tag:theconversation.com,2011:/au/topics/roe-v-wade-4640/articlesRoe v Wade – The Conversation2024-03-26T20:54:50Ztag:theconversation.com,2011:article/2266702024-03-26T20:54:50Z2024-03-26T20:54:50ZAbortion drug access could be limited by Supreme Court − if the court decides anti-abortion doctors can, in fact, challenge the FDA<figure><img src="https://images.theconversation.com/files/584450/original/file-20240326-30-a29mv8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Pro-abortion rights activists rally in front of the Supreme Court on March 26, 2024, the day justices heard oral arguments about the use of mifepristone.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-activist-rally-in-front-of-the-us-supreme-news-photo/2107843451?adppopup=true">Drew Angerer/AFP via Getty Images </a></span></figcaption></figure><p><em>Who has the legal right to challenge decisions by the U.S. Food and Drug Administration? And should the moral umbrage of a group of anti-abortion rights doctors shift policy across the country, limiting women’s ability to get the widely used abortion drug mifepristone?</em></p>
<p><em>These are a few of the central questions that the <a href="https://www.cbsnews.com/news/supreme-court-abortion-pill-arguments-mifepristone/">Supreme Court fielded on March 26, 2024</a>, during the oral arguments in <a href="https://www.scotusblog.com/case-files/cases/food-and-drug-administration-v-alliance-for-hippocratic-medicine-2/">FDA v. Alliance for Hippocratic Medicine</a>. A group of doctors is challenging the FDA, saying that the federal agency’s decision allowing people to get mifepristone via telehealth, at up to 10 weeks of pregnancy, is causing some medical professionals harm.</em></p>
<p><em>Amy Lieberman, politics and society editor at The Conversation U.S., spoke with family law and reproductive justice scholars <a href="https://scholar.google.com/citations?user=gCJEShUAAAAJ&hl=en">Naomi Cahn</a> and <a href="https://www.law.gwu.edu/sonia-m-suter">Sonia Suter</a> to better understand what’s behind the oral arguments before the Supreme Court – and how the court’s eventual decision, expected in June, could affect people’s ability to get abortions by using mifepristone, one of two drugs used for medication abortion.</em> </p>
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<a href="https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="White boxes of Mifepristone are seen stacked in a shelf." src="https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584469/original/file-20240326-26-9qpi95.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A cabinet holds mifepristone at a health clinic in Casper, Wyo., in June 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/cabinet-containing-mifepristone-seen-in-wellspring-health-news-photo/1258730531?adppopup=true">Rachel Woolf for The Washington Post via Getty Images</a></span>
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<p><strong>What is this case about?</strong></p>
<p><strong>Sonia Suter:</strong> It’s about whether the FDA’s regulations for the use of <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">mifepristone were appropriately loosened in 2016 and 2021</a>. These changes generally make mifepristone more accessible by allowing people to have the medication prescribed via a telehealth visit and then getting the pill in the mail.</p>
<p><strong>Naomi Cahn:</strong> That 2016 regulation also extended the time during which mifepristone could be prescribed, increasing it from seven to 10 weeks gestation. Medication abortions accounted for <a href="https://www.guttmacher.org/2024/03/medication-abortion-accounted-63-all-us-abortions-2023-increase-53-2020">63% of all abortions</a> that occurred in the U.S. in 2023. This percentage has increased since the Supreme Court overturned the constitutional right to an abortion in 2022.</p>
<p><strong>Why are these guidelines being challenged?</strong></p>
<p><strong>Suter:</strong> A group of doctors and medical associations that oppose abortion <a href="https://www.nytimes.com/2024/03/26/us/erin-hawley-abortion-pill-supreme-court.html">are challenging these guidelines</a> and using this court case as a way, we believe, to limit the ability to get an abortion by using medication. </p>
<p>They challenged the drug’s initial approval by the FDA and the relaxed restrictions on how it is used. They claimed that the FDA exceeded its authority, did not rely on proper data and did not have adequate support from scientific studies for its decision that mifepristone could be safely prescribed. Their initial arguments, which the lower court accepted, would have banned mifepristone. But that decision was not upheld by the <a href="https://www.ca5.uscourts.gov/opinions/pub/23/23-10362-CV1.pdf">5th Circuit Court</a>. </p>
<p>Instead, the issues before the Supreme Court focus on whether the FDA should have expanded the use of mifepristone. Virtually all studies have shown that <a href="https://www.nytimes.com/interactive/2023/04/01/health/abortion-pill-safety.html">mifepristone is not dangerous</a>, even with the relaxed conditions on its use. </p>
<p><strong>What is the federal government’s central argument against these claims?</strong></p>
<p><strong>Cahn:</strong> The government is stating that the FDA appropriately reviewed all of the evidence and its decision was appropriate. </p>
<p>Indeed, the attorney representing the mifepristone manufacturer, <a href="https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-235_p8k0.pdf">Jessica Ellsworth</a>, pointed out that <a href="https://apnews.com/article/abortion-pill-mifepristone-redacted-studies-supreme-court-ebd60519fd44dc69c5ac213580d1c1ba#:%7E:text=A%20medical%20journal%20has%20retracted,and%20flaws%20in%20their%20research.">the studies cited by the challengers have either been</a> discredited <a href="https://www.npr.org/sections/health-shots/2024/02/09/1230175305/abortion-pill-mifepristone-retraction-supreme-court">or withdrawn because they were unreliable</a>. </p>
<p>Another critical issue, as <a href="https://www.nytimes.com/live/2024/03/26/us/abortion-pill-supreme-court">U.S. Solicitor General Elizabeth Prelogar said to the justices today</a>, is whether the organization challenging this ruling actually has legal standing – the right to sue – to bring a lawsuit against the FDA. </p>
<p><strong>Why is the question of who can sue the FDA important here?</strong></p>
<p><strong>Suter:</strong> Under U.S. law, you cannot succeed in court every time you are unhappy. The Supreme Court has ruled that the Constitution requires parties who bring suit in federal court to <a href="https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/standing-requirement-overview">have “standing.”</a> This means parties have to show that they have been injured in some tangible way or threatened with such an injury by the acts that are the basis of the lawsuit. In this case, a group of doctors morally opposed to abortion are saying they have been injured. Their claim is that with the changes in the FDA’s regulation of mifepristone prescriptions, patients will come to them in the emergency room, requiring medical care that violates these religious beliefs and causes them stress. </p>
<p>The government’s response is that the FDA is not making them do anything, including prescribe these pills or treat these patients. And <a href="https://www.hhs.gov/conscience/conscience-protections/index.html">there are conscience laws</a> that say if the treatment is against a health care provider’s beliefs, they do not need to provide that care. So the government asks: How are the doctors harmed here?</p>
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<a href="https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A line of people in formal clothing are seen behind barricades outside the Supreme Court on a grey day." src="https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/584543/original/file-20240326-18-ohf6hs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">People wait outside the Supreme Court to hear oral arguments on mifepristone on March 26, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-wait-in-line-outside-us-supreme-court-to-hear-oral-news-photo/2107843290?adppopup=true">Drew Angerer/AFP via Getty Images</a></span>
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<p><strong>What is your impression from the justices, listening to these arguments?</strong></p>
<p><strong>Cahn:</strong> I was surprised by how much time the justices spent asking about legal standing and whether there was a direct enough connection between the plaintiffs and the FDA’s guidance. </p>
<p><strong>What’s the potential impact of the court’s eventual ruling on this case?</strong></p>
<p><strong>Cahn:</strong> The court’s decision has implications for the whole FDA approval process as well as access to medication abortion, including through telehealth and the mail. If the court rules for the doctors challenging the FDA, mifepristone would still be available, but access to it would be severely limited because people would need an in-person visit before they could get it.</p><img src="https://counter.theconversation.com/content/226670/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two legal scholars who study abortion-related laws explain what happened at the Supreme Court in a case that could make it harder to get an abortion.Naomi Cahn, Professor of Law, University of VirginiaSonia Suter, Professor of Law, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2265282024-03-25T17:08:27Z2024-03-25T17:08:27ZImmaculate: how a nunsploitation film tunes into women’s anger over misogyny and oppression<p><em>Warning: this article contains spoilers</em></p>
<p>Camp, provocative and often kitsch, the “nunsploitation” subgenre rose to prominence in 1970s European cinema. Exemplifying this trend were films including Ken Russell’s <a href="https://www.imdb.com/title/tt0066993/">The Devils</a> (1971) – which received an “X” (18) rating in the UK and the US due to its explicit sexual and violent scenes – and pornographic Italian films <a href="https://www.imdb.com/title/tt0165325/">Images in a Convent</a> (Joe D'Amato, 1979) and <a href="https://www.imdb.com/title/tt0070404/?ref_=fn_al_tt_4">The Nun and the Devil</a> (Domenico Paolella, 1973).</p>
<p>Many film critics have been labelling <a href="https://www.theguardian.com/film/2024/mar/20/immaculate-sydney-sweeney-review#:%7E:text=Immaculate%20isn't%20above%20the,be%20both%20laughable%20and%20refreshing.">Immaculate</a>, the new horror film from Michael Mohan (The Voyeurs, 2021), as nunsploitation, but I believe it offers a greater level of sophistication than this label suggests, reflecting recent political events in America that have profoundly affected women’s freedoms when it comes to their own bodies. </p>
<p>The film acknowledges the prevalent cinematic stereotype of the “sexy nun”. When Sister Cecilia (Sydney Sweeney) is initially introduced, she is en route to Italy from her previous post in Michigan. She draws the attention of two male border agents who make sexist comments in Italian. Despite not understanding the language, Cecilia senses their meaning. This experience reflects the discomfort many women feel when being harassed or objectified in public spaces.</p>
<p>This early scene hints at the film’s potential to challenge expectations associated with nunsploitation films and address more culturally relevant themes. With lead actress Sydney Sweeney also serving as a producer, the film gains a unique feminist perspective that interrogates the disturbing and increasingly relevant topic of <a href="https://www.weforum.org/agenda/2022/03/what-is-bodily-autonomy-and-why-does-it-matter-for-women/">women’s bodily autonomy</a> – a woman’s power and agency over her own body.</p>
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<p>Sweeney plays Sister Cecilia, a devout young woman who is invited to take her vows at an Italian countryside convent dedicated to caring for elderly nuns in their final years. Cecilia is summoned to a meeting with the convent’s leaders and asked to confirm that she has honoured her vow of chastity.</p>
<p>A subsequent scan reveals her unexpected pregnancy. While the nuns view this as a miracle heralding the second coming of Christ, a sequence of unsettling nightmares and mysterious events hints at a darker force at work.</p>
<p>From satanic cults in <a href="https://www.theguardian.com/film/2010/oct/22/rosemarys-baby-polanksi-horror">Rosemary’s Baby</a> to murderous offspring in <a href="https://www.theguardian.com/film/2017/feb/12/prevenge-review-alice-lowe-sightseers">Prevenge</a>, numerous films have shown that horror can be a powerful genre for exploring anxieties surrounding motherhood. Immaculate exemplifies this, fitting into what journalist Jordan Crucchiola describes as <a href="https://www.vulture.com/2017/03/prevenge-is-proof-we-need-more-horror-movies-about-pregnancy.html">“pregnancy horror”</a>“.</p>
<h2>Reproductive rites</h2>
<p>The film speaks to ongoing concerns about women’s reproductive rights. In 2022 the US Supreme Court <a href="https://www.bbc.co.uk/news/world-us-canada-65956103#:%7E:text=On%252024%2520June%252C%25202022%252C%2520America's,which%2520is%2520about%252024%2520weeks.">overturned Roe v Wade</a>, the pivotal 1973 ruling that established women’s constitutional right to abortion. Since then, <a href="https://www.theguardian.com/us-news/ng-interactive/2023/nov/10/state-abortion-laws-us">14 states have implemented near-total abortion bans</a>.</p>
<p>The overturning of Roe v Wade reflects the growing influence of conservative religious groups on political agendas. Even the self-proclaimed misogynist influencer <a href="https://www.bbc.co.uk/news/uk-64125045">Andrew Tate</a> has <a href="https://www.msnbc.com/opinion/msnbc-opinion/andrew-tates-muslim-conversion-cant-hide-misogyny-rcna64707">used religious rhetoric</a> to spread his extremist ideology.</p>
<p>Just as Margaret Atwood’s dystopian novel <a href="https://www.britannica.com/topic/The-Handmaids-Tale-by-Atwood">The Handmaid’s Tale</a> warned, when far-right politics, male dominance and religious beliefs align, women’s bodies become state property and are subjected to inhumane restrictions.</p>
<p>The shadow of post-Roe America looms over Immaculate. The fact that Cecilia – the sole American nun in the film – finds herself ensnared in an oppressive religious institution controlled by a dangerous patriarch intent on exploiting women’s bodies, speaks volumes.</p>
<p>The nuns insist on treating the pregnant Cecilia like a religious idol, at one point even dressing her to resemble the Virgin Mary. A poignant close-up shot reveals Cecilia’s inner turmoil as she stands motionless, teary-eyed and trapped in circumstances she never consented to.</p>
<p>Despite being worshipped, Cecilia is denied access to proper medical care. She resorts to faking a miscarriage in the hope of being taken to a hospital. Reflecting the sentiments of the post-Roe landscape, the wellbeing of Cecilia’s unborn child is prioritised over her own.</p>
<h2>Women’s bodies and Hollywood</h2>
<p>Sweeney’s role in Immaculate forms a dialogue with her Hollywood star image, especially in light of her remarks in interviews about how her body is perceived by the public.</p>
<p>In a recent <a href="https://variety.com/2024/film/news/sydney-sweeney-immaculate-glen-powell-euphoria-season-3-1235943028/">sit-down with Variety</a>, she reflected on the media’s tendency to objectify her physique, stating: "People feel … free to speak about me in whatever way they want, because they believe that I’ve signed my life away. That I’m not on a human level any more, because I’m an actor”.</p>
<p>Canada’s <a href="https://nationalpost.com/opinion/amy-hamm-wokeness-is-no-match-for-sydney-sweeneys-undeniable-beauty">National Post</a> recently ran a story doing just that, asking: “Are Sydney Sweeney’s breasts double-D harbingers of the death of woke?”.</p>
<p>The themes of bodily autonomy and ownership of women’s bodies explored in Immaculate extend beyond reproductive rights. They also resonate in celebrity culture, where women in the public eye have long battled sexual objectification and intrusive scrutiny of their physical appearances.</p>
<p>From her breakthrough role in <a href="https://www.imdb.com/title/tt8772296/">Euphoria</a> to her powerful leading role in Immaculate, Sweeney has proved herself to be a daring and dynamic actress who deserves to be praised for her talent rather than objectified for her looks.</p>
<p>Cecilia fights back against the patriarchal and religious forces attempting to dictate her bodily autonomy. The film’s climactic act is a bloody and visceral outpouring of female rage. Cecilia’s cries convey not only her personal anguish but resonate as a wider expression of women’s collective anger.</p><img src="https://counter.theconversation.com/content/226528/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Harriet Fletcher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The increasing misogyny and oppression against women is reflected in this new horror, elevating it to something more than a mere nunsploitation movie.Harriet Fletcher, Lecturer in Media and Communication, Anglia Ruskin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2256192024-03-20T12:28:41Z2024-03-20T12:28:41ZBiden cannot easily make Roe v. Wade federal law, but he could still make it easier to get an abortion<figure><img src="https://images.theconversation.com/files/582808/original/file-20240319-20-n2gu76.jpg?ixlib=rb-1.1.0&rect=419%2C62%2C4759%2C3385&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A protester marks the Dobbs v. Jackson Women's Health Organization decision anniversary outside the Supreme Court building on June 23, 2023. </span> <span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v2/items/39d8d89cb379472ea647b7756c313426/preview/AP23175098262311.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Associated Press/Nathan Howard</a></span></figcaption></figure><p>President Joe Biden promised during his State of the Union address on March 7, 2024, that he would make the right to get an abortion a federal law. </p>
<p>“If you, the American people, send me a Congress that supports the right to choose, I promise you I will restore Roe v. Wade as the <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/03/08/remarks-by-president-biden-in-state-of-the-union-address-3/">law of the land again</a>,” Biden said. </p>
<p>If Biden meant simply that he would sign a bill enshrining the right to an abortion, then he can keep his promise. But, as he noted, such a bill is unlikely to be enacted by this current Congress, <a href="https://pressgallery.house.gov/member-data/party-breakdown">in which the House majority is Republican</a>. Moreover, if Biden expected such a law to be upheld by this Supreme Court, or even a different set of justices, he could be seriously disappointed.</p>
<p>On the other hand, there is much that Biden’s administration and Congress can do to offset the impact of the Supreme Court’s 2022 <a href="https://www.oyez.org/cases/2021/19-1392">Dobbs v. Jackson Women’s Health Organization</a> ruling, which removed federal constitutional protection for the right to get an abortion and sent the regulation of abortion back to the states. </p>
<p><a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">As experts</a> on <a href="https://www.law.gwu.edu/alan-b-morrison">constitutional law</a> and <a href="https://www.law.gwu.edu/sonia-m-suter">reproductive health and justice</a>, we are sorting out just what the federal government can do to protect access to abortion.</p>
<p>Most Americans think of the federal government and the president as capable of doing anything that a majority of Congress thinks is appropriate. But that is not true. </p>
<p>The president has various powers under the Constitution, including the authority to issue <a href="https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them">executive orders</a>. </p>
<p>That’s what <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2022/07/08/executive-order-on-protecting-access-to-reproductive-healthcare-services/">Biden did</a> shortly after the Dobbs decision when he issued an executive order that called on different government officials and agencies to promote access to reproductive care, including abortion. </p>
<p>Biden can also have government agencies craft rules that protect abortion rights. The Department of Health and Human Services, for example, has proposed <a href="https://www.hhs.gov/about/news/2023/04/12/hhs-proposes-measures-bolster-patient-provider-confidentiality-around-reproductive-health-care.html#:%7E:text=Today%2C%20the%20U.S.%20Department%20of,protected%20health%20information%20(PHI)%20to">a rule to increase privacy protections</a> for reproductive health information, including abortion information. </p>
<p>But Biden has only limited authority to do this: These efforts could be undone by <a href="https://constitutioncenter.org/blog/executive-orders-101-what-are-they-and-how-do-presidents-use-them">Congress overriding</a> executive orders – or his successors reversing them – and courts invalidating agency decisions. </p>
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<a href="https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Joe Biden is seen standing at a podium, in front of a large American flag and several people around him, including Vice President Kamala Harris" src="https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582806/original/file-20240319-26-k3xw86.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Joe Biden speaks during the State of the Union address on March 7, 2024.</span>
<span class="attribution"><a class="source" href="https://mapi.associatedpress.com/v2/items/8a914f2c68444fefb2f27f6cfa4ab597/preview/AP24068158996875.jpg?wm=api&tag=app_id=1,user_id=904438,org_id=101781">Associated Press/Andrew Harnik</a></span>
</figcaption>
</figure>
<h2>Congress’ hands are partially tied</h2>
<p>Biden specifically said in February 2024 that he needs a Congress that will help him support a “woman’s right to choose.”</p>
<p>Two of us have written <a href="https://slate.com/news-and-politics/2022/01/congress-roe-law-abortion-alternative.html">about how Congress</a> does not have the authority to override a state’s decision to make abortions unlawful in most circumstances – although we <a href="https://twitter.com/jdmortenson/status/1521580604323737600">recognize that some</a> observers and experts would <a href="https://crsreports.congress.gov/product/pdf/LSB/LSB10787">question this conclusion</a>.</p>
<p>Congress has the power to pass laws, but only on a limited list of subjects. While the understanding of Congress’ power has expanded over time, there are still very real limits. </p>
<p>Congress is able to regulate commerce between states, but the Supreme Court has determined that its powers only reach activities that are <a href="https://crsreports.congress.gov/product/pdf/IF/IF11971">economic in nature</a>. So, the court ruled in 1994 that the federal government could not ban the possession of guns in a “<a href="https://www.oyez.org/cases/1994/93-1260">school zone</a>,” since there was no direct economic element involved. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two white boxes say the words 'Mifepristone tablets' and are on a black table." src="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/582919/original/file-20240319-30-7pp40o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Packages of Mifepristone tablets are displayed in April 2023 at the family planning clinic in Rockville, Md.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-packages-of-mifepristone-tablets-news-photo/1481950657?adppopup=true">Anna Moneymaker/Getty Images</a></span>
</figcaption>
</figure>
<h2>Other options for protecting abortion rights</h2>
<p>The president and the federal government have other ways to make it easier and more affordable to get an abortion. Some of these methods might even be effective in states where there are partial or full bans.</p>
<p>First, Congress could amend existing federal laws to provide economic assistance for abortion. For example, it could repeal the <a href="https://crsreports.congress.gov/product/pdf/IF/IF12167#:%7E:text=The%20Hyde%20Amendment%2C%20according%20to,are%20not%20obligated%20to%20cover.">Hyde Amendment</a>, which is an annual restriction passed in 1976 that prohibits federal money from being used to fund abortions, except when necessary to save the life of a pregnant person or when a pregnancy is the result of rape or incest. </p>
<p>Biden promised to remove the Hyde Amendment in his 2020 campaign but has been unable to do so because of lack of congressional support. But eliminating the Hyde Amendment would have minimal impact in <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">states with abortion bans</a>. </p>
<p>Second, some states with abortion bans, like Idaho and Alabama, <a href="https://apnews.com/article/abortion-texas-idaho-alabama-state-lines-trafficking-d314933f3f7db93858561a0c6ad0b188">are threatening to prosecute women</a> who travel to another state to get an abortion. Congress could enact legislation that protects the right to interstate travel for an abortion. Congress could also make it a federal offense for anyone, including state prosecutors, to interfere with that right. </p>
<p>Justice Brett Kavanaugh, <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">in his concurring opinion in Dobbs</a>, asserted that if states criminalized interstate travel for people to get an abortion, those laws would fail “based on the constitutional right to interstate travel.” </p>
<p>Since Dobbs, <a href="https://apnews.com/article/idaho-abortion-minors-criminalization-b8fb4b6feb9b520d63f75432a1219588">Idaho has passed a law</a> making it a felony for adults who are not the parent of a pregnant minor to help that minor cross state lines for an abortion. A <a href="https://apnews.com/article/idaho-abortion-trafficking-travel-ban-270a403d7b4a5e99e566433556614728">district court has temporarily stayed</a> this law as unconstitutional. In addition, <a href="https://www.texastribune.org/2024/02/09/texas-abortion-transgender-care-outside-state-borders/#:%7E:text=In%201974%2C%20just%20after%20Roe,they%20travel%20to%20that%20State.%E2%80%9D">four counties and a few cities in Texas</a> have passed so-called “abortion trafficking laws,” which allow individuals to sue people who travel to get abortions out of state and those who help them.</p>
<p>Third, the Food and Drug Administration has approved, and in 2016 and 2021 expanded, the <a href="https://theconversation.com/medication-abortion-could-get-harder-to-obtain-or-easier-theres-a-new-wave-of-post-dobbs-lawsuits-on-abortion-pills-198978">availability of mifepristone</a>, one of the two drugs used for medication abortions. The Supreme Court is <a href="https://www.scotusblog.com/2023/12/justices-will-review-lower-court-ruling-on-access-to-abortion-pill/">considering a challenge</a> to some of the FDA’s rules about access to mifepristone and will hear <a href="https://www.scotusblog.com/case-files/cases/food-and-drug-administration-v-alliance-for-hippocratic-medicine-2/">oral arguments in that case on March 26, 2024</a>. </p>
<p>But even if the FDA prevails, an anti-abortion president could replace the head of this federal agency. The FDA might then rescind the current rules that have <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">expanded access</a> to mifepristone, including allowing the pill to be used later in pregnancy. </p>
<p>To prevent that from happening, Biden could ask <a href="https://crsreports.congress.gov/product/pdf/IF/IF12269">Congress to pass a law</a> that would guarantee the same kind of access to mifepristone that the FDA currently allows. </p>
<p>Congress could also ensure that <a href="https://theconversation.com/an-obscure-1800s-law-is-shaping-up-to-be-the-center-of-the-next-abortion-battle-legal-scholars-explain-whats-behind-the-victorian-era-comstock-act-204728">mailing abortion pills is legal</a>. It could do so by repealing a Victorian law called the Comstock Act, which <a href="https://www.nytimes.com/interactive/2023/04/08/us/court-decision-invalidating-approval-of-mifepristone.html">some judges</a> have interpreted as prohibiting the mailing of abortion pills, and directly declaring that such acts are legal. </p>
<p>The Department of Justice issued an <a href="https://theconversation.com/an-obscure-1800s-law-is-shaping-up-to-be-the-center-of-the-next-abortion-battle-legal-scholars-explain-whats-behind-the-victorian-era-comstock-act-204728">opinion in 2022</a> that the Comstock Act does not override the FDA rule allowing mifepristone to be delivered by mail. But legislation would make it impossible for a future president to reverse that opinion alone, or reverse that decision without congressional approval. </p>
<h2>Biden’s actions could still matter</h2>
<p>Biden’s attempt to explicitly codify Roe would probably not succeed. </p>
<p>But Biden can recommend that Congress undertake many other legal reforms that are not constitutionally barred, and he could also take some limited actions based on his own authority. These could remove some obstacles to getting an abortion.</p><img src="https://counter.theconversation.com/content/225619/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While both Congress and the president have extensive legal powers, they cannot easily change the law to protect abortions under federal law.Naomi Cahn, Professor of Law, University of VirginiaAlan Morrison, Professor of public interest and public service law, George Washington UniversitySonia Suter, Professor of law, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2243652024-02-27T04:06:50Z2024-02-27T04:06:50ZAlabama ruling frozen embryos are equivalent to living children has worrying implications for IVF<figure><img src="https://images.theconversation.com/files/578118/original/file-20240227-28-8t4spu.jpg?ixlib=rb-1.1.0&rect=49%2C0%2C5472%2C3637&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/dewar-liquid-nitrogen-straws-frozenn-embryos-1225485064">Ekaterina Georgievskaia/Shutterstock</a></span></figcaption></figure><p>In <a href="https://static01.nyt.com/newsgraphics/documenttools/4b56014daa6dda84/a039b1d9-full.pdf">December 2020 in Alabama</a>, a hospital patient gained unauthorised access to an adjoining IVF storage facility, which was not adequately secured. The patient is said to have removed several frozen embryos, which they then dropped on the floor, owing to a freeze-burn to their hand. The embryos were destroyed.</p>
<p>In Alabama, the <a href="https://casetext.com/statute/code-of-alabama/title-6-civil-practice/chapter-5-actions/article-22-injury-and-death-of-minor/section-6-5-391-wrongful-death-of-minor">Wrongful Death of a Minor Act</a> allows parents of a deceased child to recover punitive damages for their child’s death, and <a href="https://www.abc.net.au/news/2024-02-25/ivf-frozen-embryo-alabama-supreme-court-ruling/103501872">three couples affected</a> by the incident subsequently brought lawsuits against the clinic under this legislation.</p>
<p>When this case was heard recently in the Supreme Court of Alabama, the majority of justices opined this statute <a href="https://static01.nyt.com/newsgraphics/documenttools/4b56014daa6dda84/a039b1d9-full.pdf">applies to frozen embryos</a> because:</p>
<blockquote>
<p>an unborn child is a genetically unique human being whose life begins at fertilization and ends at death.</p>
</blockquote>
<p>This essentially means frozen embryos are protected under Alabama law to the same extent as any living child. While this was a civil matter, it’s not inconceivable that, based on this interpretation, anyone who destroys a frozen embryo in Alabama – accidentally or on purpose – could face criminal penalties, such as manslaughter or even murder charges. </p>
<p>Likely for fear it’s too risky, clinics in the state are now limiting their IVF services, leaving patients having to <a href="https://www.today.com/video/more-clinics-in-alabama-stop-ivf-treatments-after-court-ruling-204773957818">seek treatment elsewhere</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/considering-using-ivf-to-have-a-baby-heres-what-you-need-to-know-108910">Considering using IVF to have a baby? Here's what you need to know</a>
</strong>
</em>
</p>
<hr>
<p>Ascribing personhood to frozen embryos is not a novel idea, but such a conviction is held only by the very fringes of the religious and conservative spectrum. There are clear political dimensions to this ruling, which appears to be an extension of a radical agenda on the altar of which the <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Supreme Court of the United States</a> recently sacrificed the right to abortion. </p>
<p>This ruling from the Supreme Court of Alabama reflects a profound ignorance about how the process of IVF works.</p>
<h2>Creating multiple embryos is essential for overall IVF success</h2>
<p>The process of in vitro fertilisation, or IVF, begins with a “stimulated” cycle, where hormones are injected into a woman to stimulate an ovary to produce multiple eggs. These eggs are then collected and combined with sperm, forming embryos that are placed in an incubator to grow. </p>
<p>Five days later, the embryos are assessed. Some develop into “good quality” embryos suitable for transfer into a woman’s uterus. The hope is that following the transfer, the embryo will implant and result in a viable pregnancy, ultimately leading to the birth of a healthy child. Any good-quality embryos not used in a stimulated cycle are usually frozen for future attempts.</p>
<p>Unfortunately, IVF is somewhat inefficient, with attrition a prominent feature at every stage. Not all collected eggs are suitable for fertilisation, not all fertilise, not all embryos fertilise normally, and not all normally-fertilised embryos are of good quality. Poor-quality eggs, abnormally-fertilised embryos and poor-quality embryos are routinely discarded.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1760408483688534266"}"></div></p>
<p>The practical implications of this process and the heartbreaking reality for individuals and couples undergoing IVF is that it takes, on average, three to five eggs to produce <a href="https://npesu.unsw.edu.au/sites/default/files/npesu/data_collection/Assisted%20Reproductive%20Technology%20in%20Australia%20and%20New%20Zealand%202021.pdf">one good-quality embryo</a>. However, this number is age-dependent and significantly higher for older women. </p>
<p>The chance of achieving pregnancy from one embryo transfer is also significantly influenced by <a href="https://npesu.unsw.edu.au/sites/default/files/npesu/data_collection/Assisted%20Reproductive%20Technology%20in%20Australia%20and%20New%20Zealand%202021.pdf">the woman’s age</a>, being as high as 50% in younger women but decreasing exponentially as a woman gets older. At the age of 46, it can be as low as 1-2%. </p>
<p>So it’s vital to be able to safely produce as many good-quality embryos as possible from one stimulated IVF cycle in case multiple sequential embryo transfers are needed to achieve a healthy pregnancy. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-business-of-ivf-how-human-eggs-went-from-simple-cells-to-a-valuable-commodity-119168">The business of IVF: how human eggs went from simple cells to a valuable commodity</a>
</strong>
</em>
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<hr>
<p>Should the initial embryo transfer fail to produce a viable pregnancy, and frozen embryos are available, those can be thawed and transferred into a woman’s uterus in a “thaw” cycle. These cycles usually don’t require the use of injectable hormones or an egg collection and, in most instances, require only monitoring (including ultrasounds and blood tests), and timed embryo transfer.</p>
<p>The risks associated with IVF, such as bleeding and infections, are mostly confined to the stimulated cycles, while thaw cycles <a href="https://npesu.unsw.edu.au/sites/default/files/npesu/data_collection/Assisted%20Reproductive%20Technology%20in%20Australia%20and%20New%20Zealand%202021.pdf">pose minimal risk</a>. Notably, the most labour-intensive, and, therefore, costly portion is the stimulated cycle, while a thaw cycle can be around three to four times cheaper. </p>
<p>Should embryo freezing become unavailable, all people undergoing IVF would have to rely solely on stimulated cycles to achieve pregnancy, significantly increasing the risks and radically escalating the costs.</p>
<h2>The judge’s error in interpreting Australian practice</h2>
<p>Tom Parker, the Chief Justice of the Supreme Court of Alabama, made the following statement in his judgement:</p>
<blockquote>
<p>in Australia and New Zealand, prevailing ethical standards dictate that physicians usually create only one embryo at a time.</p>
</blockquote>
<p>He implied that in Australia, the only IVF cycles ethically permitted are stimulated cycles, where just one embryo is created and transferred, with no embryos being frozen. </p>
<figure class="align-center ">
<img alt="A pregnant woman holding her stomach." src="https://images.theconversation.com/files/578120/original/file-20240227-24-koxpao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578120/original/file-20240227-24-koxpao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578120/original/file-20240227-24-koxpao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578120/original/file-20240227-24-koxpao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578120/original/file-20240227-24-koxpao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578120/original/file-20240227-24-koxpao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578120/original/file-20240227-24-koxpao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Many women need the help of IVF to become pregnant.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/image-pregnant-woman-touching-her-belly-147978782">10 FACE/Shutterstock</a></span>
</figcaption>
</figure>
<p>However, this assertion is demonstrably false. There are no guidelines or regulations in Australia that discourage the creation of multiple embryos, as this practice enhances overall pregnancy rates, while making IVF safer and more cost-effective. </p>
<p>What is discouraged is the <em>transfer</em> of multiple embryos at one time, as this increases the likelihood of multiple births, which carry <a href="https://www.fertilitysociety.com.au/wp-content/uploads/20211124-RTAC-ANZ-COP.pdf">heightened medical risks</a> for both mothers and babies.</p>
<p>It seems the Chief Justice has fundamentally misunderstood the Australian regulatory framework. Ironically, the <a href="https://www.varta.org.au/sites/default/files/2023-11/VARTA_AR2023.pdf">excellent IVF outcomes</a> and very low rates of multiple births in Australia are largely attributable to the widespread use of frozen embryo transfer cycles – a practice now <a href="https://www.today.com/video/more-clinics-in-alabama-stop-ivf-treatments-after-court-ruling-204773957818">under threat</a> in Alabama.</p><img src="https://counter.theconversation.com/content/224365/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>I am a fertility specialist and a Medical Director of Genea Fertility Melbourne, a private IVF unit.</span></em></p>A recent ruling from the Supreme Court of Alabama implies frozen embryos are legally equivalent to living children. This creates risks for IVF providers, and therefore problems for patients.Alex Polyakov, Medical Director, Genea Fertility Melbourne; Clinical Associate Professor, Faculty of Medicine, Dentistry & Health Sciences, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2194952024-01-31T19:09:33Z2024-01-31T19:09:33ZWill abortion be the issue that swings the 2024 US presidential election?<p>Abortion is shaping up to be a central issue for both parties in the 2024 US presidential and Congressional elections.</p>
<p>Nearly two years ago, the US Supreme Court overturned the landmark Roe v. Wade decision, finding there was no constitutional right to abortion and returning regulation to the states.</p>
<p>Since that decision (a case known as Dobbs v. Jackson), <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">14 states</a> now ban abortion in almost all circumstances and ten have imposed restrictions, some of which have been blocked by the courts. <a href="https://apnews.com/article/abortion-dobbs-anniversary-state-laws-51c2a83899f133556e715342abfcface">One in three</a> women of reproductive age now live in states that have either banned or restricted abortion.</p>
<p>Abortion remains legal and protected in 26 states, plus the District of Columbia. </p>
<p>For decades, abortion has been central to partisan politics in the United States. Republicans made opposition to abortion a core part of their identity and voter mobilisation strategies. They pumped out so-called “<a href="https://www.nytimes.com/2024/01/12/us/politics/house-republicans-abortion-ban.html">messaging bills</a>” (dramatic legislation with little chance of passing or being upheld, such as the <a href="https://www.paul.senate.gov/news-sen-rand-paul-introduces-life-conception-act/">Life At Conception bill</a>), while <a href="https://link.springer.com/content/pdf/10.1007/978-3-030-01707-1.pdf">pledging</a> to end Roe v Wade.</p>
<p>Yet, abortion was not a make-or-break electoral cause. In 2018, sociologist <a href="https://www.wiley.com/en-au/Abortion+Politics-p-9780745688787">Ziad Munson</a> concluded</p>
<blockquote>
<p>[…] for the vast majority of the public, abortion is simply not a key issue they consider when deciding their vote.</p>
</blockquote>
<h2>Most Americans still support abortion rights</h2>
<p>Dobbs v. Jackson, however, transformed the political landscape. Support for abortion is now at a <a href="https://news.gallup.com/poll/506759/broader-support-abortion-rights-continues-post-dobbs.aspx">record high</a> among Americans, with 69% believing abortion should be legal in the first three months of pregnancy and 61% believing that overturning Roe v. Wade was a “bad thing”. </p>
<p>Women and young people have <a href="https://www.vox.com/policy-and-politics/2022/9/4/23333329/roe-voter-registration-dobbs-midterms-democrats">rushed</a> to register as new voters. And 21% of registered voters describe abortion as the issue they would be <a href="https://fivethirtyeight.com/features/abortion-was-always-going-to-impact-the-midterms/">unwilling to compromise on</a>, a sentiment most pronounced among Democrats and independents. </p>
<p>In the 2022 midterm elections in the US, voter anger over Dobbs v. Jackson was <a href="https://www.npr.org/2022/11/25/1139040227/abortion-midterm-elections-2022-republicans-democrats-roe-dobbs">widely</a> <a href="https://fivethirtyeight.com/features/abortion-was-always-going-to-impact-the-midterms/">credited</a> with stopping the expected “<a href="https://www.politico.com/news/2022/11/09/abortion-votes-2022-election-results-00065983">red wave</a>” in Congress and state races, even as President Joe Biden’s <a href="https://www.pewresearch.org/politics/2023/12/14/assessments-of-joe-biden/pp_2023-12-14_gop_2-01/">approval rating</a> hovered around 40%. </p>
<p>Abortion was also central to Democrats <a href="https://www.theguardian.com/us-news/2023/dec/20/democrats-virginia-abortion-strategy-roe-v-wade-2024-election">gaining control</a> of the Virginia state legislature in 2023.</p>
<p>Seven states have voted on abortion referendums since the Dobbs v. Jackson decision. All were <a href="https://www.politico.com/news/2023/11/09/abortion-rights-elections-red-states-00126225">decisive victories for reproductive rights</a>, including in <a href="https://www.washingtonpost.com/politics/2023/11/07/ohio-issue-1-election-results/">traditionally red</a> states such as Kansas, Kentucky and Ohio. In Ohio, one in five Republicans voted to constitutionally <a href="https://www.theguardian.com/us-news/2023/nov/17/ohio-abortion-rights-republicans-overturn">protect</a> abortion access in the state.</p>
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<h2>Democrats have an issue to rally support</h2>
<p>All of this points to abortion being a major issue in the presidential election later this year.</p>
<p>Biden, a practising Catholic, is an unlikely pro-choice ally. In 1973, he believed the Supreme Court went “<a href="https://www.nytimes.com/2019/03/29/us/politics/biden-abortion-rights.html">too far</a>” in the Roe v. Wade decision. During his decades in the Senate, his views <a href="https://www.nbcnews.com/politics/2020-election/biden-s-long-evolution-abortion-rights-still-holds-surprises-n1013846">evolved</a> and he now believes Roe v. Wade “<a href="https://www.cbsnews.com/news/joe-biden-abortion-catholic-faith-roe-v-wade-got-it-right/">got it right</a>.”</p>
<p>Initially, the Biden administration was slow to respond to the <a href="https://theconversation.com/what-would-amy-coney-barrett-trumps-pick-for-the-supreme-court-mean-for-abortion-rights-in-the-us-146931">palpable threat</a> to reproductive rights in the lead-up to Dobbs v. Jackson. It took Biden <a href="https://didbidensayabortionyet.org/">468 days</a> to publicly say the word abortion as president, and he still <a href="https://www.politico.com/news/2023/06/22/biden-abortion-2024-campaign-reelection-00103158">rarely</a> uses the term. </p>
<p>After Dobbs v. Jackson, however, both Biden and Vice President Kamala Harris became assertive in defence of abortion rights. Legislatively hamstrung, the administration used the <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/22/fact-sheet-president-biden-to-sign-presidential-memorandum-on-ensuring-safe-access-to-medication-abortion/">Food and Drug Administration</a>, the <a href="https://www.justice.gov/opa/pr/attorney-general-merrick-b-garland-statement-supreme-court-ruling-dobbs-v-jackson-women-s">Justice Department</a>, and <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2023/06/23/fact-sheet-biden-harris-administration-highlights-commitment-to-defending-reproductive-rights-and-actions-to-protect-access-to-reproductive-health-care-one-year-after-overturning-of-roe-v-wade/">executive orders</a> to try to protect and expand access to abortion and contraception across the country.</p>
<p>And abortion will be “<a href="https://www.politico.com/news/2023/06/22/biden-abortion-2024-campaign-reelection-00103158">front and centre</a>” for Democrats in the 2024 elections.</p>
<p>In <a href="https://www.nytimes.com/2023/11/08/us/politics/abortion-ads-democrats-election.html">advertisements</a>, <a href="https://www.youtube.com/watch?v=yGnc8JkaUII">Senate briefings</a>, <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/04/25/remarks-by-vice-president-harris-at-a-political-event-on-reproductive-rights/">campaign events</a>, and <a href="https://www.reuters.com/world/us/biden-harris-begin-abortion-rights-campaign-roe-v-wade-anniversary-2024-01-18/">television appearances</a>, Democrats emphasise the suffering caused by what they call “<a href="https://abcnews.go.com/Health/wireStory/bidens-campaign-pushes-abortion-rights-2024-battle-republicans-106483145">draconian</a>” Republican abortion bans and the advocacy work of doctors and reproductive rights groups.</p>
<p>To drive home the point, the Biden-Harris team made their first joint campaign appearance of the year in late January at a <a href="https://edition.cnn.com/2024/01/23/politics/biden-harris-abortion-rights/index.html">reproductive rights rally</a> in Virginia, a day after what would have been the 51st anniversary of the Roe v. Wade decision. </p>
<h2>For Republicans, it’s complicated</h2>
<p>Dobbs v. Jackson was the fulfilment of a Republican promise decades in the making. Publicly, Republicans celebrated. Privately, some believed the party was “<a href="https://www.politico.com/news/2022/06/25/the-dog-that-caught-the-car-republicans-brace-for-the-impact-of-reversing-roe-00042387">the dog that caught the car</a>”.</p>
<p>Anti-abortionists have always viewed overturning Roe v. Wade as merely a first step, with the ultimate goal being an end to legal abortion nationwide. Since Dobbs v. Jackson, anti-abortion groups have pushed for: </p>
<ul>
<li><p>a <a href="https://www.nytimes.com/2023/04/20/us/politics/trump-abortion-susan-b-anthony.html">federal abortion ban at 15 weeks and beyond</a> </p></li>
<li><p>state bills to outlaw <a href="https://www.washingtonpost.com/politics/2022/08/14/medicated-abortions-drugs-students-for-life/">abortion-inducing drugs</a> (now the most common type of abortion method) </p></li>
<li><p>“<a href="https://time.com/6191886/fetal-personhood-laws-roe-abortion/">foetal personhood</a>” laws that would extend legal rights to foetuses or embryos from the <a href="https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html">moment of fertilisation</a>, with likely consequences for in vitro fertilisation and some forms of contraception.</p></li>
</ul>
<p>Since the Republican primary campaigns began last year, however, <a href="https://apnews.com/article/iowa-republicans-presidential-candidates-abortion-55dd7067d626c4add1f1270c03e33655">the silence among prospective candidates</a> has been striking. </p>
<p>Most presidential aspirants have preferred to talk generically about “<a href="https://www.npr.org/2023/11/16/1213006071/republican-candidates-abortion-rights">protecting life</a>.” Nikki Haley, the only candidate remaining to challenge frontrunner Donald Trump, has spoken vaguely of the need for “<a href="https://www.washingtonpost.com/politics/2024/01/23/haley-abortion-new-hampshire/">consensus</a>” on abortion at the federal level.</p>
<p>As for Trump, he ran <a href="https://democrats.org/news/donald-trump-brags-about-his-role-in-overturning-roe-in-new-ads/">Facebook advertisements</a> before the Iowa caucuses last month calling himself “THE MOST Pro-Life President in history.” Yet, simultaneously, Trump is positioning himself as an abortion <a href="https://www.rollingstone.com/politics/politics-features/donald-trump-abortion-moderate-run-2024-election-1234893936/">moderate</a>. </p>
<p>Trump’s cynical about-face should come as no surprise. In 1999, Trump claimed to be “<a href="https://www.nbcnews.com/meet-the-press/video/trump-in-1999-i-am-very-pro-choice-480297539914">very pro-choice</a>.” By the 2016 Republican primaries, he had become much more <a href="https://www.washingtonpost.com/news/wonk/wp/2016/10/20/rip-the-baby-out-of-the-womb-what-donald-trump-got-wrong-about-abortion-in-america/">extreme</a> and <a href="https://edition.cnn.com/2016/03/30/politics/donald-trump-abortion-town-hall/index.html">controversial</a> in his rhetorical opposition to abortion.</p>
<p>Trump has repeatedly dodged questions about whether he supports a federal law, refusing to support the idea of a 15-week ban <a href="https://www.bbc.com/news/world-us-canada-66003915">championed</a> by his former vice president, Mike Pence. </p>
<p>In September, he described Florida Governor Ron DeSantis’ signing of a six-week abortion ban in his state as “<a href="https://www.pbs.org/newshour/politics/trump-labels-desantis-abortion-ban-a-terrible-mistake-riling-some-republicans">a terrible thing and a terrible mistake</a>.” Then, in January, Trump told a Fox News town hall audience that on abortion, “there has to be a little bit of a <a href="https://slate.com/news-and-politics/2024/01/donald-trump-abortion-bans-fox-news-town-hall.html">concession</a>.”</p>
<p>Initially, anti-abortion activists condemned Trump, even picketing one of his Miami rallies with signs declaring “<a href="https://www.rollingstone.com/politics/politics-features/anti-abortion-activists-protest-donald-trump-rally-florida-1234873608/">Make Trump Pro-Life Again</a>”. However, with Trump widely expected to be the Republican candidate, these groups are now <a href="https://www.washingtonpost.com/politics/2024/01/05/trump-abortion/">falling in line</a>. Ultimately, they need him far more than he needs them.</p>
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<p>The new Republican timidity about abortion does not mean that conservatives have had a fundamental change of heart. As Trump put it, “<a href="https://abcnews.go.com/Politics/trump-boasts-role-ending-roe-wade-abortion-regulations/story?id=106280890">you got to win elections</a>.” If they win the presidency and majorities in both houses of Congress in November, Republicans will most likely continue their assault on abortion and reproductive rights.</p>
<p>In January, Biden’s job approval rating hit <a href="https://abcnews.go.com/Politics/trump-tops-opponents-biden-hits-new-low-approval/story?id=106335244">record lows</a> at a time of historic inflation levels. Even though abortion has been political poison for Republicans, it <a href="https://time.com/6561898/donald-trump-voters-2024/">may not be enough</a> to help Democrats hold onto the White House.</p><img src="https://counter.theconversation.com/content/219495/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Prudence Flowers has received funding from the South Australian Department of Human Services. She is a member of the South Australian Abortion Action Coalition. </span></em></p>Democrats now have an issue to mobilise voters. For Republicans, however, it’s more complicated.Prudence Flowers, Senior Lecturer in US History, College of Humanities, Arts, and Social Sciences, Flinders UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2213892024-01-26T13:21:52Z2024-01-26T13:21:52ZMost state abortion bans have limited exceptions − but it’s hard to understand what they mean<figure><img src="https://images.theconversation.com/files/571261/original/file-20240124-27-dzfjqa.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Women who were denied abortions, despite serious pregnancy complications, appear outside the Texas Supreme Court in November 2023, following arguments in a lawsuit they brought against the state. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/plaintiffs-including-amanda-zurowski-speaks-at-a-press-news-photo/1807598346?adppopup=true">Suzanne Cordeiro/AFP via Getty Images </a></span></figcaption></figure><p>More than a year after the Supreme Court found there is no <a href="https://www.oyez.org/cases/2021/19-1392">fundamental right to get an abortion</a>, <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">21 states have laws in effect</a> that ban abortion well before fetal viability, generally allowing it only in the first trimester. </p>
<p>Fourteen of these 21 states have also issued near-total bans on abortion from the point of conception. But it’s not clear when, if ever, an abortion would be permissible under these near-total bans.</p>
<p>Virtually all states, including Arkansas, North Dakota and Oklahoma, for example, allow an <a href="https://www.kff.org/womens-health-policy/state-indicator/gestational-limit-abortions/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D">abortion when necessary</a> to save the life of the pregnant person. But the laws don’t explain just how close to death the person must be before the abortion can be performed. </p>
<p><a href="https://www.kff.org/womens-health-policy/issue-brief/a-review-of-exceptions-in-state-abortions-bans-implications-for-the-provision-of-abortion-services">Some states</a>, such as Georgia, Indiana and West Virginia, also include exceptions for health concerns, rape, incest or lethal fetal anomalies. </p>
<p>Most of these exceptions are <a href="https://www.nytimes.com/2023/12/17/opinion/kate-cox-abortion-texas-exceptions.html">vaguely worded</a>, leaving physicians and pregnant patients to navigate <a href="https://www.nashvillescene.com/news/citylimits/sarah-needed-an-abortion-her-doctors-needed-lawyers/article_472a621e-7fdb-11ed-bf8d-0797b6012be2.html">whether a particular abortion</a> <a href="https://www.washingtonpost.com/health/2022/07/16/abortion-miscarriage-ectopic-pregnancy-care/">would be legal</a>. </p>
<p><a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">As experts</a> on <a href="https://www.law.gwu.edu/sonia-m-suter">reproductive health and justice</a>, we are trying to untangle just what these different medical exceptions mean. This is an important question for legal experts, but also for doctors and caregivers, as well as people who are pregnant and their families – all trying to make sense of the various bans in effect. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People, some holding posters, march outside of a grey building that says 'Bans off our bodies' in white writing, against a hot pink backdrop." src="https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571258/original/file-20240124-17-qkkg3o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Anti-abortion activists protest outside a Planned Parenthood clinic in Washington, D.C., on Jan 18, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-and-anti-abortion-protesters-are-facing-off-in-front-of-news-photo/1935914291?adppopup=true">Aaron Schwartz/NurPhoto via Getty Images</a></span>
</figcaption>
</figure>
<h2>Steep penalties, murky legal language</h2>
<p>Because these different state laws use nonmedical language and threaten steep penalties – such as <a href="https://www.americanprogress.org/article/a-year-after-the-supreme-court-overturned-roe-v-wade-trends-in-state-abortion-laws-have-emerged/">life imprisonment</a> – for performing an abortion that violates the statute, some <a href="https://www.nbcnews.com/health/health-news/risky-pregnancy-abortion-doctors-consult-lawyers-rcna37651">physicians have been turning to lawyers for guidance</a>. </p>
<p>For example, Tennessee <a href="https://law.justia.com/codes/tennessee/2021/title-39/chapter-15/part-2/section-39-15-213/">has an exception</a> that allows abortions “necessary to prevent the death of the pregnant woman or to prevent serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman.” And West Virginia allows abortions for “nonviable” fetuses, <a href="https://code.wvlegislature.gov/16-2R-2/">defined as those with a “lethal anomaly</a> … incompatible with life outside of the uterus.”</p>
<p>These exceptions are confusing to health care providers, in part because the laws <a href="https://scholarship.shu.edu/shlr/vol53/iss5/2">assume a certainty in medicine that may not exist</a>. The laws also <a href="https://www.cnn.com/2023/12/15/us/texas-abortion-ban-emergency-medical-exception/index.html">do not rely on medical terms</a>. </p>
<p>This means that health care providers in states where abortion is banned – apart from these limited exceptions – are reluctant to provide abortions under any circumstances, <a href="https://www.latimes.com/world-nation/story/2022-07-29/fearful-of-prosecution-doctors-debate-how-to-treat-pregnant-patients">even in the face of life-threatening conditions</a> or severe <a href="https://jessica.substack.com/p/abortion-exceptions-dont-exist">fetal anomalies</a>. </p>
<p>The rate of abortions in the states where there is a near-total or total ban <a href="https://www.axios.com/2023/10/24/abortion-increase-roe-wade-state-ban">decreased by 100%</a> from April 2022, just before the <a href="https://www.oyez.org/cases/2021/19-1392">Supreme Court overturned</a> the right to an abortion, through June 2023.</p>
<h2>Legal action for answers</h2>
<p>Some health care providers and their patients have sued to find out just when abortions might be permitted. </p>
<p>Courts in different states, from the trial court to the supreme court level, are now being forced to consider these questions and have begun to weigh in with opinions that lead to even more uncertainty. At the heart of this litigation is <a href="https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3550&context=shlr">how to balance doctors’ conflicting obligations</a>
to provide the best medical care, which could include offering an abortion that they fear state bans may prohibit. </p>
<p>And because each state uses its own language to define a ban and its exceptions, one court’s opinion regarding its ban does not dictate how another state’s ban should be interpreted. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a black outfit stands at a podium in front of a long row of women who stand looking forward." src="https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571484/original/file-20240125-21-169abh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Center for Reproductive Rights attorney Molly Duane speaks outside the Texas Supreme Court in Austin, joined by the plaintiffs in the organization’s abortion clarification suit against the state.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/center-for-reproductive-rights-attorney-molly-duane-news-photo/1807623427?adppopup=true">Suzanne Cordeiro/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>Texas’ abortion ban</h2>
<p>Texas is one of the states that banned nearly all abortions in 2022. Texas law allows an abortion only when there is a “medical emergency” for the pregnant person, defined as a “life-threatening physical condition” related to the pregnancy that “poses a serious risk of substantial impairment of a <a href="https://statutes.capitol.texas.gov/Docs/HS/htm/HS.170A.htm#:%7E:text=Sec.-,170A.,induce%2C%20or%20attempt%20an%20abortion.">major bodily function</a>.”</p>
<p>In March 2023, the advocacy group Center for Reproductive Rights filed a lawsuit on behalf of a group of Texas women and two obstetricians-gynecologists, seeking clarification over when Texas’ ban allows an abortion. </p>
<p><a href="https://reproductiverights.org/zurawski-v-texas-plaintiffs-stories-remarks/">The Texas women</a>, who faced serious pregnancy-related health risks or very low odds of their baby’s survival outside the womb, were denied abortions or told to wait until death was more imminent. Some of the women got abortions outside of Texas, and others gave birth to babies who lived only briefly because of serious fetal health problems.</p>
<p><a href="https://reproductiverights.org/case/zurawski-v-texas-abortion-emergency-exceptions/zurawski-v-texas/">The plaintiffs argued</a> that the law’s confusing language – as well as the <a href="https://www.nytimes.com/2023/12/14/podcasts/the-daily/texas-abortion-ban.html?showTranscript=1">threat to physicians</a> of 99 years in jail, $100,000 in fines and a loss of their medical license – led to delays or denials of medical treatment they needed. </p>
<p>In August 2023, a Texas trial court judge blocked enforcement of the state’s abortion ban when “in a physician’s good faith judgment and in consultation with the pregnant person, the pregnant person has an emergent medical <a href="https://statecourtreport.org/sites/default/files/fastcase/additionalPdfs/processed/District%20Court%20-Order%20Granting%20Injunction%20-08.04.2023.pdf">condition requiring abortion care</a>.” This could include medical conditions that make it unsafe to continue the pregnancy or diagnosis of a fetal abnormality that would not allow it to survive after birth. </p>
<p>Texas appealed this decision to the state Supreme Court. The lower court decision is on hold until the Supreme Court issues its final decision; the court has not <a href="https://www.texastribune.org/2023/11/28/texas-supreme-court-abortion/">said when it would rule</a>.</p>
<p>Because there is still no definitive decision on how to interpret the Texas law, pregnant patients have been left in limbo. </p>
<p>Katie Cox, for example, is a Texas woman who was diagnosed when she was 20 weeks pregnant with a <a href="https://msmagazine.com/2023/12/13/welcome-to-the-pro-life-dystopia/">severe fetal anomaly</a> called trisomy 18. Carrying the pregnancy to term would have threatened her fertility, potentially preventing the mother of two from birthing more children in the future. </p>
<p>After <a href="https://www.nytimes.com/2023/12/14/podcasts/the-daily/texas-abortion-ban.html?showTranscript=1">Cox’s doctor</a> explained it was not an option in Texas to terminate the pregnancy, Cox and her doctor went to court seeking judicial approval for <a href="https://www.texastribune.org/2023/12/07/texas-emergency-abortion-lawsuit/">an abortion</a>. </p>
<p>Travis County District Judge Maya Guerra Gamble granted permission in December 2023, finding that it would be a “miscarriage of justice” to prohibit <a href="https://abc13.com/texas-abortion-ban-attorney-general-ken-paxton-katie-cox-block-ruling/14155514/">Cox from ending her pregnancy</a>. </p>
<p>But days later, the Texas Supreme Court blocked the district court ruling. It <a href="https://www.txcourts.gov/media/1457645/230994pc.pdf">conceded that Cox’s pregnancy was “extremely complicated</a>,” but refused to find that state law permitted the abortion. Cox left the state to get an abortion. </p>
<p>The Texas Supreme Court opinion in December still left many questions unanswered. The court stated that a judicial order was not required to permit a doctor to perform an abortion in the case of a medical emergency. <a href="https://www.txcourts.gov/media/1457645/230994pc.pdf">But it also interpreted the law as setting an objective standard as to whether the exception applied</a>. </p>
<p>That left open the possibility that the state could find an expert witness to challenge the physician’s judgment. </p>
<h2>A thread of uncertainty</h2>
<p>Since 2022, the Center for Reproductive Rights has also brought <a href="https://apnews.com/article/supreme-court-abortion-medical-emergencies-idaho-8ca89d7de0c1fa9256dcd27d1847e144#:%7E:text=The%20Supreme%20Court%20is%20allowing,ban%2C%20even%20in%20medical%20emergencies&text=WASHINGTON%20(AP)%20%E2%80%94%20The%20Supreme,while%20a%20legal%20fight%20continues">lawsuits in Idaho</a>, <a href="https://apnews.com/article/abortion-tennessee-lawsuit-fd630c5f55f605597d8eaa2800abbcfd#:%7E:text=WHAT%20THE%20LAWSUIT%20SEEKS%20TO,to%20legally%20receive%20an%20abortion">Tennessee</a> <a href="https://www.reuters.com/world/us/women-denied-abortions-file-lawsuits-idaho-tennessee-oklahoma-over-bans-2023-09-12/">and Oklahoma</a>, <a href="https://reproductiverights.org/exceptions-complaints-idaho-tennessee-oklahoma/">seeking clarity</a> on medical emergency exceptions in the states’ abortion bans.</p>
<p>The lawsuit’s underlying claim is that uncertainty about the scope of the exceptions has, according to the Idaho complaint, “sown confusion, fear and chaos among the medical community, resulting in grave harms to pregnant patients whose health and safety hang in the <a href="https://reproductiverights.org/wp-content/uploads/2023/09/ID-Complaint-Final-9-12.pdf">balance across the state</a>.” </p>
<p>What all of these cases and stories show is that even when abortion bans claim to allow exceptions based on medical judgment, physicians – and their patients – <a href="https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3550&context=shlr">know their decisions</a> can be second-guessed and challenged in court.</p><img src="https://counter.theconversation.com/content/221389/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Women in Texas and in other states with abortion bans are suing, asking for clarification on when medical exceptions could actually be granted.Naomi Cahn, Professor of Law, University of VirginiaSonia Suter, Professor of law, George Washington UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168972023-12-04T13:27:26Z2023-12-04T13:27:26ZTexas is suing Planned Parenthood for $1.8B over $10M in allegedly fraudulent services it rendered – a health care economist explains what’s going on<figure><img src="https://images.theconversation.com/files/562238/original/file-20231128-21-zr2ypf.jpg?ixlib=rb-1.1.0&rect=0%2C1087%2C5094%2C2238&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Texas authorities have long sought to kick Planned Parenthood out of the state.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/PlannedParenthoodMedicaid/61c31f85fab64d1893cc49aa2c9444ae/photo?boardId=37be9465fcce45d283d5431cccb20a6a&st=boards&mediaType=audio,photo,video,graphic&sortBy=&dateRange=Anytime&totalCount=469&currentItemNo=2">AP Photo/Eric Gay</a></span></figcaption></figure><p>Planned Parenthood no longer provides abortions in Texas, Louisiana and the other 10 <a href="https://www.guttmacher.org/2023/01/six-months-post-roe-24-us-states-have-banned-abortion-or-are-likely-do-so-roundup">states that have essentially banned abortion</a> <a href="https://theconversation.com/one-year-after-the-fall-of-roe-v-wade-abortion-care-has-become-a-patchwork-of-confusing-state-laws-that-deepen-existing-inequalities-207390">since the Supreme Court handed down its Dobbs v. Jackson decision</a> in June 2022.</p>
<p>But the nonprofit is still providing other services for patients in those places, including cancer screening, contraception and the treatment of HIV and sexually transmitted infections. And <a href="https://www.texastribune.org/2023/08/15/texas-abortion-planned-parenthood-lawsuit/">Texas hasn’t given up</a> on its long-running quest to force the group, which <a href="https://apnews.com/article/abortion-planned-parenthood-states-layoffs-equity-8ca79602fd28226538e5f6148a202646">provides reproductive health care</a> in its nearly 600 U.S. clinics, to stop operating within its borders.</p>
<p>Alongside an anonymous whistleblower identified as “Alex Doe,” <a href="https://www.texastribune.org/2022/01/13/texas-medicaid-planned-parenthood-lawsuit/">Texas authorities are suing Planned Parenthood</a> <a href="https://www.texastribune.org/2023/08/15/texas-abortion-planned-parenthood-lawsuit/">for more than US$1.8 billion</a> in penalties and fees over what they allege are fraudulent Medicaid reimbursements. </p>
<p><a href="https://www.plannedparenthood.org/about-us/newsroom/press-releases/the-facts-on-united-states-ex-rel-doe-v-planned-parenthood-federation-of-america-the-meritless-case-that-could-shut-down-planned-parenthood">Planned Parenthood denies</a> having committed Medicaid fraud. It calls the lawsuit “<a href="https://apnews.com/article/health-texas-medicaid-planned-parenthood-14379403b715dd838b0d18efab629db3">another political attack</a>.”</p>
<p>As an economist who <a href="https://www.grahamgardnerecon.com/">studies the health effects of restricted abortion access</a>, I believe that if Texas prevails in this federal lawsuit, Texans will have even less access to sexual and reproductive health care. Notably, <a href="https://www.texmed.org/Template.aspx?id=59688">the state ranked 50th</a> in access to high-quality prenatal and maternal health care in 2022, and maternal mortality rates in the state more than <a href="https://www.axios.com/local/dallas/2023/07/24/maternal-mortality-in-texas">doubled between 1999 and 2019</a>. The elimination of Planned Parenthood facilities across Texas will likely exacerbate the dismal conditions of reproductive care in the state.</p>
<h2>Blocking Medicaid funds</h2>
<p>Medicaid, a government program that helps low-income people get health care, <a href="https://www.kff.org/medicaid/issue-brief/medicaid-financing-the-basics/.">provides roughly $728 billion in services</a> annually. The federal and state governments split its costs.</p>
<p>In 2016, Texas <a href="https://www.texastribune.org/2016/12/20/texas-kicks-planned-parenthood-out-medicaid/">removed Planned Parenthood from its list of qualified Medicaid</a> providers, blocking Planned Parenthood clinics across the state from receiving any federal or state dollars to pay for expenses covered by Medicaid. Lower courts <a href="https://www.nytimes.com/2017/02/21/us/texas-planned-parenthood-medicaid.html">initially prevented this policy from going into effect</a>. </p>
<p>But in 2020, the <a href="https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2020/Press/EnBancOpinion.pdf">5th U.S. Circuit Court of Appeals ruled</a> that the state may exclude Planned Parenthood from receiving Medicaid reimbursement. Since then, Planned Parenthood has continued to operate in Texas, but the availability of health services to the nearly <a href="https://www.plannedparenthood.org/planned-parenthood-gulf-coast/checkup-2021/texas-medicaid-exclusion">8,000 Planned Parenthood patients who rely on Medicaid</a> in the state has been put at risk. </p>
<h2>New legal salvo</h2>
<p>Texas now alleges that Planned Parenthood defrauded the state by billing expenses through Medicaid between 2016 and 2020 while its litigation was pending. The group counters that it legitimately billed Medicaid while the law was blocked by pending legal challenges. </p>
<p>Although Texas doesn’t dispute that the nonprofit provided the health care services for which it billed the state, and which the state paid for, Texas seeks the repayment of <a href="https://www.texastribune.org/2022/01/13/texas-medicaid-planned-parenthood-lawsuit/">$10 million in Medicaid reimbursements</a>.</p>
<p>The potential liability is far larger because it also includes interest, legal fees and civil penalties adding up to more than $1.8 billion. Planned Parenthood says <a href="https://www.plannedparenthood.org/about-us/newsroom/press-releases/statement-from-planned-parenthood-texas-affiliates-and-ppfa-following-oral-arguments-in-baseless-medicaid-false-claims-act-case">the financial burden of the lawsuit</a>, if the state wins, would significantly limit its ability to continue to operate in Texas. </p>
<p>This litigation originated in 2021, when the anonymous whistleblower brought a case against Planned Parenthood under the <a href="https://www.justice.gov/civil/false-claims-act">False Claims Act</a>, which allows an individual to file a lawsuit on behalf of the government.</p>
<p>The <a href="https://clearinghouse.net/case/43987/">state of Texas joined the lawsuit</a> under the direction of Attorney General Ken Paxton in 2022. The case was filed in Amarillo, an area without a Planned Parenthood facility – a jurisdiction that might seem an unlikely choice. There’s one good explanation, however: All cases filed there are heard by <a href="https://apnews.com/article/texas-judge-matthew-kacsmaryk-abortion-pill-fda-75964b777ef09593a1ad948c6cfc0237">U.S. District Judge Matthew Kacsmaryk</a>.</p>
<p>The Trump-appointed judge made headlines in early 2023 when he <a href="https://www.reuters.com/legal/us-judge-hands-anti-abortion-groups-partial-win-over-abortion-pill-2023-04-07/">suspended the approval of a common abortion-inducing pill</a>. Kascmaryk’s anti-abortion history on the bench makes him a strategic choice to rule on the case against Planned Parenthood.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Man in a suit and tie looks askance." src="https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562240/original/file-20231128-29-q9upvc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Texas is suing Planned Parenthood as directed by Ken Paxton, the state’s attorney general.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TexasAttorneyGeneralIndictment/64e2bf2f0f2547eab6935851fb542be2/photo?Query=ken%20paxton&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=868&currentItemNo=1">AP Photo/Eric Gay</a></span>
</figcaption>
</figure>
<h2>Reduced health care access</h2>
<p>Texas has been curtailing public funding to Planned Parenthood clinics since at least 2011, when the state cut its family planning budget from <a href="https://doi.org/10.1056%2FNEJMp1207920">$111 million to $38 million</a>.</p>
<p>Following those cuts, <a href="https://www.tpr.org/government-politics/2023-09-15/after-a-decade-of-state-led-attacks-texas-seeks-to-bankrupt-planned-parenthood">82 Texas clinics subsequently closed</a> or stopped providing family planning services, about one-third of which were Planned Parenthood affiliates. Many that remained open <a href="https://www.nejm.org/doi/10.1056/NEJMp1207920">reduced their hours</a> under the financial strain.</p>
<p>Texas’ publicly funded family planning clinics <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4386528/">served 54% fewer patients after the budget cuts</a>. Then, in 2013, Texas stopped letting abortion providers and affiliates get any funding through the Texas Women’s Health Program – a decision that caused the federal government to remove all financial support to it.</p>
<p>In response, Texas restructured the program under a new name: “<a href="https://www.texastribune.org/2017/05/05/healthy-texas-women-program-billboards-are-not-enough/">Healthy Texas Women</a>,” entirely funded through the state.</p>
<p>Having lost those funds, <a href="https://www.washingtonpost.com/posteverything/wp/2017/02/07/defunding-planned-parenthood-was-a-disaster-in-texas-congress-shouldnt-do-it-nationally/">31 of Texas’ remaining 74 Planned Parenthood-affiliated clinics closed</a> by 2017.</p>
<h2>Trial slated for April 2024</h2>
<p>This case, which <a href="https://www.reuters.com/legal/planned-parenthood-must-face-trial-over-texas-medicaid-fraud-claims-2023-10-24/">goes to trial in April 2024</a>, targets the three remaining Texas Planned Parenthood affiliates that operate roughly 35 clinics – <a href="https://www.plannedparenthood.org/planned-parenthood-gulf-coast/patients/locations-hours">two of which are in Louisiana</a>.</p>
<p>By late 2023, <a href="https://www.guttmacher.org/state-policy/explore/state-family-planning-funding-restrictions">18 states had abortion-related laws</a> on their books restricting state funds for family planning. Most of these laws target abortion providers, but in only six states does this restriction apply to clinics affiliated with those organizations.</p>
<p>Currently, only Texas prevents Planned Parenthood from receiving any Medicaid funds. Louisiana had an opportunity to join the lawsuit in Texas but instead <a href="https://www.vox.com/politics/2023/5/24/23725897/abortion-planned-parenthood-matthew-kacsmaryk-supreme-court-medical-progress-medicaid">settled with Planned Parenthood</a>, which allowed the organization to continue to receive Medicaid funds in the state.</p>
<p>But legislation in Texas often spurs copycat bills elsewhere. A 2022 Texas restriction on abortion procedures after six weeks of gestation was <a href="https://www.cnn.com/2022/04/28/politics/oklahoma-heartbeat-act/index.html">quickly copied by Oklahoma</a>, <a href="https://www.austinwomenshealth.com/copycat-bans-follow-after-texas-sb-8/">South Dakota</a> and <a href="https://www.forbes.com/sites/alisondurkee/2022/03/23/idaho-enacts-law-copying-texas-abortion-ban---and-these-states-might-be-next/?sh=1a93969525c0">Idaho</a>. </p>
<p>It’s reasonable to expect that other states may pass similar restrictions on Medicaid funding to Planned Parenthood. Already, <a href="https://www.thecentersquare.com/national/article_88fa51ca-1146-11ee-a769-b3bafe8d2051.html">related litigation filed in South Carolina</a> <a href="https://governor.sc.gov/news/2023-06/governor-henry-mcmaster-releases-statement-following-us-supreme-courts-ruling-kerr-v">is pending</a>.</p>
<h2>IUDs and cancer screening</h2>
<p>Planned Parenthood clinic closures and the reimbursement restrictions it faces are reducing the availability of reproductive health services, particularly for low-income people.</p>
<p>After the change in the Healthy Texas Women program, the provision of Medicaid-funded, long-acting reversible contraceptives – a category that includes intrauterine devices (IUDs) and contraceptive implants – fell by 35%, and <a href="https://doi.org/10.1056%2FNEJMsa1511902">Medicaid-paid obstetric care for people giving birth increased by 27%</a>. </p>
<p>In 2015, Texas prohibited Planned Parenthood from receiving <a href="https://www.texastribune.org/2015/08/10/planned-parenthood-be-cut-cancer-screening-program/">state funds for breast and cervical cancer screenings</a> and terminated a contract with Planned Parenthood Gulf Coast to <a href="https://www.texastribune.org/2015/12/22/texas-drops-planned-parenthood-hiv-prevention-prog/">financially support its HIV prevention program</a>.</p>
<p>If the court rules against Planned Parenthood, and the ruling stands after the appeals process that would certainly follow such a decision, access to sexual and reproductive health services in Texas will decline further. </p>
<p>While the lawsuit could bankrupt Planned Parenthood affiliates in the state, driving the organization out at last, it does not appear likely that the national organization would have to foot this massive legal bill and face jeopardy on a larger scale.</p>
<p>And I have no doubt that Texas’ remaining reproductive health care clinics would surely experience an overwhelming demand for their services while trying to fill the gaps left behind.</p><img src="https://counter.theconversation.com/content/216897/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Graham Gardner is affiliated with the Society of Family Planning. </span></em></p>This lawsuit is only the latest chapter in a battle between the state and the reproductive health care provider that heated up in 2011.Graham Gardner, Assistant Professor of Economics, Texas Christian UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2172492023-11-09T18:48:39Z2023-11-09T18:48:39ZAbortion rights victories show this issue is unlikely to fade in 2024 elections − 3 things to know<figure><img src="https://images.theconversation.com/files/558413/original/file-20231108-17-safd3t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion rights supporters celebrate Issue 1 passing in Ohio on Nov. 7, 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-supporters-celebrate-winning-the-referendum-news-photo/1769771636?adppopup=true">Megan Jelinger/AFP via Getty Images </a></span></figcaption></figure><p>Abortion rights advocates <a href="https://www.npr.org/2023/11/08/1211429268/abortion-rights-2023-election-ohio-virginia-kentucky">won major victories</a> in several state elections on Nov. 7, 2023, signaling that abortion laws are likely to continue to play an important role in the 2024 elections. </p>
<p>In Ohio, the only state where abortion was directly on the ballot, more than <a href="https://www.washingtonpost.com/politics/2023/11/07/abortion-ohio-kentucky-virginia-elecitons/">56% of voters in the conservative-leaning</a> state approved a measure called Issue 1. </p>
<p>This <a href="https://apnews.com/article/ohio-abortion-amendment-election-2023-fe3e06747b616507d8ca21ea26485270">constitutional amendment protects people’s right</a> to <a href="https://www.ohioattorneygeneral.gov/getattachment/cf27c10f-b153-4731-ae9e-e3555a326ed9/The-Right-to-Reproductive-Freedom-with-Protections-for-Health-and-Safety.aspx">have an abortion</a> in Ohio, as well as to get contraception and receive treatment for fertility issues and miscarriages.</p>
<p>Virginia Democrats, who campaigned on preserving abortion rights, maintained control of the state Senate and <a href="https://apnews.com/article/virginia-legislature-election-2023-79f9337731c25decc83b83eeb4d3e00e">took control of Virginia’s House of Delegates</a> from Republicans. While <a href="https://lis.virginia.gov/cgi-bin/legp604.exe?231+sum+SB1483">abortion is legal</a> in Virginia until the 26th week of pregnancy, Republican Gov. Glenn Youngkin has said he wanted the legislature to enact <a href="https://www.washingtonpost.com/dc-md-va/2023/11/08/virginia-senate-house-election-results-2023/">a ban on abortion</a> after 15 weeks of pregnancy. </p>
<p>And in Kentucky, Gov. <a href="https://www.washingtonpost.com/politics/2023/11/07/kentucky-governor-election-results-2023/">Andy Beshear, a Democrat, won reelection</a>. During his campaign, Beshear promised to protect abortion rights and highlighted Republican opponent Daniel Cameron’s support for Kentucky’s <a href="https://theconversation.com/in-first-nationwide-election-since-roe-was-overturned-voters-opt-to-protect-abortion-access-194140">near-total ban on abortion</a>. </p>
<p>We are <a href="https://scholar.google.com/citations?user=CcAfO1UAAAAJ&hl=en">scholars of law,</a> <a href="https://scholar.google.com/citations?user=4bgaJCQAAAAJ&hl=en">gender and health</a> and co-direct Boston University’s Program on Reproductive Justice.</p>
<p>We wrote last year that new constitutional amendments protecting a right to abortion in states usually considered “red,” like Kansas, <a href="https://theconversation.com/in-first-nationwide-election-since-roe-was-overturned-voters-opt-to-protect-abortion-access-194140">were not flukes</a>. Rather, such wins, which have happened in <a href="https://ballotpedia.org/2023_and_2024_abortion-related_ballot_measures">six other states</a> since 2022, affirm a broader trend. The majority of U.S. voters support laws protecting access to abortion and other reproductive care. </p>
<p>Here are three important things to know about the election results.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman closes her eyes and appears to be crying, surrounded by other people." src="https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/558418/original/file-20231108-21-dsckc0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Abortion rights supporters in Columbus, Ohio, celebrate winning the right to enshrine abortion in the state’s constitution.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-supporters-celebrate-winning-the-referendum-news-photo/1769779581?adppopup=true">Megan Jelinger/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>1. Votes amending state constitutions are key to protecting abortion rights</h2>
<p>Ohio voted for former President Donald Trump in 2016 and in 2020. In recent years, it has been considered a toss-up state that is turning “red.” </p>
<p>In the days leading up to the 2023 election, <a href="https://www.politico.com/news/2023/10/11/conservatives-ohio-abortion-referendums-00120837">some conservative commentators observed</a> that “anti-abortion groups are banking on Ohio to end the movement’s run of state-level losses and create a blueprint for battles in 2024 and beyond.”</p>
<p>Instead, most Democratic and independent voters, and some Republican voters, <a href="https://www.msn.com/en-us/news/politics/exit-poll-results-from-ohio-issue-1-ballot-measure-on-abortion-rights/ar-AA1jyKvR">cast their ballots in favor of Issue 1,</a> rejecting Ohio’s law that bans abortion after six weeks.</p>
<p>This followed on the heels of a recent high-profile case in which a 10-year-old Ohio girl had to travel to Indiana to <a href="https://www.nbcnews.com/health/health-news/indiana-doctor-gave-10-year-old-girl-abortion-disciplinary-hearing-rcna86214">have an abortion after she was raped</a> and could not have the procedure in Ohio. Notably, physicians <a href="https://twitter.com/OURR2023/status/1719345494130885114?s=20">vocally opposed</a> <a href="https://drive.google.com/file/d/1-hgtRAaGszSvdZy7krZ_FZrMKSgZqHSg/view">Ohio’s restrictive laws</a>.</p>
<p>This new constitutional amendment means that <a href="https://www.dispatch.com/story/news/2022/07/02/roe-v-wade-abortion-supreme-court-ohio-dewine-heartbeat-bill/7767433001/">Ohio’s 2019 law</a> that prohibited abortion as soon as fetal cardiac activity could be detected – as early as six weeks into pregnancy – will not be allowed to take effect. A lower state court stopped enforcement of the six-week ban, but the case was making its way to the Ohio Supreme Court, whose seven members are mostly Republicans that have publicly <a href="https://www.npr.org/2023/11/07/1209092670/2023-results-key-ohio-elections">opposed abortion rights</a>.</p>
<p>Now, the Republican-controlled Ohio legislature <a href="https://www.ohiosos.gov/legislation-and-ballot-issues/putting-an-issue-on-the-ballot/citizen-initiated-constitutional-amendment/">does not have the power</a> to amend or stop the new constitutional amendment or to enforce the six-week ban. </p>
<p>Lawmakers may still campaign to repeal Issue 1, but this change would require voters to first approve a different ballot initiative.</p>
<p>While state constitutions are amended much more frequently than the U.S. Constitution, a majority of voters in Ohio showed they support abortion rights, so another ballot measure seems unlikely. </p>
<h2>2. Reframing abortion restrictions does not fool voters</h2>
<p>In Virginia, Democratic candidates campaigned on preserving abortion rights, while Republican candidates <a href="https://abcnews.go.com/Politics/democrats-republicans-release-dueling-abortion-ads-high-stakes/story?id=103598015">charged Democrats</a> with being obsessed with abortion. </p>
<p>Some Republican candidates also denied that they supported an abortion ban. Instead, they attempted to describe Youngkin’s <a href="https://www.nytimes.com/2023/11/04/us/politics/abortion-ohio-kentucky-virginia-election.html">proposed 15-week ban</a> as “legislation that reflects compassionate common sense.”</p>
<p>The election results suggest that a majority of Virginia voters effectively rejected this proposed ban on abortion after 15 weeks.</p>
<p>Instead, they elected Democratic candidates who pledged to protect abortion rights in the one Southern state that had not enacted new <a href="https://www.forbes.com/sites/alisondurkee/2023/11/08/abortion-rights-victories-continue-here-are-all-the-wins-in-major-elections-since-the-supreme-court-overturned-roe/?sh=5825d21026ad">restrictive abortion laws</a> since the Supreme Court overturned Roe v. Wade in 2022.</p>
<p>With Democrats controlling both legislative chambers in Virginia, new bills will stall, and the legislative majority can counter other restrictive measures that are proposed. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Andy Beshear stands in a dark blue suit at a podium that has his name on it, surrounded by three women on a stage." src="https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/558422/original/file-20231108-23-ys1tah.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Kentucky Gov. Andy Beshear, who campaigned on abortion rights, delivered his victory speech on Nov. 7, 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/kentucky-incumbent-democratic-gov-andy-beshear-is-joined-by-news-photo/1781193061?adppopup=true">Stephen Cohen/Getty Images</a></span>
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</figure>
<h2>3. Abortion rights matter up and down the ballot</h2>
<p>Beshear placed abortion at the center of his campaign for governor in Kentucky, even though the state has a <a href="https://apnews.com/article/abortion-kentucky-governor-campaign-ec767bf7802852d48ea150b7118fc90c">near-total ban</a> on all abortions and does not have any exceptions for cases of incest or rape. </p>
<p>His win, as well as the <a href="https://www.inquirer.com/politics/election/pennsylvania-supreme-court-election-results-2023-20231107.html">Pennsylvania Supreme Court election</a> that resulted in one more Democrat joining the court and creating a majority, suggests that highlighting abortion rights in election campaigns can be an <a href="https://apnews.com/article/kentucky-primary-governors-race-election-2023-e8df45cd3978ce5a1691ba447c84bafc">effective way to draw in voters</a>. </p>
<p>While Kentucky voters said the economy is a top issue for them, they have also said <a href="https://www.kentucky.com/news/politics-government/election/article281536793.html">abortion and other basic rights </a> are important, too. </p>
<p>Beshear’s campaign <a href="https://www.youtube.com/watch?v=BQ_qeTQz_Es">ran an unusual advertisement</a> featuring Hadley Duvall, a Kentucky resident who was raped by her stepfather at age 12. She became pregnant but later miscarried. Duvall, now 20 years old, appeared in the television advertisement and challenged Cameron’s <a href="https://www.aclu.org/wp-content/uploads/2023/02/SCOKY-Opinion-Feb-16-2023.pdf">support for Kentucky’s law</a>, which allows an abortion only in order to save the life of a pregnant woman – while instructing doctors to try to save the fetus, too.</p>
<p>The ad <a href="https://www.cincinnati.com/story/news/local/northern-ky/2023/10/05/kentucky-abortion-debate-hadley-duvall-commercial-daniel-cameron-andy-beshear/71077318007/">resonated with voters</a>, even in a state that now <a href="https://www.axios.com/2022/04/14/kentucky-abortion-clinics-stop-provider-law-ban">has no abortion clinics</a>.</p>
<p>Beshear’s reelection shows that politicians can effectively push for laws that walk back from near-total abortion bans, such as making exceptions in cases of rape or incest. In 2022, Kentucky voters already <a href="https://www.pbs.org/newshour/politics/kentucky-voters-reject-constitutional-amendment-on-abortion">rejected a state constitutional amendment</a> that would have prevented recognizing a right to abortion in the state. </p>
<p>These different state elections point in one clear direction.</p>
<p>Abortion <a href="https://www.kff.org/womens-health-policy/press-release/abortion-access-rises-as-a-voting-issue-and-motivator-especially-among-democrats-and-reproductive-age-women-but-inflation-continues-to-dominate-as-americans-worry-about-bills/">increasingly matters to voters</a>. And most voters do not want laws <a href="https://news.gallup.com/poll/321143/americans-stand-abortion.aspx">severely restricting abortion</a> and other kinds of reproductive health care. </p>
<p>The 2023 election outcomes also suggest that Democratic candidates can effectively use abortion as a campaign issue. This will be critical for the general elections in 2024.</p><img src="https://counter.theconversation.com/content/217249/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The new constitutional amendment to protect the right to abortion in Ohio − as well as other wins for Democrats − shows the importance of ballot initiatives and focusing on abortion in elections.Nicole Huberfeld, Professor of Health Law and Professor of Law, Boston UniversityLinda C. McClain, Professor of Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2168842023-11-09T13:35:47Z2023-11-09T13:35:47ZAs national political omens go, Republicans sought middle ground on abortion in Virginia − and still lost the state legislature<figure><img src="https://images.theconversation.com/files/558378/original/file-20231108-21-ta5abq.jpg?ixlib=rb-1.1.0&rect=2219%2C421%2C3631%2C3473&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Gov. Glenn Youngkin speaks during a rally in Leesburg, Va., on Nov. 6, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/gov-glenn-youngkin-speaks-during-a-get-out-the-vote-rally-news-photo/1779369936?adppopup=true">Alex Wong/Getty Images</a></span></figcaption></figure><p>The <a href="https://apnews.com/article/virginia-legislature-election-2023-79f9337731c25decc83b83eeb4d3e00e">election results</a> in Virginia offer Republicans across the country one key lesson before the 2024 presidential election: Revise the GOP position on the critical issue of abortion. </p>
<p>Though not on the ballot, GOP Gov. Glenn Youngkin had campaigned for other GOP members on his plan to <a href="https://www.thedailybeast.com/virginia-gov-glenn-youngkin-bet-on-a-less-extreme-abortion-ban-and-lost">ban abortions after 15 weeks</a>, as opposed to the outright abortion ban that some Virginia politicians have promised to pass. Political observers saw Youngkin’s plan as a compromise that would limit the political fallout for the GOP from the U.S. Supreme Court’s <a href="https://www.nytimes.com/2022/06/24/us/roe-wade-overturned-supreme-court.html">reversal of Roe v. Wade</a>, which constitutionally protected the right to abortion.</p>
<p>Since the spring of 2023, when Youngkin first weighed in heavily in Republican primaries for the state legislature, Youngkin and <a href="https://www.nbcnews.com/politics/elections/glenn-youngkin-united-virginia-republicans-15-week-abortion-ban-pushed-rcna119199">other GOP candidates</a> emphasized the 15-week ban in the face of <a href="https://www.washingtonpost.com/dc-md-va/2023/11/08/virginia-senate-house-election-results-2023/">relentless Democratic attacks</a>.</p>
<p>But Youngkin’s hopes that his 15-week ban would spare the party further political grief <a href="https://slate.com/news-and-politics/2023/11/virginia-election-abortion-glenn-youngkin-democrats-republicans.html">failed miserably</a>, as Democrats secured control over both legislative branches. </p>
<p>Largely on the strength of suburban voters outside Washington, D.C., and Virginia’s capital, Richmond, Democratic candidates who focused on the abortion issue <a href="https://www.nytimes.com/2023/11/08/us/politics/glenn-youngkin-virginia.html">captured a majority</a> of seats in the House of Delegates and retained their majority in the Senate. </p>
<h2>Abortion was the key issue</h2>
<p>In my view as a political scientist, the effectiveness of the Democratic position on abortion shouldn’t be a surprise to Virginia voters and politicians. </p>
<p>Polls, including a September 2023 <a href="https://www.umw.edu/news/2023/09/27/virginians-closely-divided-over-2023-legislative-elections-in-statewide-survey/">statewide survey</a> by the University of Mary Washington and Research America Inc., demonstrated that Democrats were far more likely to vote based on the abortion question than Republicans were.</p>
<p>In that survey, 70% of Democrats considered abortion a major factor for them in the upcoming elections, as compared with 35% of Republicans. </p>
<p>Among independents, 54% said the abortion ruling was a major factor as they considered how to approach the Virginia midterms.</p>
<h2>Straddling GOP extremes</h2>
<p>Youngkin was elected governor two years ago as a largely unknown conservative who had <a href="https://www.washingtonpost.com/local/virginia-politics/glenn-youngkin-fortune-carlyle-virginia/2021/08/02/aeeebab4-efc5-11eb-81d2-ffae0f931b8f_story.html">a lengthy business career</a> – and no legislative record. </p>
<p>In recent decades, Virginia went from a reliably Republican state in presidential elections to one where Donald Trump <a href="https://www.nbcnews.com/politics/2020-elections/virginia-results/">lost by 10 points</a> in 2020.</p>
<p>As a political novice, Youngkin successfully straddled the Republican dynamics of this purple state by trying to appeal to supporters of Donald Trump and his MAGA movement as well as moderate suburban Republicans uncomfortable with Trump’s chaotic administration and legal troubles. </p>
<figure class="align-center ">
<img alt="A middle aged white man dressed in a business suit watches another white man answer a question as he gestures with his hands." src="https://images.theconversation.com/files/558469/original/file-20231108-21-u6igh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/558469/original/file-20231108-21-u6igh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/558469/original/file-20231108-21-u6igh9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/558469/original/file-20231108-21-u6igh9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/558469/original/file-20231108-21-u6igh9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/558469/original/file-20231108-21-u6igh9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/558469/original/file-20231108-21-u6igh9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Candidate and former Democratic Virginia Gov. Terry McAuliffe, left, debates Republican gubernatorial candidate Glenn Youngkin on Sept. 28, 2021.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-virginia-gov-terry-mcauliffe-debates-republican-news-photo/1343654379?adppopup=true">Win McNamee/Getty Images</a></span>
</figcaption>
</figure>
<p>Youngkin offered up conservative cultural war messaging – particularly on parental rights in public schools that convinced Trump voters to cast ballots for him in his 2021 race against <a href="https://www.cnn.com/2021/10/07/politics/glenn-youngkin-parental-rights-education-strategy/index.html">Democratic candidate Terry McAuliffe</a>. </p>
<p>But in a nod to suburban Republicans, Youngkin <a href="https://www.cnn.com/2023/11/07/politics/virginia-elections-glenn-youngkin/index.html">kept his distance</a> from the former president’s insistence that the 2020 presidential election was stolen. Youngkin won the <a href="https://www.nbcnews.com/politics/2021-elections/virginia-governor-results">2021 election</a> by two points. </p>
<p>As the first Republican to win a statewide election since 2009, his victory – and that of the newly Republican House of Delegates majority – <a href="https://www.wsj.com/articles/youngkins-virginia-win-offers-midterm-road-map-for-gop-warning-for-democrats-11635942003">energized the dispirited Republicans</a> lamenting the political changes in the state.</p>
<h2>Shifting political landscape</h2>
<p>To be sure, Youngkin wasn’t just another fresh face touting radically new ideas for his party. </p>
<p>His campaign’s focus on giving <a href="https://abcnews.go.com/Politics/gov-youngkin-makes-final-pitch-virginia-voters-education/story?id=104678396#:%7E:text=In%202021%2C%20Youngkin%20ran%20on,could%20advance%20more%20education%20legislation.">parents more control</a> over local school districts connected with many white conservatives who were incensed that their children were being forced to read books that touched on contentious topics such as racism and sexuality.</p>
<p>Governing as a strident conservative focusing on easing COVID restrictions, cutting taxes and, above all, shifting the direction of public education, Youngkin ran into roadblocks <a href="https://apnews.com/article/religion-education-race-and-ethnicity-racial-injustice-virginia-490f552bb055df29af890b703e06e605">in the Virginia Senate</a>, where Democrats remained in the majority. </p>
<p>In one example, the Youngkin administration <a href="https://richmond.com/news/local/education/new-draft-history-standards-reorient-framing-of-race-relations/article_4504a142-7775-546d-9ea0-3c4272436a00.html">proposed a set of revisions</a> to the state’s Standards of Learning in history and social sciences. </p>
<p>Those proposed standards failed to mention Juneteenth and Martin Luther King Jr. Day and drew the ire of Black politicians and parents <a href="https://www.virginiamercury.com/2022/11/17/missing-context-political-bias-some-of-critics-objections-to-virginias-new-history-standards/">who criticized the proposal</a> as “whitewashing.” </p>
<p>Youngkin’s proposals <a href="https://richmond.com/news/state-and-regional/govt-and-politics/board-of-education-rejects-youngkins-proposed-revisions-to-k-12-history-standards/article_ac6dbdb1-8632-5abd-97e4-39b978982b3f.html">were later rejected</a> by the state Board of Education.</p>
<p>After two years of <a href="https://www.cnn.com/videos/politics/2021/06/23/virginia-school-board-critical-race-theory-mh-orig.cnn">contentious suburban school board meetings</a> in places like Loudoun and Spotsylvania counties, Democrats had a response to Youngkin’s views on <a href="https://www.theguardian.com/us-news/2023/nov/02/parents-right-movement-virginia-republicans">parental rights </a>. They argued that the GOP empowered extremists who want to ban books and tell lies about U.S. and Virginia history. </p>
<p>As a result, a <a href="https://www.umw.edu/news/2023/09/27/virginians-closely-divided-over-2023-legislative-elections-in-statewide-survey/">preelection statewide poll</a> showed that the education issue largely split the electorate down the middle, with roughly equal numbers of Democrats and Republicans saying that school policies were important to their choice in the Virginia midterm elections. </p>
<h2>Where does election leave Youngkin and GOP?</h2>
<p>With the failure of his plan to recast the abortion debate, Youngkin faces another loss that has significant influence on how he might achieve any legislative victories in the remaining two years of his term. </p>
<p>Democrats control the state legislature, and Youngkin’s tenure may be marked by more legislative gridlock. </p>
<p>Youngkin might want to cooperate more with Democratic lawmakers going forward, but as a longtime analyst of Virginia politics, I believe the time when an olive branch would have been most effective was two years ago.</p>
<p>Instead, Youngkin started his term by defining himself as a partisan champion, albeit not a fully pro-Trump Republican.</p>
<p>He has reached the halfway point in his tenure where neither of those positions were rewarded by voters. That’s not a good sign for a guy once touted as a possible GOP presidential candidate.</p><img src="https://counter.theconversation.com/content/216884/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Stephen J. Farnsworth does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Democrats regained the Virginia legislature in the 2023 election, and that spells trouble for Republicans seeking to win the White House in 2024.Stephen J. Farnsworth, Professor of Political Science and International Affairs and Director of the UMW Center for Leadership and Media Studies, University of Mary WashingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2154082023-11-06T13:34:33Z2023-11-06T13:34:33ZAs Ohio and other states decide on abortion, anti-abortion activists look to rebrand themselves as not religious<figure><img src="https://images.theconversation.com/files/557473/original/file-20231103-20-fp6fav.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Roman Catholic nuns pray with anti-abortion activists across the street from a Planned Parenthood clinic in New York in September 2023.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/roman-catholic-nuns-pray-with-a-group-of-anti-abortion-news-photo/1655599179?adppopup=true">Robert Nickelsberg/Getty Images</a></span></figcaption></figure><p>Abortion has become an increasingly polarized, political issue in the United States since 2022, when the <a href="https://www.oyez.org/cases/2021/19-1392">Supreme Court overturned</a> <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a>, which guaranteed the constitutional right to an abortion. This decision threw the question of abortion rights back to states. </p>
<p><a href="https://www.dispatch.com/story/news/politics/elections/2023/08/24/ohio-abortion-issue-on-the-november-7-2023-ballot-election-results/70672454007/">Ohio voters</a> will cast ballots on Nov. 7, 2023, to determine abortion rules in their state, joining <a href="https://www.nytimes.com/2023/09/12/magazine/abortion-laws-states.html">six other states</a> that have put the decisions before voters in ballot initiatives since 2022. </p>
<p>Currently, Ohio’s constitution does not mention abortion. Ohio residents will <a href="https://www.npr.org/2023/10/31/1209593353/abortion-ohio-issue-1-vote-election-roe-dobbs">vote on “Issue 1,”</a> which would amend the state constitution to explicitly protect an individual’s right to get an abortion. The amendment would still allow the state to prohibit abortion after a <a href="https://www.acog.org/advocacy/facts-are-important/understanding-and-navigating-viability">fetus is considered viable</a>, with an exception when the health of the pregnant person is at stake. </p>
<p>The initiative is supported by a coalition of abortion-rights organizations, collectively called <a href="https://ohioansunitedforreproductiverights.win/">Ohioans United for Reproductive Justice</a>. </p>
<p>Some anti-abortion activists in Ohio <a href="https://www.ncregister.com/cna/ohio-abortion-supporters-outraise-pro-life-side-3-to-1-ahead-of-november-referendum">have said that Issue 1</a> is “too radical” for the state. But an October 2023 <a href="https://www.bw.edu/news/2023/fall/10-bw-ohio-pulse-poll-shows-ohio-voters-favor-issues-1-and-2">survey showed</a> that 58% of likely Ohio voters support Issue 1.</p>
<p>I am an <a href="https://annewhitesell.com">American politics scholar</a> who focuses on how groups outside of government attempt to influence policy. </p>
<p>Since the <a href="https://www.oyez.org/cases/2021/19-1392">Supreme Court overturned</a> the federal right to get an abortion, I have interviewed 45 anti-abortion activists across the country and collected Facebook data from approximately 190 organizations. I wanted to better understand how anti-abortion groups are working in a post-Roe v. Wade world to ban abortion.</p>
<p>Prominent anti-abortion groups continue to reference religion, and specifically Christianity, in their arguments against abortion. But I found that these activists also recognize that framing abortion as a human rights issue may appeal to a broader audience. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman wearing a yellow shirt holds a rosary around her neck and appears to pray with her eyes closed." src="https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/557476/original/file-20231103-21-jr0953.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Anti-abortion activists pray in New York in August 2022 outside a Planned Parenthood clinic.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/anti-abortion-activists-pray-in-front-of-the-planned-news-photo/1413322749?adppopup=true">Robert Nickelsberg/Getty Images</a></span>
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<h2>Perceptions of the anti-abortion movement</h2>
<p>Religious objections to abortion center around the sanctity of human life and the belief that humans are made in God’s image. To end a human life, including the life of a fetus, is to play God.</p>
<p>According to a <a href="https://apnorc.org/wp-content/uploads/2020/02/December-Topline-with-MIP-final.pdf">2019 poll</a>, 77% of Americans believe religion has some or a lot of influence on U.S. abortion policy. </p>
<p>In my interviews, anti-abortion rights activists said they understood that the public views <a href="https://www.press.uillinois.edu/books/?id=p082467">their movement</a> as anti-woman and driven by conservative Christians. More recently, the movement has adopted <a href="https://www.tandfonline.com/doi/full/10.1080/1554477X.2021.1925478">pro-woman messaging</a> to counter the perception that they do not support women. </p>
<p>These organizations are increasingly choosing to speak less about religion and more about human rights and science to combat the narrative that the <a href="https://www.cambridge.org/us/universitypress/subjects/sociology/sociology-general-interest/pro-life-activists-america-meaning-motivation-and-direct-action?format=HB&isbn=9780521660440">anti-abortion movement</a> is solely a Christian movement.</p>
<p>This movement does have a religious history – the <a href="https://www.jstor.org/stable/23052569">U.S. Conference of Catholic Bishops</a> created the predecessor of one of the most well-known anti-abortion organizations, the <a href="https://www.nrlc.org/">National Right to Life Committee</a>, in 1966. </p>
<p>In the 1980s, <a href="https://www.operationrescue.org/">Operation Rescue</a>, which blockaded abortion clinics and had thousands of their activists arrested, brought an evangelical religious fervor to the anti-abortion movement. </p>
<p>Stopping abortion was seen as a <a href="https://doi.org/10.5744/florida/9780813044972.003.0009">Christian duty</a>, even if it meant resorting <a href="https://press.umich.edu/Books/O/Opposition-and-Intimidation2">to violence</a>.</p>
<h2>The changing role of religion</h2>
<p>The religious environment in the U.S. has changed in recent decades, however. </p>
<p>While evangelicals remain a <a href="https://news.gallup.com/opinion/polling-matters/324410/religious-group-voting-2020-election.aspx">powerful voting bloc for Republicans</a>, the percentage of Americans identifying as Christian has declined over the <a href="https://www.pewresearch.org/religion/2022/09/13/how-u-s-religious-composition-has-changed-in-recent-decades/">past 50 years</a> from 90% to 63%. At the same time, the percentage of Americans who identify as religiously unaffiliated has increased from 5% to 29%. </p>
<p>In 2020, <a href="https://news.gallup.com/poll/341963/church-membership-falls-below-majority-first-time.aspx">less than half of Americans</a> belonged to a church, synagogue or mosque – marking an all-time low in affiliation with a religious institution since 1940. </p>
<p>For anti-abortion activists, this means fewer people may connect to their religious appeals. One activist I interviewed put it bluntly: “Why talk the Bible to people, many people, who say the Bible is a fairy tale?”</p>
<h2>What anti-abortion organizations say</h2>
<p>My research shows that anti-abortion organizations in the U.S. fall into one of three camps. Some are openly religious. Others may have religious staff, but refrain from using religion in their advocacy. A small proportion outright reject the use of religion.</p>
<p>I analyzed how anti-abortion organizations use Facebook to promote their work. At least on this social media platform, most anti-abortion organizations do not use religious language.</p>
<p>Between June 2022 and September 2023, 193 anti-abortion groups posted 44,639 times on Facebook. Approximately 11% of these Facebook posts made explicit religious references, ranging from Bible verses to prayer requests. </p>
<p>Some organizations use religious references in nearly all of their Facebook posts, while other groups make only passing references to religion. </p>
<p>Texas Right to Life, for example, posted 770 times between June 2022 and September 2023, and 50% of its posts mentioned religion. In contrast, the group Ohio Right to Life posted 586 times in the same time period. Only 8.7% of their posts mention religion.</p>
<p>More than 15% of the 193 anti-abortion organizations in my sample, however, make no religious references in their Facebook posts from June 2022 through September 2023. </p>
<p>Indeed, the majority of the 45 activists from anti-abortion groups I spoke with said they kept their religious beliefs separate from their activism.</p>
<p>As one anti-abortion activist told me, when someone finds out “you believe that all life is created in the image of God, they completely dismiss you.”</p>
<h2>Other findings</h2>
<p>Most of the activists I interviewed said their organization does not have a formal stance on religion. Approximately one-quarter of the 45 activists I interviewed, however, said their organizations are explicitly Christian. </p>
<p>When asked about the choice to frame anti-abortion arguments around faith, one advocate said, “We 100% present the faith and the theological argument of things. Yeah, part of our culture is being Catholic.”</p>
<p>This advocate continued: “We understand that we also have a responsibility before God on these subjects, so we’re not going to shy away from that.” </p>
<p>A few interviewees stressed that they are not religious. One described herself as an “atheist, vegan pro-lifer.”</p>
<p>Instead of using religion to bolster their arguments against abortion, <a href="https://www.democratsforlife.org/index.php">these activists</a> frame abortion as a <a href="https://www.nbcnews.com/nbc-out/out-news/anti-abortion-lgbtq-groups-roes-reversal-human-rights-victory-rcna35716">human rights issue</a>. For them, any loss of human life is tragic, whether it is from abortion, war or the death penalty.</p>
<p>This kind of framing could help the anti-abortion movement shift conversations about abortion away from religious beliefs.</p>
<h2>Ohio’s vote</h2>
<p>People in all six states that have voted on abortion since 2022 have affirmed broader abortion rights. But <a href="https://www.nytimes.com/2023/11/02/us/abortion-ballot-ohio-vote.html">Ohio is the first red state</a> to vote on adding a right to abortion to the state’s constitution.</p>
<p>Local anti-abortion groups like Cincinnati Right to Life are pushing back <a href="https://www.facebook.com/100064698580681/posts/697161332450480">against Issue 1,</a> saying, for example, that the amendment is too wide-reaching, and that “Issue One will only hurt women & children and not help them.” </p>
<p>Ohio Right to Life has framed Issue 1 as a matter of safety in their <a href="https://www.facebook.com/100064601747509/posts/689319569898095">Facebook posts</a>. </p>
<p>Ohio voters will be the ones to decide which way to move the issue forward.</p><img src="https://counter.theconversation.com/content/215408/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Whitesell does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An analysis of anti-abortion rights groups in the US shows that while some specifically turn to Christianity to explain their positions, others are looking at broader, human rights arguments.Anne Whitesell, Assistant Professor, Political Science, Miami UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2131792023-09-19T16:20:00Z2023-09-19T16:20:00ZMexican court ruling upholding women’s right to abortion shows global trend better than US Roe v Wade decision<p>It may surprise you to learn that, over the past 30 years, no fewer than <a href="https://reproductiverights.org/maps/worlds-abortion-laws/">60 countries</a> have liberalised their abortion laws while <a href="https://reproductiverights.org/maps/worlds-abortion-laws/">only four</a> have rolled back abortion rights. The United States is, of course, one of the latter group that has recently restricted women’s access to abortion. </p>
<p>Because the US looms so large in international news coverage of abortion, casual observers often assume that anti-abortion reforms in the US signal a broader global trend or will trigger a domino effect of abortion restrictions. But this view is misguided. It’s important to explore why this is. </p>
<p>In order to understand global abortion trends, we should look across America’s southern border to Mexico. On September 7, <a href="https://www.reuters.com/world/americas/mexicos-supreme-court-upholds-abortion-rights-nationwide-paving-way-federal-2023-09-06/">a landmark decision</a> by Mexico’s supreme court found that laws prohibiting abortion were unconstitutional violations of women’s rights. The decision lays the foundation for full decriminalisation of abortion in Mexico – but will have to be enacted in the legislature before it will be the law of the land. </p>
<p>Nonetheless, Mexico’s trajectory is more representative of what is happening across the globe than the US <a href="https://theconversation.com/us-supreme-court-decision-on-abortion-creates-patchwork-of-rights-based-on-where-you-live-186319">supreme court decision of 2022</a> that overturned the constitutional abortion right of Roe v Wade. </p>
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<a href="https://theconversation.com/us-supreme-court-decision-on-abortion-creates-patchwork-of-rights-based-on-where-you-live-186319">US Supreme Court decision on abortion creates 'patchwork of rights' based on where you live</a>
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<p>Progress on abortion rights is visible <a href="https://reproductiverights.org/maps/worlds-abortion-laws/">across the world</a>. Mexico is part of a “green wave” across Latin America that has also achieved reforms in <a href="https://www.bbc.co.uk/news/world-latin-america-64784660">Argentina</a> and <a href="https://read.dukeupress.edu/south-atlantic-quarterly/article/122/2/397/343181/Abortion-Reform-in-Colombia-From-Total-Prohibition">Colombia</a>. But progress is not limited to Latin America. In 2018, Irish voters <a href="https://www.irishtimes.com/news/politics/ireland-votes-to-remove-constitutional-ban-on-abortion-by-resounding-two-thirds-majority-1.3510068">overwhelmingly supported</a> a measure to remove a constitutional abortion ban. </p>
<p>Within the space of two years (2020-2022), Thailand moved from a criminal ban on abortion to <a href="https://time.com/6225758/thailand-abortion-access/">legal abortion up to 20 weeks</a>. In 2021, Benin adopted one of Africa’s <a href="https://www.theguardian.com/global-development/2023/feb/28/benin-africa-liberal-abortion-laws-women-still-dying#:%7E:text=Abortions%20can%20be%20carried%20out,most%20liberal%20laws%20in%20Africa.">most progressive abortion laws</a>, allowing for abortion on a range of grounds up to 12 weeks. India’s supreme court <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10321178/#">expanded abortion rights in 2022</a>, ruling that all Indian women must have the right to safe and legal abortion regardless of their marital status. </p>
<p>So countries such as the USA, <a href="https://www.hrw.org/news/2023/09/14/poland-abortion-witch-hunt-targets-women-doctors">Poland</a>, <a href="https://www.opendemocracy.net/en/5050/el-salvador-women-abortion-obstetric-problems-prison-fight/">El Salvador</a>, and <a href="https://www.hrw.org/news/2017/07/31/nicaragua-abortion-ban-threatens-health-and-lives">Nicaragua</a> – the four to roll back abortion rights in recent years – are global outliers. </p>
<h2>Building support for women’s right to choose</h2>
<p>How have these progressive reforms come about? Abortion advocates have achieved successes through engaging with political processes. Argentine activists built a broad-based social movement and multi-party coalition in the legislature to <a href="https://blog.petrieflom.law.harvard.edu/2023/03/03/decriminalizing-abortion-in-argentina-8-takeaways-from-the-inflection-point-of-legalization/">legalise abortion in 2020</a>. In Colombia and Mexico, activists used creative legal strategies to achieve change, bringing strategic litigation and establishing themselves as legal experts. </p>
<p>After Mexico’s supreme court struck down a criminal abortion law at the state level in 2021, ruling that <a href="https://www.aljazeera.com/news/2021/9/7/mexico-supreme-court-says-criminalising-abortion-unconstitutional">criminalising abortion was unconstitutional</a>, NGOs launched a legal campaign to expand that decision nationwide. In last week’s ruling, Mexican courts ruled that abortion <a href="https://www.aljazeera.com/news/2023/9/7/mexican-supreme-court-decriminalises-abortion-on-federal-level#">should be removed from the federal penal code</a>. </p>
<p>In Colombia, a 2006 court ruling limited legal abortion to a few very narrow grounds. Feminist activists there mobilised to develop and disseminate <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5473042/">progressive interpretations</a> of the law, working with doctors to ensure they could provide abortions while feeling protected from prosecution. In 2022, Colombia’s supreme court decriminalised abortion up to 24 weeks. A <a href="https://www.theguardian.com/global-development/2023/mar/24/historic-moment-as-el-salvador-abortion-case-fuels-hopes-for-expanded-access-across-latin-america#:%7E:text=In%20El%20Salvador%2C%20abortion%20is,to%2050%2Dyear%20prison%20sentence">pending case</a> before the Inter-american Court of Human Rights holds out the promise of progress for abortion rights in El Saldavor. </p>
<p>When social movements achieve change in political institutions, they are often capitalising on years of on-the-ground campaigning to shift public opinion on abortion. Latin American activists term this process “<a href="https://doi.org/10.1215/00382876-10405133">social decriminalisation</a>”. Even where criminal anti-abortion laws persist, its social status can change. </p>
<p>Reducing abortion stigma, normalising abortion as a part of reproductive life and mobilising the public against anti-abortion prosecutions are all part of this toolkit. </p>
<p>When public attitudes shift, anti-abortion laws can lose public legitimacy and political elites can find themselves out of step with public opinion. Ireland’s 2018 <a href="https://www.bbc.co.uk/news/world-europe-44256152">abortion referendum</a> showed us this dynamic: although years of opinion polls had consistently showed the constitutional abortion ban was unpopular, Irish politicians sought to avoid the issue. But in 2017, a <a href="https://2016-2018.citizensassembly.ie/en/The-Eighth-Amendment-of-the-Constitution/Final-Report-on-the-Eighth-Amendment-of-the-Constitution/">Citizens Assembly</a> was held on the issue which showed that the public urgently wanted reform. When the abortion ban was put to referendum in 2018, two-thirds of Irish voters supported legal abortion. </p>
<p>Growing availability of self-managed abortion is also an important factor in the global trend towards abortion reform. Self-managed abortion with pills means that safe abortion is easier to access outside of clinical settings and in restrictive contexts. </p>
<p>But self-managed abortion also highlights the political dilemma that governments face when they seek to enforce restrictive abortion laws. If abortion is as easy as taking a few pills that can be bought online, people will self-manage abortions regardless of the laws where they live. Efforts to prosecute them for doing so can provoke a backlash and highlight the illegitimacy of abortion bans. </p>
<p>Campaigners in Northern Ireland capitalised on changing public attitudes, as well as an inquiry by a <a href="https://www.ohchr.org/en/press-releases/2018/02/uk-violates-womens-rights-northern-ireland-unduly-restricting-access">human rights treaty body</a>, to secure a moratorium on prosecution of self-managed abortion. Abortion has been decriminalised there since 2019. </p>
<p>Abortion rights rollbacks in the US have understandably provoked outrage. Since Roe v Wade was overturned, American states have passed anti-abortion laws that are <a href="https://www.npr.org/sections/health-shots/2023/08/09/1187378801/texas-abortion-law-trial-reproductive-rights">cruel and dehumanising</a>. These anti-abortion laws disproportionately affect <a href="https://www.ifwhenhow.org/resources/self-care-criminalized-preliminary-findings/">the most marginalised</a> and are sure to widen gaps in an already deeply unequal society. </p>
<p>But the American story is an outlier. At a global scale, the trajectory we see on abortion rights is one of slow but continuous progress.</p><img src="https://counter.theconversation.com/content/213179/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sydney Calkin receives funding from the Leverhulme Trust and UKRI. She is a volunteer with the Abortion Support Network (UK). </span></em></p>The US is one of just four countries that have rolled back women’s abortion rights in recent years.Sydney Calkin, Reader in Geography, Queen Mary University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2067062023-09-01T12:42:46Z2023-09-01T12:42:46ZWhite men have controlled women’s reproductive rights throughout American history – the post-Dobbs era is no different<figure><img src="https://images.theconversation.com/files/545354/original/file-20230829-23-mvx2g4.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5964%2C3952&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. Rep. Cori Bush, a Democrat from Missouri, after participating in an abortion rights sit-in on July 19, 2022, in Washington.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rep-cori-bush-leaves-a-processing-area-after-being-arrested-news-photo/1409761529?adppopup=true">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p>More than a year after the Supreme Court ended federal protection for abortion rights in the United States, disagreements over abortion bans continue to reverberate around the country. <a href="https://www.youtube.com/watch?v=_brdDBHOT5E">Candidates sparred over the idea of a federal abortion ban</a> during the Aug. 23, 2023, Republican presidential debate. And abortion is likely to figure prominently in the November 2023 <a href="https://www.politico.com/news/2023/08/27/pennsylvania-supreme-court-abortion-00113074">contest for a seat on the Pennsylvania Supreme Court</a>.</p>
<p>When the U.S. Supreme Court overturned <a href="https://www.oyez.org/cases/2021/19-1392">Roe v. Wade</a> in June 2022, removing women’s federal constitutional right to get abortions and giving states the power to pass laws about the legality of the procedure, the 6-3 vote was by a four white men, one Black man and a white woman majority.</p>
<p>Since that decision – <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a> – more than <a href="https://www.theguardian.com/us-news/ng-interactive/2023/jun/22/abortion-ban-politicians-who-voted-for-restrictions-who-are-they-men-women">1,500 state legislators, who are overwhelmingly white men</a>, have voted for full or partial abortion bans. </p>
<p>This is not the first period in U.S. history when white men have exercised control over women’s right to bear – or not bear – children, including during slavery. Then, it was a matter of numbers. The more people they enslaved, the more money white male enslavers could earn either from <a href="https://www.vox.com/identities/2019/8/16/20806069/slavery-economy-capitalism-violence-cotton-edward-baptist">selling the enslaved or from the forced labor</a> of the enslaved. <a href="https://doi.org/10.1093/acrefore/9780199329175.013.430">White men controlled people’s reproductive rights during the 20th century</a>, too, with the <a href="https://www.genome.gov/about-genomics/fact-sheets/Eugenics-and-Scientific-Racism">American eugenics movement</a>. </p>
<p>From the late 1800s until the 2000s, white proponents of eugenics – the selective breeding of people – tried to determine who was fit or unfit to have children. While the American eugenics movement affected people of other races and ethnic backgrounds, as well as men, it was particularly harmful to Black women who, data from 1950 to 1966 shows, were sterilized at “<a href="https://theconversation.com/forced-sterilization-policies-in-the-us-targeted-minorities-and-those-with-disabilities-and-lasted-into-the-21st-century-143144">three times the rate of white women and more than 12 times the rate of white men</a>.” </p>
<p>During both periods, <a href="https://doi.org/10.1089/heq.2017.0045">Black women and their health bore the brunt of the consequences</a> of white men’s control.</p>
<p>As a researcher who specializes in the <a href="https://scholar.google.com/citations?user=566DVVQAAAAJ&hl=en">history of race and racism in the U.S.</a>, I study historical issues related to race, gender and social justice.</p>
<h2>Enslaved women forced to reproduce</h2>
<p><a href="https://www.jstor.org/stable/45129363">African midwives</a>, imported and enslaved as early as the 1600s, attended to the birthing needs of the <a href="https://www.hup.harvard.edu/catalog.php?isbn=9780674008526">enslaved and enslavers</a> until the beginning of the 19th century.</p>
<p>But, after 1808, enslavers in the United States <a href="https://www.archives.gov/education/lessons/slave-trade.html">could no longer legally import</a> enslaved people. With this shift, enslavers stepped up the <a href="https://www.google.com/books/edition/The_American_Slave_Coast/iwCKCgAAQBAJ?hl=en&gbpv=1&dq=slave+masters+forced+breeding+of+slaves+1808&pg=PT11&printsec=frontcover">forced breeding of enslaved women</a>. White men raped the Black women and <a href="https://ldhi.library.cofc.edu/exhibits/show/hidden-voices/enslaved-women-and-slaveholder/sexual-violence">girls they enslaved</a>, and then enslaved the children born from those rapes. White men also <a href="https://notchesblog.com/2020/10/27/the-rape-of-rufus-sexual-violence-against-enslaved-men/">forced the Black women and Black men they enslaved to have sex </a> with one another to generate more babies, who would be born into slavery.</p>
<p><a href="https://www.haymarketbooks.org/books/736-how-capitalism-underdeveloped-black-america">This was a systemic way </a> of ensuring enslaved women <a href="https://www.penguinrandomhouse.com/books/155575/killing-the-black-body-by-dorothy-roberts/">bore more children, which would increase profits</a> for their enslavers. </p>
<p>Because <a href="https://www.google.com/books/edition/More_Than_Chattel/td2yIa7X6H4C?hl=en&gbpv=1&bsq=midwives">the Black midwives and enslaved women often were blamed for or suspected</a> of using birth control and abortions to resist forced pregnancy and the enslavement of their offspring, enslavers turned increasingly away from midwives and to <a href="https://www.google.com/books/edition/Birthing_a_Slave/ZussEAAAQBAJ?hl=en&gbpv=1&pg=PP1&printsec=frontcover">white male doctors</a> to figure out why nearly half of enslaved infants were stillborn or died within their first year of life and why so many enslaved women were infertile. <a href="https://doi.org/10.2105/AJPH.2019.305243">These doctors also helped with difficult births</a>. </p>
<p>In the two decades after 1810, the <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7716878/">population growth rate of the enslaved averaged about 30%</a>, despite the ban on slave importation. This was just under the 1800 to 1809 average of 31.6% which was a century high. </p>
<p>In the 1800s, as the slave population increased, <a href="https://www.vox.com/identities/2019/8/16/20806069/slavery-economy-capitalism-violence-cotton-edward-baptist">profits in cotton did too</a>. And after the legal importation of slaves ended, the <a href="https://ir.vanderbilt.edu/xmlui/bitstream/handle/1803/15814/vu06-w24.pdf?sequence=1&isAllowed=y">value of Black women of childbearing age increased</a> significantly. The forced breeding of these enslaved women was <a href="https://scholarlycommons.law.wlu.edu/crsj/vol7/iss1/4">linked to the profitability of southern economies</a>. </p>
<h2>Eugenics and control over women’s bodies</h2>
<p>Eugenicists believed that <a href="https://theconversation.com/forced-sterilization-policies-in-the-us-targeted-minorities-and-those-with-disabilities-and-lasted-into-the-21st-century-143144">increased breeding by white people</a>, whom they assumed had high IQs, would benefit American society. But people who did not embody their idea of racial perfection, such as Black people, Native Americans, certain immigrants, poor white people and people with disabilities, should be sterilized – typically via <a href="https://www.rutgersuniversitypress.org/fit-to-be-tied/9780813578910">tubal ligation and vasectomy</a>.</p>
<figure class="align-center ">
<img alt="A Black woman, surrounded by large plants, sits with both hands resting on her crossed legs as she stares ahead." src="https://images.theconversation.com/files/545356/original/file-20230829-17-nfjc7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545356/original/file-20230829-17-nfjc7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545356/original/file-20230829-17-nfjc7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545356/original/file-20230829-17-nfjc7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545356/original/file-20230829-17-nfjc7f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545356/original/file-20230829-17-nfjc7f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545356/original/file-20230829-17-nfjc7f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Elaine Riddick, pictured at her home in Marietta, Ga., on July 15, 2022, was sterilized without her consent when she was 14, in North Carolina.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/elaine-riddick-at-her-home-in-marietta-georgia-on-july-15-news-photo/1242045819?adppopup=true">Tami Chappell for The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<p>In this <a href="https://www.genome.gov/about-genomics/fact-sheets/Eugenics-and-Scientific-Racism">debunked pseudo-science</a>, eugenicists often <a href="https://via.library.depaul.edu/cgi/viewcontent.cgi?article=1270&context=law-review">used intelligence tests</a> to determine who was fit or unfit to reproduce and to predict who would commit crimes, end up in poverty or have children who were mentally ill or intellectually disabled. And they worked to incorporate their ideas into state laws. </p>
<p><a href="https://www.sciencedirect.com/science/article/pii/S1098360021025909">Thirty-two states</a>, between 1907 and 1937, enacted forced sterilization mandates to prevent births by people eugenicists considered socially inadequate. </p>
<p>State-mandated procedures resulted in the <a href="https://theconversation.com/forced-sterilization-policies-in-the-us-targeted-minorities-and-those-with-disabilities-and-lasted-into-the-21st-century-143144">coerced sterilization of women</a>, particularly <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/bioe.12977">African American, Native American and Hispanic American women</a>, and <a href="https://doi.org/10.1089/gyn.2021.0102">those from Southern and Eastern Europe</a>.</p>
<p><a href="https://library.law.howard.edu/civilrightshistory/blackrights/desegregation">Beginning in 1948</a> with President Harry Truman’s executive order to integrate the military, which extended to other areas, including education, employment and commerce, <a href="https://theconversation.com/forced-sterilization-policies-in-the-us-targeted-minorities-and-those-with-disabilities-and-lasted-into-the-21st-century-143144">sterilization rates for Black women increased</a>. For example, in North Carolina, which had the country’s third-highest sterilization rate, far more women than men were forcibly sterilized. And in the 1960s, <a href="https://socialequity.duke.edu/wp-content/uploads/2020/06/BreedingOutVol15No1-1.pdf">Black women in the state made up 65% of the women sterilized</a>, while only making up 25% of the population. </p>
<figure class="align-center ">
<img alt="With people standing around her, a woman wearing a shirt that reads, " src="https://images.theconversation.com/files/545359/original/file-20230829-23-1c4xtj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545359/original/file-20230829-23-1c4xtj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545359/original/file-20230829-23-1c4xtj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545359/original/file-20230829-23-1c4xtj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545359/original/file-20230829-23-1c4xtj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545359/original/file-20230829-23-1c4xtj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545359/original/file-20230829-23-1c4xtj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Abortion-rights activists counter-demonstrate as anti-abortion demonstrators gather for a rally in Federal Building Plaza on June 24, 2023, in Chicago to mark the first anniversary of the Dobbs v Jackson Women’s Health Organization Supreme Court decision.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-activists-counter-demonstrate-as-anti-news-photo/1501196070?adppopup=true">Scott Olson/Getty Images</a></span>
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<p><a href="https://bpr.berkeley.edu/2020/11/04/americas-forgotten-history-of-forced-sterilization/">Between 1930 and 1970</a>, close to 33% of the women in Puerto Rico, a U.S. territory, were forcibly sterilized. In California, between 1997 and 2003, 1,400 female inmates, <a href="https://www.insider.com/inside-forced-sterilizations-california-womens-prisons-documentary-2020-11">mostly Black, were forcibly sterilized</a>. </p>
<h2>The post-Dobbs era</h2>
<p>White nationalists and some right-wing politicians in the U.S. see the nation’s demographic changes as dangerous. The Census Bureau <a href="https://www.census.gov/content/dam/Census/library/publications/2020/demo/p25-1144.pdf">projects that in the 2040s</a>, non-Hispanic white people will no longer make up a majority of the U.S. population. The nation’s racial and ethnic makeup will then be what some call “<a href="https://www.nytimes.com/2021/08/24/opinion/us-census-majority-minority.html">majority-minority</a>.” Those projections scare racists, <a href="https://fivethirtyeight.com/features/the-twisted-logic-behind-the-rights-great-replacement-arguments/">who believe in a conspiracy about white people being destroyed</a>, which they label the <a href="https://doi.org/10.1080/1369118X.2022.2077654">great replacement theory</a> because they fear losing social, political and economic power.</p>
<p>There is no way to know if this theory factored into the majority’s votes in the Dobbs decision, but the argument that <a href="https://fivethirtyeight.com/features/how-the-fight-to-ban-abortion-is-rooted-in-the-great-replacement-theory/">not enough white people are being born</a> has been a <a href="https://www.theguardian.com/books/2022/jul/23/body-politics">common historical thread</a> in the American anti-abortion movement.</p>
<p>But, while believers in the great replacement conspiracy want white women to have more babies, actual anti-abortion decisions like the Dobbs ruling <a href="https://www.reuters.com/world/us/roe-v-wade-ruling-disproportionately-hurts-black-women-experts-say-2022-06-27/">harm Black women more</a> than any other group. <a href="https://theconversation.com/a-year-after-supreme-courts-dobbs-decision-black-women-still-struggle-for-access-to-reproductive-health-care-206369">Black women represent 39% of the country’s abortion patients</a>, but many live in communities that have limited access to <a href="https://doi.org/10.1017/S1743923X2100009X">family planning clinics</a>. And they have <a href="https://www.kff.org/racial-equity-and-health-policy/issue-brief/racial-disparities-in-maternal-and-infant-health-current-status-and-efforts-to-address-them/">disproportionately</a> higher rates of complications during pregnancy.</p>
<p>As a result, Black women – who experience <a href="https://www.liebertpub.com/doi/full/10.1089/jwh.2020.8868">higher maternal complications</a> and mortality rates – <a href="https://www.whijournal.com/article/S1049-3867(23)00098-1/fulltext">will be forced to give birth to more babies</a>. </p>
<p>This is another period in the country in which the reproductive health decisions made by mostly white men will harm Black women.</p>
<img src="https://counter.theconversation.com/content/206706/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rodney Coates does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the US, white men have long had the power to make decisions about women’s reproductive health care. Those decisions have often been especially harmful to Black women.Rodney Coates, Professor of Critical Race and Ethnic Studies, Miami UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2111672023-08-29T12:38:13Z2023-08-29T12:38:13ZWith ‘Goodbye Mary,’ Molly Tuttle extends country music’s lineage of reproductive rights songs to the post-Roe era<figure><img src="https://images.theconversation.com/files/544834/original/file-20230825-29-42xgcb.jpg?ixlib=rb-1.1.0&rect=0%2C11%2C3872%2C2562&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Molly Tuttle is a rising star in American roots music.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/2023BonnarooMusicandArtsFestival-DayOne/c1e9d71f78c141cdb07b816d58d78934/photo">Amy Harris/Invision/AP</a></span></figcaption></figure><p>Jason Aldean’s song “<a href="https://dulerecord.bandcamp.com/track/jason-aldean-try-that-in-a-small-town">Try That In A Small Town</a>” extols small towns as bastions of conservative values standing up against a litany of violent big-city bogeymen. The song, and the <a href="https://www.npr.org/2023/07/20/1188966935/jason-aldean-try-that-in-a-small-town-song-video">backlash against it</a>, threatens to strengthen popular conceptions about the inherent <a href="https://www.npr.org/transcripts/7484160">conservatism of country music</a>.</p>
<p>As an <a href="https://www.middlebury.edu/college/people/william-nash">American Studies professor</a> who teaches courses on country music, I am interested in the <a href="https://www.npr.org/sections/therecord/2018/03/20/594043497/think-politics-is-gone-from-country-music-listen-closer">genre’s competing “liberal” lineage</a>. For example, I have written about <a href="https://theconversation.com/barbara-kingsolvers-demon-copperhead-and-the-enduring-devastation-of-the-opioid-crisis-205378">country musicians’ compassionate responses to the opioid crisis</a>.</p>
<p>Another group of songs casts light on abortion rights, a newly pressing issue in the wake of <a href="https://www.oyez.org/cases/2021/19-1392">2022’s Dobbs v. Jackson Women’s Health Organization</a> Supreme Court decision overturning the constitutional right to abortion. Rather than resort to angry polemics or pronouncements about morality, however, these country – and, more broadly, Americana – songs create intimate portraits of the women and men engaged in the painful realities of daily life. This helps maintain compassion and empathy in discussions of reproductive freedom.</p>
<h2>Stories in post-Roe America</h2>
<p>Perhaps the most striking of the new “abortion songs” comes from acoustic guitar wizard <a href="https://www.mollytuttlemusic.com/">Molly Tuttle</a>, a bluegrass musician and rising star in the American roots music scene. With “<a href="https://mollytuttle.bandcamp.com/track/goodbye-mary">Goodbye Mary</a>,” a track from her new album, “<a href="https://mollytuttle.bandcamp.com/album/city-of-gold">City of Gold</a>,” Tuttle creates <a href="https://thebluegrasssituation.com/read/the-inspirations-and-issues-behind-molly-tuttles-city-of-gold/">an intimate portrait of a woman’s struggle for bodily autonomy</a> that captures the potential terrors of a post-Roe America.</p>
<iframe style="border-radius:12px" src="https://open.spotify.com/embed/playlist/0cONwQ7rzk0BLszUUcMIuP?utm_source=generator" width="100%" height="352" frameborder="0" allowfullscreen="" allow="autoplay; clipboard-write; encrypted-media; fullscreen; picture-in-picture" loading="lazy"></iframe>
<p>The story chronicles the aftermath of a love affair between Thomas and Mary, whose language marks them as country folk. The song recounts Thomas’ abandoning the pregnant Mary, who chides him for failing to keep his promise to “build a cradle soon”; sending her directions on where to find an abortionist, who refuses to perform the procedure because “the baby’s too far ‘long”; encouraging Mary to fling herself down the stairs or “ride careless down a rocky road”; and saying that he “prays for her soul” after she finds and uses a “wire” in “the old tool shed” to abort the fetus. In the final verse, she asks him, from the confines of her jail cell, to “place pretty flowers on her grave.” </p>
<p>This last twist shifts the narrative from being solely a tale about the tragic failure of the man to own his part in the conception and destruction of their fetus. The story becomes a more layered statement about a woman’s grief when she is pushed to unbearable choices, and her need to balance control of her own body with the legal and psychological guilt imposed by society when she takes the only means of control open to her. </p>
<p>The result is an intimate portrait of a woman navigating a complex landscape made more perilous by the erasure of her rights. The agency left to her, in a world where male doctors can refuse her care and absentee partners can advocate for dangerous solutions, is self-destructive and scarring.</p>
<h2>Women’s voices</h2>
<p>With “Goodbye Mary,” Tuttle joins a line of female artists who have used country, folk or roots music <a href="https://www.thinkglobalhealth.org/article/loretta-lynn-and-beyond-reproductive-rights-country-and-folk-music">to emphasize women’s reproductive rights</a>. Perhaps the most famous example is Loretta Lynn’s “<a href="https://time.com/6219550/loretta-lynn-dies-the-pill-legacy/">The Pill</a>,” a song so controversial that it was effectively banned by country radio programmers after its 1975 release. Despite the resistance to the song, its message resonated so strongly with country listeners that it became one of Lynn’s biggest hits.
</p><blockquote>You wined me and dined me when I was your girl<br>
Promised if I’d be your wife, you’d show me the world<br>
But all I’ve seen of this old world is a bed and a doctor bill<br>
I’m tearing down your brooder house ‘cause now I’ve got the pill</blockquote><p></p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/5xrjIsLmT0c?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Loretta Lynn’s song ‘The Pill’ became popular despite the country music industry’s efforts to stifle it.</span></figcaption>
</figure>
<p>Another well-known chronicler of women’s struggles is <a href="https://dollyparton.com">Dolly Parton</a>, whose 1970 track “<a href="https://www.lyrics.com/lyric/944906/Dolly+Parton/Down+from+Dover">Down from Dover</a>” chronicles the sufferings of an abandoned teenage mother who feels relief and grief when her baby is stillborn. Less well-known by the mainstream but no less critically important in this history is <a href="https://www.malvinareynolds.com">Malvina Reynolds</a>, whose 1973 “<a href="http://people.wku.edu/charles.smith/MALVINA/mr144.htm">Rosie Jane</a>” supported the Supreme Court’s <a href="https://www.oyez.org/cases/1971/70-18">1973 Roe v. Wade ruling</a> and whose 1978 “<a href="http://people.wku.edu/charles.smith/MALVINA/mr007.htm">Back Alley Surgery</a>” responded to <a href="https://www.cambridge.org/core/books/abs/abortion-and-the-law-in-america/hyde-amendment-and-its-aftermath/D0AF40D286D3AAD2DC617DEB5010947A">efforts to restrict Medicaid funding of abortion</a>. </p>
<p>There’s also a small but important history of male artists taking up these issues. Among the most moving of <a href="https://www.johnprine.com">John Prine’s</a> songs is “<a href="https://genius.com/John-prine-unwed-fathers-lyrics">Unwed Fathers</a>,” a pointed tale of Appalachian men who “can’t be bothered” with unwanted pregnancies and pursue personal and cultural freedoms that elude the women they have impregnated. </p>
<p>But not all the men in these situations are carefree. In “<a href="https://genius.com/Jason-isbell-and-the-400-unit-white-beretta-lyrics">White Beretta</a>,” a song from his “Weathervanes” album, <a href="https://www.jasonisbell.com">Jason Isbell</a> chronicles the retrospective grief and agony of a rural man who, when a teenager, failed to do more than the minimum for his pregnant girlfriend. The protagonist of the song does take her to have an abortion, but he offers her little empathy and sends her “in that room alone.” He does not regret the decision, thanking his former partner for her “grace/For the dreams we got to chase” because of her choice.</p>
<h2>Multidimensional portraits</h2>
<p>In the final analysis, both Tuttle and Isbell have created intimate, intricate portraits of people making decisions that cause them grief and bring them relief. Neither oversimplifies the issues at hand, just as neither artist wavers from the belief in the rightness of the decisions their respective characters make.</p>
<p>Put another way, these songs succeed in putting human faces on issues that have been depersonalized for political ends. Tuttle and Isbell remind their listeners that there’s more than one side to small-town life.</p><img src="https://counter.theconversation.com/content/211167/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>William Nash does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>From the pre-Roe years to today, country musicians have written about the realities of life with restrictions on reproductive rights.William Nash, Professor of American Studies and English and American Literatures, MiddleburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2082762023-07-13T12:37:38Z2023-07-13T12:37:38ZPromising assisted reproductive technologies come with ethical, legal and social challenges – a developmental biologist and a bioethicist discuss IVF, abortion and the mice with two dads<figure><img src="https://images.theconversation.com/files/534595/original/file-20230628-23-se3fkd.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C2000%2C1500&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A few days after successful fertilization, an embryo becomes a rapidly dividing ball of cells called a blastocyst.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/illustration/blastocyst-embryo-illustration-royalty-free-illustration/1498384521">Juan Gaertner/Science Photo Library via Getty Images</a></span></figcaption></figure><p><em>Assisted reproductive technologies are medical procedures that help people experiencing difficulty having or an inability to have biological children of their own. From in vitro fertilization to genetic screening to creation of viable eggs from the <a href="https://doi.org/10.1038/s41586-023-05834-x">skin cells of two male mice</a>, each new development speaks to the potential of reproductive technologies to expand access to the experience of pregnancy.</em> </p>
<p><em>Translating advances from the lab to the clinic, however, comes with challenges that go far beyond the purely technical.</em></p>
<p><em>Conversations around the ethics and implications of cutting-edge research often happen after the fact, when the science and technology have advanced beyond the point at which open dialogue could best protect affected groups. In the spirit of starting such cross-discipline conversations earlier, we invited developmental biologist <a href="https://scholar.google.com/citations?user=i6SghEMAAAAJ&hl=en">Keith Latham</a> of Michigan State University and bioethicist <a href="https://www.researchgate.net/profile/Mary-Faith-Marshall">Mary Faith Marshall</a> of the University of Virginia to discuss the ethical and technological potential of <a href="https://www.npr.org/sections/health-shots/2023/05/27/1177191913/sperm-or-egg-in-lab-breakthrough-in-reproduction-designer-babies-ivg">in vitro gametogenesis</a> and assisted reproductive technology post-Roe.</em></p>
<h2>How new are the ethical considerations raised by assisted reproductive technologies?</h2>
<p><strong>Keith</strong></p>
<p>Every new technology raises many of the same questions, and likely new ones. On the safety and risk-benefit side of the ethical conversation, there’s nothing here that we haven’t dealt with since the 1970s with other reproductive technologies. But it’s important to keep asking questions, because the benefits are hugely dependent on the success rate. There are potential biological costs, but also possible social costs, financial costs, societal costs and many others.</p>
<p><strong>Mary Faith</strong> </p>
<p>It’s probably been that way even longer. One of my mentors, Joseph Francis Fletcher, a pioneering bioethicist and Episcopal priest, wrote a book called “<a href="https://press.princeton.edu/books/hardcover/9780691635224/morals-and-medicine">Morals and Medicine</a>” in 1954. It was the first non-Roman Catholic treatment of bioethics. And he raised a lot of these issues there, including the <a href="https://theconversation.com/jurassic-world-scientists-still-havent-learned-that-just-because-you-can-doesnt-mean-you-should-real-world-genetic-engineers-can-learn-from-the-cautionary-tale-184369">technological imperative</a> – the idea that because we can develop the technology to do something, we therefore should develop it.</p>
<p>Fletcher also said that the use of artifice, or human-made creations, is supremely human. That’s what we do: We figure out how things work and we develop new technologies like vaccines and heart-lung machines based on evolving scientific knowledge.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Microscopy image of mouse ovum being fertilized by mouse sperm" src="https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=487&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=487&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534596/original/file-20230628-30-nfjlun.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=487&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Scientists were able to create a mouse egg from the skin cells of male mice.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/fertilization-of-mouse-ovum-royalty-free-image/523741410">Clouds Hill Imaging Ltd./Corbis Documentary via Getty Images</a></span>
</figcaption>
</figure>
<p>I think that in most cases, scientists should be involved in thinking about the implications of their work. But often, researchers focus more on the direct applications of their work than the potential indirect consequences. </p>
<p>Given the evolution of assisted reproductive technology, and the fact that its evolution is going to continue, I think one of the central questions to consider is, what are the goals of developing it? For assisted reproduction, it’s to help infertile people and people in nontraditional relationships have children.</p>
<h2>What are some recent developments in the field of assisted reproductive technology?</h2>
<p><strong>Keith</strong></p>
<p>One recent advance in assisted reproductive technology is the expansion of <a href="https://www.acog.org/clinical/clinical-guidance/committee-opinion/articles/2020/03/preimplantation-genetic-testing">pre-implantation genetic testing</a> methods, particularly DNA sequencing. Many genes come in different variants, or alleles, that can be inherited from each parent. Providers can determine whether an embryo bears a “bad” allele that may increase the risk of certain diseases and select embryos with “healthy” alleles.</p>
<p>Genetic screening <a href="https://doi.org/10.1016/j.fertnstert.2022.03.017">raises several ethical concerns</a>. For example, the parents’ genetic profiles could be unwillingly inferred from that of the embryo. This possibility may deter prospective parents from having children, and such knowledge may also have potential effects on any future child. The cost of screening and potential need for additional cycles of IVF may also increase disparities.</p>
<p>There are also considerations about the <a href="https://doi.org/10.1016/j.fertnstert.2022.03.019">accuracy of screening predictions</a> without accounting for environmental effects, and what <a href="https://doi.org/10.1007/s12687-021-00573-w">level of genetic risk</a> is “serious” enough for an embryo to be excluded. More extensive screening also raises concerns about possible misuse for purposes other than disease prevention, such as production of “<a href="https://theconversation.com/an-american-company-will-test-your-embryos-for-genetic-defects-but-designer-babies-arent-here-just-yet-126833">designer babies</a>.”</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/uhb5gd5B-7g?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">In vitro gametogenesis involves making egg or sperm cells from other adult cells in the body.</span></figcaption>
</figure>
<p>At a <a href="https://www.nationalacademies.org/news/2023/02/agenda-for-third-international-summit-on-human-genome-editing-march-6-8">genome-editing conference</a> in March 2023, researchers announced that they were able to <a href="https://doi.org/10.1038/s41586-023-05834-x">delete and duplicate whole chromosomes</a> from the skin cells of male mice to make eggs. This method is one potential way to make eggs that do not carry genetic abnormalities. </p>
<p>They were very upfront that this was done at 1% efficiency in mice, which could be lower in humans. That means something bad happened to 99% of the embryos. The biological world is not typically binary, so a portion of that surviving 1% could still be abnormal. Just because the mice survived doesn’t mean they’re OK. I would say at this point, it would be unethical to try this on people.</p>
<p>As with some forms of genetic screening, using this technique to reduce the risk of one disease could inadvertently increase the risk of another. Determining that it is absolutely safe to duplicate a chromosome would require knowing every allele of every gene on that chromosome, and what each allele could do to the health of a person. That’s a pretty tall order, as that could involve identifying hundreds to thousands of genes, and the effects of all their variants may not be known. </p>
<p><strong>Mary Faith</strong></p>
<p>That raises the issue of efficacy and costs to yet another order of magnitude.</p>
<p><strong>Keith</strong> </p>
<p>Genome editing with <a href="https://theconversation.com/human-genome-editing-offers-tantalizing-possibilities-but-without-clear-guidelines-many-ethical-questions-still-remain-200983">CRISPR technology</a> in people carries similar concerns. Because of potential limitations in how precise the technology can be, it may be difficult for researchers to say they are absolutely 100% certain there won’t be off-target changes in the genome. Proceeding without that full knowledge could be risky. </p>
<p>But that’s where bioethicists need to come into play. Researchers don’t know what the full risk is, so how do you make that risk-benefit calculation?</p>
<p><strong>Mary Faith</strong></p>
<p>There’s the option of a voluntary global moratorium on using these technologies on human embryos. But somebody somewhere is <a href="https://theconversation.com/did-he-jiankui-make-people-better-documentary-spurs-a-new-look-at-the-case-of-the-first-gene-edited-babies-196714">still going to do it</a>, because the technology is just sitting there, waiting to be moved forward.</p>
<h2>How will the legal landscape affect the development and implementation of assisted reproductive technologies?</h2>
<p><strong>Mary Faith</strong></p>
<p>Any research that involves human embryos is in some ways politicized. Not only because the <a href="https://doi.org/10.1038/d41586-020-00127-z">government provides funding</a> to the basic science labs that conduct this research, but because of the wide array of beliefs that members of the public at large have about <a href="https://theconversation.com/defining-when-human-life-begins-is-not-a-question-science-can-answer-its-a-question-of-politics-and-ethical-values-165514">when life begins</a> or <a href="https://theconversation.com/what-is-personhood-the-ethics-question-that-needs-a-closer-look-in-abortion-debates-182745">what personhood means</a>.</p>
<p>The <a href="https://theconversation.com/roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision-184692">Dobbs decision</a>, which overturned the constitutional right to an abortion, has implications for assisted reproduction and beyond. Most people who are pregnant don’t even know they’re pregnant at the earliest stages, and somewhere around <a href="https://theconversation.com/most-human-embryos-naturally-die-after-conception-restrictive-abortion-laws-fail-to-take-this-embryo-loss-into-account-187904">60% of those pregnancies end naturally</a> because of genetic aberrations. Between 1973 and 2005, <a href="https://doi.org/10.1215/03616878-1966324">over 400 women were arrested for miscarriage in the U.S.</a>, and I think that number is going to grow. The implications for reproductive health care, and for assisted reproduction in the future, are challenging and frightening.</p>
<p>What will abortion restrictions mean for people who have <a href="https://www.cdc.gov/art/key-findings/multiple-births.html">multiple-gestation pregnancies</a>, in which they carry more than one embryo at the same time? In order to have one healthy child born from that process, the other embryos often need to be removed so they don’t all die. In the past 40 years, the number of twin births doubled and triplet and higher-order births quadrupled, primarily because of fertility treatments. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Needle touching eggs in petri dish under microscope in IVF" src="https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534477/original/file-20230628-27-v0r0uc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">IVF may involve transferring more than one embryo at a time.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/in-vitro-fertilization-royalty-free-image/1272954210">Antonio Marquez lanza/Moment via Getty Images</a></span>
</figcaption>
</figure>
<p><strong>Keith</strong> </p>
<p>IVF may transfer one, two, or sometimes three embryos at a time. The <a href="https://doi.org/10.1016/j.jpeds.2022.11.038">cost of care for preterm birth</a>, which is one possible outcome of multiple-gestation pregnancies, can be high. That’s in addition to the <a href="https://doi.org/10.1016/j.ajog.2013.10.005">cost of delivery</a>. IVF clinics are increasingly transferring just one embryo to mitigate such concerns.</p>
<p>The life-at-conception bills that have been put forth in some U.S. state legislatures and Congress may contain language claiming they are not meant to prevent IVF. But the language of the bills could be extended to affect procedures such as IVF with pre-implantation genetic testing to detect chromosomal abnormalities, particularly when single-embryo transfer is the goal. Pre-implantation genetic testing has been increasing, with one study estimating that <a href="https://doi.org/10.1001/jama.2022.1892">over 40% of all IVF cycles</a> in the U.S. in 2018 involved genetic screening. </p>
<p>Could life-at-conception bills criminalize clinics that don’t transfer embryos known to be genetically abnormal? Freezing genetically abnormal embryos could avoid destroying them, but that raises questions of, to what end? Who would pay for the storage, and who would be responsible for those embryos?</p>
<h2>How can we determine whether the risks outweigh the benefits when so much is unknown?</h2>
<p><strong>Keith</strong></p>
<p>Conducting studies in animal models is an important first step. In some cases, it either hasn’t been done or hasn’t been done extensively. Even with animal studies, you have to recognize that mice, rabbits and monkeys are not human. Animal models may reduce some risks before a technology is used in people, but they won’t eliminate all risks, because of biological differences between species.</p>
<p><strong>Mary Faith</strong> </p>
<p>We could look to the example of <a href="https://www.genome.gov/25520302/online-education-kit-1972-first-recombinant-dna">early recombinant DNA research in the U.S.</a> The federal government created the <a href="https://doi.org/10.1089%2Fhum.2013.2524">Recombinant DNA Advisory Committee at the National Institutes of Health</a> to oversee animal and early-phase human research involving synthetic or hybrid genetic material. </p>
<p>The <a href="https://doi.org/10.1126/science.307.5712.1028b">death of Jesse Gelsinger</a>, who was a participant in a gene therapy clinical trial in 1999, led to a halt in all gene therapy clinical trials in the U.S. for a time. When the Food and Drug Administration investigated what went wrong, they found huge numbers of adverse events in both humans and animals that should have been reported to the advisory committee but weren’t. Notably, the principal investigator of the trial was also the <a href="https://sciencehistory.org/stories/magazine/the-death-of-jesse-gelsinger-20-years-later/">primary shareholder</a> of the biotech company that made the drug being tested. That raises questions about the reality of oversight.</p>
<p>I think something like that earlier NIH advisory committee but for reproductive technologies would still be advisable. But researchers, policymakers and regulators need to learn from the lessons of the past to try to ensure that – especially in early-phase research – we’re very thoughtful about the potential risks and that research participants really understand what the implications are for participation in research. That would be one model for translating research from the animal into the human.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Child looking into a slip lamp microscope for an eye exam with a doctor" src="https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/534481/original/file-20230628-30590-2nwhy8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The FDA approved a gene therapy for a form of congenital vision loss in 2017. The child in this photo, then 8, first received gene therapy at age 4.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BlindnessTreatmentPrice/c567cc3a2b244cac8afc2b5ae2c62ca3">Bill West/AP Photo</a></span>
</figcaption>
</figure>
<p><strong>Keith</strong></p>
<p>A process to make sure that the people conducting studies don’t have a conflict of interest, like having the potential to commercially profit from the technology, would be useful. </p>
<p>Caution, consensus and cooperation should not take second place to profit motives. Altering the human genome in a way that allows human-made genetic changes to be <a href="https://doi.org/10.1089/crispr.2020.0096">propagated throughout the population</a> has a potential to alter the genetics of the human species as a whole. </p>
<p><strong>Mary Faith</strong></p>
<p>That raises the question of how long it will take for long-term effects to show. It’s one thing for an implanted egg not to survive. But how long will it take to know whether there are effects that aren’t obvious at birth?</p>
<p><strong>Keith</strong> </p>
<p>We’re still collecting long-term outcome data for people born using different reproductive technologies. So far there have been no obviously horrible consequences. But some abnormalities could take decades to manifest, and there are many variables to contend with. </p>
<p>One can arguably say that there’s substantial good in helping couples have babies. There can be a benefit to their emotional well-being, and reproduction is a natural part of human health and biology. And a lot of really smart, dedicated people are putting a lot of energy into making sure that the risks are minimized. We can also look to some of the practices and approaches to oversight that have been used over the past several decades.</p>
<p><strong>Mary Faith</strong></p>
<p>And thinking about international guidelines, such as from the <a href="https://cioms.ch">Council for International Medical Science</a> and other groups, could provide guidance on protecting human research subjects.</p>
<p><strong>Keith</strong></p>
<p>You hate to advocate for a world where the automatic response to anything new is “no, don’t do that.” My response is, “Show me it’s safe before you do it.” I don’t think that’s unreasonable.</p>
<p>Some people have a view that scientists don’t think about the ethics of research and what’s right and wrong, advisable or inadvisable. But we do think about it. I co-direct a research training program that includes teaching scientists how to responsibly and ethically conduct research, including speakers who specifically address the ethics of reproductive technologies. It is valuable to have a dialogue between scientists and ethicists, because ethicists will often think about things from a different perspective. </p>
<p>As people go through their scientific careers and see new technologies unfold over time, these discussions can help them develop a deeper appreciation and understanding of the broader impact of their research. It becomes our job to make sure that each generation of scientists is motivated to think about these things. </p>
<p><strong>Mary Faith</strong></p>
<p>It’s also really important to include stakeholders – people who are nonscientists, people who experience barriers to reproduction and people who are opposed to the idea – so they have a voice at the table as well. That’s how you get good policies, right? You have everyone who should be at the table, at the table.</p><img src="https://counter.theconversation.com/content/208276/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Scientists can create viable eggs from two male mice. In the wake of CRISPR controversies and restrictive abortion laws, two experts start a dialogue on ethical research in reproductive biology.Keith Latham, Professor of Animal Science, Adjunct Professor of Obstetrics, Gynecology and Reproductive Biology, Michigan State UniversityMary Faith Marshall, Professor of Biomedical Ethics, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2063692023-06-23T18:05:53Z2023-06-23T18:05:53ZA year after Supreme Court’s Dobbs decision, Black women still struggle for access to reproductive health care<figure><img src="https://images.theconversation.com/files/532981/original/file-20230620-23-qrvoxi.jpg?ixlib=rb-1.1.0&rect=98%2C251%2C5847%2C3727&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">House Democrats join an abortion-rights protest on July 19, 2022, in Washington, D.C.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/house-democrats-join-an-abortion-rights-protest-with-the-news-photo/1409758838?adppopup=true">Anna Moneymaker/Getty Images</a></span></figcaption></figure><p>It’s been a year since the Supreme Court handed down its decision in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>, and the predictions by <a href="https://www.guttmacher.org/article/2021/10/26-states-are-certain-or-likely-ban-abortion-without-roe-heres-which-ones-and-why">several experts</a> that the U.S. Supreme Court decision to overturn <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a> would lead individual states to ban abortions have come true.</p>
<p>Also true has been the impact of those bans and restrictions on the reproductive health <a href="https://www.kff.org/racial-equity-and-health-policy/issue-brief/what-are-the-implications-of-the-overturning-of-roe-v-wade-for-racial-disparities/">disparities</a> between Black and white women.</p>
<p><a href="https://womensstudies.sdsu.edu/people/price">As a scholar</a> who studies reproductive policy, politics and social justice movements, I have <a href="https://theconversation.com/access-to-reproductive-health-care-has-been-harder-for-black-and-brown-women-overturning-roe-made-it-harder-186085">always been aware</a> that, even when Roe was in place, abortion access is an elusive right for women of color, women in rural areas and women living in poverty.</p>
<p>Black women comprise a <a href="https://www.kff.org/womens-health-policy/report/key-facts-on-abortion-in-the-united-states/">disproportionate percentage</a> – 39% – of abortion patients in the United States, and many live in communities with limited access to health services, including family planning <a href="https://doi.org/10.1017/S1743923X2100009X">clinics</a> and <a href="https://doi.org/10.1007/s40615-019-00570-3">pharmacies</a>. They also <a href="https://www.kff.org/racial-equity-and-health-policy/issue-brief/racial-disparities-in-maternal-and-infant-health-current-status-and-efforts-to-address-them/">disproportionately</a> experience higher rates of other reproductive health conditions, such as infant mortality and pregnancy-related complications and deaths. </p>
<p>The lack of clinics means that Black women <a href="https://www.kff.org/racial-equity-and-health-policy/issue-brief/what-are-the-implications-of-the-overturning-of-roe-v-wade-for-racial-disparities/">often delay or forgo</a> necessary health care services. </p>
<p>Before the reversal of Roe, many Black women, who are likely to live in states with abortion restrictions, had to worry not only about the cost of the procedure but also about <a href="https://www.kff.org/racial-equity-and-health-policy/issue-brief/what-are-the-implications-of-the-overturning-of-roe-v-wade-for-racial-disparities/">travel costs</a> and the possible loss of wages. </p>
<p>Given the continued actions of anti-abortion policymakers at the state level, it’s my belief that the U.S. will continue to see more restrictions – not fewer – and thus make it harder for Black women to have access to reproductive health care. </p>
<h2>Restricted abortion access</h2>
<p>A small <a href="https://states.guttmacher.org/policies/">number of states</a>, such as California, New York and Washington, have passed laws or constitutional amendments that guarantee or strengthen abortion access. </p>
<p>Some of those states have seen an increase in demand for abortion at clinics. In fact, the <a href="https://www.mercurynews.com/2023/01/01/demand-has-tripled-quadrupled-at-california-abortion-clinics-since-roe-fell/">demand has quadrupled</a> for some clinics in California.</p>
<p>But at least <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">17 states</a>, mostly concentrated in the Southeast and the Midwest, have fully or partially banned abortions. </p>
<p>An additional <a href="https://states.guttmacher.org/policies/">10 states</a> have further restricted abortion access without banning abortion outright. Moreover, some state legislatures have begun to <a href="https://apnews.com/article/abortion-trafficking-state-legislature-border-5fc92621bcdb0d7f018d95dd15d6f98c">pass legislation</a> that makes it illegal to travel across borders to obtain abortions.</p>
<p>That means that pregnant women – and those who assist them – can potentially face criminal charges for obtaining abortions in another state.</p>
<p>Two states with the <a href="https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=3&lvlid=61#:%7E:text=Overview%20(Demographics)%3A%20In%202021,following%20the%20Hispanic%2FLatino%20population.">largest populations</a> in total numbers of African Americans – Texas and Florida – have abortion bans. </p>
<p>The states with the <a href="https://www.census.gov/library/visualizations/interactive/racial-and-ethnic-diversity-in-the-united-states-2010-and-2020-census.html">largest percentages</a> of African Americans – 37% in Mississippi, 31% in both Georgia and Louisiana, and 26% in Alabama – have the most restrictive <a href="https://states.guttmacher.org/policies/">abortion laws</a>. </p>
<p>In fact, abortion is <a href="https://states.guttmacher.org/policies/">completely banned</a> with few exceptions in Texas, Georgia, Mississippi, Louisiana and Alabama. </p>
<p>These bans have a detrimental impact on access for Black women. They now <a href="https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0209991">have to travel</a> – even more so than before – to obtain an abortion, assuming they have the financial means to do so.</p>
<h2>Reproductive health disparities beyond abortion</h2>
<p>The recent tragic death of U.S. Olympic champion <a href="https://www.nytimes.com/2023/06/13/sports/olympics/tori-bowie-death-childbirth-pregnant.html">Tori Bowie</a> during childbirth is a stark reminder of the reproductive health <a href="https://doi.org/10.1016/j.socscimed.2011.01.013">disparities</a> that continue to plague the Black community. </p>
<p>Black women, regardless of income or educational level, are three times as likely to die from pregnancy-related complications as white women. Black women have higher <a href="https://doi.org/10.1377/hlthaff.2021.01422">levels of obesity</a>, hypertension, diabetes and cardiovascular disease that can contribute to these complications. </p>
<p>They are also more likely to receive little or late <a href="https://www.kff.org/racial-equity-and-health-policy/issue-brief/racial-disparities-in-maternal-and-infant-health-current-status-and-efforts-to-address-them/">prenatal care</a>, or none at all. </p>
<p>But this only partially explains this disparity.</p>
<p>Researchers have shown that the <a href="https://doi.org/10.1377/hlthaff.2021.01422">implicit bias</a> and <a href="https://doi.org/10.1016/j.socscimed.2011.01.013">stereotypical assumptions</a> of health care providers are also key factors.</p>
<p>Pregnant Black women are often <a href="https://doi.org/10.1016/j.socscimed.2011.01.013">refused hospital admission</a> for delivery if they lack health insurance. Sometimes they are denied on the mere assumption that they do not have insurance.</p>
<p>In various studies, Black women have reported that they have been <a href="https://doi.org/10.1377/hlthaff.2021.01422">treated disrespectfully by medical personnel</a> dismissive of their fears and concerns about their reproductive health. Black women’s complaints about <a href="https://doi.org/10.1177/1073110520958875">pain are often ignored</a>, which can lead to misdiagnosis or delayed treatment.</p>
<p>In addition, Black women are more likely to be coerced into submitting to <a href="https://doi.org/10.1177/1073110520958875">unnecessary cesarean sections</a>, which can lead to major medical complications.</p>
<p>Black women report that they must be <a href="https://doi.org/10.1377/hlthaff.2021.01422">particularly assertive with health care providers</a> to ensure that their reproductive needs are addressed.</p>
<h2>Where do we go from here?</h2>
<p>According to the Pew Research Center, 57% of Americans disapprove the reversal of Roe, and <a href="https://www.pewresearch.org/politics/2022/07/06/majority-of-public-disapproves-of-supreme-courts-decision-to-overturn-roe-v-wade/">62% say that abortion should be legal</a>. </p>
<p>The Dobbs ruling is not only out of step with the general public, it also does not jibe with the <a href="https://www.pewresearch.org/politics/2022/07/06/majority-of-public-disapproves-of-supreme-courts-decision-to-overturn-roe-v-wade/">opinions of most African Americans</a>, of which a significant majority – 68% – agree that abortion should be legal in all or most cases.</p>
<p>It remains to be seen if these sentiments will have an effect on the upcoming elections. </p>
<p>In the meantime, abortion access remains only one part of Black women’s reproductive health challenges.</p><img src="https://counter.theconversation.com/content/206369/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kimala Price does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Even with laws to protect a woman’s right to have an abortion, Black women found it hard to find access to reproductive health care. It’s only gotten worse since Roe v. Wade was overturned.Kimala Price, Professor and Chair of Women’s Studies, San Diego State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2071012023-06-21T21:54:27Z2023-06-21T21:54:27ZAbortion is a workplace issue: How managers can support employee access to reproductive health care<figure><img src="https://images.theconversation.com/files/531174/original/file-20230609-29-cvtxut.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C5579%2C3705&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters cheer during a Planned Parenthood rally in support of abortion access outside the Supreme Court on April 15, 2023, in Washington.</span> <span class="attribution"><span class="source">(AP Photo/Nathan Howard)</span></span></figcaption></figure><p>June 24 marks the one-year anniversary of <a href="https://theconversation.com/roe-v-wade-overturned-will-more-americans-travel-to-canada-and-mexico-for-abortions-185563">the United States Supreme Court overturning <em>Roe v. Wade</em></a> — the landmark decision that, for nearly 50 years, had guaranteed abortion care access in the U.S. </p>
<p>As of June 16, <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">20 states have banned or heavily restricted access</a> to abortion. At best, these bans require women who need abortions to travel hours, or even days out-of-state, often at a significant cost.</p>
<p>In response to this legislative change, <a href="https://www.nytimes.com/article/abortion-companies-travel-expenses.html">many companies in the U.S.</a> — including Goldman Sachs, the Bank of America, Dick’s Sporting Goods and Meta — introduced benefits to support employees needing abortions and <a href="https://www.nbcnews.com/news/us-news/companies-that-will-protect-employee-access-to-abortions-rcna35265">other reproductive health care</a> (e.g., birth control and genetic testing).</p>
<p><a href="https://www.bankingdive.com/news/jpmorgan-chase-goldman-sachs-bank-of-america-jefferies-amex-deutsche-employee-abortion-travel-citi/626134/">JPMorgan Chase</a>, for example, is covering costs for employees who must travel more than 50 miles. <a href="https://www.reuters.com/business/retail-consumer/amazon-reimburse-us-employees-who-travel-treatments-including-abortions-2022-05-02/">Amazon is offering up to US$4,000</a> in travel expenses each year for medical treatments. By offering such benefits, employers are prioritizing employee health and safety, even when the law may not.</p>
<h2>Dark side of workplace health benefits</h2>
<p>Unfortunately, workplace health and safety initiatives have historically demonstrated that even the most well-intentioned benefits can have a dark side. For example, some <a href="https://doi.org/10.3389/fpsyg.2018.02206">health promotion programs have led to weight-based discrimination</a> in the workplace.</p>
<p>Similarly, workplaces that adopt anti-harassment policies, but fail to have appropriate training, <a href="https://hbr.org/2020/05/why-sexual-harassment-programs-backfire">risk unintentionally causing backlash against women</a> in the workplace. </p>
<p>If implemented poorly, health and safety benefits related to abortion may have similar unintended consequences, potentially putting already vulnerable employees at risk of being discriminated against at work. The mere presence of inclusive health and safety benefits is not enough. Authentic, consistent organizational support is critical. </p>
<figure class="align-center ">
<img alt="A woman in a suit speaks into a microphone while holding up a map of the United States" src="https://images.theconversation.com/files/531000/original/file-20230608-11102-d9owk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531000/original/file-20230608-11102-d9owk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531000/original/file-20230608-11102-d9owk7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531000/original/file-20230608-11102-d9owk7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531000/original/file-20230608-11102-d9owk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531000/original/file-20230608-11102-d9owk7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531000/original/file-20230608-11102-d9owk7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Vice President Kamala Harris holds up a map of the United States showing different states’ abortion laws while speaking in Los Angeles in October 2022.</span>
<span class="attribution"><span class="source">(David Crane/The Orange County Register via AP)</span></span>
</figcaption>
</figure>
<p>Our research on related topics, including <a href="https://hbr.org/2022/01/5-ways-managers-can-support-pregnant-employees">pregnancy</a>, <a href="https://doi.org/10.1016/j.jvb.2023.103848">pregnancy loss</a>, <a href="https://doi.org/10.1146/annurev-orgpsych-120920-050527">mental health</a> and <a href="https://doi.org/10.1037/ocp0000287">grief</a>, provides actionable, evidence-based insight for employers and managers.</p>
<h2>Build awareness of benefits</h2>
<p>Many employees don’t access benefits because they don’t know the benefits exist. Employees often have low levels of awareness about the policies, programs and benefits their employer offers, particularly when those benefits are not discussed openly. </p>
<p>To build awareness, employers should share information about reproductive health-care benefits widely, freely and frequently. All messaging should be clear and use non-judgmental language.</p>
<p>Employers should also offer additional, but complementary benefits and resources, such as inclusive mental health (e.g., counselling) and physical health (e.g., physical therapy) support.</p>
<h2>Improve access to benefits</h2>
<p>Even when employees are aware of benefits, they may be unsure about how to access them. Bureaucratic red tape, such as paperwork or complicated human resource websites, can discourage, limit and prevent the use of benefits. To improve access to abortion care benefits, employers can do a number of things.</p>
<p>First, employers should ensure employees can safely and confidentially access abortion-related benefits. Employers should protect their employees’ privacy and dignity.</p>
<figure class="align-center ">
<img alt="A pair of hands pushes a white, round pill out of a blister packet into another person's waiting hand." src="https://images.theconversation.com/files/531173/original/file-20230609-27-4z3i88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/531173/original/file-20230609-27-4z3i88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/531173/original/file-20230609-27-4z3i88.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/531173/original/file-20230609-27-4z3i88.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/531173/original/file-20230609-27-4z3i88.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/531173/original/file-20230609-27-4z3i88.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/531173/original/file-20230609-27-4z3i88.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A doctor gives their patient the first of two pills taken for a medical abortion during a visit to a Planned Parenthood clinic in October 2022 in Kansas City, Kan.</span>
<span class="attribution"><span class="source">(AP Photo/Charlie Riedel)</span></span>
</figcaption>
</figure>
<p>Second, employers should offer flexible, paid time off to minimize financial insecurity issues that could limit benefit use. Travelling to access abortion care out-of-state may take a week or more, and could require hospital stays and multiple nights of accommodation.</p>
<p>Lastly, employers should recognize that, even when out-of-state travel is not required, <a href="https://www.plannedparenthood.org/learn/abortion/in-clinic-abortion-procedures/what-can-i-expect-after-having-an-in-clinic-abortion">the physical recovery</a> associated with an abortion often requires at least one full day of reduced activity. However, this can vary across individuals and procedures.</p>
<h2>Reduce abortion and benefit stigma</h2>
<p>Another significant barrier to using abortion benefits is the stigma associated with it. Employees seeking abortion care may fear that disclosing this information to their manager or co-workers could jeopardize their job security or result in them being viewed negatively.</p>
<p>To reduce the stigma associated with abortion and abortion-related benefits, there are a number of things employers can do. First, they should offer equitable, accessible health-care leave policies and travel funding that don’t require detailed disclosure or justification.</p>
<p>Second, employers should provide managers with appropriate training on benefit promotion and implementation. Managers must not only understand how employees can access and use policies and benefits, but also how they can support employees as managers. This may involve authorizing paid time off and offering temporary flexible work arrangements.</p>
<p>Lastly, managers should be trained on how to use de-stigmatizing language and show appropriate social support toward an employee if they disclose the need or desire to use abortion care benefits. Managers often set the tone within their teams and can dictate whether employees feel safe to use benefits and accommodations.</p>
<h2>Abortion is a workplace issue</h2>
<p>As stated by <a href="https://www.nytimes.com/2022/05/04/business/dealbook/us-businesses-roe-wade-abortion.html">the <em>New York Times</em>, “abortion is a business issue</a>.” By offering abortion care benefits and policies, employers serve as a <a href="https://www.ft.com/content/e745d12f-924e-4a0a-9819-2f4595b179cf">“firewall” to protect against harmful legislation</a>. </p>
<p>But to be effective, employers must promote and de-stigmatize reproductive health and abortion care benefits by normalizing them. Human resource professionals and front-line managers must be trained on how to discuss these benefits and support any employees who use them.</p>
<p>In addition, these benefits must be known about and easily accessible to employees — only then will employers avoid the dark side of well-intentioned, but poorly implemented abortion care benefits and policies.</p><img src="https://counter.theconversation.com/content/207101/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Dimoff receives funding from SSHRC and the University of Ottawa.</span></em></p><p class="fine-print"><em><span>Jacquelyn Brady receives funding from San Jose State University. </span></em></p><p class="fine-print"><em><span>Mikaila Ortynsky receives funding from SSHRC and the University of Ottawa. </span></em></p><p class="fine-print"><em><span>Stephanie Gilbert receives funding from SSHRC and Cape Breton University. </span></em></p>By offering abortion care benefits and policies, employers can serve as a “firewall” to protect against harmful legislation — but only if these benefits are easily accessible and de-stigmatized.Jennifer Dimoff, Associate Professor, Organizational Behaviour and Human Resource Management, L’Université d’Ottawa/University of OttawaJacquelyn Brady, Assistant Professor of Psychology, San José State UniversityMikaila Ortynsky, PhD Student, Organizational Behaviour and Human Resource Management, Telfer School of Management, L’Université d’Ottawa/University of OttawaStephanie Gilbert, Assistant Professor of Organizational Management, Cape Breton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2073902023-06-21T12:30:58Z2023-06-21T12:30:58ZOne year after the fall of Roe v. Wade, abortion care has become a patchwork of confusing state laws that deepen existing inequalities<figure><img src="https://images.theconversation.com/files/532284/original/file-20230615-17-u98cyj.jpg?ixlib=rb-1.1.0&rect=22%2C0%2C4914%2C1638&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The range of reproductive health care available to women depends significantly on the state they live in.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/sad-young-woman-sitting-looking-out-window-and-royalty-free-image/1132941100?phrase=abortion&adppopup=true">fizkes/iStock via Getty Images Plus</a></span></figcaption></figure><p>In the year since the <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">U.S. Supreme Court’s Dobbs v. Jackson ruling</a> <a href="https://theconversation.com/supreme-court-overturns-roe-upends-50-years-of-abortion-rights-5-essential-reads-on-what-happens-next-184697">struck down the constitutional right to abortion</a>, society has been seeing the results of a post-Roe world. </p>
<p>While there is no law in the U.S. that regulates what a man can do with his body, the reproductive health of women is now more regulated than it has been in 50 years. And the scope of reproductive health care that women can receive is highly dependent on where they live. </p>
<p>This creates a <a href="https://doi.org/10.1177/10901981221125430">system of inequalities</a> and further exacerbates health disparities.</p>
<p>I am a <a href="https://www.uml.edu/health-sciences/nursing/faculty/collins-fantasia-heidi.aspx">nurse practitioner</a> who <a href="https://scholar.google.com/citations?user=6rrHhmUAAAAJ&hl=en">studies women’s reproductive health across the lifespan</a>. </p>
<p>My research found that college women are concerned about pregnancy, but they lack knowledge and skills about <a href="https://doi.org/10.1097/JFN.0000000000000046">navigating sexual consent</a> and often participate in <a href="https://doi.org/10.1111/j.1939-3938.2011.01108.x">sexual activity without explicit consent</a>, leaving them at risk for not using contraception and exposure to sexually transmitted infections. </p>
<p>These findings indicate that women are at risk of pregnancy at a historic time when women’s reproductive rights in the U.S. are restricted and not guaranteed. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/z4nHG4_Sqhw?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">A retrospective on Roe v. Wade – and a look ahead.</span></figcaption>
</figure>
<h2>Current state of abortion in the US</h2>
<p>The <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson ruling</a> returned decisions regarding abortion to individual states. This has led to a <a href="https://theconversation.com/in-the-year-since-the-supreme-court-overturned-roe-v-wade-and-ruled-states-should-decide-the-legality-of-abortion-voters-at-the-state-level-have-been-doing-just-that-4-essential-reads-207299">patchwork of laws</a> that <a href="https://states.guttmacher.org/policies/">span the entire range</a> from complete bans and tight restrictions to full state protection for abortion.</p>
<p>In some states, such as Texas, Louisiana and Mississippi, <a href="https://www.guttmacher.org/state-policy/explore/overview-abortion-laws">abortion is banned</a> beginning at six weeks gestational age, when very few women even know they are pregnant. Other states, such as Massachusetts, Vermont, New York and Oregon, have enacted state-level protections for abortion. </p>
<p>The patchwork of state laws also results in a great deal of confusion. In the past year, women’s rights organizations and women’s health advocates have brought numerous <a href="https://www.kff.org/womens-health-policy/issue-brief/legal-challenges-to-state-abortion-bans-since-the-dobbs-decision/#">legal challenges to restrictive abortion laws</a>. These cases have halted the implementation of some of the strictest abortion regulations until additional court rulings are finalized. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Protesters gather in a small crowd holding signs including " src="https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/533009/original/file-20230620-27-mj0m9l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Protesters against a stricter abortion ban stand in the State House lobby on May 23, 2023, in Columbia, S.C.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionSouthCarolina/a08c0479d51341e493cf4850cb1df634/photo?Query=abortion%20bans&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=2705&currentItemNo=12">AP Photo/Jeffrey Collins</a></span>
</figcaption>
</figure>
<h2>Downstream effects for health care professionals</h2>
<p>Abortion training is considered <a href="https://doi.org/10.1097/ACM.0000000000005154">essential health care and a core competency</a> for physicians in obstetrics and gynecology, or OB-GYN, residency programs. Approximately 50% of OB-GYN residency programs are located in states <a href="https://doi.org/10.1097/AOG.0000000000004832">with restricted or highly restricted access to abortion</a>. This will logically result in not only fewer health care providers being trained to perform gynecologic procedures for abortion, but also other conditions such as miscarriage, fetal death and nonviable pregnancies. </p>
<p>In states with changing abortion laws and legal challenges to new laws, <a href="https://www.ama-assn.org/delivering-care/population-care/ambiguous-anti-abortion-laws-are-putting-patients-risk">physicians are uncertain</a> of what procedures can be legally done. <a href="https://www.politico.com/news/2022/05/06/potential-abortion-bans-and-penalties-by-state-00030572">Penalties for violating abortion laws</a> may include arrest, loss of medical license, fines and discipline by state boards of medicine. </p>
<p>As a result, physicians are <a href="https://www.axios.com/2023/04/18/abortion-ban-states-drop-student-residents">choosing to leave states</a> with the <a href="https://www.npr.org/sections/health-shots/2023/05/23/1177542605/abortion-bans-drive-off-doctors-and-put-other-health-care-at-risk">most restrictive abortion laws, and clinics are closing</a>, which is contributing to the current <a href="https://www.cnn.com/2023/04/19/health/abortion-ban-affects-physician-training/index.html">shortage of health care providers</a>.</p>
<h2>Inequalities in health care access</h2>
<p>The unequal access to abortion procedures across the country is most directly affecting the poorest women in the U.S.</p>
<p>Currently, 12 states restrict abortion coverage by private insurance, and more than 30 states <a href="https://www.guttmacher.org/state-policy/explore/overview-abortion-laws">prohibit public Medicaid payment</a> for abortion. Women who qualify for Medicaid are among the poorest in the U.S. Lack of access to abortion limits education and wage earning and <a href="https://www.npr.org/2022/08/18/1111344810/abortion-ban-states-social-safety-net-health-outcomes">contributes to poverty</a>. States with the most restrictive abortion laws also have <a href="https://www.axios.com/2022/05/20/abortion-roe-supreme-court-babies-mothers">limited access to pregnancy care</a> and <a href="https://www.usnews.com/news/politics/articles/2022-04-07/social-programs-weak-in-many-states-with-tough-abortion-laws">supportive programs</a> for pregnant and parenting women. </p>
<p>In addition, traveling to a different state to obtain an abortion is often not possible for poor women. Lack of transportation and limited financial resources reduce or eliminate options to obtain an abortion in a different geographic location. </p>
<p>What’s more, states with the most abortion restrictions have some of the <a href="https://worldpopulationreview.com/state-rankings/maternal-mortality-rate-by-state">worst pregnancy and maternal health outcomes</a> for women, especially women of color. Pregnancy itself is associated with a <a href="https://doi.org/10.1097%2FAOG.0000000000003762">risk of dying</a>. </p>
<p>Maternal morbidity is the term used to describe short- or long-term <a href="https://www.nichd.nih.gov/health/topics/maternal-morbidity-mortality">health problems that result from pregnancy</a>. Maternal mortality refers to the <a href="https://www.who.int/news-room/fact-sheets/detail/maternal-mortality">death of women during pregnancy</a> or within the first six weeks after birth. </p>
<p>For example, Mississippi and Louisiana have the highest rates of maternal mortality in the U.S. and also <a href="https://www.guttmacher.org/state-policy/explore/overview-abortion-laws">have the most restrictive abortion laws</a>. Black women have the <a href="https://www.ama-assn.org/print/pdf/node/66881">highest maternal mortality of all races</a> and ethnicities. Women in these states who are unable to terminate a pregnancy have a higher risk of dying as a result of the pregnancy than women in other states. </p>
<p>Additionally, research shows that a <a href="https://doi.org/10.1097/aog.0b013e31823fe923">woman’s risk of dying</a> related to pregnancy or childbirth is about 14 times higher than the risk of death from an abortion. </p>
<p>In addition to the increased risks of death, there are other <a href="https://www.ansirh.org/research/ongoing/turnaway-study">physical and mental health implications</a> associated with carrying an undesired pregnancy to term. Being denied access to abortion is associated with increased anxiety and <a href="https://www.ansirh.org/research/ongoing/turnaway-study">fewer future plans</a> for the next year. Research also shows that not being able to obtain an abortion makes women more likely to <a href="https://doi.org/10.2105/AJPH.2017.304247">live below the federal poverty level</a> and to <a href="https://doi.org/10.1363/psrh.12216">lack partner support</a>. </p>
<p>Conversely, research has shown that there are <a href="https://doi.org/10.1016/j.contraception.2008.07.005">few if any significant negative mental health outcomes</a> among women who have abortions. </p>
<h2>Unsafe abortions</h2>
<p>Restricting legal abortion increases the risk that women will seek out <a href="https://doi.org/10.1016/j.bpobgyn.2010.02.012">pregnancy termination from unskilled people</a> in unsafe settings. Or they may not seek care quickly for pregnancy complications due to fear of being accused of a crime.</p>
<p>In Texas, physicians are <a href="https://www.newyorker.com/news/dispatch/in-the-post-roe-era-letting-pregnant-patients-get-sicker-by-design">reporting an increase in sepsis</a>, or an <a href="https://theconversation.com/sepsis-still-kills-1-in-5-people-worldwide-two-icu-physicians-offer-a-new-approach-to-stopping-it-175650">overwhelming response to infection</a>, from incomplete abortions. These physicians predict that sepsis will become the leading cause of maternal death in Texas. </p>
<p>Prior to 1973, when Roe v. Wade established constitutional protection for abortion in the U.S., women often resorted to unsafe methods to induce abortion that resulted in a high death toll. <a href="https://doi.org/10.2307/3419941">Septic abortion wards</a> – or designated areas of hospitals where women were treated for sepsis as a result of illegal abortions – were common. In 1965, 17% of all deaths related to pregnancy were <a href="https://www.guttmacher.org/sites/default/files/article_files/gr060108.pdf">attributed to illegal abortion</a>. </p>
<p>Now that the constitutional right to abortion has been eliminated, more women will inevitably <a href="https://doi.org/10.1016/j.ajog.2022.07.033">die or become seriously ill</a> due to lack of safe access to abortion services. In states with the most restrictions on abortion, whether a woman meets the criteria for an exemption to save the life of the mother may be <a href="https://publichealth.jhu.edu/2023/a-year-without-roe">decided by a hospital committee</a>. This can delay necessary care and increase the risk to the mother.</p>
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<figcaption><span class="caption">Said one: “I didn’t know I was important enough to draw boundaries around what people could and couldn’t do with my body.”</span></figcaption>
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<h2>Women affected by violence</h2>
<p>In the U.S., more than 25% of women will <a href="https://ncadv.org/STATISTICS">experience physical or sexual violence</a> in their lifetime. Violence from an intimate partner is a <a href="https://www.ansirh.org/research/ongoing/turnaway-study">leading reason for abortion</a>. My research shows that women affected by violence have a <a href="https://doi.org/10.1016/j.contraception.2012.03.005">higher risk of pregnancy</a> and that college women are at increased risk of <a href="https://doi.org/10.1097/jfn.0000000000000086">nonconsensual and forced sexual encounters</a>.</p>
<p>Currently, there are 14 states with abortion bans that contain <a href="https://www.kff.org/womens-health-policy/issue-brief/a-review-of-exceptions-in-state-abortions-bans-implications-for-the-provision-of-abortion-services/">no exception for rape or incest</a> or require that the sexual assault be reported to law enforcement to qualify for exception. </p>
<p>Research has shown that women often <a href="https://doi.org/10.3200/JACH.55.3.157-162">don’t report sexual assault</a> due to stigma, embarrassment or fear of not being believed. Even if women qualify for an abortion as a result of sexual violence, those who have not filed a formal police report lack “proof” that their pregnancy resulted from assault. </p>
<p>While the changes that have occurred since the fall of Roe one year ago are already deeply concerning, the full effect of eliminating the constitutional right to an abortion won’t be known for years. And as laws are enacted and subsequently challenged, uncertainty and confusion regarding women’s reproductive health care will undoubtedly continue for years to come.</p><img src="https://counter.theconversation.com/content/207390/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Heidi Collins Fantasia has received funding from the National Institutes of Health, National Institute of Child Health and Human Development and Heart, Lung, and Blood Institute. Dr. Fantasia is the editor of Nursing for Women's Health. </span></em></p>Abortion bans and restrictions have numerous downstream effects on health care. For instance, medical students in states where those laws exist will not receive training for some standard procedures.Heidi Collins Fantasia, Associate Professor of Nursing, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2072992023-06-12T12:26:11Z2023-06-12T12:26:11ZIn the year since the Supreme Court overturned Roe v. Wade and ruled states should decide the legality of abortion, voters at the state level have been doing just that: 4 essential reads<figure><img src="https://images.theconversation.com/files/530911/original/file-20230608-18-hwoxua.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5904%2C3954&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Abortion-rights demonstrators protest in front of the Supreme Court building on June 25, 2022, a day after the announcement of the Dobbs v. Jackson Women's Health Organization ruling.
</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-rights-demonstrators-protest-in-front-of-the-news-photo/1405134629?adppopup=true">Brandon Bell/Getty Images News via Getty Images</a></span></figcaption></figure><p>When the Supreme Court ruled on June 24, 2022, in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a> that states – some of which have been chipping away at women’s access to abortion for years – should decide the legality of abortion, Justice Samuel Alito wrote in the court’s majority opinion that “women are not without electoral or political power.”</p>
<p>In one fell swoop, the court’s 6-3 ruling that abortion is not a federal constitutional right overturned <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a>, decided in 1973, and 1992’s <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a> – two decisions that provided federal protections for abortion. </p>
<p>Since the Dobbs decision, women and men alike have exercised the political power Alito referenced at the ballot box and, in the states that allow it, through legislation citizens initiate themselves. State legislatures, too, have been passing abortion laws.</p>
<p>The Conversation has covered the fight over abortion rights in the U.S. for years. Here are four essential reads to help you understand some of the state-level decisions legislators and citizens have made since the Dobbs ruling.</p>
<h2>1. Kansans safeguard constitutional access to abortion</h2>
<p>On Aug. 2, 2022, in the first state referendum on abortion since the Dobbs ruling, voters in Kansas rejected a proposed constitutional amendment to deny the right to abortion in that state. The 59% to 41% vote was decisive. </p>
<p>Scholars <a href="https://scholar.google.com/citations?user=vUKLlG4AAAAJ&hl=en">Matthew A. Baum</a>, <a href="https://scholar.google.com/citations?hl=en&user=Fj-XMtIAAAAJ">Alauna Safarpour</a> and <a href="https://scholar.google.com/citations?hl=en&user=0JH3YoUAAAAJ">Kristin Lunz Trujillo</a>, of the John F. Kennedy School of Government at Harvard University, who poll Americans on social and political issues, wrote that most residents of Kansas favor neither unrestricted access to abortion nor a total ban on the procedure.</p>
<p>Sentiment appears to be the same in various states across the country.</p>
<p>In one survey that they conducted between June 8 and July 6, 2022, these scholars asked Americans about the importance of abortion to them and if they support the procedure under nine specific scenarios, ranging from saving the life of the woman to avoiding financial hardship. </p>
<p>Their findings were eye-opening.</p>
<p>“Since the Dobbs decision was announced, Americans also increasingly appear to <a href="https://theconversation.com/kansas-vote-for-abortion-rights-highlights-disconnect-between-majority-opinion-on-abortion-laws-and-restrictive-state-laws-being-passed-after-supreme-court-decision-187138">prefer fewer restrictions on abortion</a>, even as many states are moving to enact more restrictions,” they wrote. </p>
<p>“Across the U.S., more Americans support than oppose the right to an abortion in most scenarios – including cases in which the life or health of the mother is at stake, the fetus could be born with severe health problems, the pregnancy resulted from rape or the woman does not want to be pregnant. Support for abortion in all nine scenarios increased following the Dobbs ruling.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/kansas-vote-for-abortion-rights-highlights-disconnect-between-majority-opinion-on-abortion-laws-and-restrictive-state-laws-being-passed-after-supreme-court-decision-187138">Kansas vote for abortion rights highlights disconnect between majority opinion on abortion laws and restrictive state laws being passed after Supreme Court decision</a>
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<h2>2. Kansas was no fluke</h2>
<p>Whether they were voting in favor of a state constitutional amendment that protected abortion rights or voting against one that would have banned abortion, voters in a record number of states – from California to Vermont – made clear on Election Day, Nov. 8, 2022, that they want abortion to be an option for women.</p>
<p>In Kentucky as in Kansas, for example, <a href="https://theconversation.com/in-first-nationwide-election-since-roe-was-overturned-voters-opt-to-protect-abortion-access-194140">voters rejected a proposed</a> constitutional amendment that would have stripped residents of the right to seek an abortion. And in California, Michigan and Vermont, voters approved constitutional amendments to protect the right to an abortion.</p>
<p><a href="https://scholar.google.com/citations?hl=en&user=4bgaJCQAAAAJ">Linda C. McClain</a>, a law professor, and <a href="https://scholar.google.com/citations?hl=en&user=CcAfO1UAAAAJ">Nicole Huberfeld</a>, a professor of law and health law, of Boston University, have studied the issue. They wrote: “Exit polls indicate <a href="https://abcnews.go.com/Politics/live-updates/midterm-elections-exit-polls-live-updates/?id=92683687">60% of voters nationwide</a> – up 9% since 2020 – believe that abortion should be legal in all or most cases. A majority – 60% – of voters <a href="https://abcnews.go.com/Politics/live-updates/midterm-elections-exit-polls-live-updates/?id=92683687">expressed anger</a> at the Supreme Court over the Dobbs ruling and indicated that they trusted the Democratic Party more than the Republican Party on the issue by a margin of 52% to 42%.”</p>
<p>The pair pointed out that abortion was also indirectly on the ballot in federal races and in states like Pennsylvania and New York, where it was a campaign issue.</p>
<p>In Pennsylvania, abortion figured prominently in the gubernatorial race between Democrat Josh Shapiro and Republican Doug Mastriano.</p>
<p>“Access to abortion care and protecting abortion rights were key themes in Shapiro’s campaign, while Mastriano stressed culture war issues,” they wrote. “Commentary and exit polling suggest that abortion was a motivating issue among Pennsylvania voters – especially younger voters.”</p>
<p>Shapiro won the contest. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/in-first-nationwide-election-since-roe-was-overturned-voters-opt-to-protect-abortion-access-194140">In first nationwide election since Roe was overturned, voters opt to protect abortion access</a>
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<a href="https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People in Overland Park, Kansas gathered in a meeting room cheer, clap and some cry happily after learning an anti-abortion amendment failed." src="https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=430&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=430&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=430&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=541&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=541&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530912/original/file-20230608-29-lw1nva.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=541&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Supporters of abortion rights react happily to news that an amendment which would have denied the right to abortion failed.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/abortion-supporters-alie-utley-and-joe-moyer-react-to-the-news-photo/1242276288?adppopup=true">Dave Kaup/AFP via Getty Images</a></span>
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<h2>3. Some abortion fights are through constitutional amendments</h2>
<p><a href="https://politics.wfu.edu/faculty-and-staff/john-dinan/">John Dinan</a>, a scholar of state constitutions at Wake Forest University, wrote that even before the Dobbs ruling, state constitutional amendments had shaped abortion policy as much as state court rulings had.</p>
<p>But, he noted, how these amendments are used – and who proposes them – is different now.</p>
<p>“Before the Dobbs ruling, abortion-related amendments invariably sought to limit protection for abortion rights by clarifying that there is no state constitutional right to abortion,” he wrote, noting that, as in the cases of Kansas and Kentucky, <a href="https://theconversation.com/state-battles-over-abortion-are-leading-to-state-constitutional-amendments-an-option-in-all-states-and-available-directly-to-citizens-in-18-states-203394">voters don’t always approve these amendments</a>.</p>
<p>“After the Dobbs decision, most proposed abortion-related amendments have aimed to expand protection of abortion rights. In November 2022, voters in <a href="https://thehill.com/policy/healthcare/3608609-state-ballot-measures-are-new-abortion-battleground/">Vermont, California and Michigan approved amendments</a> that explicitly protect reproductive rights.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/state-battles-over-abortion-are-leading-to-state-constitutional-amendments-an-option-in-all-states-and-available-directly-to-citizens-in-18-states-203394">State battles over abortion are leading to state constitutional amendments – an option in all states and available directly to citizens in 18 states</a>
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<hr>
<h2>4. A patchwork legal landscape</h2>
<p>Since the Dobbs decision, women’s access to abortion has increasingly been determined by geographic boundaries.</p>
<p>As Temple University’s <a href="https://scholar.google.com/citations?user=Q974nRQAAAAJ&hl=en">Rachel Rebouche</a>, a scholar of reproductive health and justice, wrote for us, women who live along the East and West coasts can get abortions, but women in parts of the South and Midwest can’t. </p>
<p>And since the Dobbs decision, which prompted state-level referendums, some of those <a href="https://theconversation.com/abortion-rights-referendums-are-winning-with-state-by-state-battles-over-rights-replacing-national-debate-193490">boundaries have hardened</a>. But voters in some states with tight abortion restrictions opted to loosen them.</p>
<p>For example, in California, Michigan and Vermont, voters added abortion protections to their state constitutions. And in Kentucky, where abortion was severely restricted, voters rejected a referendum that would have denied constitutional protections for abortion.</p>
<p>“The legislation that states pass post-Dobbs of course reflects differences in opinion about abortion itself. But in some places where abortion has been banned, or restricted, anti-abortion legislators may not reflect their constituents’ beliefs. The recent ballot measures reveal that,” Rebouche wrote.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/abortion-rights-referendums-are-winning-with-state-by-state-battles-over-rights-replacing-national-debate-193490">Abortion rights referendums are winning – with state-by-state battles over rights replacing national debate</a>
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<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/207299/count.gif" alt="The Conversation" width="1" height="1" />
In the year since the Supreme Court overturned Roe v. Wade, giving decisions about the legality of abortion back to states, voters and state legislatures have made their preferences on abortion clear.Lorna Grisby, Politics & Society EditorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2047282023-05-12T12:20:57Z2023-05-12T12:20:57ZAn obscure 1800s law is shaping up to be the center of the next abortion battle – legal scholars explain what’s behind the Victorian-era Comstock Act<figure><img src="https://images.theconversation.com/files/525475/original/file-20230510-27-6r8iwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Anti-abortion activists gather outside the Supreme Court building on April 15, 2023. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1252038585/photo/washington-d-c-april-15-pro-life-activist-also-gather-at-th.jpg?s=1024x1024&w=gi&k=20&c=C5Ris2nTdaa2mUJSDSp8clY4jytuN_xW8v0v9UYQOjQ=">Astrid Riecken for The Washington Post via Getty Images </a></span></figcaption></figure><p><a href="https://www.npr.org/2023/04/18/1170371877/abortion-pill-mifepristone-judge-comstock#:%7E:text=What%20is%20the%20Comstock%20Act,used%20to%20cause%20an%20abortion.">Anti-abortion groups</a> are looking for new ways to wage their battle against abortion rights, eyeing the potential implications of a 150-year-old law, the Comstock Act, that could effectively lead to a nationwide abortion ban. </p>
<p>Congress passed the Comstock Act in 1873, <a href="https://www.law.cornell.edu/uscode/text/18/1461">making it a crime</a> to mail <a href="https://www.law.cornell.edu/uscode/text/18/1462">or ship</a> any “lewd, lascivious, indecent, filthy or vile article” and anything that “is advertised or described in a manner … for producing abortion.” </p>
<p>There are now legal cases questioning the Food and Drug Administration’s <a href="https://www.pbs.org/newshour/politics/what-does-comstock-act-a-law-from-the-1870s-have-to-do-with-abortion-pills">regulation of mifepristone</a>, one of the two drugs used in the standard regimen for medication abortion. If courts find that the FDA has the authority to approve mifepristone for abortion, the Comstock Act could still prevent the pill’s distribution. </p>
<p><a href="https://www.law.gwu.edu/sonia-m-suter">As scholars</a> of law and <a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">reproductive justice</a>, we have been analyzing potential strategies to use this Victorian-era law to restrict the ability to get an abortion in the U.S.</p>
<p>Read one way, the Comstock Act could prevent mailing mifepristone to a person’s home, regardless of whether this person lives in a state where abortion is legal. </p>
<p>A broader interpretation, <a href="https://www.thenation.com/article/society/comstock-act-jonathan-mitchell/">advanced by anti-abortion groups</a> in recent months, would mean the Comstock Act applies to the distribution of all <a href="https://www.cnn.com/2023/04/28/politics/comstock-act-abortion-ban-legal-fight/index.html">drugs and medical tools</a> used <a href="https://www.pbs.org/newshour/politics/what-does-comstock-act-a-law-from-the-1870s-have-to-do-with-abortion-pills">for abortions, not just mifepristone</a>. </p>
<p>The Supreme Court returned the <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">question of abortion rights</a> to states in June 2022. But it’s important to understand that the Comstock Act is a federal law that applies to states, regardless of their approach to abortion.</p>
<p>So while abortion <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">remains legal in certain states</a>, we believe it’s possible that a court could interpret the Comstock Act to prevent the distribution of any tool used for an abortion, anywhere in the U.S. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A cartoon shows a man dressed as a monk in the center holding up his hands to a display of female mannequins. The monk appears in other cases leading a horse away, chasing a poodle with a bare bottom exposed." src="https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=391&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=391&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=391&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=492&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=492&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525474/original/file-20230510-9330-8oheqr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=492&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A 1906 illustration shows Anthony Comstock, center, thwarting excessive displays of flesh, be it a woman, dog or horse.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/160176791/photo/st-anthony-comstock-the-village-nuisance.jpg?s=1024x1024&w=gi&k=20&c=hX0j6PFsb7H2cZU3ba7wJ-sLDEnwklLtvgzjGvmZiRM=">PhotoQuest/Getty Images</a></span>
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<h2>The history of the Comstock Act</h2>
<p>Devout Christian and self-described “<a href="https://scholar.google.com/scholar_case?case=7584004164925736257&q=US+v.+Dellapia&hl=en&as_sdt=20000006&as_vis=1">moral evangelist</a>” <a href="https://www.npr.org/2023/04/18/1170371877/abortion-pill-mifepristone-judge-comstock">Anthony Comstock</a> came up with the idea of what would become the Comstock Act after he felt troubled by the large amount of pornography and alcohol his fellow Union army soldiers consumed. </p>
<p>He lobbied for Congress to pass a law restricting what he deemed lewd behavior, displaying “his impressive collection of pornographic pictures, <a href="https://www.washingtonpost.com/made-by-history/2023/04/12/mifepristone-kacsmaryk-medication-abortion/">sex toys and contraceptive materials</a>” in the Capitol building “to help galvanize Congress to pass anti-obscenity legislation.” </p>
<p>Congress then <a href="https://www.pbs.org/wgbh/americanexperience/features/pill-anthony-comstocks-chastity-laws/">passed the Comstock Act</a> in 1873.</p>
<p>Although prosecutions under the Comstock Act were brought in the early 1900s, <a href="https://www.cnn.com/2023/04/28/politics/comstock-act-abortion-ban-legal-fight/index.html#:%7E:text=CNN%20Store-,The%20150%2Dyear%2Dold%20chastity%20law%20that%20may%20be%20the,next%20big%20fight%20over%20abortion&text=A%20law%20passed%20150%20years,where%20the%20procedure%20is%20legal.">enforcement started to wane by the 1930s</a>.</p>
<p>Nonetheless, the Supreme Court <a href="https://scholar.google.com/scholar_case?case=16134723048539384332&hl=en&as_sdt=6&as_vis=1&oi=scholarr">has heard</a> the occasional <a href="https://supreme.justia.com/cases/federal/us/463/60/">case related to the law</a> over the past 100 years. In 1983, for example, the Supreme Court found that applying the Comstock Act to prohibit <a href="https://supreme.justia.com/cases/federal/us/463/60/">mailed advertisements about contraceptives</a> violated the First Amendment. </p>
<p>No court has since ruled decisively to actually enforce the Comstock Act. </p>
<p>Indeed, <a href="https://www.justice.gov/olc/opinion/file/1560596/download">major court decisions</a> have limited <a href="https://slate.com/news-and-politics/2023/04/abortion-pill-ban-comstock-act-history-mifepristone-kacsmaryk.html">the law’s applicability</a>. </p>
<p>And, in 2022, the Justice Department issued an opinion concluding that the Comstock Act <a href="https://www.justice.gov/olc/opinion/file/1560596/download">does not prohibit</a> mailing mifepristone if the sender doesn’t know the recipient intends to use those pills “illegally” for abortions – for example, the recipient might be using them to treat a miscarriage.</p>
<h2>Applying the Comstock Act today</h2>
<p>As anti-abortion rights groups try to reinvigorate the Comstock Act, the question is what the law covers, exactly. Several legal cases are addressing this point in different contexts. </p>
<p>Texas federal court Judge Matthew Kacsmaryk – who issued a preliminary decision on April 7, 2023, <a href="https://s3.documentcloud.org/documents/23746119/read-texas-federal-judge-ruling-on-abortion-pill.pdf">effectively rescinding the FDA’s approval of mifepristone</a> – said the Comstock Act prevented the mailing of abortion pills. </p>
<p>When that decision was appealed, the appellate court seemed to agree with Kacsmaryk. It noted that the law <a href="https://storage.courtlistener.com/recap/gov.uscourts.ca5.213145/gov.uscourts.ca5.213145.183.2_1.pdf">does not necessarily require users</a> “of the mails or common interstate carriage to intend that an abortion actually occur,” contrary to the Justice Department’s 2022 opinion. It emphasized, however, that it was “not required to definitively interpret the Comstock Act” because it was not issuing a final ruling. </p>
<p>That decision was then appealed to the Supreme Court, which temporarily upheld the availability of mifepristone and <a href="https://www.supremecourt.gov/opinions/22pdf/22a901_3d9g.pdf">sent the case back to the 5th Circuit Court of Appeals for full review</a> on April 21. </p>
<p>The appellate court will hear oral arguments on May 17 and should issue a more definitive interpretation. </p>
<h2>Extending to other lawsuits</h2>
<p>The Comstock Act is also at the center of other kinds of litigation and legal campaigns focused on whether people can get abortions.</p>
<p>Jonathan Mitchell, <a href="https://www.newyorker.com/news/annals-of-inquiry/the-conservative-who-wants-to-bring-down-the-supreme-court">a conservative lawyer</a> and <a href="https://www.npr.org/2023/05/07/1174672358/jonathan-mitchell-the-legal-mind-behind-the-texas-abortion-ban">former solicitor general of Texas</a>, is trying to use the Comstock Act to outlaw abortion altogether. Notably he also <a href="https://www.nytimes.com/2021/09/12/us/politics/texas-abortion-lawyer-jonathan-mitchell.html">devised</a> <a href="https://www.npr.org/2023/05/08/1174552727/jonathan-mitchell-abortion-texas-sb8-roe-v-wade-dobbs">the Texas “bounty-hunter” abortion legislation </a>in 2021 that bans most abortions and “<a href="https://www.nytimes.com/2021/07/09/us/abortion-law-regulations-texas.html">deputizes citizens to sue people involved in the process</a>.” </p>
<p>Since 2019, two counties and more than 60 cities in Texas, Nebraska, Iowa, Ohio, New Mexico, Louisiana and Illinois <a href="https://sanctuarycitiesfortheunborn.com/">have passed ordinances</a> that ban abortion. This is part of a political campaign called Sanctuary Cities for the Unborn – orchestrated by Mitchell and <a href="https://www.theguardian.com/world/2023/mar/09/pastor-push-national-abortion-ban-sanctuary-cities-for-the-unborn">conservative pastor Mark Lee Dickson</a>. </p>
<p>Some of these places <a href="https://sanctuarycitiesfortheunborn.org/">now prohibit</a> the shipment and <a href="https://www.law.cornell.edu/uscode/text/18/1462">receipt of abortion drugs or medical items</a> used for abortions.</p>
<p>These ordinances have led to two lawsuits questioning their legal status.</p>
<p>New Mexico Attorney General Raúl Torrez sued several Sanctuary City towns in January 2023, claiming that the ordinances <a href="https://www.nmag.gov/wp-content/uploads/2023/03/Mandamus-Reply.pdf">violated state law that says</a> people have the right to access health care and that physicans’ care of patients is a private matter. </p>
<p>But then the New Mexico city of Eunice, another Sanctuary City, also filed a <a href="https://drive.google.com/file/d/1kHwoeKlQNgJ7gEFPd-RNVrya1d8-21gS/view">lawsuit in April 2022</a>, asking a state court to determine that the <a href="https://drive.google.com/file/d/1kHwoeKlQNgJ7gEFPd-RNVrya1d8-21gS/view">Comstock Act is enforceable</a>. </p>
<p>Finally, the Comstock Act is being applied even after an abortion has occurred.</p>
<p><a href="https://s4f4x7d5.rocketcdn.me/wp-content/uploads/2023/03/1-Silva-v.-Noyola-Original-Petition-FINAL.pdf">In a Texas lawsuit filed</a> in March 2023, Texas resident Marcus Silva sued three women for wrongful death, saying they assisted in “murdering Ms. Silva’s unborn child with illegally obtained abortion pills.” The complaint notes that Silva will also sue the pills’ manufacturer for wrongful death based on the Comstock Act. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A truck shows a purple advertisement on its side that says, 'Pharmacists know, mifepristone saves lives.'" src="https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525483/original/file-20230510-25-g46cen.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An advertisement outside a pharmacists conference in Phoenix advocates for the safety and necessity of mifepristone.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1476304220/photo/ultraviolet-calls-on-pharmacists-to-reaffirm-that-mifepristone-a-medication-abortion-drug-is.jpg?s=1024x1024&w=gi&k=20&c=vJBZrHKeA1NR572zGNXCuj0gMCaq9O_xqJVH2sFa1VE=">Chris Coduto/Getty Images for UltraViolet</a></span>
</figcaption>
</figure>
<h2>Mailing, distributing or banning?</h2>
<p>It seems likely that the high-profile federal <a href="https://www.nytimes.com/2023/04/07/health/abortion-pills-ruling-texas.html">FDA mifepristone case in Texas</a> could <a href="https://apnews.com/article/abortion-pill-mifepristone-supreme-court-texas-436fe0de292379b469159a3ed7b62fef">head back to the Supreme Court</a> after the 5th Circuit issues its ruling. If so, the Supreme Court could determine that the Comstock Act only applies to the mailing of items if the sender knows the items are intended to be used “illegally” for abortions. In that case, little or nothing would change in states where abortion is legal.</p>
<p>Or, the court could decide that the Comstock Act bars mailing mifepristone regardless of its user’s intent, making access to medication abortion more difficult. The court could also cast a wider net, prohibiting the shipping of abortion medication altogether across the U.S. </p>
<p>And if the Comstock Act applies to mifepristone, it could also apply to any other item or tool that is used to terminate a pregnancy. Such a ruling would effectively impose a nationwide ban on abortion, even in states that allow abortions. To achieve this result based on an 1873 Victorian statute would be entirely consistent with Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade based on the state of the law in 1868.</p><img src="https://counter.theconversation.com/content/204728/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 1873 Comstock Act makes it a crime to mail abortion drugs or medicine – raising legal questions about the law’s potential revival and influence over nationwide abortion laws.Sonia Suter, Professor of law, George Washington UniversityNaomi Cahn, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2040682023-04-25T19:03:10Z2023-04-25T19:03:10ZWhy Justin Trudeau’s viral response to an anti-abortionist missed the mark<figure><img src="https://images.theconversation.com/files/522157/original/file-20230420-28-fshqwe.png?ixlib=rb-1.1.0&rect=0%2C0%2C1282%2C778&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Prime Minister Justin Trudeau engages in an argument with an anti-abortionist at the University of Manitoba that garnered international attention. But was it the right response?</span> <span class="attribution"><span class="source">(Screen shot of viral video)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/why-justin-trudeau-s-viral-response-to-an-anti-abortionist-missed-the-mark" width="100%" height="400"></iframe>
<p>A <a href="https://www.reddit.com/r/canada/comments/12l07xt/justin_trudeau_urges_ppc_supporter_to_do_more/">viral clip</a> of Prime Minister Justin Trudeau from his recent visit to the <a href="https://news.umanitoba.ca/prime-minister-visits-campus/#:%7E:text=Prime%20Minister%20Justin%20Trudeau%20visited,with%20a%20crowd%20of%20students.">University of Manitoba</a> circulated rapidly on social media. <a href="https://nationalpost.com/news/politics/justin-trudeau-ppc-supporter-pray-abortion-video">National</a> <a href="https://www.independent.co.uk/news/world/americas/justin-trudeau-canada-abortion-video-b2320190.html">and international</a> news outlets celebrated his response to a young, self-acclaimed People’s Party of Canada voter and anti-abortionist.</p>
<p>Trudeau’s defence of a <a href="https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights">woman’s right to choose</a> involved him appealing to the anti-abortionist’s humanity by using an extreme example of rape. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/U6Efa8oV6QY?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Trudeau squares off against an anti-abortion activist in a clip that went viral. (National Post)</span></figcaption>
</figure>
<p>The prime minister <a href="https://ca.news.yahoo.com/prime-minister-justin-trudeau-praised-for-interaction-with-confused-ppc-supporter-164601140.html">was widely praised</a> for his pro-choice response, which is understandable in a <a href="https://www.cbc.ca/news/world/ussc-dobbs-abortion-ruling-1.6495637">post-<em>Roe v. Wade</em> North America</a>. There are <a href="https://www.cbc.ca/news/world/supreme-court-mifepristone-decision-1.6811314">continuous attacks on reproductive rights</a> in the United States and fears the trend could migrate to Canada.</p>
<p>However, complex issues require complex analysis.</p>
<p>The two-minute viral clip showed Trudeau and the young man speaking on other political topics during the prime minister’s visit. After briefly discussing the <a href="https://globalnews.ca/news/9585059/budget-2023-dental-care-program/">federal government’s new dental care plan</a>, the man expressed his opinion on a woman’s right to abortion:</p>
<blockquote>
<p>“I think that if they sleep around, they should not be allowed to abort…”</p>
</blockquote>
<p>Trudeau responds with a “wow,” shaking his head, taken aback by the misogynist and sexist remarks, and then raises the scenario of pregnant rape victims. This confuses the man, seemingly encouraging him to “<a href="https://globalnews.ca/news/9621386/justin-trudeau-debate-ppc-supporter-abortion-winnipeg-video/">do a little more thinking</a>” on the issue at Trudeau’s behest.</p>
<h2>Abortion is a human right</h2>
<p>While Trudeau’s support for reproductive rights is encouraging, using the example of rape to justify abortion care neglects abortion as a <a href="https://www.actioncanadashr.org/campaigns/abortion-rights-are-human-rights">human right</a> and <a href="https://www.amnesty.org/en/latest/news/2020/04/abortion-contraception-essential/">vital health care</a> required for many diverse reasons <a href="https://www.aclu.org/news/reproductive-freedom/why-we-use-inclusive-language-to-talk-about-abortion">by diverse people</a>, including and excluding rape. </p>
<p>Raising the notion that there are acceptable and unacceptable reasons to terminate a pregnancy denies people’s agency and bodily autonomy, and oversimplifies complex issues around <a href="https://www.sistersong.net/reproductive-justice">reproductive justice</a>. </p>
<p>There are many reasons someone may choose to abort, including medical, economic and emotional issues. All are valid and all necessitate access to free, safe and legal abortion.</p>
<figure class="align-center ">
<img alt="A wire coat hanger with a paper banner that reads 'health care.'" src="https://images.theconversation.com/files/522439/original/file-20230423-18-upnomv.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/522439/original/file-20230423-18-upnomv.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/522439/original/file-20230423-18-upnomv.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/522439/original/file-20230423-18-upnomv.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/522439/original/file-20230423-18-upnomv.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/522439/original/file-20230423-18-upnomv.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/522439/original/file-20230423-18-upnomv.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">People in Montréal take part in a protest to denounce the United States Supreme Court’s June 2022 decision to overturn the law that provided the constitutional right to abortion for almost 50 years.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Graham Hughes</span></span>
</figcaption>
</figure>
<p>The Trudeau clip emerges as pro-life advocates in North America are threatening to cut off access to vital services based on issues of morality <a href="https://www.ctvnews.ca/health/abortion-accessibility-in-canada-the-catholic-hospital-conflict-1.5911306">and religion</a>, including here in Canada. </p>
<p>While Trudeau’s pro-choice advocacy is important on a national and international scale, advancing public discussions on abortion access and reproductive justice can help raise social awareness on these important issues — which <a href="https://globalnews.ca/news/8808938/wade-v-roe-us-abortion-minorities/">disproportionately affect</a> women who are racially marginalized and low-income.</p>
<p>Abortion and reproductive justice debates need to be based on the <a href="https://doi.org/10.1080/10999949.2017.1389634">tenets of intersectionality</a> and examine how race, class and gender inequalities combine to affect access to reproductive care. As it stands now, the politics of abortion in North America distort real people’s experiences. </p>
<h2>The scene in Canada</h2>
<p>Following last year’s reversal by the United States Supreme Court of <a href="https://doi.org/10.1503/cmaj.1096000"><em>Roe v. Wade</em></a>, which upheld the constitutional right to abortion, anti-choice advocates <a href="https://www.youtube.com/watch?v=IA_945YlbdY&ab_channel=CBCNews%3ATheNational">in Canada</a> were emboldened. </p>
<p>Unfortunately, the example used by Trudeau in his recent confrontation with the anti-abortionist reinforces the worst-case scenario for abortion access. It unwittingly encourages people to view abortion through a conservative lens.</p>
<p>Maxime Bernier, leader of the ultra-right People’s Party of Canada, has expressed anti-abortion sentiments, including calls <a href="https://www.peoplespartyofcanada.ca/abortion">to reopen the abortion debate in Canada</a>. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1548073458407329792"}"></div></p>
<p>The current leader for the Conservative Party, Pierre Poilievre, has claimed a newfound <a href="https://nationalpost.com/news/we-cannot-endorse-him-social-conservatives-accuse-pierre-poilievre-of-being-pro-abortion">“pro-choice” stance</a>. The <a href="https://www.arcc-cdac.ca/">Abortion Rights Coalition Of Canada (ARCC)</a>, however, <a href="https://www.arcc-cdac.ca/media/2021/10/Anti-choice-unknown-MPs-current.pdf">lists anti-choice MPs</a> based on voting history, including aligning with “pro-life” statements, events and campaigns. On this basis, the ARCC continues to list Poilievre as anti-abortion. </p>
<p><a href="https://rabble.ca/politics/canadian-politics/the-inconvenient-anti-choice-record-of-poilievre/">Abortion supporters</a> are calling the Tory leader’s newfound stance on abortion a political manoeuvre with dangerous implications for reproductive rights if the Conservatives were ever to form government.</p>
<p>While Trudeau’s support for reproductive rights is appreciated and needed, we must ensure all people have access to vital health care — and not leave the impression that abortion is primarily most necessary for rape victims.</p>
<p>The <a href="https://oncanadaproject.ca/">On Canada Project</a>, a community digital media platform focused on the experiences of marginalized Canadians, called Trudeau’s response “not great” on its <a href="https://www.instagram.com/p/CrCOUmmpjh3/">Instagram page</a>.</p>
<p><div data-react-class="InstagramEmbed" data-react-props="{"url":"https://www.instagram.com/p/CrCOUmmpjh3","accessToken":"127105130696839|b4b75090c9688d81dfd245afe6052f20"}"></div></p>
<p>Samanta Krishnapillai, On Canada’s founder, said: “If you want an abortion, you should be able to get an abortion. That’s it.” </p>
<p>She added:</p>
<blockquote>
<p>“When we focus these conversations around specific situations that can happen and result in a pregnancy that someone doesn’t want, we run the risk that that’s what the conversation becomes about, rather than just upholding people’s human rights.”</p>
</blockquote>
<p>Krishnapillai received <a href="https://www.instagram.com/p/CrGovDgAY__/">some criticism</a> from commenters for her remarks, with some calling her “nitpicky,” “divisive” and even “angry.” She argued that her comments were not meant to attack the prime minister, but to deepen the discussion based on an intersectional understanding of the issue. </p>
<p>The fact is, Trudeau’s intentions were good. But the public’s understanding of difficult and complex issues must be improved to push back against harmful, dehumanizing rhetoric — and ensure human rights are upheld in our democracy.</p>
<p>As Krishnapillai put it: “There’s a lot of work to be done in Canada.”</p><img src="https://counter.theconversation.com/content/204068/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lesley Ann Foster receives funding from the GROWW program. </span></em></p>When Justin Trudeau raised the issue of rape victims during a recent argument with an anti-abortionist, he inadvertently suggested there are acceptable and unacceptable reasons to abort.Lesley Ann Foster, Ph.D Candidate in Cultural Studies, Teaching Fellow, Queen's University, OntarioLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2041722023-04-24T12:26:56Z2023-04-24T12:26:56ZHow will the Supreme Court’s decision on mifepristone affect abortion access? 4 questions answered<figure><img src="https://images.theconversation.com/files/522387/original/file-20230421-26-8fh4pq.jpg?ixlib=rb-1.1.0&rect=44%2C29%2C5000%2C3263&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The legal battle over mifepristone could have far-reaching effects on reproductive health care.
</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AbortionPill/90b940844e254f1d9369d4e5430eca71/photo?Query=mifepristone&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=125&currentItemNo=2">AP Photo/J. Scott Applewhite</a></span></figcaption></figure><p><em>On April 21, 2023, the U.S. Supreme Court ruled that the abortion pill mifepristone, which is used in more than half of all abortions in the U.S., could <a href="https://www.nytimes.com/live/2023/04/21/us/abortion-pill-supreme-court">remain accessible without restrictions</a> – at least for now. The decision is temporary, however, buying time as an appeals court weighs the challenge to mifepristone brought by a Texas judge in early April 2023.</em></p>
<p><em>That ruling <a href="https://theconversation.com/anti-mifepristone-court-decisions-rely-on-medical-misinformation-about-abortion-and-questionable-legal-reasoning-203742">blocked the use of the drug in medication abortions</a> and sought to remove it from the market altogether, questioning its safety. Days later, a U.S. appeals court <a href="https://www.npr.org/2023/04/13/1169217172/abortion-pill-mifepristone-ruling-texas-judge">reversed the suspension on mifepristone</a> but placed tighter restrictions on it, including preventing it from being sent through the mail.</em> </p>
<p><em>The Conversation asked twin sisters <a href="https://scholar.google.com/citations?user=bNJTbmMAAAAJ&hl=en">Jamie Rowen</a>, a legal scholar, and obstetrician and gynecologist <a href="https://www.ucsfhealth.org/providers/dr-tami-rowen">Tami Rowen</a> to put into perspective what the Supreme Court’s decision means for access to the drug moving forward and how it came under legal scrutiny to begin with.</em> </p>
<h2>1. What led up to the Supreme Court’s ruling on mifepristone?</h2>
<p>In September 2022, several groups of anti-abortion doctors <a href="https://adflegal.org/sites/default/files/2022-11/Alliance-for-Hippocratic-Medicine-v-FDA-2022-11-18-Complaint.pdf">sued the Food and Drug Administration</a>, arguing that they were harmed because the FDA’s 2000 approval of mifepristone was flawed and that it did not adequately test the drug for safety, among other claims. The plaintiffs also claimed harm from the FDA’s 2016 and 2021 changes that lifted several restrictions on how the drug could be used or administered. </p>
<p>The doctors brought the case in Texas, where a federal district judge ordered that, while the case was pending, mifepristone should be off the market. </p>
<p>The FDA appealed to the 5th Circuit, asking it for an emergency “stay,” or a hold on, the district court’s order. The 5th Circuit ordered that, while the case is being decided, mifepristone can be on the market but only with its original restrictions from 2000. Under this order, mifepristone could only be used up to seven weeks of pregnancy and required an in-person visit and prescription from a doctor. </p>
<p>The FDA, along with mifepristone’s manufacturer Danco Laboratories, immediately asked the Supreme Court to stay the 5th Circuit’s order. Supreme Court <a href="https://www.supremecourt.gov/publicinfo/reportersguide.pdf">stays are granted</a> when at least five justices agree that the applicants – in this case the FDA and Danco – are likely to succeed, among other considerations.</p>
<p>The majority did not explain its decision in favor of the FDA and Danco. The <a href="https://www.nytimes.com/interactive/2023/04/21/us/23-supreme-court-order.html">two dissents</a> – from Samuel Alito and Clarence Thomas – provide little insight into how the different justices might rule on the case if they decide to review the 5th Circuit’s forthcoming opinion. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/qCwUuphh_A0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">The Supreme Court ruling provided at least temporary relief to many providers who view mifepristone as the gold standard for abortion care.</span></figcaption>
</figure>
<h2>2. What comes next in the courts?</h2>
<p>The Supreme Court’s decision means that mifepristone will remain available until there is a final decision in this case. For now, the case returns to the 5th Circuit. Depending on the outcome of that case, either the plaintiffs or the defendants may ask the Supreme Court to hear the case. If the Supreme Court decides to hear the case, then the final decision on whether mifepristone should be taken off the market or have stricter requirements for use will come from the Supreme Court. If not, the final decision will come from the 5th Circuit. </p>
<p>Although the 5th Circuit is <a href="https://www.ca5.uscourts.gov/oral-argument-information/court-calendars/Details/1661/">scheduled to hear the case on May 17, 2023</a>, there is no fixed time by which it must make its decision. In short, it will likely take at least a year for the case to be decided. Regardless of these lower court decisions, the fact that at least five justices chose to stay the 5th Circuit’s emergency order suggests that the Supreme Court will want to make the final determination in this case.</p>
<h2>3. What does this mean for abortion access moving forward?</h2>
<p>The Supreme Court’s decision to preserve full access to mifepristone until the case concludes leaves the FDA’s current rules in place. These rules allow mifepristone to be administered up to 10 weeks of pregnancy without an in-person visit to a clinic or hospital, through the mail and by a certified pharmacy as an alternative to a doctor’s prescription. </p>
<p>Given the legal uncertainty and the amount of time it takes for a case like this to conclude, the Supreme Court’s April 21, 2023, decision enables ongoing access to mifepristone for the foreseeable future. Roughly 90,000 medication abortions are <a href="https://www.guttmacher.org/fact-sheet/unintended-pregnancy-and-abortion-northern-america">performed annually in the U.S.</a>, the vast majority of which rely on mifepristone as part of a two-medication regimen that also includes the drug misoprostol. </p>
<p>Mifepristone <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">blocks the hormone progesterone</a>, which is needed for a pregnancy to continue. Misoprostol, which is approved for use in the <a href="http://www.accessdata.fda.gov/drugsatfda_docs/label/2002/19268slr037.pdf">treatment of gastric ulcers</a>, also causes uterine contractions and <a href="https://www.acog.org/clinical/clinical-guidance/practice-bulletin/articles/2020/10/medication-abortion-up-to-70-days-of-gestation">ends the pregnancy</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Extended hand holding two bottles of abortion pills, one mifepristone and the other misoprostol." src="https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/522388/original/file-20230421-26-vksyzg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Mifepristone is used in concert with misoprostol in the two-pill regimen. Misoprostol can also be used by itself in a one-pill medication abortion.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MedicationAbortionPillsExplainer/53c242048271405bb7851a498ce5ad5c/photo?Query=mifepristone&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=125&currentItemNo=32">AP Photo/Charlie Neibergall</a></span>
</figcaption>
</figure>
<p>If the ultimate decision is in favor of the plaintiff doctors, the effects on pregnant people could be felt immediately. Taking mifepristone off the market until the FDA makes safety findings that are sufficient to the court, or restricting access to it through additional requirements, would lead people seeking medication abortions to use a misoprostol-only regimen or to seek surgical abortions. Though safe and effective, the misoprostol-only alternative would lead to <a href="https://doi.org/10.1016/j.contraception.2010.09.002">higher rates of incomplete abortions</a> that require additional, usually surgical, intervention. These procedures would exacerbate harms to those electing or experiencing abortion, <a href="https://doi.org/10.1111/aogs.13788">including risks to subsequent pregnancies</a>. </p>
<p>Likewise, forcing people to delay their abortions imposes numerous health risks. Even Supreme Court justices ambivalent about legal rights to abortion have <a href="https://www.reuters.com/article/us-usa-court-abortion-idUKKCN0W40BZ">expressed a desire</a> for abortions to occur as early as possible. </p>
<p>Limiting access to mifepristone could have additional harmful effects. Mifepristone also helps women complete a miscarriage at a <a href="https://doi.org/10.1016/S0140-6736(20)31788-8">much higher success rate</a> than the standard medical regimens that do not use mifepristone, sparing the risk of a surgical procedure and complications if the pregnancy remains in the uterus. </p>
<p>For now, the Supreme Court has created a buffer to help reduce such obstacles and adverse events while the lower courts, and likely the Supreme Court itself, decide the case.</p>
<h2>4. What are the implications for other medications?</h2>
<p>The Supreme Court did not explain whether it thinks the plaintiffs will be successful in their argument that the FDA should not have approved mifepristone in 2000 or changed the rules around its use in subsequent years.</p>
<p>When questioning an administrative agency, such as the FDA, a court asks whether the regulation was “arbitrary and capricious.” The 5th Circuit agreed with the district court that the 2016 regulation change was arbitrary and capricious because there was no study showing the effects of removing multiple restrictions on the medication at once. The FDA did review multiple studies that <a href="https://www.supremecourt.gov/DocketPDF/22/22A901/263483/20230414093601611_SCOTUS%20Stay%20Application%204-14-23%20Final.pdf">showed lifting these individual restrictions</a> was indeed <a href="https://doi.org/10.1097/aog.0000000000004082">safe for those taking mifepristone</a>. </p>
<p>Second-guessing the agency’s scientific determination in this way challenges the nuts and bolts of the FDA’s process and certainty in the drug manufacturing market.
This is particularly true for medicine that may have higher risks but can be lifesaving for patients. Undermining the FDA’s authority could also carry over to controversial medications like the COVID-19 vaccine or even the <a href="https://www.cancer.gov/news-events/cancer-currents-blog/2021/hpv-vaccine-parents-safety-concerns">vaccine against human papillomavirus, or HPV</a>, the most <a href="https://www.womenshealth.gov/a-z-topics/human-papillomavirus#">common sexually transmitted infection</a> in the U.S. Given parental concerns about vaccine safety and the belief that making sex medically safer for young people encourages them to have sex, the HPV vaccine <a href="https://journalofethics.ama-assn.org/article/hpv-vaccine-controversy/2012-01">has faced heightened scrutiny</a> from vaccine opponents about its safety record. </p>
<p>Leaders from across the <a href="https://www.nytimes.com/2023/04/20/opinion/abortion-pill-case-supreme-court.html">scientific, pharmacologic and business world</a> have sounded the alarm at the implications of these decisions on approved drugs and those in development. </p>
<p>Finally, the legal wrangling over mifepristone will no doubt affect ongoing research into the many potential uses of this medication beyond abortion. These legal challenges <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1173426/">delayed the introduction of mifepristone</a> to the U.S. market decades ago, <a href="https://www.ncbi.nlm.nih.gov/books/NBK234199/">and they continue to impair</a> studies on mifepristone’s potential to help prevent certain cancers, uterine infections and other illnesses affected by progesterone. </p>
<p>For now, the Supreme Court has put off a decision that could profoundly change the regulation of medicines in the U.S.</p><img src="https://counter.theconversation.com/content/204172/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jamie Rowen receives funding from National Science Foundation and Humanity United.</span></em></p><p class="fine-print"><em><span>Tami S. Rowen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court’s ruling on mifepristone keeps the drug accessible for now, but its future is still in limbo.Jamie Rowen, Associate Professor of Legal Studies and Political Science, UMass AmherstTami S. Rowen, Associate Professor of Obstetrics, Gynecology and Gynecologic Surgery, University of California, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1913102023-04-19T12:44:30Z2023-04-19T12:44:30ZEmergency contraception is often confused with abortion pills – here’s how Plan B and other generic versions work to prevent pregnancy<figure><img src="https://images.theconversation.com/files/520092/original/file-20230410-26-r8dpzm.jpg?ixlib=rb-1.1.0&rect=46%2C0%2C5200%2C3440&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Morning-after pills are most effective when taken within three days after sex.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/woman-taking-contraceptive-pill-royalty-free-image/91558808?phrase=Morning%20after%20pill&adppopup=true">Ian Hooton/Science Photo Library via Getty Images</a></span></figcaption></figure><p>Since the overturning of Roe v. Wade in June 2022 and the <a href="https://theconversation.com/supreme-court-overturns-roe-upends-50-years-of-abortion-rights-5-essential-reads-on-what-happens-next-184697">end of constitutional protection for abortion</a>, emergency contraception has become more difficult to obtain and – more than ever – shrouded in misinformation. </p>
<p>Attempting to control inventory, Amazon, Rite Aid and Walmart have <a href="https://www.theguardian.com/society/2022/jun/28/emergency-contraception-pills-pharmacies">imposed purchase limits on the emergency contraception known as Plan B</a> since the Supreme Court’s ruling. Panicked buyers have been trying to stock up on the drug in case it becomes unavailable. </p>
<p>Several legislators and proposed bills have <a href="https://nwlc.org/resource/dont-be-fooled-birth-control-is-already-at-risk/">conflated emergency contraception with abortion</a> and are trying to limit access to it. The <a href="https://theconversation.com/anti-mifepristone-court-decisions-rely-on-medical-misinformation-about-abortion-and-questionable-legal-reasoning-203742">recent court ruling</a> <a href="https://www.washingtonpost.com/politics/2023/04/07/texas-abortion-pill-ruling-mifepristone/">blocking access to mifepristone</a> – which has been approved by the FDA since 2000 – is an ominous sign to many that emergency contraception could be the next target. </p>
<p>Regardless of one’s stance on abortion, it is important to understand why emergency contraception should be a basic component of women’s reproductive health care and family planning services. As a researcher of <a href="https://www.researchgate.net/profile/Amie-Ashcraft">women’s sexual and reproductive health and decision-making</a>, I have extensively researched access to emergency contraception.</p>
<h2>What is emergency contraception?</h2>
<p>Emergency contraception is the only way to prevent pregnancy after sex has already occurred. It can be used when no contraception was used or it was used incorrectly, such as with missed birth control pills or broken condoms. Emergency contraception is also used to prevent pregnancy after sexual assault or rape. </p>
<p>Emergency contraception can take the form of pills – sometimes called the morning-after pill – or <a href="https://www.acog.org/womens-health/faqs/long-acting-reversible-contraception-iud-and-implant">an intrauterine device, or IUD</a> that delays ovulation. </p>
<p>There are two types of emergency contraception pills. The most widely known is <a href="https://medlineplus.gov/druginfo/meds/a610021.html">levonorgestrel</a>, which is sold in the U.S. under the brand name <a href="https://www.planbonestep.com/">Plan B</a>, along with numerous generic versions. </p>
<p>Levonorgestrel was <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/plan-b-one-step-15-mg-levonorgestrel-information#:%7E">first approved for over-the-counter sale</a> to women 18 and older in 2006, and in 2013 age restrictions were removed. </p>
<p>The second type of emergency contraception pill is ulipristal acetate, which is sold under the brand name ella. Both Plan B and ella work by delaying ovulation. In addition, ella <a href="https://doi.org/10.3109/09513590.2014.950648">also thins the uterus lining</a> so that even if an egg were fertilized, it is harder for it to implant in the uterus to start a pregnancy. </p>
<p>Both types of pills are effective at preventing pregnancy. Plan B is most effective if taken within three days of sex, with some declining effectiveness on days four and five. Ella is effective if taken within five days of sex and, unlike Plan B, is equally effective all five days.</p>
<figure>
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<figcaption><span class="caption">Studies show emergency contraception prevents pregnancy only before the egg is fertilized, not after.</span></figcaption>
</figure>
<p>The most effective types of emergency contraception are IUDs that are inserted by a health care provider. Copper IUDs – also referred to as nonhormonal IUDs – are sold under the brand name Paragard. They release into the uterus copper ions that are <a href="https://www.mayoclinic.org/tests-procedures/paragard/about/pac-20391270">toxic to both eggs and sperm</a>. This allows them to be used as emergency contraception if inserted within five days after sex, and as ongoing contraception for up to 10 years. </p>
<p>Levonorgestrel IUDs – referred to as hormonal IUDs – are sold under the brand names Mirena, Liletta, Kyleena and Skyla. The levonorgestrel released into the uterus makes the mucus around the cervix thicker so that a sperm cannot penetrate to fertilize the egg, and it is as effective as the copper IUD when inserted as emergency contraception <a href="https://doi.org/10.1056/NEJMoa2022141">for up to five days after sex</a>. Both Paragard and Mirena IUDs have been approved by the FDA for use as contraception, but they are <a href="https://www.contemporaryobgyn.net/view/updates-on-emergency-contraception">not yet approved specifically for use as emergency contraception</a>.</p>
<h2>How is emergency contraception different from the abortion pill?</h2>
<p>For many years, the way that emergency contraception works has been misunderstood. There has been confusion about whether emergency contraception is an abortifacient – that is, a medication that triggers an abortion. The key difference is that the abortion pill works only when a woman is pregnant, and emergency contraception works only when she is not.</p>
<p>The so-called abortion pill is used for a medication abortion and actually consists of <a href="https://www.bedsider.org/abortion/abortion-pill">two separate pills that do different things</a>. </p>
<p>The <a href="https://theconversation.com/what-the-fdas-rule-changes-allowing-the-abortion-pill-mifepristone-to-be-dispensed-by-pharmacies-mean-in-practice-5-questions-answered-197339">first of these pills is mifepristone</a>, which functions to block production of the pregnancy hormone progesterone so that the uterus lining thins and the embryo detaches from it. This is the pill that is receiving national attention because of clashing court rulings over access, a battle that is headed to <a href="https://www.statnews.com/2023/04/13/abortion-mifepristone-texas-appeals-court-restores-access-access/">the Supreme Court</a>.</p>
<p>The second pill, misoprostol, stimulates contractions in the uterus to eject the embryo and gestational sac. Emergency contraception prevents a pregnancy before it occurs, whereas the abortion pill ends a pregnancy once it’s begun.</p>
<figure>
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<figcaption><span class="caption">Some observers say there’s a possibility of an eventual ban on Plan B and other contraceptives.</span></figcaption>
</figure>
<h2>How do abortion restrictions jeopardize emergency contraception?</h2>
<p>With the increase in abortion restrictions, access to a full range of contraceptive options – including emergency contraception – is more critical than ever. </p>
<p>There are already numerous barriers to obtaining emergency contraception in a timely manner. The most effective types of emergency contraception, ulipristal acetate and both hormonal and nonhormonal IUDs, must be obtained from a health care provider. This means a woman needs an appointment – usually available only on a weekday during business hours – as well as transportation and the means to pay for the appointment, either through health insurance or self-pay. She may need to take time off of work to attend the appointment, or she may need to obtain child care.</p>
<p>For many women in poor, rural or geographically isolated neighborhoods, these barriers are difficult to surmount. This is particularly true given the short window of time in which emergency contraception is effective.</p>
<p>Levonorgestrel emergency contraception pills are available over the counter and should be easily accessible, but individuals trying to purchase them run into numerous obstacles. These include <a href="https://doi.org/10.1016/j.japh.2020.07.027">low stocks in pharmacies</a> – especially independent pharmacies – and <a href="https://doi.org/10.1016/j.srhc.2022.100765">point-of-sale restrictions</a>, such as requirements that purchasers be a certain age, show identification or have parental consent. People also encounter high rates of misinformation about when to take levonorgestrel for maximum effectiveness and about sales restrictions. Finally, they encounter pharmacy staff who object to selling it because they <a href="https://doi.org/10.1177/0969733020918926">misunderstand how it works</a>.</p>
<p>The surge in demand for emergency contraception since the reversal of Roe v. Wade and the <a href="https://www.theguardian.com/society/2022/jun/28/emergency-contraception-pills-pharmacies">purchase limits put on it by retailers</a> have exacerbated these access challenges. </p>
<h2>What are the benefits of emergency contraception?</h2>
<p>Access to emergency contraception promotes women’s health in several ways. <a href="https://www.cdc.gov/reproductivehealth/contraception/unintendedpregnancy/index.htm">Nearly half of pregnancies in the U.S. are unintended</a>, and emergency contraception can prevent about <a href="https://www.who.int/news-room/fact-sheets/detail/emergency-contraception">95% of unwanted or mistimed pregnancies</a> when used within five days of sex. It can also be used as a backup option when another form of contraception fails. And it can be given to survivors of sexual assault. Emergency contraception also <a href="https://www.guttmacher.org/news-release/2005/emergency-contraception-ec-played-key-role-abortion-rate-declines">reduces the need for abortions</a>.</p>
<p>Overall, access to a full range of contraceptive options – including emergency contraception – gives women greater control over their reproductive choices. The ability to control the number and spacing of their pregnancies improves the health, social and <a href="https://iwpr.org/iwpr-issues/reproductive-health/the-economic-effects-of-contraceptive-access-a-review-of-the-evidence/">economic outcomes</a> of both women and their families.</p><img src="https://counter.theconversation.com/content/191310/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amie Ashcraft does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The increase in abortion restrictions may also lead to a decline in access to emergency contraceptives.Amie Ashcraft, Service Assistant Professor in Family Medicine, West Virginia UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2037422023-04-14T19:03:39Z2023-04-14T19:03:39ZAnti-mifepristone court decisions rely on medical misinformation about abortion and questionable legal reasoning<figure><img src="https://images.theconversation.com/files/520933/original/file-20230413-27-pgvlmu.jpg?ixlib=rb-1.1.0&rect=7%2C0%2C4753%2C3176&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A goal of the Texas plaintiffs was to stop the practice of sending abortion medication by mail.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/woman-holds-tablet-and-glass-of-water-female-going-royalty-free-image/1284117676?phrase=woman%20takes%20abortion%20pill&adppopup=true">Andrii Zorii/iStock via Getty Images Plus</a></span></figcaption></figure><p>An early April 2023 <a href="https://storage.courtlistener.com/recap/gov.uscourts.txnd.370067/gov.uscourts.txnd.370067.137.0_11.pdf">decision by a U.S. district judge in Texas</a> to reverse 23 years of approval of the <a href="https://www.washingtonpost.com/politics/2023/04/09/abortion-ruling-texas-washington-clash/">abortion pill mifepristone has sparked explosive debate</a>. </p>
<p>Mifepristone is a medicine that blocks the receptors for the hormone progesterone, which is needed for fetal development. It is part of a two-step medication abortion regimen along with misoprostol, a drug used to prevent stomach ulcers that also causes uterine contractions. Medication abortion with this two-step approach or a <a href="https://doi.org/10.1016/j.contraception.2010.09.002">slightly less effective</a> misoprostol-only regimen is now used in <a href="https://www.guttmacher.org/article/2022/02/medication-abortion-now-accounts-more-half-all-us-abortions">more than half of all abortions</a> in the U.S.</p>
<p>The Food and Drug Administration approved mifepristone in the year 2000 for use in medication abortion up to seven weeks. Along with the approval, the <a href="https://www.npr.org/sections/health-shots/2023/04/14/1169859888/heres-what-really-happened-during-the-abortion-drugs-approval-23-years-ago">FDA also required an in-person visit</a> as an additional safety measure. In 2016 the FDA expanded its approval of mifepristone use for up to 10 weeks of pregnancy.</p>
<p>In January 2023, the FDA <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation">further modified its rules</a> in light of many studies that show mifepristone is a very safe medication. It decided to not enforce the requirement for an in-person visit, allowing the drug to be offered by <a href="https://theconversation.com/what-the-fdas-rule-changes-allowing-the-abortion-pill-mifepristone-to-be-dispensed-by-pharmacies-mean-in-practice-5-questions-answered-197339">certified pharmacies with a prescription</a>. </p>
<p>The Texas judgment by U.S. District Judge Matthew J. Kacsmaryk overturning the FDA’s approval would have taken this medication off the market altogether in the United States. The <a href="https://www.npr.org/2023/04/13/1169217172/abortion-pill-mifepristone-ruling-texas-judge">5th U.S. Circuit Court of Appeals quickly responded</a>, saying on April 12, 2023, that the plaintiffs <a href="https://int.nyt.com/data/documenttools/abortion-pill-fifth-court-of-appeals/1a86a23291780c6e/full.pdf">could not challenge the original FDA approval</a> of mifepristone because it is too late. </p>
<p>However, the 5th Circuit agreed with the plaintiffs that the FDA’s 2016 approval of mifepristone up to 10 weeks after pregnancy was invalid. In addition, <a href="https://www.washingtonpost.com/made-by-history/2023/04/12/mifepristone-kacsmaryk-medication-abortion/">drawing on an 1873 law</a>, the <a href="https://theconversation.com/proposed-federal-abortion-ban-evokes-19th-century-comstock-act-a-law-so-unpopular-it-triggered-the-centurylong-backlash-that-led-to-roe-188681">Comstock Act</a>, both the Texas district court and the appeals court said that mifepristone can no longer be sent through the mail.</p>
<p>In order to render these decisions, the Texas judge and the appellate court had to first determine that the groups that brought the case were harmed by the FDA’s original approval and thus had what is called, in legal terms, “standing” to be allowed to sue. The plaintiffs include a coalition of anti-abortion doctors’ associations that brought the lawsuit in Texas so that it would be <a href="https://theintercept.com/2023/02/28/medication-abortion-lawsuit/">assigned to this judge</a>, who was an anti-abortion advocate before his judicial appointment. </p>
<p>This case, and another in which a federal judge from Washington made <a href="https://www.documentcloud.org/documents/23747042-19514454683">a different decision</a> about mifepristone, are <a href="https://www.statnews.com/2023/04/13/abortion-mifepristone-texas-appeals-court-restores-access-access/">now headed to the Supreme Court</a>. But regardless of how that court rules, we – a <a href="https://scholar.google.com/citations?user=bNJTbmMAAAAJ&hl=en">legal scholar</a> and <a href="https://profiles.ucsf.edu/tami.rowen">an academic obstetrician/gynecologist and complex family planning specialist</a> – see multiple assertions about mifepristone in the decisions with potential ripple effects on reproductive health care and law. </p>
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<figcaption><span class="caption">The Texas ruling would affect abortion access throughout the U.S.</span></figcaption>
</figure>
<h2>Legal history paved the way</h2>
<p>Both decisions stem from decades of judicial rulings that interpret medical science for legal ends. The <a href="https://www.oyez.org/cases/2021/19-1392">2022 Dobbs decision</a> that <a href="https://theconversation.com/roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision-184692">overturned nearly 50 years</a> of the <a href="https://apnews.com/article/abortion-supreme-court-decision-854f60302f21c2c35129e58cf8d8a7b0">constitutional right to an abortion</a> opened the door for legal challenges to any and all abortions. Dobbs addressed medical care related to pregnancy and birth, but the case mainly focused on <a href="https://www.washingtonpost.com/outlook/2022/05/03/originalists-misreading-constitution-silence-abortion/">reinterpreting the legal history of abortion</a> to justify overturning precedent.</p>
<p>While some states have <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">further limited access to abortion in the wake of</a> the Dobbs decision, they have not been able to successfully stop the distribution of medications that can induce abortions. In part, this is because <a href="https://www.nytimes.com/2021/12/16/health/abortion-pills-fda.html#">both the FDA</a> and the <a href="https://www.justice.gov/olc/opinion/file/1560596/download">Department of Justice</a> have allowed medication that induces abortion to be mailed from states where there are fewer legal restrictions.</p>
<p>The Texas case illustrates how judges apply their own reading of science to a thorny political question. Kacsmaryk’s reasoning echoes Justice Anthony Kennedy’s approach in a <a href="https://www.oyez.org/cases/2006/05-380">Supreme Court case known as the Carhart decision</a>, which restricted doctors from performing a second-trimester abortion procedure. </p>
<p>In that 2007 case, Kennedy asserted that women experience psychological harms from having an abortion. Yet scientific studies show that the harm of denying an abortion and forcing women to birth <a href="https://www.ansirh.org/research/ongoing/turnaway-study">are greater and longer lasting</a>, with higher rates of death. Law influences public discourse, and these statements about psychological harms are now <a href="https://nebraskafamilyalliance.org/policy/life/abortion-harms-women/">commonplace in anti-abortion communications</a>. These arguments were central to the Texas judge’s critique of the FDA’s scientific process. </p>
<h2>Assessing harms</h2>
<p>Before asserting that the FDA’s scientific determination was inadequate, Kacsmaryk and the 5th Circuit appellate court had to decide whether the plaintiffs have standing to sue. The plaintiff doctors’ first standing argument includes the statement that they are harmed because they may, in the future, have to care for a woman who has an <a href="https://doi.org/10.1016/j.contraception.2019.05.006">exceedingly rare complication from mifepristone</a> prescribed by another doctor. </p>
<p>Potential harm <a href="https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/standing-requirement-overview">does not align with long-standing principles</a> related to judicial standing; the plaintiffs must show that the agency rule will harm them.</p>
<p>The decision on standing relies on a highly questionable interpretation of scientific evidence of harm. The 5th Circuit uses statistics about complications from medical abortions since 2000 to suggest that at least one doctor in the plaintiff’s associations, which they claim include approximately 8,200 medical professionals, will see a patient seeking emergency care for using mifepristone. Yet it cites no evidence – because there is none – that mifepristone alone causes complications. Further, it cites no evidence that access to mifepristone through the mail, or up to 10 weeks of pregnancy, increased the rate of complications. </p>
<p>The 5th Circuit that affirmed Kacsmaryk’s decision about standing claims this is a narrow decision about the harm to plaintiffs. The court said these doctors have standing because complications from medical abortion are statistically likely, that the FDA cut doctors out of the process of dispensing mifepristone, and that providing care to women who took mifepristone is emotionally draining for the doctors. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/H5MMkV638hE?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Unpacking the federal appeals court decision that partially blocks the Texas ruling.</span></figcaption>
</figure>
<h2>Flawed arguments</h2>
<p>The Supreme Court has recently struggled to balance the overall impacts – burdens and benefits – of various regulations, such as <a href="https://www.oyez.org/cases/2022/22-506">student debt relief</a> and <a href="https://www.oyez.org/cases/2022/22-58">immigration policies</a>.</p>
<p>In this case, and using the doctors’ own theory of harm, there are actually numerous benefits that the plaintiff doctors receive from having mifepristone available to pregnant people in Texas. Those who cannot access mifepristone will have to either use less effective medication regimens or will be forced to get surgical abortions at later gestational ages. Delays means the fetus continues to grow, a fact about abortion access restrictions that <a href="https://www.reuters.com/article/us-usa-court-abortion-idUKKCN0W40BZ">deeply troubled Justice Kennedy</a>. </p>
<p>All the risks associated with medical abortion – and therefore the time and resources doctors must spend caring for patients – will be higher if pregnant people are compelled to have surgical abortions or <a href="https://doi.org/10.1097/aog.0b013e31823fe923">to give birth</a>. </p>
<p>Judge Kacsmaryk frames the decision as one designed to protect women and girls, yet mifepristone is a drug that has more benefits than just safe abortion. It has been shown in numerous studies to help women <a href="https://doi.org/10.1016/S0140-6736(20)31789-X">safely treat an incomplete miscarriage</a> and is now used off label for this purpose. Studies have also shown mifepristone to be <a href="https://doi.org/10.1002/14651858.CD002865.pub2">helpful with labor induction</a>, increasing the safety of the delivery process for someone who does continue with a pregnancy. Ongoing research into other applications for mifepristone may be interrupted by these judges’ decisions that limit the ways the drug can be used.</p>
<p>Finally, it is difficult to see how the FDA’s approvals of other medications are not vulnerable. For example, COVID-19 vaccines do not require an in-person doctor’s visit. Doctors who have been vocally opposed to the COVID-19 vaccine <a href="https://www.npr.org/sections/health-shots/2021/06/14/1004757554/anti-vaccine-activists-use-a-federal-database-to-spread-fear-about-covid-vaccine">can easily find information</a> to support arguments that they will have to care for vaccine injuries. </p>
<p>Doctors opposed to vaccines and other medications could also claim that it is too emotionally draining to treat patients who need their care – and therefore prevent other doctors who do not find it too emotionally draining from doing that important work for people who need medical care.</p>
<p>The legal and medical implications make clear just how much is at stake in these abortion-related decisions.</p><img src="https://counter.theconversation.com/content/203742/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jamie Rowen receives funding from National Science Foundation and Humanity United. </span></em></p><p class="fine-print"><em><span>Tami S. Rowen does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If the ruling to reverse the use of mifepristone stands, it will not only severely restrict abortion access for women throughout the US – it will have far-reaching effects on health care.Jamie Rowen, Associate Professor of Legal Studies and Political Science, UMass AmherstTami S. Rowen, Associate Professor of Obstetrics, Gynecology and Gynecologic Surgery, University of California, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2033942023-04-12T12:42:37Z2023-04-12T12:42:37ZState battles over abortion are leading to state constitutional amendments – an option in all states and available directly to citizens in 18 states<figure><img src="https://images.theconversation.com/files/520373/original/file-20230411-661-p9ot9w.jpg?ixlib=rb-1.1.0&rect=45%2C0%2C2646%2C2171&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Michigan State Capitol, like statehouses around the country, has been the site of numerous abortion policy battles.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/michigan-capitol-building-royalty-free-image/147514506?adppopup=true">Brandon Bartoszek</a></span></figcaption></figure><p>The battles over abortion – who can get one, when they can get one – largely shifted from a focus on the U.S. Supreme Court back to state lawmakers and judges in June 2022. That’s when the <a href="https://apnews.com/article/abortion-supreme-court-decision-854f60302f21c2c35129e58cf8d8a7b0">Supreme Court ruled</a> that there was no federal constitutional guarantee of the right to get an abortion. States, they said, should be making the rules.</p>
<p>That decision, Dobbs v. Jackson Women’s Health Organization, has meant a lot of activity in the past year in both state legislatures and courts. Two <a href="https://www.cnn.com/2023/04/07/politics/read-texas-abortion-pill-mifepristone-ruling/index.html">contradictory rulings early in April 2023</a> about whether women should have access to mifepristone, one of the two kinds of prescription abortion pills typically taken together for abortion, make it clear that federal courts still play a role in abortion policymaking. But states remain an important battleground.</p>
<p>Many people following the abortion battle focus on the part that state courts and state <a href="https://www.brennancenter.org/judicial-selection-map">supreme court elections</a> play. The intense focus on the outcome of the April 4, 2023, <a href="https://apnews.com/article/wisconsin-supreme-court-election-abortion-0d188b5c6f841546f98436c1ab8180fa">Wisconsin Supreme Court election</a>, which shifted ideological control of that court, is an example.</p>
<p><a href="https://politics.wfu.edu/faculty-and-staff/john-dinan/">I am a political scientist</a> whose research focuses on state constitutions. I follow state constitutional amendments, which are adopted <a href="https://law.okcu.edu/wp-content/uploads/2018/09/OCULREV-Spring-2016-Dinan-27-52.pdf">on a regular basis</a> and revise the language of state constitutions. Sometimes they add new provisions. At other times they modify existing provisions. These amendments shape abortion policy as much as state court rulings – and stand to play a big role in abortion rights in the future.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Yes and No signs stand side-by-side on a Kansas highway as cars approach." src="https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Signs supporting and opposing a Kansas constitutional amendment on abortion are displayed on Kansas 10 Highway.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/signs-in-favor-and-against-the-kansas-constitutional-news-photo/1412308440?adppopup=true">Kyle Rivas/Getty Images News via Getty Images North America</a></span>
</figcaption>
</figure>
<h2>Using amendments to gain or deny rights</h2>
<p>My <a href="https://press.uchicago.edu/ucp/books/book/chicago/S/bo27596107.html">research</a> shows that in recent decades state constitutions have been amended to shift the level of protection for <a href="https://ballotpedia.org/Michigan_Proposal_3,_Voting_Policies_in_State_Constitution_Initiative_(2018)">voting rights</a>, <a href="https://ballotpedia.org/Wisconsin_Marsy%27s_Law_Crime_Victims_Rights_Amendment_(April_2020)">crime victims’ rights</a> and <a href="https://ballotpedia.org/Montana_C-48,_Search_Warrant_for_Electronic_Data_Amendment_(2022)">electronic data and communication privacy rights</a>, among <a href="https://www.albanylawreview.org/article/69694-state-constitutional-amendments-and-individual-rights-in-the-twenty-first-century">others </a>.</p>
<p>Meanwhile, constitutional amendments have also protected – and in some cases, denied – abortion rights.</p>
<p>Before the Dobbs ruling, abortion-related amendments invariably sought to limit protection for abortion rights by clarifying that there is no state constitutional right to abortion. In fact, between 2014 and 2020, voters in Alabama, Louisiana, <a href="https://www.nytimes.com/2023/01/29/us/abortion-rights-state-constitutions.html">Tennessee and West Virginia approved amendments</a> stating there is no state constitutional right to abortion.</p>
<p>These amendments were designed in some cases to overturn state supreme court rulings that previously recognized abortion rights. In other cases, they were adopted to prevent state supreme courts from ruling in the future in favor of abortion rights. </p>
<p>But voters don’t always approve these amendments. In August 2022, voters in Kansas rejected a <a href="https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment">proposed state constitutional amendment </a> to deny a right to abortion. And in November 2022, voters in Kentucky <a href="https://www.pbs.org/newshour/politics/kentucky-voters-reject-constitutional-amendment-on-abortion">did the same</a>.</p>
<h2>Drafting amendments to protect abortion rights</h2>
<p>After the Dobbs decision, most proposed abortion-related amendments have aimed to expand protection of abortion rights. </p>
<p>In November 2022, voters in <a href="https://thehill.com/policy/healthcare/3608609-state-ballot-measures-are-new-abortion-battleground/">Vermont, California and Michigan approved amendments</a> that explicitly protect reproductive rights. For instance, the California amendment <a href="https://ballotpedia.org/California_Proposition_1,_Right_to_Reproductive_Freedom_Amendment_(2022)">declares</a>, “The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion.”</p>
<p><a href="https://perma.cc/U3UJ-FC7D">Eleven state constitutions</a> already include protection for a right to “privacy.” Many others guarantee “liberty,” “due process” or “equality.” </p>
<p>State courts occasionally rely on these provisions to <a href="https://www.nytimes.com/2023/01/05/us/south-carolina-abortion-supreme-court.html">issue decisions safeguarding abortion access</a>. But the amendments adopted in Vermont, California and Michigan marked the first time language was used in state constitutions to provide explicit protection for reproductive freedom. Similar abortion-rights amendments are set to appear on the ballot in other states.</p>
<p>In early April 2023, legislators in <a href="https://ballotpedia.org/Maryland_Right_to_Reproductive_Freedom_Amendment_(2024)">Maryland</a> voted to place an abortion-rights amendment on the November 2024 ballot. </p>
<p>Meanwhile, in some states that allow citizens to put amendments directly on the ballot, bypassing the need for legislative approval, abortion-rights groups are organizing in support of putting abortion-rights amendments on the ballot. These groups in <a href="https://apnews.com/article/abortion-rights-ohio-amendment-constitution-ballot-vote-793e758f48cbb51cccee90950bd97bb2">Ohio</a>, for example, are collecting signatures to place an abortion-rights amendment before voters in 2023. And groups in <a href="https://apnews.com/article/abortion-missouri-constitution-voters-election-0d2fdde552c2478b283937a6fab78cfc">Missouri</a> are trying to put an abortion-rights amendment on the 2024 ballot. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The arm of a Black woman, clad in a white sweater and black watch, is seen placing a tag that reads, " src="https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A woman places a door tag in support of Proposal 3, a 2022 citizen-initiated proposal for a state constitutional amendment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/darci-mcconnell-of-grosse-pointe-park-places-a-door-tag-in-news-photo/1244680261">Nic Antaya/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Bypassing the state legislature</h2>
<p>In all 50 states, <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-the-legislature-constitutional-provisions/">legislators have the authority to draft constitutional amendments</a>. In some states, amendments need the support of only a majority of legislators to be placed on the ballot for voter approval. Other states set a higher bar and require amendments to earn the support of a legislative supermajority or get legislative approval in two separate sessions.</p>
<p>But what many people don’t know is that 18 states allow for <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-initiative-constitutional-provisions/">citizen-initiated constitutional amendments</a>. This includes Mississippi, where the <a href="https://www.clarionledger.com/story/news/politics/2022/11/07/no-statewide-ballot-initiatives-in-mississippi-elections-heres-why/69610647007/">process was recently suspended but is expected to be revived</a>. These are particularly powerful tools voters can use to get the outcomes they want, especially if measures to accomplish those goals have been defeated in state legislatures or rejected by courts.</p>
<p>In most of these states, when groups collect enough signatures in support of a proposed amendment, that amendment automatically qualifies for the ballot. Last year in Michigan, for instance, legislators showed no signs of advancing a reproductive-rights amendment. But <a href="https://ballotpedia.org/Michigan_Proposal_3,_Right_to_Reproductive_Freedom_Initiative_(2022)">abortion-rights groups collected more than 500,000 signatures,</a> much more than necessary, and were able to put a reproductive-rights amendment on the November 2022 ballot. </p>
<p>Once on the ballot, citizen-led amendments generally need approval from a simple majority of voters before they can be approved, similar to what is needed to approve legislature-drafted amendments. </p>
<p>But <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-initiative-constitutional-provisions/">Florida, Colorado and Illinois</a> set a higher threshold, and <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-initiative-constitutional-provisions/">Nevada</a> requires voters to approve citizen-led amendments in two consecutive elections.</p>
<h2>Citizens can take the lead</h2>
<p>In states that allow citizen-initiated amendments, citizens and groups can bypass legislators who might not support their issues. What’s more, these amendments take precedence over previous state supreme court rulings to the contrary. So, even when state supreme court justices won’t recognize a right, voters can use the amendment process to get it.</p>
<p>Citizen-led amendments don’t begin and end with reproductive rights. In recent years, citizens have initiated and approved amendments to <a href="https://ballotpedia.org/Michigan_Proposal_2,_Independent_Redistricting_Commission_Initiative_(2018)">establish redistricting commissions</a>, <a href="https://ballotpedia.org/Florida_Amendment_2,_%2415_Minimum_Wage_Initiative_(2020)">boost the minimum wage</a>, <a href="https://ballotpedia.org/South_Dakota_Constitutional_Amendment_D,_Medicaid_Expansion_Initiative_(2022)">expand Medicaid</a> and <a href="https://ballotpedia.org/Missouri_Amendment_3,_Marijuana_Legalization_Initiative_(2022)">legalize marijuana</a>. </p>
<p>And abortion-rights groups that had success with the citizen-initiated amendment process in Michigan in November 2022 are eyeing additional opportunities in Ohio, Missouri and other states. </p>
<p>At the same time, opponents of abortion rights are considering making <a href="https://ohiocapitaljournal.com/2023/03/23/revived-measure-to-require-60-for-ohio-constitutional-amendments-gets-first-hearing/">changes to amendment rules</a> to make it more difficult for amendments to get approved. </p>
<p>Both developments are proof that supporters as well as opponents of abortion rights see citizen-drafted amendments as an increasingly important abortion battleground of the future.</p><img src="https://counter.theconversation.com/content/203394/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Dinan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Since the Supreme Court overturned Roe v. Wade, most abortion policy has been settled by states. Now, citizen-crafted constitutional amendments may be the abortion battleground of the future.John Dinan, Professor of Politics and International Affairs, Wake Forest UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2031312023-04-10T20:00:33Z2023-04-10T20:00:33ZBritish Columbia’s coverage of contraceptives should inspire the rest of North America<figure><img src="https://images.theconversation.com/files/520087/original/file-20230410-7003-jfzc31.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6000%2C3655&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">British Columbia's move to provide free contraception is an act of defending and upholding reproductive rights and freedoms.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p><a href="https://bc.ctvnews.ca/access-to-free-birth-control-begins-in-british-columbia-1.6339248">As of April 1, 2023 all residents of British Columbia gained access to free prescription contraception</a>. This includes the birth control pill, injections and implants, IUDs and emergency contraception known as Plan B or the “morning after” pill.</p>
<p>The bold move makes good on a campaign promise of the NDP government. </p>
<p>It’s the focus of sustained activism of groups like <a href="https://www.accessbc.org/">AccessBC</a> and Action Canada for Sexual Health and Rights, and was ignited by the ongoing abortion politics south of the border, where a judge in Texas just <a href="https://www.nytimes.com/2023/04/07/health/abortion-pills-ruling-texas.html">issued a preliminary ruling invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone</a>. That ruling was almost immediately followed <a href="https://apnews.com/article/washington-abortion-pills-lawsuit-fda-1857d1a4fd356c61ad76e00621e93b44">by a contradictory decision</a> by a judge in Washington state.</p>
<p>The <a href="https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/pharmacare-for-bc-residents/what-we-cover/prescription-contraceptives">B.C. policy</a> could serve as a model for other provinces — Ontario’s Progressive Conservative government, for example, has already said it’s “<a href="https://www.thestar.com/politics/provincial/2023/03/08/ontario-looking-closely-at-bc-plan-to-offer-free-contraception-health-minister-says.html">looking closely at what British Columbia has proposed</a>.” </p>
<p>Nonetheless, universal coverage of contraception beyond British Columbia is unlikely at the moment. It does not seem to be a serious proposal of any current provincial government. </p>
<p>While some provincial opposition parties have promised universal contraception, policy progress depends on whether they actually get elected. It will also depend on a number of factors that will shape their political agenda once in office.</p>
<h2>List not fully complete</h2>
<p>The new coverage in B.C. is extended to anyone with a provincial health card and requires a physician’s prescription until later this spring, when <a href="https://www2.gov.bc.ca/gov/content/health/accessing-health-care/pharmacy-services">pharmacists will be able to prescribe contraceptives</a>. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A package of birth control pills." src="https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=458&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=458&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=458&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=576&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=576&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519991/original/file-20230409-6385-i30zeg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=576&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A one-month dosage of hormonal birth control pills.</span>
<span class="attribution"><span class="source">(AP Photo/Rich Pedroncelli, File)</span></span>
</figcaption>
</figure>
<p>The list of contraceptives included in this plan <a href="https://www.timescolonist.com/local-news/bc-provides-list-of-birth-control-methods-to-be-covered-6668608">is comprehensive but not exhaustive</a>. Other forms of birth control and menstrual regulation, according to the B.C. government, might be considered in the future. </p>
<p>There seems to be no significant discussion of extending the coverage to B.C. residents who don’t have a provincial health card, such as undocumented residents and migrant workers for whom <a href="https://www.alternateroutes.ca/index.php/ar/article/view/22448">reproductive rights</a> are already sometimes inaccessible. </p>
<p>And accessibility will be dependent upon pharmacists’ willingness to dispense medication, something that might be particularly contentious, not to mention time-sensitive with emergency contraception. </p>
<p>Pharmacists are allowed to refuse to stock or dispense medication as a matter of conscience, something that has been a <a href="https://doi.org/10.1370/afm.2562">barrier for medication abortion access</a> in Canada, especially in rural areas. Yet despite these criticisms, the B.C. plan serves as an example of equitable primary sexual and reproductive health care delivered at the provincial level.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/roe-v-wade-canada-can-respond-to-u-s-bans-by-improving-access-to-abortion-care-here-185827">Roe v. Wade: Canada can respond to U.S. bans by improving access to abortion care here</a>
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<h2>Opposition promises in other provinces</h2>
<p>Opposition parties in Alberta, Manitoba and Saskatchewan have all promised to implement the <a href="https://bc.ctvnews.ca/access-to-free-birth-control-begins-in-british-columbia-1.6339248">same policy</a> if elected. But at this point, such a commitment really just amounts to a progressive idea in the context of conservative provincial politics, with <a href="https://thecanadaguide.com/data/provincial-premiers/">centre-right parties in power in eight of 10 provinces. </a></p>
<figure class="align-left ">
<img alt="A man is seen in profile under a large golden ceiling light." src="https://images.theconversation.com/files/519993/original/file-20230409-24-z3gijl.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/519993/original/file-20230409-24-z3gijl.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519993/original/file-20230409-24-z3gijl.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519993/original/file-20230409-24-z3gijl.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519993/original/file-20230409-24-z3gijl.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519993/original/file-20230409-24-z3gijl.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519993/original/file-20230409-24-z3gijl.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">B.C. Health Minister Adrian Dix is seen during a news conference with his provincial counterparts in Vancouver in November 2022.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Darryl Dyck</span></span>
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</figure>
<p>This means that the B.C. policy might reflect the uniqueness of the province’s political dynamics and also demonstrates what is possible, given the right political conditions, in the realm of <a href="https://doi.org/10.1086/722896">reproductive rights</a>. </p>
<p>It’s also reflective of the broader North American <a href="https://doi.org/10.1177/14647001221114611">politics of abortion</a>, as the timing of the policy — a campaign promise of the NDP government, elected in 2020 — seems to respond to the reversal of reproductive rights in the United States with the <a href="https://www.nytimes.com/2022/06/24/us/roe-wade-overturned-supreme-court.html">overturn of <em>Roe v. Wade</em> </a> in June 2022.</p>
<p>The end of constitutional protection of the right to abortion in the U.S. created momentum for strengthening abortion policy and reproductive rights in Canada. </p>
<p>In response <a href="https://www.nytimes.com/interactive/2022/06/24/us/politics/supreme-court-dobbs-jackson-analysis-roe-wade.html">to the U.S. Supreme Court ruling</a>, the <a href="https://www.cbc.ca/news/politics/abortion-funding-expanded-roe-v-wade-1.6449487">federal Liberal government has increased and sustained commitments to ensuring access to abortion</a> and other areas of sexual and reproductive health and rights.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/mexicos-help-to-american-women-who-need-abortions-should-inspire-canada-202117">Mexico's help to American women who need abortions should inspire Canada</a>
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<h2>Reproductive justice</h2>
<p>Much of this work is carried out by organizations like <a href="https://www.actioncanadashr.org/">Action Canada for Sexual Health and Rights</a> and the <a href="https://nafcanada.org/">National Abortion Federation Canada</a>, with advocacy and information campaigns by the <a href="https://www.arcc-cdac.ca/">Abortion Rights Coalition</a>. </p>
<p>All insist that contraception and abortion are both matters of individual autonomy and <a href="https://www.sistersong.net/reproductive-justice">reproductive justice</a>. At the provincial level, <a href="https://montreal.ctvnews.ca/mobile/quebec-college-of-physicians-announces-new-guidelines-to-make-access-to-abortion-medication-easier-1.5988310">Québec reduced restrictions</a> on the dispensing of mifegymiso, the drug used in medication abortion. Other provinces, including <a href="https://www.thecoast.ca/news-opinion/how-to-get-an-abortion-in-nova-scotia-28911462">Nova Scotia</a>, created abortion self-referral networks.</p>
<p>But the B.C. government’s universal contraception announcement is the most recent positive policy response to the reversal of reproductive rights in the U.S.</p>
<p>Of course not all of the impact of the <em>Dobbs</em> decision on Canada has been positive. In the immediate aftermath of the overturn of <em>Roe</em>, the Manitoba legislature <a href="https://winnipeg.ctvnews.ca/ndp-bill-for-abortion-clinic-buffer-zones-defeated-in-house-1.5623693">defeated a bill</a> that would have provided buffer zone protection for abortion clinics. </p>
<p>The same organizations that benefit from increased federal funding — and use it to support women and other pregnant people — indicate that Canadian women who used to travel to the U.S. for certain kinds of abortions are finding it more difficult to do so due to increased restrictions and bans on the American side of the border.</p>
<p>The recent <a href="https://www.washingtonpost.com/politics/2023/04/07/abortion-pill-ruling-texas-washington/">duelling U.S. court decisions</a> concerning restrictions on mifepristone will only increase this difficulty and limit reproductive rights. </p>
<p>Policies like B.C.’s universal coverage of contraception will help to expand reproductive rights. That’s why it’s such an important decision.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A sea of people carrying pro-choice signs." src="https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/519992/original/file-20230409-16-dgu48i.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">People march through downtown Atlanta in June 2022 to protest the U.S. Supreme Court’s decision to overturn Roe v. Wade.</span>
<span class="attribution"><span class="source">(AP Photo/Ben Gray, File)</span></span>
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<h2>Defending reproductive rights</h2>
<p>On a practical level, funding for contraception has the effect of making birth control available for everyone, with no privilege for those who have private insurance or can afford to pay and no disadvantage for those who have trouble affording it.</p>
<p>But beyond this, public support and payment for contraception serves to normalize birth control, Plan B and sexual health and reproductive rights as a public good and as a matter of public responsibility. </p>
<p>In an age of increased privatization in health care in general, and the increased stigmatization and criminalization surrounding abortion, the B.C. move is a positive step that fully embraces sexual and reproductive health and rights for everyone in post-<em>Roe</em> North America.</p><img src="https://counter.theconversation.com/content/203131/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Candace Johnson receives funding from The Social Sciences and Humanities Research Council of Canada (SSHRC).</span></em></p>British Columbia’s move to provide free contraceptives is a positive step that fully embraces sexual and reproductive health and rights for everyone in post-Roe North America.Candace Johnson, Professor of Political Science, University of GuelphLicensed as Creative Commons – attribution, no derivatives.