A pro-choice activist holds up a sign during a rally in front of the U.S. Supreme Court in response to the leaked Supreme Court draft decision to overturn Roe v. Wade May 3, 2022 in Washington, DC. In a leaked initial draft majority opinion obtained by Politico and authenticated by Chief Justice John Roberts, Supreme Court Justice Samuel Alito wrote that the cases Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey should be overturned, which would end federal protection of abortion rights across the country. | Alex Wong/Getty Images
Anti-abortion leaders could not stop paraphrasing Winston Churchill last June after the U.S. Supreme Court overturned Roe v. Wade, a victory that took 50 years to realize.
“While we celebrate the momentous ruling in Dobbs, we must remember that overturning Roe was not the beginning of the end, but it was the end of the beginning,” said Kristen Waggoner, CEO of the leading anti-abortion law firm Alliance Defending Freedom, on a webcast days after the Supreme Court overturned federal abortion rights in Dobbs v. Jackson Women’s Health Organization.
Waggoner was one of several leaders on the “Life Beyond Roe” webcast to echo the late British prime minister after a pivotal World War II victory for Western Allies in November 1942. Defeating Roe was far from the end of the war on abortion rights, but it opened wide the frontier to diminish access for as many people as possible, she said.
“We are Christ’s hands and feet. He has used us in this victory, but he still desires to use us to help women and children and to promote human flourishing. And to do that, we need … to use the influence that God has given us to promote sound policy,” she said. “We now have 50 different battles.”
As it turns out, abortion foes’ post-Dobbs strategy has been even more sprawling than state-level bans and restrictions.
Tuesday marked one year since an early draft of the Dobbs decision was leaked to Politico, and in that time anti-abortion activists have flooded state legislatures and city governments with proposals to criminalize pregnancy termination or to add burdensome regulations, and are defending many of them in state and federal court.
Activists managed to return to the Supreme Court with a controversial lawsuit – brought by an anti-abortion coalition represented by Alliance Defending Freedom – that is trying to ban medication abortion nationwide.
The high court has, for now, preserved access to abortion-inducing drugs while the lawsuit folds. Legal and FDA experts say the plaintiffs in the case likely lack standing to sue and their claims that medication abortion is unsafe are deeply flawed. But this case is just the beginning of bold and ambitious efforts to restrict abortion as much as possible.
The consequences thus far have been sweeping. In addition to creating confusion and fear of jail time for health care providers and patients, state abortion bans have led to women and girls being denied emergency medical care in states like Kansas and Missouri, to maternity wards shuttering in Idaho, and to an increasing shortage of OB-GYNs in Tennessee.
But anti-abortion activists are far from finished in their quest. Because many of the more than a dozen state abortion bans are currently being litigated, activists continue to introduce new anti-abortion regulations just in case those bans are ultimately struck down. Here are a few of their legislative and legal strategies.
Reviving Victorian era laws
Of the 14 states with active total abortion bans, three of those states – Oklahoma, Texas, and Wisconsin – are operating under laws passed in the mid-1800s to early 1900s with other hundred-year-old state bans currently blocked in court.
But the entire country could soon be transported back to 1873, if anti-abortion activists are successful at getting the U.S. Supreme Court to uphold an anti-obscenity law known as the Comstock Act, which bans abortion drugs and medical equipment from being sent in the mail. The law was intended to prevent the mailing of anything that promoted non-procreative sex. It has long-remained dormant in the U.S., and narrowed by federal courts and Congress, which in the 1970s removed from the statute mailing contraceptives.
However, Congress never officially repealed the law, and anti-abortion activists have invoked the Comstock Act in the Alliance for Hippocratic Medicine v. FDA case, to receptive ears, and in a lawsuit involving a city abortion ban in New Mexico. Additionally, attorneys general in 20 Republican-led states cited Comstock to stop national pharmacy chains from shipping abortion pills to their states.
Legal and historical experts have told States Newsroom this law is destined to receive a hearing from the Supreme Court. But reviving Comstock could once again have devastating consequences for the same people who lacked rights when this law was passed: people of color and women. For many women and girls across the U.S., medication abortion has become the only available option. And this medication regimen is used not just for abortion, but to treat miscarriages, as well.
For two decades, anti-abortion activists have focused on federal drug policy as a way to curtail access to medication abortion. Now their focus has shifted to exploring environmental regulations, an atypical avenue for their allied conservative lawmakers who typically oppose environmental regulations.
Though it had already banned abortion, this year West Virginia introduced the West Virginia Chemical Abortion Prohibition Act, which restricts how medication abortion can be prescribed, administered – and disposed of.
Many women experience medication abortion – like those who experience miscarriage – in their homes or in a private space; some miscarry over the toilet.
This bill would require women – many of whom are traveling long distances to get abortions – to dispose of embryonic and fetal tissue in a special medical waste bag and return the remains to the health care provider. The law would not, however, apply to women taking the abortion drugs for a serious health condition. Providers would face up to a $1,000 fine and/or three years in prison for violating this regulation.
The West Virginia bill also holds abortion drug manufacturers liable for the disposal of their drugs: “The manufacturer of any abortion drug is responsible for proper disposal of discarded abortion drugs. If abortion drugs are found in wastewater, the pill manufacturer company shall be responsible for cleanup, remediation, and further preventative measures.” The manufacturer would face a $20,000 fine per violation.
The bill did not move during this legislative session, but likely would in the event that the state’s abortion ban were blocked. Students for Life of America, the national anti-abortion group that drafted this wastewater language, is pushing these regulations and petitioning the FDA to study the environmental impacts of the abortion drug mifepristone, despite no present evidence of the drug having an adverse impact on the environment.
Talking about the environment has also been a way for anti-abortion organizations to appeal to Gen Z.
Restricting medication abortion at state level
If the attempts to pass prohibitive federal regulations on medication abortion don’t work in the long run, more and more states might begin passing more restrictions or explicit bans on abortion-inducing drugs, including states with total or near-total bans, like Tennessee and Texas. Wyoming’s governor recently signed a ban on medication abortion, and similar laws have been introduced in Arkansas (died this week) and Iowa.
Meanwhile, attorneys general in Alabama and Idaho have simply asserted that their states’ respective chemical endangerment and abortion bans prohibit distribution or use of abortion-inducing drugs in their states. Alabama Attorney General Steve Marshall has since attempted to walk back claims that women in his state could be prosecuted for taking medication abortion.
And Idaho Attorney General Raúl Labrador also attempted to walk back his interpretation of his state’s law, which was influenced by anti-abortion activists. Labrador’s legal analysis is now the subject of an ongoing lawsuit brought by Planned Parenthood and the American Civil Liberties Union, which also challenges the attorney general’s statement that merely giving information about how to access abortion in a state where it is legal would violate Idaho’s law.
Restricting credit card purchases, and other financial restrictions
Several states this year have introduced different bills regulating insurance coverage and public funding as it relates to abortion and abortion information, including in states where abortion is still legal. A bill in Indiana would prohibit the state from covering costs associated with an abortion, which includes allowing the use of hospitals or surgical facilities to perform abortions.
A lawmaker in Texas, which strictly bans abortion, proposed a bill that would prohibit credit card companies from processing transactions for the sale of abortion pills. Like other Texas abortion laws, this one would allow any citizen to sue a credit company over an abortion pill sale. Lawmakers in Texas have also proposed legislation that would censor abortion pill websites.
Fighting for abortion rights
These new laws and proposals merely scratch the surface. Utah, where abortion remains legal through 18 weeks’ gestation, is currently trying to ban abortion clinics. But abortion rights activists and lawmakers at the state and federal level have not backed down.
They are fighting restrictions and bans in court, in addition to stockpiling abortion medication and trying to enshrine abortion rights in more states (something GOP lawmakers in Ohio are trying to defeat by making it harder for voters to amend the state constitution). The federal government, in addition to defending medication abortion access, has also continued to investigate hospitals – recently in Kansas and Missouri – that deny emergency care to pregnant women for fear of violating states’ abortion bans. (Kansas still allows abortion, but the law governing a state university hospital bans abortion on its property.)
At a U.S. Senate Judiciary Committee hearing last week, Senate Democrats invited reproductive rights expert witnesses to explain the practical and legal impact of these new anti-abortion policies on U.S. residents.
“This period of time since Dobbs has unleashed criminal actions against women and their doctors — it has also unleashed civil surveillance,” said Michele Goodwin, chancellor’s professor of law at the University of California Irvine School of Law. “What we see is the dismantling, the vulnerability of constitutional principles that date back centuries, and abortion is being used as a proxy to dismantle fundamental constitutional principles, including the right to travel.”
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