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Abortion, Every Day (8.22.23)
Texas' new abortion law doesn't use the word 'abortion'
Hey, it’s Grace Haley, Abortion, Every Day researcher. I hope everyone had the chance to see the new merch Jessica previewed last week. I, for one, am stoked to wear an ‘Abortion 2024’ tote now that all eyes are turning to the upcoming election. Let’s get started:
In the States
The Ohio Ballot Board is meeting on Thursday to determine what language voters will see in their upcoming November ballot measure. Abortion rights advocates are battling to make sure that the full text of the measure is on the ballot—which is vital considering that anti-abortion groups have launched a multimillion dollar ad campaign that lies to voters about what the measure actually does.
An attorney for the pro-choice groups behind the measure argued in a letter to the Ohio Secretary of State that “by using the full text, voters will see for themselves the language they are being asked to approve.”
More on the language battles around pro-choice ballot measures: Missouri Secretary of State Jay Ashcroft and his wife Katie Ashcroft wrote an op-ed attacking the abortion rights ballot measure as an effort to enshrine abortion “until the very instant before birth” and remove parental consent. The Ashcrofts also wrote that pro-choice activists in other states have successfully pushed “misleading” measures, but that “the Secretary of State’s office will continue to provide guidance that gives voters the most accurate election information.”
That’s quite a claim, considering Secretary Ashcroft is being sued right now by the ACLU for submitting official ballot language that claims the amendment would “allow for dangerous, unregulated, and unrestricted abortions.” Pretty much the exact opposite of “the most accurate election information”! This is just one of the countless attempts by Missouri Republicans to quash the measure and keep abortion rights out of voters’ hands. Remember, it wasn’t so long ago that Attorney General Andrew Bailey was holding up the collection of signatures by refusing to sign off on the state auditor’s cost estimate of the measure. (The state Supreme Court later forced him to stop blocking the measure.)
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Democrats are mobilizing ahead of the Virginia election, which will determine who has control of the state legislature and whether abortion is banned or restricted. Virginia is currently the last abortion safe haven in the South. Democratic leaders launched abortion-related ads in 14 legislative districts last week, targeting the slim majority Republicans have in the Virginia House of Delegates. And a memo released from their voter turnout operation reports that they already have hundreds of canvassers focusing on abortion rights.
WBEZ points out that Illinois has nearly three times as many anti-abortion crisis pregnancy centers as abortion providers—a striking number, especially in light of the latest battle in the state over the centers. Gov. JB Pritzker signed a law this summer to stop the anti-abortion groups from misleading women and putting out deceptive ads. A few weeks ago, however, a Trump-appointed federal judge issued a temporary block of the law, calling it a “blatant example of government taking the side of whose speech is sanctionable and whose speech is immunized.” (Anti-abortion groups have been increasingly using ‘free speech’ to defend the lies of their anti-abortion clinics and to push legal challenges against clinic buffer zones. Something to watch out for)
Something I will always promote: stories with women telling their own abortion stories in their own words (this time from Michigan). The author writes about having to travel 160 miles for an abortion at 20 weeks and how she was stuck with a $26,000 hospital bill because abortion was not covered by her health insurance—an all-too common crisis.
“Why should people who need to end a pregnancy also have to endure the needless trauma caused by outdated state laws, including those that bar insurance coverage of abortions? A lack of compassion and empathy on the part of anti-abortion lawmakers and activists is the only reason I can see. Those opposing abortion constantly attempt to portray people like me as heartless villains, instead of what we are: People struggling through unimaginably difficult circumstances.”
More in abortion storytelling: A California woman went viral on TikTok after showing what it is like to complete a medication abortion at home, which included showing the instructions she followed while taking the medication abortion regimen along with the supplies she used to bring comfort during the process. She said her goal was to destigmatize what abortion looks like: "My hope would be that abortion becomes more normalized and seen as what it is—healthcare."
The Kansas Treasurer’s Office now has four bidders for their $2 million ‘Alternatives to Abortion Program’ that gives tax-payer funding to anti-abortion crisis pregnancy centers;
Anti-abortion protestors are accused of jury tampering and witness tampering during the DC trial against anti-abortion activists;
And Republican Missouri Sens. Josh Hawley and Eric Schmitt claim to support voters having a say on abortion rights (we’ll believe it when we see it).
In the Nation
Planned Parenthood is being targeted by a $1.8 billion suit that aims to shutter their doors and bankrupt the organization. Last week, oral arguments for summary judgment were held in Texas before anti-abortion activist judge Matthew Kacsmaryk—the same district judge who oversaw the mifepristone lawsuit. The lawsuit aims to force Planned Parenthood to pay back millions of dollars it received through Medicaid. From Susan Manning, general counsel to Planned Parenthood Federation of America, in a statement that was released after the hearing:
“The plaintiffs’ only goal in this case is to achieve their decades-long goal of shutting down Planned Parenthood to advance a political agenda. We will never back down, and we hope the courts follow the facts and the law and issue a judgment in our favor.”
Despite the lawsuit being “more political ploy than anything else,” according to law professor Joyce Vance, this is an attempt by the anti-abortion movement to throw new tactics to the wall to see what sticks.
Dr. Mandy Cohen, the new director of the U.S. Centers for Disease Control and Prevention (CDC), gave an interview to TIME magazine where she spoke about the recently legal battles over mifepristone:
“I will say as a mom of two daughters, a physician, and now the director of the CDC, I'm going to continue to make sure that we are working to make sure women have access to care when they need it, and that they have medical treatment when they need it. We will do everything we can to bring the evidence, the data, the best practices we can and support that.”
The Guardian on the abortion positions of each GOP presidential candidate;
The Wall Street Journal on how some workers are taking extra jobs to get fertility and reproductive health insurance benefits;
The Washington Post on how women voters are leading the fight against post-Roe authoritarianism.
Tomorrow night is the first Republican presidential debate in Wisconsin, where abortion is sure to play a central role. (As we know, Wisconsin is a presidential battleground state whose residents have lived under an abortion ban since Roe was overturned—a reality that will likely change once abortion-advocate Judge Janet Protasiewicz hears the current challenge to the law).
Planned Parenthood will be launching their first ad of the cycle in Milwaukee—a compilation of the GOP primary candidates expressing their support for a national abortion ban. It’s crucial to see the candidates expressing anti-abortion talking points in their own words.
As we prepare for the debate, it’s especially important to combat the misinformation that the party spreads about reproductive health—especially around abortions later in pregnancy. The candidates, who will likely be using language like “late-term abortions” or “abortions up until birth,” often don’t talk about abortion policy—instead shifting the focus to inaccurate and inflammatory portrayals of abortions later in pregnancy. Their hope is that by pivoting to fake scare tactics, Americans will forget about the abortion ban horror stories they’re seeing every day.
In anticipation of the candidates lying about the issue, The 19th* wrote a great explainer about the reality of abortions in the last three months of pregnancy. In short, most abortions happen in the first and second trimesters, only 2 states and DC actually provide abortions later in pregnancy, and the abortions happening in the third trimester are rare but nonetheless just as important for the patient as any other abortion.
This is especially noteworthy as more polling shows how unpopular these GOP anti-abortion policies are—even when it comes to restrictions later in pregnancy. For example, a new Data for Progress survey found that a majority of voters opposed the policy proposals made by Republican presidential candidates, including those that restricted access to abortion. And recent polling shows long-standing patterns in public opinion are shifting for the better: conservatives are increasingly more supportive of abortion rights than they were before Dobbs, and more voters are open to unrestricted abortions during the second and third trimester than ever before.
Anti-Abortion Strategy: Redefining Abortion
A few weeks ago Gov. Greg Abbott signed a bill quietly passed by the Texas state legislature that writes in more ‘exceptions’ to their abortion ban by including two new scenarios: ectopic pregnancies and premature rupture of membranes. The law comes in the wake of 14 women suing Texas after their health and lives were endangered by the state’s abortion ban.
But here’s the thing: the new law doesn’t use the word abortion at all. Instead, the law refers to “the provision of certain medical treatment to a pregnant woman.” (A whole lot of words to avoid saying ‘abortion’.) The move is part of a broader conservative effort to redefine what an abortion is.
We’ve reported extensively on how conservatives are desperate to be arbiters of what, exactly, constitutes an abortion (for good examples of this, check out some of our coverage on Republicans’ efforts to redefine abortion in Idaho and Kansas). The definition of abortion isn’t flexible—it’s a medical intervention to end a pregnancy. But GOP lawmakers want to make abortion an intention instead. From Jessica’s 2022 column on the strategy:
“But ‘intent’ is also telling, because it reveals how conservatives split women into two groups: Those who are deserving of care, and those who aren’t. Women who otherwise wanted to be pregnant, adhering to traditional gender roles, deserve an abortion. Those who didn’t want to be pregnant, shunning their proper ‘place’, are just murderers.”
Conservative efforts to redefine abortion aren’t just about the medical consequences of the language, but the cultural ones. It’s no shock that these moments come after public backlash to the horror stories from abortion ban states. In a moment when Americans are overwhelmingly opposed to restrictions, this is a move to control the cultural conversation and bring more people to their side.
Redefining abortion as an intention also opens the door for much broader criminalization and enforcement: If someone has a stillborn baby, for example, but at some point did a Google search for abortion clinics—that’s something that could be used by a prosecutor to target them.
Knowing all this, what does it mean when pro-abortion lawmakers start catering to these redefinitions? The new Texas bill, for example, was written by a Democratic lawmaker, Rep. Ann Johnson—who credits the law’s success moving forward with the fact that it didn’t use the term ‘abortion’. “Because of that, it did not become a political football,” she told NPR.
But is the tradeoff worth it? Some doctors point out that this language is a small scope surrounding the plethora of pregnancy complications, and advocates wonder if the compromise is worth accepting anti-abortion framing. Dr. Austin Dennard, a Texas OB-GYN who is also part of the case challenging Texas's abortion bans, told NPR, “It's just such a small, little portion of reasons why patients need [abortion] care in pregnancy. It doesn't in any way grapple with the scope of all medical complications that can arise.” Doctors also worry that language like this shifts blame to the doctors trying to give care amid fears of prosecution.
Care Crisis: Access to Reliable Abortion Information
I wanted to highlight another aspect of the care crisis: how the anti-abortion movement is relying on our fear as an enforcement mechanism, and how that fear affects doctors. Law professor Michelle Oberman has conducted extensive legal research and analysis on clinician’s fears over whether to provide information on abortion amid abortion bans.
She points out that the goal of abortion bans is to create an environment of confusion and fear to do the dirty work of the anti-abortion movement for them:
“Uncertainty silences clinicians and traps patients without requiring unpopular prosecutions or controversial laws implicating the First Amendment or the constitutional right to travel.”
No state has prosecuted a doctor for sharing information on patients’ abortion options. Instead, these bans rely on fear to prevent clinicians from providing crucial information. And while medication abortion has helped with gaps in care, not all patients have the medical literacy to know that they have options, or where to look for those options. (Half of patients in the U.S. don’t know the legal status of abortion medication, which is compounded by clinicians’ fears over filling that information gap.)
Oberman makes the case that, regardless of whether providing an abortion is legal in their state, clinicians have legal standing and an ethical obligation to provide information on abortion options to patients. This includes sharing trusted websites that offer accurate information about abortion options, and counseling on data privacy. She argues that clinicians are duty-bound to provide this counseling because of the maternal health crisis and the fact that patients have a constitutional right to travel to states where abortion is legal.
Care Crisis: Maternity Care Deserts
Another consequence of doctors’ fear of prosecution is the mass exodus of OB-GYNs we’re seeing from states with abortion bans. The Guardian reported on the maternity desert crisis with a pair of pieces on the national OB-GYN shortage and what that looks like in rural Idaho, Montana and Washington after the maternity ward in Sandpoint, Idaho shuttered its doors. It’s a gutting look that details how the medical system loses trust once the rural hospitals stop providing obstetrical care, which has left rural pregnant patients with no local support. It’s also a reminder that abortion bans have an impact that go way beyond abortion access—they touch all parts of reproductive health care.
Abortion, Every Day has documented how doctors are relocating to abortion-friendly states, and how medical students are opting out of obstetrics and gynecology entirely amid the fear of possible lawsuits. We also know that maternity care deserts increase delays in care and stretch existing workforces thin, which heighten pregnancy risk. Stephanie Ros, a maternal fetal medicine specialist, described the compounding crisis to The Guardian saying, “It’s only when it comes to OB-GYN care that what you can get in one state is different than what you can get in another. That just forever means that we’re going to have unequal care in different states.”