against the ban “as both constitutionally correct and politically wise.”)

Oregon Governor Tina Kotek and abortion rights advocates celebrated the state’s new abortion rights bill becoming law during a ceremonial bill signing this week (it was legally signed into law on July 13 but we will take the much needed good news today). The law expands access to abortion in Oregon, despite a compromise with state Republicans over parental consent.

In the last bit of state news, Colorado Gov. Jared Polis called abortion ‘bad’ in a recent interview with CNN—drawing some well-deserved criticism. (Polis said, “Democrats don't believe abortion is good. We believe it's bad. It should be minimized.”) This is the kind of apologetic language that stems from anti-abortion rhetoric that the abortion rights movement does not need, especially now. 

Quick hits:

• A California all-trimester abortion provider argues that Beverly Hills collaborated with anti-abortion activists to force the clinic out of the city;

• Virginia House Democrats have started running ads on abortion laws ahead of the state’s upcoming November election that will determine who has control of the state legislature and whether an abortion ban will pass;

• Planned Parenthood has launched a political ad over the vacant Pennsylvania Supreme Court seat for the upcoming November election;

• And testimony has started in the DC trial against five anti-abortion protestors who blocked access to a local clinic.

In the Nation

Conservative political strategists are calling for a cohesive Republican strategy amid recent division between GOP leaders over abortion. In the last few months, we’ve seen congressional infighting over anti-abortion amendments during government funding discussions, irritation over Sen. Tommy Tuberville’s military-promotion holds, and criticisms lobbed by the influential anti-abortion group Susan B. Anthony Pro-Life America against presidential candidates Ron DeSantis and Donald Trump.

As 2024 approaches, a centerpiece of that disagreement will be whether or not candidates support a federal abortion ban—with anti-abortion organizations pushing for Republicans to take a more offensive position. (Even as they themselves refuse to use the word ‘ban’—a defensive tactic if there ever was one!)

A court watchdog has filed a complaint with the 5th Circuit Court of Appeal against the federal judge in Texas who ordered three Southwest Airlines lawyers attend “religious liberty training” by the Alliance Defending Freedom as part of court-ordered sanctions in a case brought by a flight attendant who claimed religion-based discrimination. 

This is the same appellate court that issued this week’s mifepristone ruling; and the Alliance Defending Freedom is the same organization behind the Dobbs legal battle, the current mifepristone lawsuit in Texas, the model legislation behind abortion bans, and dozens of other anti-abortion cases across the country. All of which is to say: This is yet another example of how closely entwined these anti-abortion actors are within the legal system (I wrote last week about this anti-abortion legal strategy). 

Another connection? The same judge overseeing the Texas mifepristone case is hearing the $1.8 billion lawsuit seeking to bankrupt Planned Parenthood over alleged improper Medicaid billing.

Quick hits:

• The New York Times on the six types of Republican voters and their opposing political stances, including how their beliefs differ on abortion;

• CNN on the criticisms over Meta’s advertising policy and the ways it systematically removes and restricts reproductive health ads;

• And NBC News reports that Sen. Kyrsten Sinema has volunteered to mediate a “compromise” between Sen. Tommy Tuberville and the Biden administration over the military-promotion blockade over abortion.

Attacks on Clinics

Clinics across the country are being driven out of business by fine and by fire. Earlier this week Planned Parenthood’s El Centro clinic in California burned down in a devastating loss at the California-Arizona border. The cause is still unknown, but it is the 2nd clinic that has burned down in Southern California since 2022. This may be one more incident in the increasing string of attacks and threats on clinics since Roe was overturned. (The National Abortion Federation’s latest report on clinic violence found a 100% increase in arson between 2021 and 2022.)

The clinic not only has been serving out-of-state patients since the Dobbs decision, especially those from Arizona who need abortion care after 15 weeks, but it is one of the primary sources of health care for El Centro residents who do not have access to basic health care services. This includes patients from a local domestic violence response agency that serves undocumented survivors.

And as Jessica mentioned yesterday, Florida Republicans are trying to fine an Orlando abortion clinic out of existence. They hit the Orlando Women’s Center with nearly $200k in fines. But we can help: The clinic and their amazing escorts and defenders are holding a fundraiser right now. (If you’re on TikTok, I’m sure you’re familiar with the SWANs.) We can’t let Ron DeSantis and Florida Republicans shut down the providers who are helping their communities—so give generously if you can. If you can’t afford a donation, consider sharing the fundraiser with a friend!

Stats & Studies

A new poll shows that two in three Americans would vote to codify abortion rights into their state constitutions—including nearly half of Republicans. It finds that most Americans view abortion access as being in jeopardy, both nationwide and in their individual states. And a majority believe that Republicans would pass a nationwide ban on abortion if they won control of the White House and Congress in 2024.

The report shows that people are disturbed by the outcomes of abortion bans, especially when they’re exposed to the harrowing stories of what happens when people lose access to life-saving reproductive health procedures—including situations where patients are forced to carry dead fetuses, develop infections, and lose liters of blood before qualifying for abortions.

Their research underscores what we’ve been saying since Dobbs: Abortion is popular and the public finds abortion bans incredibly concerning. It’s no wonder why the anti-abortion movement is so desperate to hide and discredit the stories coming to national attention about the horrors of abortion bans.

Quick hits:

• A new study finds that a common arthritis medication could boost the effectiveness of emergency contraceptive pills within three days after unprotected sex;

• An investigation found that half of the indigenous health care facilities in Oklahoma don’t carry emergency contraceptive pills;

• A new research trial shows the effectiveness and safety of an at-home urine test that checks whether a medication abortion was successful.

The Care Crisis

The Atlantic has a great piece on the housing crisis that’s driven out people from abortion-friendly states—and how people can’t afford to live in places that match their politics. A recent Redfin survey, for example, shows that Americans are much more likely to want to live in places with access to abortion, but the price of housing is the main determinant of where they live. (In short, huge portions of the population do not have access to the resources needed to move and live in abortion-friendly states.)

Reporter Annie Lowrey also highlights how the forced pregnancy of hundreds of thousands of people will intensify existing inequalities across state lines, pushing more people into poverty, debt, and unemployment—further exacerbating the root causes of the housing crisis. From abortion provider Sam Dickman:

“If I asked a patient, Have you ever thought about moving to a place with better abortion access? It would be item No. 15 on their radar. They would look at me like, What are you talking about? I can’t afford to have a kid right now. Obviously, I can’t afford to move.”

The crisis comes at a time when resources for abortion-seekers across the South are drying up, according to Prism. In addition to abortion-seekers being unable to move to parts of the country that are abortion friendly, their avenues to find funding for abortion-travel expenses are declining. Abortion funds report facing “astronomical revenue decline” as donations slow down since the initial post-Dobbs spike. (For example, donations to The Brigid Alliance, one of the largest practical support funds in the country, fell by 37% this May compared to May 2022.)

This is despite the fact that abortion funds’ services are more important than ever, and as the average travel time to access care continues to increase. (Travel time to a provider has quadrupled since Roe was overturned). That means more and more of abortion funds’ resources are dedicated to costly travel expenses for out-of-state abortion seekers. And as activists continue to point out, it is getting impossibly difficult to patch the holes of a health care system that is failing millions of women.