Abortion, Every Day (8.9.23)

Idaho professors could go to jail for 14 years for "promoting abortion"

Howdy, it's Grace Haley, Abortion, Every Day researcher, and I am bringing you the newsletter tonight. Last night was a big night for abortion rights in Ohio, so let’s get to it: 

In the States

For those who missed last night's great news: Ohio voters have overwhelmingly rejected Issue 1. Late results Tuesday night showed the measure losing by 14 percentage points (57% of the vote). Anti-abortion Republicans have failed in their attempts to raise the threshold for a ballot initiative to succeed, which brings us one step closer to the ballot measure vote that could enshrine abortion rights in the Ohio constitution.

We’ve covered the anti-democracy part of the Ohio abortion battle extensively, but I wanted to highlight a discussion we mentioned yesterday surrounding the Ohio ballot measure: the viability line, which was the gestational limit created by Roe. Considering the mass support coming in for abortion rights, some abortion rights activists in Ohio wonder if the ballot measure is making a mistake by including arbitrary gestational limits that could neglect to protect thousands of patients.

This is an issue that goes beyond just Ohio: As Abortion, Every Day reported yesterday, the language proposed in Arizona’s new pro-choice ballot measure also includes a ‘viability’ standard. Using this kind of language—which again, is made up—is part of a political strategy that codifies a moderate version of abortion protections, with the promise to push for broader care down the line.

But every time abortion is tested on the ballot, the numbers show huge support—so many abortion rights activists wonder if the public should be pushing for those broader protections now. Especially considering a growing share of voters believe states shouldn’t put any limits on abortion. Recent polling has also showed that (hypothetical) ballot measures without viability lines or any gestational limits received more support than ballot measures with them—by 15 percentage points!

It’s something to keep in mind as the country has eyes on Ohio and pro-choice ballot measures. Abortion rights have been undefeated on the ballot since Dobbs, and we expect the lessons learned from Ohio to be applied across the country, both in abortion-friendly and abortion-hostile states. Abortion rights advocates are likely to put their weight towards ballot measures in an effort to circumvent Republican-controlled state legislatures; and the anti-abortion movement will dissect what happened in Ohio to find any successful strategies that could prevent those ballot measures from ending up in voters’ hands.

What comes next before the November vote in Ohio? Legal battles. Jessica mentioned last night that conservatives so far have sued twice to try to keep a pro-choice ballot measure away from voters. In the most recent lawsuit, Republicans are arguing to the state Supreme Court that the ballot measure didn’t properly list the laws it would repeal if the measure was successful. That case is still in process.

Yesterday the Utah Supreme Court started hearing arguments on whether the state’s constitution protects abortion rights and if their trigger ban should remain blocked. The Planned Parenthood Association of Utah is arguing that because the Utah state constitution includes equal rights for women, the right cannot be guaranteed without access to abortion and the ability to make medical decisions. If the Utah court ends the current injunction, Planned Parenthood says that their clinics in the state will be forced to immediately stop providing abortions. 

Meanwhile, anti-abortion leaders in the state are continuing to assert that the trigger ban is constitutional, stating that abortion restrictions were already in place when the state’s constitution was written in 1895, along with advocacy for “the rights of an unborn child.” An important note: the Utah case also highlights the current battle over the legal standing of organizations like Planned Parenthood. The case questions whether Planned Parenthood, as an organization, has the ability to challenge the constitutionality of trigger bans on behalf of individuals in the state, instead of the individuals themselves.

Similar questions over the constitutionality of Kansas’ abortion restrictions were brought to the Johnson County District Court yesterday, as well. The Center for Reproductive Rights, Planned Parenthood and the Alliance Defending Freedom argued over a temporary injunction to block long-standing abortion restrictions in Kansas. The judge will decide whether to pause the state’s 24-hour waiting period for abortions, as well as the newly implemented ‘abortion reversal’ law that requires doctors to tell patients about the medically unsound procedure. 

In other ‘abortion reversal’ news: Earlier this year, Colorado banned the supposed treatment as unprofessional conduct—a rule which is now being reconsidered by Colorado medical boards.

Some good news: Yesterday the Polk County Board of Supervisors in Iowa voted unanimously to provide free emergency contraception, and in rare cases, abortion, to victims of rape and sexual assault in the county, which includes Des Moines. (This supersedes the recent state decision from Iowa Attorney General Brenna Bird’s office to pause state funding for the service).

Quick hits:

• A mifepristone case challenging heightened regulations moves forward in Hawaii federal court;

• Maine anti-abortion groups have decided to forgo a referendum against the state’s new abortion protections;

• Anti-abortion lawmakers and Right of Life are appealing a Wyoming court decision that denies them direct participation in the state’s abortion ban case;

• Details on what Illinois' new reproductive health hotline will look like;

• And something I will always promote: stories with women telling their own abortion stories in their own words (this time from Wisconsin).

In the Nation

Republicans are in disarray as fights over abortion rights are threatening to spark a government shutdown, and the moderate branch of their party is taking the hit. The Daily Beast reports that Republicans from battleground states are worried about the provisions trying to prohibit the mailing of mifepristone. Many question whether McCarthy has enough votes in the House to pass a spending bill either with or without these anti-abortion provisions as tensions rise between moderates and the House Freedom Caucus. Congress is out until September 5th and the government funding deadline falls on September 30th. We’ll keep you updated as this tension continues.

Another federal political battle over abortion is gearing up, this time concerning the Equal Employment Opportunity Commission (EEOC). Republicans are upset that new and expanded protections for pregnant workers would include abortion as one of the medical conditions that employers have to make accommodations for (like rest breaks, for example). Conservative lawmakers claim that the language violates the intent of the Pregnant Workers Fairness Act—but really they don’t like the idea of protecting the rights of women who would dare to end a pregnancy. 

Sen. Bill Cassidy of Louisiana, the top Senate HELP Committee Republican, and the Alliance Defending Freedom are among the top critics so far, and we anticipate this fight to grow much like the other anti-abortion blockades we’ve seen over the past few months. Again, these moments really demonstrate just how much sway radical anti-abortion groups like the Alliance Defending Freedom, Susan B. Anthony Pro-Life America, the Charlotte Lozier Institute, and the Heritage Foundation have over Republicans in Congress.

Quick hits:

• The Guardian on how some Democrats are calling for a change in Senate rules to sidestep Sen. Tommy Tuberville’s block on military promotions;

• The BBC on how the overturning of Roe could impact IVF access;

• Nashville country singers are hosting a benefit concert for abortion access and 90% of proceeds will go directly to organizations working for abortion rights and health care;

• And Vanity Fair’s Q&A with Carmen Winant—the artist behind the photo exhibit documenting “the last safe abortion” and Midwest abortion clinics at the Minneapolis Institute of Art (I am jealous of our Minneapolis readers who get to see this cool exhibit).

Attacks on Speech

Did you know that Idaho professors could be imprisoned for 14 years if they say something positive about abortion? The No Public Funds for Abortion Act bans state employees—like those who work at public universities—from “promot[ing] abortion; counsel[ing] in favor of abortion” or referring someone for an abortion. The penalties for doing so include a 14-year prison sentence, termination of employment, and restitution of public funds.

The States Newsroom reports that the ACLU of Idaho has filed a lawsuit on behalf of a group of public university professors who argue that the law limits their free speech and has forced them to significantly alter their courses and teaching methods in fear of prosecution. From their complaint:

“[The policy] leaves Idaho’s public university educators with an impossible—and unconstitutional—choice: avoid any speech that could be construed as favorable to abortion in course materials, lectures, class discussions, student assignments and academic scholarship, or risk imprisonment, loss of livelihood and financial ruin for violating the law.” 

The complaint asks for the judge to issue a preliminary injunction to block the enforcement of the law while this plays out in court. Abortion, Every Day has been tracking similar attacks on abortion-related speech since Roe was overturned: States like Texas and South Carolina, for example, are pushing for bills that would block pro-choice websites; and Alabama abortion providers are suing right now to ensure they can’t be prosecuted for advising patients on where to get out-of-state abortions.

The Care Crisis

The crisis in care continues, but every once in a while we have some good news: Hey Jane (the telehealth startup that provides medication abortion) is expanding their reproductive and sexual health services to include treatment for UTIs and yeast infections, birth control, emergency contraception, and treatment for herpes. From Hey Jane co-founder and CEO Kiki Freedman:

“We were very focused on providing safe, private abortion care. But we know that abortion is not the only reproductive and sexual health care need that’s been stigmatized. And we really want to make all the things that patients care about as easy and supported as possible.”

While the new services are only available in 11 states at their launch, Hey Jane has plans to expand access across the country at some level. The attacks on abortion rights are having a ripple effect on broader reproductive health care across the country, so this couldn’t come at a better time.

Stats & Studies

A new study shows that many male employees feel aggrieved over abortion travel ‘benefits’: Because of “the likelihood that male employees are less likely than female ones to directly use a reproductive health care benefit,” some male workers “feel resentful that others might be getting a generous benefit they can’t use,” according to the new research conducted by Indeed, the University of Southern California, the University of Maryland, and IZA Institute of Labor Economics.

In other words, some men are upset over the fact that they aren't privy to a benefit that pays for patients’ expenses who are forced to travel across the country for life-saving medical care.

While the study found an increase in poor ratings from existing male workers, companies who publicly announced an abortion benefit also saw a rise in interest from potential applicants.

Quick hits:

• A new survey from the Guttmacher Institute draws out medication abortion disparities and how Black patients and those below the poverty line are less likely to access medication abortion;

• CNN on how recent polling illustrates that abortion continues to be an electoral litmus test and shows no signs of stopping;

• And new research on how the influx of out-of-state patients from Ohio, Indiana and West Virginia will impact the limited resources at abortion clinics in western Pennsylvania.

Anti-Abortion Strategy: The Courts

A federal judge in Texas issued an order that three senior Southwest Airlines lawyers must attend eight hours of “religious-liberty training” from the Alliance Defending Freedom as part of court-ordered sanctions in a case brought by a flight attendant who claimed religion-based discrimination. As you may recall, 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. The group was also part of the recent case from this past Supreme Court term that protected the religious freedom of a woman who didn’t want to make wedding websites for LGBTQ couples. 

As Chris Geidner pointed out in his newsletter, the only relevant “training” Alliance Defending Freedom’s website mentions is an effort to show lawyers how to "effectively advocate for religious liberty, free speech, the sanctity of life, and marriage and family.”

More importantly, Geidner found that the Alliance Defending Freedom was not representing the plaintiff nor had any involvement or mention in court documents before the judge issued the order. And the plaintiff’s lawyers did not ask for “religious-liberty training” in the filed motions before Starr recommended it as a sanction earlier this year. 

It’s important to keep an eye on the close relationship between these (Federalist Society, ultra-conservative, often Trump-appointed) judges and anti-abortion movement leaders. This is a huge part of the anti-abortion legal strategy—and the reason for their broad successes in court. 

Creating pipelines of judges used to pack the courts is just another anti-democratic tactic from conservatives seeking to ban abortion—and the judge in the above case is just one example of this new approach. Over the past two decades, conservative groups have turned places like the Texas Attorney General’s office into a pipeline for ultra-conservative federal judges and leaders: According to a Texas Tribune review of the office, nine judges appointed by the Trump administration came from this office, as well as Sens. John Cornyn, Ted Cruz, and Gov. Greg Abbott. These are judges who have been key in deciding anti-abortion cases and leaders who are signing legislation for the anti-abortion movement.

Thankfully, groups are mobilizing to counter this anti-abortion court strategy. For example, the American Bar Association (ABA) is making moves this week to quell judge shopping—the technique used by anti-abortion groups who target districts with only one federal judge to guarantee their case will be heard by someone sympathetic to their cause. (The most recent and well-known example being the Texas mifepristone lawsuit where the Alliance Defending Freedom put forward a case in Amarillo, Texas to ensure Judge Matthew Kacsmaryk would be assigned.) The ABA’s House of Delegates drew a resolution that “urges federal courts to eliminate case assignment mechanisms that predictably assign cases to a single U.S. District Court judge without random assignment,” which they said was a response to recent anti-abortion lawsuits.