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ABORTION RIGHTS AFTER DOBBS: THE STATE OF THE STRUGGLE  
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Johanna Brenner
April 22, 2024
Against the Current
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_ The white, nationalist, evangelical conservative movement and the
Republican Party targeted women's control over their reproductive
life: they have reaped a political whirlwind. _

Chicago for Abortion Rights march and rally on March 26, 2024 on the
day of the U.S. Supreme Court hearing on the mifepristone case., Linda
Loew

 

It’s been two and a half years since the Supreme Court’s decision
in _Dobbs v. Jackson Women’s Health Organization_ overturned _Roe
v. Wade._ The dystopian landscape that many activists feared has
indeed materialized with 14 states banning abortion, while seven more
have severely restricted the procedure – for example, banning
abortions after six weeks or 15 weeks — in ways that would have been
illegal under the _Roe v. Wade_ decision in effect from 1973-2022.

Yet, with each high-profile case demonstrating the pain and suffering
these bans and limits produce, public opinion moves further and
further toward support for abortion rights. Gallup’s latest poll on
the legality of abortion finds 34% of Americans believe abortion
should be legal under any circumstances, nearly matching last year’s
record-high 35% and above the 27% average since 1975. Another 51%
currently say abortion should be legal under certain circumstances,
while the percent thinking abortion should be illegal in all
circumstances, has fallen to 13%, compared to 21% in 2019.

Fifty-two percent say abortion is “morally acceptable.” This is 10
percentage points above the historical average since 2001. Polling by
the Public Religion Research Institute found that the percentage of
Hispanic Catholics saying abortion should be legal in all cases
doubled between March and December of last year, from 16% to 31%.

Changes in public opinion have not yet brought changes to
Republican-dominated state legislatures, not surprising when we
consider their lop-sided gerrymandered character. Yet Republicans are
now on notice, even in very, very red states.

The recent IVF debacle in Alabama signals their problem. The Alabama
Supreme court ruled that frozen embryos are children, basing its
decision on a 2018 amendment to the Alabama constitution which
affirmed fetal personhood. IVF providers announced they would be
forced to shut down. Republicans scrambled to pass with
lightning-speed legislation that protected IVF practitioners from
criminal or civil liability. After Alabama, Republicans in Florida put
their proposed fetal personhood legislation on hold. Although the Iowa
state house went ahead with a fetal personhood bill, it is unlikely to
pass the state senate, which failed to support fetal personhood even
before the Alabama IVF ruling. Iowa activists predict that Republicans
will also pull back on sending to the 2024 ballot a proposed
constitutional amendment stating that there is no right to abortion in
Iowa, since it is sure to drive up pro-abortion turnout.

”Exception” for a Pregnant Person’s Health or Life

Draconian abortion bans, such as Texas’ “heartbeat” bill, have
prevented pregnant women with non-viable fetuses or threats to their
health from accessing abortion. The Texas law, for example, allows
abortion after detection of a heartbeat only if there is a “medical
emergency,” which the law does not define. Because doctors and
hospitals face serious penalties for performing abortions, they are
reluctant to act unless and until they are certain the abortion can be
legally defended. Inevitably, that means denying abortion care well
beyond the point where they would have provided it before
the _Dobbs_ decision.

A high-profile case is that of Kate Cox, who needed an abortion
because a non-viable fetus was putting her health at risk and was
denied. She sought relief through the Texas courts, filing a suit to
allow her abortion to proceed. The Travis County Judge, Judge Maya
Guerra Gamble, ruled in favor; but the Texas Attorney General, Ken
Paxton, appealed to the Texas Supreme Court. He wrote to the hospitals
where Cox’s doctor had admitting privileges, threatening to
prosecute the hospitals if they allowed the abortion to occur. He
dismissed Judge Gamble’s ruling saying she “is not medically
qualified to make this determination.” [As if he was!] Ultimately,
the Texas Supreme Court ruled against
[[link removed]] the
abortion concluding that: “No one disputes that Ms. Cox’s
pregnancy has been extremely complicated. Any parents would be
devastated to learn of their unborn child’s trisomy 18
diagnosis…Some difficulties in pregnancy, however, even serious
ones, do not pose the heightened risks to the mother the exception
encompasses.” By the time of the ruling, Cox had already gone to New
Mexico for the procedure.

The Center for Reproductive Rights has filed suit in Texas on behalf
of 20 women who had similar experiences.
[[link removed]] Amanda
Zurawski, the lead plaintiff, suffered preterm premature rupture of
membranes (PPROM) in her 18th week of pregnancy. Doctors were
reluctant to perform an abortion because the fetal heartbeat could
still be detected. She eventually developed sepsis and after three
days in intensive care delivered a stillborn daughter. Zurawski
survived, but her fertility was compromised. District Court Judge
Jessica Mangrum’s August 4, 2023, ruling on _Zurawski v. State of
Texas_ clarified that the medical exception in the state’s abortion
bans enabled physicians to use their “good faith judgment.” That
is, in consultation with their pregnant patients, they could determine
when an abortion was necessary to preserve the patient’s health or
life.

The Texas AG appealed the ruling, but while the Texas Supreme Court
heard the case last November, they have not yet issued their ruling.
The Center for Reproductive Rights has filed similar suits in
Tennessee and Idaho. Laws that threaten licensure loss and felony
convictions are essentially abortion bans, because even when states
provide “guidance” about what constitutes a threat to a woman’s
health or life, doctors rightly fear reprisal. For example, Louisiana
has a list of 25 specific “medically futile” conditions where an
abortion can be provided. Nonetheless, because doctors are still
vulnerable to prosecution should the state decide that they veered
over the guidelines, they are reluctant to perform abortions.

Political Organizing for Abortion Rights — Red State Revolt

Since the _Dobbs_ decision, in every state where a referendum on
reproductive rights has been placed on the ballot, the election has
resulted in defeat for the anti-abortion movement. In 2022, California
voted in a constitutional amendment protecting abortion rights, as did
Michigan voters, ratifying a sweeping citizen-initiated constitutional
amendment protecting reproductive rights. But voters in red states
also have weighed in with support for abortion rights. This includes
Kentucky and Kansas, where constitutional amendments to ban abortion
were defeated, as well as Ohio, where reproductive rights were
enshrined in the state constitution.

In Ohio, following the Dobbs decision, a ban on abortion after six
weeks (a “heartbeat” law) went into effect. During the period when
the ban was in place, a 10-year-old Ohio girl who was raped and
impregnated, was forced to travel to Indiana to seek an abortion.
[[link removed]] The
case attracted widespread attention and outrage. In October 2022, a
judge stayed the law while it wound its way through the courts. But
the threat of its future implementation motivated activists to
organize and place a citizen-initiated constitutional amendment on the
ballot. The proposed amendment
[[link removed]] granted
an individual right to one’s own reproductive medical treatment,
including but not limited to abortion. It gave the treating physician
the authority to determine, on a case-by-case basis, whether an unborn
child is viable, and permitted exceptions to any abortion regulation
at any stage of pregnancy necessary to protect the health or life of
the pregnant person.

The Republican-dominated legislature attempted to defeat the
referendum by holding a special election for their proposed
constitutional amendment that would alter the rules for passage from a
majority vote to 60%. Voters turned out in record numbers to reject
that ploy and then in the next election passed the constitutional
amendment by 56.6%.

Citizen-Initiated Constitutional Amendments

When the Dobbs decision was leaked in the spring of 2022, people began
to organize. Photo: Marlaina A. Leppert-Wahl

Seventeen states allow citizen initiatives to modify the state
constitution. Abortion rights advocates’ success in Ohio has
encouraged organizing in other red states where it is possible to put
a constitutional amendment on the ballot through a citizen initiative
process. Among these are Arizona, Arkansas, Florida, Missouri,
Nebraska, and South Dakota.

ARIZONA: Following _Dobbs,_ a 2022 law banning abortion at 15 weeks
unless necessary to preserve a woman’s life or “a major bodily
function” went into effect. Physicians who violated the law were
subject to being prosecuted for a felony with their licenses revoked
if convicted. On April 9, 2024, the Arizona Supreme court shockingly
ruled that an 1864 law banning abortion (except to save a woman’s
life) could be enforced. They did, however, send it back to the lower
court for further consideration of plaintiff’s arguments. This
ruling created a political firestorm, pressuring the legislature to
repeal the 1864 law. The Governor and Attorney General, both
Democrats, announced they will not enforce the law. The 1864 law could
go into effect no earlier than two months from the date of the
Court’s decision.

Meanwhile, Arizonans for Abortion Access, a coalition of reproductive
health, rights, and justice organizations, is collecting signatures
for a constitutional amendment allowing abortion up to viability. Even
after viability it would prevent the state from enacting, adopting or
enforcing any law that denies, restricts or interferes with an
abortion that, “in the good faith judgment of a treating health care
professional, is necessary to protect the life or physical or mental
health of the pregnant individual.” Organizers must gather nearly
384,00 valid signatures by July 3. On April 2 they announced they
had 500,000 signatures already
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with 3,000 volunteers, intend to gather more.

ARKANSAS: Since the _Dobbs_ decision, abortion has been illegal in
Arkansas except to save the life of a pregnant person in a “medical
emergency.” Arkansans for Limited Government is currently collecting
signatures for the Arkansas Abortion Amendment “which will prevent
our state government from regulating individuals’ freedom to make
personal healthcare decisions and will allow doctors to uphold their
oaths and ‘do no harm’.” The proposed amendment legalizes
abortion for any reason up to 18 weeks of pregnancy. After that, there
are a wide range of exceptions: in cases of rape, incest, fetal
anomaly and to “protect a pregnant female’s life or to protect a
pregnant female from a physical disorder, physical illness, or
physical injury.”

As in Ohio, the Republican legislature sent a constitutional amendment
to voters in 2022 that would have increased the threshold for passing
constitutional amendments and other initiated acts from a simple
majority to 60%. This was soundly defeated 59% to 41%.

Arkansans for Limited Government have until July 5 to collect 90,704
valid signatures to put the amendment on the November 2024 ballot.

FLORIDA: In 2022, the Florida legislature passed a law banning
abortion after 15 weeks with exceptions to save a woman’s life or
prevent serious physical harm and when a fetus has a terminal medical
condition “incompatible with life outside the womb.” A lower court
ruled that the ban contradicts the privacy right granted by the
Florida Constitution. However, this ruling was overturned by the
Appeals Court and the law remained in effect. Then, in April 2023, the
legislature passed, and Gov DeSantis gleefully signed, a law banning
abortion after six weeks, with exceptions for rape and incest. But the
six-week ban was paused while a challenge to the 15-week ban was
considered by the Florida Supreme Court.

In April 2024 the Court ruled that laws banning abortion did not
violate the Florida Constitution’s privacy clause. With five judges
appointed by Governor DeSantis, the 6-1 decision overturns a 1989
precedent by the Court, which ruled that the privacy clause covered a
woman’s abortion decision. That ruling triggered the six-week
abortion ban which goes into effect May 1, 2024.

This is a particularly harsh blow because many of those needing
abortion who live in nearby Southern states with brutal bans on
abortion were able to drive to Florida for their procedure. The
six-week ban will make that almost impossible.

Meanwhile abortion rights activists proposed a constitutional
amendment where “no law shall prohibit, penalize, delay, or restrict
abortion before viability or when necessary to protect the patient’s
health, as determined by the patient’s healthcare provider. This
amendment does not change the Legislature’s constitutional authority
to require notification to a parent or guardian before a minor has an
abortion.”

Floridians Protecting Freedom has collected more than a million valid
signatures to put the measure on the ballot. In an attempt to squash
it, the attorney general objected to the measure’s wording. But by a
narrow 4-3 majority, the Court denied the attorney general’s
arguments and Amendment 4 will be on the November ballot. The
amendment requires a supermajority 60% vote to pass. That is certainly
a high bar, but Michigan’s and Ohio’s amendments, which only
required a simple majority, passed by just two to three points below
60%.

MISSOURI: As of June 24, 2022, abortion is completely banned except
in medical emergencies where abortion is necessary to save the
pregnant person’s life or to prevent serious risk to the pregnant
person’s physical health. Performing or inducing an abortion is a
felony punishable by 5-15 years in prison. There are no exemptions for
rape or incest.

Missourians for Constitutional Freedom are organizing for a sweeping
constitutional amendment. It establishes a person’s “right to make
and carry out decisions about all matters relating to reproductive
health care including but not limited to prenatal care, childbirth,
postpartum care, birth control, abortion care, miscarriage care, and
respectful birthing conditions. While the general assembly may
regulate the provision of abortion after fetal viability, under no
circumstance shall the government deny, interfere with, delay or
otherwise restrict an abortion that in the good faith judgment of a
treating health care professional is needed to protect the life or
physical or mental health of the pregnant person.”

Advocates must collect signatures from eight percent of voters in six
of the state’s eight congressional districts. This amounts to more
than 171,000 signatures to be collected by May 5. The Governor can
decide whether it goes on the August primary or on the November
ballot.

MONTANA: the Montana Supreme Court has continued to uphold the
Court’s 1999 Armstrong decision, which holds that laws interfering
with bodily autonomy violate the state Constitution’s right to
individual privacy. Consequently, abortion may be performed “until
viability.” This has not prevented the Republican-dominated state
legislature from passing laws limiting access to abortion, including
three laws signed by the Governor in 2021: a ban on abortions beyond
20 weeks, elimination of telehealth services for medication abortions
and a requirement that abortion providers offer patients the
opportunity to listen to the fetal heart tone or view an ultrasound 24
hours before performing an abortion. A judge recently ruled all these
laws are unconstitutional.

In the meantime, Montanans Securing Reproductive Rights have submitted
a constitutional amendment which would establish “a right to make
and carry out decisions about one’s own pregnancy, including the
right to abortion.” The initiative would allow regulation of
abortion after the point of fetal viability, but bars the government
from interfering if the procedure is “medically indicated to protect
the life or health of the pregnant patient.”

The Montana Attorney General challenged the amendment’s wording;
however, after months of delay, the Court denied his petition. Given
Montana law, a committee of the state legislature must weigh in either
pro or con (but cannot prevent the ballot measure from going forward).
There is some debate over whether or not this requirement has been
lifted by the Court’s decision. But in any case, the legislature
must make its determination within 14 days; activists will be
gathering signatures by the end of April. To make the November ballot,
activists need to submit 60,359 valid signatures from 40 Montana House
districts by June 21, 2024.

NEBRASKA: In May 2023, the state legislature passed a statute
banning abortion after 12 weeks.
[[link removed]] The
ban includes exceptions for rape, incest and to save the life of the
pregnant person. The ban was part of a bill that also prevented
transgender people under 19 from receiving any gender-confirming
surgery. The state’s chief medical officer — a political appointee
who is currently an ear, nose and throat doctor — would set rules
for puberty blockers and hormone therapies. There would be some
exceptions for minors already receiving treatment before the ban was
enacted.

In response, advocates have organized to put a constitutional
amendment on the November 2024 ballot. The proposal amends the
Constitution “to provide all persons the fundamental right to
abortion without interference from the state or its political
subdivisions until fetal viability, which is the point in pregnancy
when, in the professional judgment of the patient’s health care
practitioner, there is a significant likelihood of the fetus’
sustained survival outside the uterus without the application of
extraordinary medical measures; or when needed to protect the life or
health of the pregnant patient.”

The Protect Our Rights campaign began collecting signatures on the
approved ballot language in mid-November and has until July 3, 2024,
to reach their target of 125,000 signatures

SOUTH DAKOTA: Currently, abortion is entirely banned “unless
necessary to save the life of the mother.” This law, originally
passed in 2005, became effective immediately after
the _Dobbs_ decision. Dakotans for Health, a group organized by a
former state legislature and political operatives, quickly submitted a
proposed constitutional amendment based on the _Roe v.
Wade_ framework. This is a controversial move, with many of the usual
advocates for constitutional amendments such as the ACLU, Planned
Parenthood, and the South Dakota Justice Empowerment Network, which
helps people seeking abortions, opposed to the measure. They believe
that _Roe_ does not go far enough in protecting reproductive rights.
It will allow, as did _Roe,_ the state legislature to impose
impediments to abortion access (such as a 24-hour waiting period and
limitations on access to medication abortion) as well as denying
abortion care to patients who need it later in their pregnancies.

The debate over strategies for securing reproductive rights in South
Dakota’s constitution is an extreme case of the concrete discussions
about the politics of abortion taking place in red states. Last year,
Missouri advocates were organizing around two different ballot
measures — one the more sweeping proposal now in play while the
other only allowing abortion up to 12 weeks. In a state as
conservative as Missouri, with a strong evangelical political
presence, some activists felt the broader measure would go down to
defeat. The same thinking is behind Arkansas’ proposal which sets an
18 week limit and Florida’s measure which explicitly maintains
parental notification for minors seeking abortion.

Republican Legislators Attempt to Restrict Ballot Measures

Many of the signs in support of bodily autonomy do so with deadly
humor. Photo: Marlaina A. Leppert-Wahl

Fearing popular support for constitutional amendments protecting
reproductive rights, Republican-dominated state legislatures are
fighting to make passage of amendments more difficult. (In many red
states where advocates are organizing for an amendment, the Attorney
General has attempted to convince the courts to deny the ballot
measure. So far, they have not been successful.)

Recently, the North Dakota legislature referred a constitutional
amendment for the November 2024 ballot which would make it more
difficult to amend the North Dakota constitution by requiring that it
be put before the voters twice (once in the primary and if it passes
again in the general election). The Missouri legislature is also
considering an amendment requiring passage by a majority of voters in
five of Missouri’s eight congressional districts. Republicans in the
Florida legislature propose to raise the vote required for passage
from 60% to 66%. But none of these proposals have yet passed the
legislature.

Pushing It Even Further in Blue States

Blue and bluer states are also organizing to enshrine abortion rights
in their state constitutions, even when court decisions and the
legislature have affirmed those rights. The Vermont legislature
proposed, and voters passed the Reproductive Liberty Constitutional
Amendment stating, “an individual’s right to personal reproductive
autonomy is central to the liberty and dignity to determine one’s
own life course and shall not be denied or infringed unless justified
by a compelling State interest achieved by the least restrictive
means.”  Vermont allows abortion to be performed at any point
during a pregnancy.

In April 2023, the Maryland legislature passed a constitutional
amendment which guarantees abortion rights and also shields patients
and providers from criminal, civil and administrative penalties
relating to bans or restrictions in other states. The amendment
required 60% of legislators to vote yes. Before Dobbs, this high bar
prevented proponents from winning legislative approval. The amendment
goes to the voters in November, when it is very likely to pass.

In Nevada, abortion is currently allowed up to 24 weeks, based on a
state-wide referendum passed in 1993. That law may not be changed by
legislative vote. Nonetheless, activists are organizing to enshrine
that same law into the constitution. Nevadans for Reproductive Freedom
must collect 103,000 valid signatures by June 26. Given that in Nevada
an amendment only goes into effect if passed in two consecutive
elections, if passed this November, the amendment would be on the
ballot again in 2026.

In Colorado, with abortion legal at any point in pregnancy, Coloradans
for Protecting Reproductive Freedom are organizing to overturn a
provision of the state constitution that prohibits public funds for
abortion. The group must collect just over 124,000 valid signatures by
April 26 to qualify for the November ballot. That total must include
two percent of the total registered voters in each of Colorado’s 35
state Senate districts.

The ban on public funding for abortion In Colorado was voted into the
state constitution in 1984.  Advocates believe that in the current
political climate voters are ready to expand access of public
employees and Medicaid recipients to abortion care. This will be an
important test; passage will encourage organizing for public funding
in other states.

Constitutional amendments, especially in red states, are unfortunately
only the beginning of the fight. While a constitutional amendment
opens the door for overturning existing laws, taking anti-abortion
laws off the books isn’t automatic.

In Michigan, for example, although voters approved a broad
reproductive rights package in the state constitution in 2022, there
are still three barriers to access: a 24-hour waiting period, use of
Medicaid funds for abortion and a parental consent law. Recently, the
ACLU, Human Rights Watch and Michigan Organization for Adolescent
Sexual Health launched a campaign against forced parental consent
laws.

In Ohio, although the constitutional amendment passed, the Republican
state legislature has left all laws in place (even those that are
unenforceable). The Attorney General has asked the state Supreme Court
to reinstate parts of the now unconstitutional six-week ban—for
example, that the health care provider check for the presence of a
heartbeat. For their part, abortion advocates have filed suit against
a law that requires an in-person appointment where providers are
forced to give patients state-mandated and medically misleading
information followed by a 24-hour waiting period. They argue that
these requirements violate the Ohio Constitution by “burdening,
prohibiting, penalizing and interfering with access to abortion, and
discriminating against abortion patients and providers.”

The Viability Limit

Another key debate among reproductive rights activists revolves around
whether there should be a limit at the viability of the fetus. Most
ballot initiatives permit abortions until viability and set conditions
under which late abortions can occur. _Roe v. Wade_ determined
viability to be in the third trimester (generally after 24 weeks),
where an exception could be made if the medical practitioners
determined it necessary to preserve the pregnant person’s health or
life, or in the case of fetal abnormality. This constitutes no more
than one percent of all U.S. abortions. Yet, given that there were
roughly 1,000,000 abortions last year, 10,000 people every year will
need a “post-viability” abortion.

The exceptions may appear “reasonable;” in practice they impose
constraints on doctors and hospitals, who are often reluctant to act
unless and until it is abundantly clear that a problem pregnancy has
to be terminated in order to prevent death or serious bodily
impairment. By that time, the person’s health has been impaired and
the process traumatizing. The best argument against a viability
standard is the testimonies of those who have had late-stage
abortions.

Labor and reproductive justice come together to demonstrate in
Madison, WI. Photo: Marsha Rummel

“Viability” is a slippery term in any case — is a fetus
“viable” at 20 weeks with a 5-6% survival rate and a 97% morbidity
rate or at 23 weeks, if it has a 27% change of surviving? While many
state laws specify a number of weeks past which abortion is banned
(with exceptions), the American College of Obstetrics and Gynecology
strongly opposes policymakers’ defining viability
[[link removed]] in
terms of numbers of weeks of pregnancy or “using viability as a
basis to limit access to evidence-based care.”

Most activists recognize the problems with the viability standard;
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in states with strong anti-abortion movements, advocates may believe
that it is politically necessary to include a viability limit. The
proposed constitutional amendments try to undo some of the harm done
by “exceptions” in draconian red state laws by leaving exceptions
as open-ended as possible. They do not specify a type of bodily harm
or use qualifying terms like “serious harm” to health or
”medical emergency” in order to provide doctors the most room to
use their medical judgment.

Shield Laws to Protect Abortion Providers, Funders and Facilitators

Another route for political organizing is working to pass shield laws
in states where abortion is legal.
[[link removed]] Currently,
15 states have shield laws that protect clinics who provide procedural
abortion to patients travelling from states where abortion is banned
or severely restricted. Additionally, five states – Massachusetts,
Washington, Vermont, Colorado and New York – have shield laws that
specifically protect providers who work through telehealth to
prescribe and mail abortion medication to patients living in states
where abortion is banned or sharply restricted.

For example, Washington’s shield law prohibits state officials from
enforcing out-of-state subpoenas seeking information related to
abortion in the state of Washington. It also prohibits enforcement of
out-of-state arrest warrants and any information sought about an
individual’s abortion. It prevents the governor from extraditing any
individuals for out-of-state charges and protects people from civil
causes of action related to providing or aiding someone seeking an
abortion.

As the laws evolve, they are covering more ground in terms of
protection
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for example, outlawing technology companies such as Facebook from
providing information about patients who access abortion in their
states and live in states where abortion is illegal. Additionally,
some states, like Washington, are incorporating other kinds of care
— such as gender-affirming care which is also now banned in many
states—into the practices that are shielded.

Before the passage of these laws, U.S. feminist organizations
connected women in states where telehealth for abortion was banned
to Aid Access,
[[link removed]] an
international organization located beyond U.S. law, whose doctors
prescribed abortion medications which were shipped from India. The
downside of international shipping is that the medication could take
weeks to arrive. When Massachusetts passed the first shield law
protecting telemedicine providers, Aid Access linked up with
U.S.-based healthcare providers who were able to prescribe and ship
drugs much more quickly — within 3-5 days generally.

The Fight in Federal Court

While it may have been assumed, following the Dobbs decision, that the
main struggles over reproductive rights would take place at the state
level, that assumption has been upended by the right-wing strategy to
challenge the Federal Drug Administration’s approval of
mifepristone, one of the two pills used for medication abortion. The
other medication, misoprostol, was originally developed to treat
certain ulcers and is thus more easily available and less strictly
regulated. Mifepristone was first approved by the FDA in 2000, and,
combined with misoprostol, results in a 99.6% success rate in
terminating first-trimester pregnancies. According to a host of
studies, medication abortion carries less risk of complications than
having one’s wisdom teeth extracted. Medication abortion is now used
in 63% of all abortions, compared to 53% in 2020 and 39% in 2017. The
recent increase is partly because access to procedural abortion has
precipitously declined due to abortion bans.

The right wing wants to use the Comstock Act, which was lampooned in
this cartoon, Graphic from The Masses, 1915.

The challenge to the FDA’s approval of mifepristone was brought by
anti-abortion doctors to an anti-abortion federal court judge in
Texas, Matthew Kacsmaryk, who dutifully ruled in their favor. Most
strikingly, in his opinion Kacsmaryk agreed with the plaintiffs that
sending abortion medications through the mail violates the Comstock
Act, passed by Congress in 1873
[[link removed]] and
updated in 1897 to include a prohibition for “common carriers.”
The Fifth U.S. Circuit Court of Appeals, the most conservative appeals
court in the country, accepted the doctors’ standing in the case and
upheld their claims, but only in part. The court declined to rule one
way or another on the implications of Comstock, preferring instead to
base its decision on a narrower argument. (See footnote 8, p. 53 of
the opinion.
[[link removed]])

The justices concluded that the FDA’s approval of mifepristone in
2000 could not be litigated because too much time has passed; but
agreed with Kacsmaryk that the FDA’s decision in 2021 to allow
telehealth prescriptions with medication abortion pills sent through
the mail was not adequately supported by scientific and medical
research. This decision gravely threatened access to abortion in
states where it is banned or restricted.

The Supreme Court heard the case on March 26. In their questioning,
both Thomas and Alito referred to the Comstock law. However, the other
conservative judges, like the Appellate Court judges (with the
exception of Justice Ho), avoided discussion of Comstock. Most
commentators agree that even some of the conservative justices found
the plaintiffs’ “legal standing” to bring the suit questionable.
They predict that the Court will rule in favor of the FDA on the
narrow basis of plaintiffs’ lack of standing, thereby allowing the
current protocols to continue, and avoiding the larger issues raised
in the case.

The Federal Office of Legal Counsel has already released an opinion
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that the Comstock Law does not in fact prohibit mailing medications
used in abortion, since they are used to also treat other medical
conditions.

The FDA’s policies on medication abortion may come before the
Supreme Court again at some point in the future, because another suit,
this time brought by pro-choice Attorneys General (from Washington,
Oregon, Nevada, Delaware, Arizona, Illinois, Connecticut, Colorado,
Vermont, New Mexico, Michigan and Rhode Island), challenges the
current FDA rules with regard to mifepristone as overly restrictive
and medically unjustifiable.

A ruling by the Supreme Court in favor of those challenging the
FDA’s decisions with regard to mifepristone, whether approving fewer
restrictions or demanding a rollback on access, would seriously
undermine the FDA’s authority and open the door to a slew of court
challenges — for example, to vaccines.

Emergency Medical Treatment and Active Labor Act

In late April, the Supreme Court will hear another case, _Idaho v.
United States,_ which was initiated by the Biden Administration,
arguing that Idaho’s current law criminalizing abortion except to
protect the life of a pregnant person violates the Emergency Medical
Treatment and Active Labor Act (EMTALA). The EMTALA, passed by
Congress in 1986, requires hospitals receiving federal Medicare
funding to provide stabilizing care in a medical emergency. Originally
passed to prevent private hospitals from refusing to provide emergency
treatment to poor people, including women in labor, over the years,
the EMTALA has been amended and expanded through court cases and
administrative interpretation.

The government argues that when an abortion is necessary to stabilize
the health of a pregnant woman experiencing an emergency medical
condition, a physician must provide an abortion under EMTALA (with
the patient’s express consent).
[[link removed]]

The US District court in Idaho sided with the Department of Justice,
preventing Idaho’s ban from taking effect. Idaho appealed, and in
January the Supreme Court lifted the injunction. Abortion is now
completely illegal in Idaho, unless necessary to save a woman’s
life. The Supreme Court will hear oral arguments on the case on April
24, 2024.

Organizing Outside the System: Feminist Support for Medication
Abortion

Before medication abortion was available, feminists organized outside
the medical system and outside the laws banning abortion to provide
safe abortions — most famously, the Jane Collective.
[[link removed]] The
development of medication abortion has fundamentally expanded the
opportunities for feminist intervention.

First, medication abortion does not require any skills in using
medical instruments such as a speculum or a vacuum aspirator. It does
involve knowledge of how the medications work and how to use them.
Second, the medications are extremely safe and effective. The vast
majority of women using medications to end pregnancy at 12 weeks or
less do so without having to access medical care. (The World Health
Organization recommends use until 12 weeks, but the FDA rules allow
prescribing only up to 10 weeks gestation.) Third, in the event that a
woman has to see a doctor or go to an emergency room, the presentation
of her symptoms is no different from a natural miscarriage; there is
no way for any provider to know that she has purposefully aborted.

Fourth, the protocol for determining if a woman can safely use
medication abortion involves a set of standard questions that screen
for contraindications such as symptoms of possible ectopic pregnancy,
presence of an IUD, and medical conditions that disallow use. Thus,
medically trained people are not necessarily required to operate a
website that provides access to information and medication. Finally,
while one of the abortion medications — mifepristone — is highly
regulated, the second abortion medication — misoprostol — is much
more easily and widely available. Although the two-medication protocol
is preferable for a number of reasons, taking misoprostol alone is
safe and effective — 85%-95% success in completing an abortion at
less than 12 weeks. [Medication abortion can be, and in many countries
is, used for abortions in the second trimester. However, it is
considered preferable to do them in a hospital setting where
interventions are available if needed.]

Misoprostol was originally developed to treat certain kinds of ulcers.
In the 1980s, it was discovered that the drug was useful off-label in
the practice of obstetrics and gynecology, including for the medical
management of miscarriage, induction of labor, cervical ripening
before surgical procedures, the treatment of postpartum hemorrhage and
medication abortion. Due to its wide-ranging applications in
reproductive health, misoprostol is on the World Health Organization
“Model List of Essential Medicines.” In many countries where
mifepristone is not approved, feminist groups support women accessing
and using misoprostol. In the U.S., thus far, the two-pill regimen is
available; however, in some instances women may need to do a
misoprostol-only abortion.

Feminist organizations on the web offer comprehensive help for women
seeking to access medication abortion.  Many of the websites not only
provide the medication, but also comprehensive information about how
to use it, what to expect during the process, how to know if there is
a problem, how one’s body returns to normal afterwards.

Aid Access now serves about 7,000
[[link removed]] patients
a month, nearly 90% in states with bans or severe restrictions. Women
who receive the pills are offered supportive services through their
website. The Massachusetts Medication Abortion Access Project (The
MAP)
[[link removed]] ships
medication to all 50 states and offers a sliding scale payment.
Additionally, there are several non-profit and volunteer/community
groups helping women who cannot access legal abortion. They are listed
on the websites of Plan C
[[link removed]] and Red State Access.
[[link removed]]

Providers offering medication abortion through telehealth for women in
states where it is banned or severely restricted have found that many
patients cannot afford the service and until recently were essentially
subsidizing care themselves. Many abortion funds are reluctant to
offer financial help
[[link removed]] to
women in banned/restricted states, because those state laws have
extensive penalties for any person or organization who facilitates an
abortion. Health Care Beyond Borders has stepped up by giving funds
not to patients but to providers in shield law states.
[[link removed]] Currently
they support providers who are assisting women in Alabama, Arkansas,
Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Missouri,
North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee,
Texas, and West Virginia. They can’t yet fully support the demand
and are campaigning for additional donations.

Plan C, founded in 2015,
[[link removed]] offers a comprehensive Guide
to Pills, which includes tested and vetted sources of pills available
through both mainstream and alternate routes (without a prescription).
It also provides accurate information about how to do a medication
abortion, including a zine (produced by the Reproductive Health Access
Project), called Sam’s Medication Abortion.
[[link removed]] Among
the resources available on Plan C’s website is a link to the
Miscarriage and Abortion Hotline. The M&A Hotline
[[link removed]] does
not prescribe but is staffed by clinicians who volunteer to answer
calls. About 70 providers volunteer for 6-hour shifts and handle
anywhere between 50 to 70 calls a day, answered between 8 a.m. to 2
a.m. ET. Women Help Women, an internation feminist organization, has a
website developed for U.S. women, SASS – Self-Managed Abortion;
Safe & Supported. [[link removed]] The site provides
not only counseling and information but also a secure web-based
communication tool for women seeking help with medication abortion in
states where it is banned or restricted.

Information about security and privacy is increasingly important. The
Repro Legal Helpline, [[link removed]] run by
If/When/How: Lawyering for Justice provides free, confidential legal
advice and information. While the abortion ban laws “exempt” women
from prosecution, prosecutors in red states have used other laws to
charge women
[[link removed]] with
crimes. Additionally, anyone who aids or assists a woman is liable to
prosecution, including a parent or friend. A mother in Nebraska who
assisted her daughter by purchasing abortion medication (her daughter
was more than 20 weeks pregnant at the time she aborted and beyond the
legal limit in Nebraska) has been jailed for two years. Her daughter,
charged for illegally concealing or abandoning a dead body, was
sentenced to 90 days.

Advocates organizing grass-roots collectives
[[link removed]] who
support women self-managing abortion have described their approach as
“the accompaniment model.” They understand their support for
individual women to be part of a broader agenda of community-based
education and political organizing.

With the _Dobbs_ decision, the white, nationalist, evangelical
conservative movement achieved its long-sought goal of taking away
women’s control over our reproductive life. And now, the Republican
Party who catered to them has reaped a political whirlwind.
Feminists’ creativity, courage and solidarity in this moment is
truly inspiring.

_Johanna Brenner is a writer and activist living in Portland OR. She
is a member of Solidarity. Thanks to Dianne Feeley for her political
insights and editorial skills._

_Against the Current is the analytical and activist journal sponsored
by Solidarity. [[link removed]] As part of our larger
project of regroupment and dialogue within the U.S. Left, the journal
presents varying points of view on a wide variety of issues. As such,
debates are frequent and informative, with the goal of promoting
discussion among activists, organizers, and scholars on the
Left. Subscribe to Against the Current.
[[link removed]]_

* Dobbs v. Jackson
[[link removed]]
* abortion rights
[[link removed]]
* ultra-right
[[link removed]]
* political action
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