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Tag: Jackson Women’s Health Organization decision

  • A Plan to Outlaw Abortion Everywhere

    A Plan to Outlaw Abortion Everywhere

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    The year 2022 was a triumphant one for the anti-abortion movement. After half a century, the Supreme Court did what had once seemed impossible when it overturned Roe v. Wade, stripping Americans of the constitutional right to terminate a pregnancy. Now movement activists are feeling bolder than ever: Their next goal will be ending legal abortion in America once and for all. A federal ban, which would require 60 votes in the Senate, is unlikely. But some activists believe there’s a simpler way: the enforcement by a Trump Justice Department of a 150-year-old obscenity law.

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    The Comstock Act, originally passed in 1873 to combat vice and debauchery, prohibits the mailing of any “article or thing” that is “designed, adapted, or intended for producing abortion, or for any indecent or immoral use.” In the law’s first 100 years, a series of court cases narrowed its scope, and in 1971, Congress removed most of its restrictions on contraception. But the rest of the Comstock Act has remained on the books. The law has sat dormant, considered virtually unenforceable, since the Roe v. Wade ruling in 1973.

    Following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in 2022, the United States Postal Service asked the Justice Department for clarification: Could its workers legally transport abortion-inducing medications to states with bans? The DOJ replied by issuing a memo stipulating that abortion pills can be legally mailed as long as the sender does not intend for the drugs to be used unlawfully. And whether or not the drugs will be used within the bounds of state law, the memo notes, would be difficult for a sender to know (the pills have medical uses unrelated to abortion).

    If Donald Trump is reelected president, many prominent opponents of abortion rights will demand that his DOJ issue its own memo, reinterpreting the law to mean the exact opposite: that Comstock is a de facto ban on shipping medication that could end a pregnancy, regardless of its intended use (this would apply to the USPS and to private carriers like UPS and FedEx). “The language is black-and-white. It should be enforced,” Steven H. Aden, the general counsel at Americans United for Life, told me. A broader interpretation of the Comstock Act might also mean that a person receiving abortion pills would be committing a federal crime and, if prosecuted, could face prison time. Federal prosecutors could bring charges against abortion-pill manufacturers, providers receiving pills in the mail, or even individuals.

    The hopes of some activists go further. Their ultimate aim in reviving the Comstock Act is to use it to shut down every abortion facility “in all 50 states,” Mark Lee Dickson, a Texas pastor and anti-abortion advocate, told me. Taken literally, Comstock could be applied to prevent the transport of all supplies related to medical and surgical abortions, making it illegal to ship necessary tools and medications to hospitals and clinics, with no exceptions for other medical uses, such as miscarriage care. Conditions that are easily treatable with modern medicine could, without access to these supplies, become life-threatening.

    Legal experts say that the activists’ strategy could, in theory, succeed—at least in bringing the issue to court. “It’s not hypothetical anymore,” Mary Ziegler, a law professor at the UC Davis School of Law, told me. “Because it’s already on the books, and it’s not ridiculous to interpret it this way, [the possibility] is not far-fetched at all.”

    Eventually, the Supreme Court would likely face pressure to weigh in. Even though a majority of the Court’s justices have supported abortion restrictions and ruled to overturn Roe, it’s unclear how they’d rule on this particular case. If they were to uphold the broadest interpretation of the Comstock Act, doctors even in states without bans could struggle to legally obtain the supplies they need to provide abortions and perform other procedures.

    This is what activists want. The question is whether Trump would accede to their demands. After years of championing the anti-abortion cause, the former president seemed to pivot when he blamed anti-abortion Republicans’ extremism for the party’s poor performance in the 2022 midterm elections (only a small fraction of Americans favors a complete abortion ban). Recently, he’s come across as more moderate on the issue than his primary opponents by condemning Florida’s six-week abortion ban and endorsing compromise with Democrats.

    As president, Trump might choose not to enforce Comstock at all. Or he could order his DOJ to enforce it with discretion, promising to go after drug manufacturers and Planned Parenthood instead of individuals. It’s hard to be certain of any outcome: Trump has always been more interested in appeasing his base than reaching Americans in the ideological middle. He might well be in favor of aggressively enforcing the Comstock Act, in order to continue bragging, as he has in the past, that he is “the most pro-life president in American history.”


    This article appears in the January/February 2024 print edition with the headline “A Plan to Outlaw Abortion Everywhere.”

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    Elaine Godfrey

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  • Dobbs’s Confounding Effect on Abortion Rates

    Dobbs’s Confounding Effect on Abortion Rates

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    When the Supreme Court overturned Roe v. Wade, Diana Greene Foster made a painful prediction: She estimated that one in four women who wanted an abortion wouldn’t be able to get one. Foster, a demographer at UC San Francisco, told me that she’d based her expectation on her knowledge of how abortion rates decline when women lose insurance coverage or have to travel long distances after clinics close.

    And she was well aware of what this statistic meant. She’d spent 10 years following 1,000 women recruited from clinic waiting rooms. Some got an abortion, but others were turned away. The “turnaways” were more likely to suffer serious health consequences, live in poverty, and stay in contact with violent partners. With nearly 1 million abortions performed in America each year, Foster worried that hundreds of thousands of women would be forced to continue unwanted pregnancies. “Having a baby before they’re ready kind of knocks people off their life course,” she told me.

    But now, more than a year removed from the Dobbs v. Jackson Women’s Health Organization decision, Foster has revised her estimate. After seeing early reports of women traveling across state lines and ordering pills online, she now estimates that about 5 percent of women who want an abortion cannot get one. Indeed, two recent reports show that although Dobbs upended abortion access in America, many women have nevertheless found ways to end their pregnancy. A study by the Guttmacher Institute, a research group that supports abortion rights, signals that national abortion rates have not meaningfully fallen since 2020. Instead, they seem to have gone up a bit. A report released this week by the Society of Family Planning, another pro-abortion-rights group, shows that an increase in abortions in states that allow the procedure more than offset the post-Dobbs drop-off in states that closed down clinics.

    Some of this increase may be a result of trends that predate Dobbs: Abortion rates in the U.S. have been going up since 2017. But the reports suggest that the increase may also be due to travel by women who live in red states and the expanded access to abortion that many blue states enacted after the ruling. Still, it is not yet clear exactly how much each of these factors is contributing to the observed increase—and how many women who want an abortion are still unable to get one.

    Alison Norris, a co-chair of the Society of Family Planning study, told me that she fears that the public will “become complacent” if they see the likely increase in abortion rates and believe that everyone has access. “Feeling like the problem isn’t really that big of a deal because the numbers seem to have returned to what they were pre-Dobbs is a misunderstanding of the data,” she said.


    It seems illogical that more than a dozen states would ban abortion and national rates would hardly change. But even as red states have choked off access, blue states have widened it. And the data show that women have flooded the remaining clinics and ordered abortion pills from pharmacies that ship across the country. More than half of all abortions are done using medication, a pattern that began even before the Dobbs decision.

    “It just doesn’t work to make abortion illegal,” Linda Prine, a doctor at Mount Sinai Hospital, told me. “There may be some people who are having babies that they didn’t want to have, but when you shift resources all over the place, and all kinds of other avenues open up, there’s also people who are getting abortions that might not have gotten them otherwise.”

    With mail-order abortion pills, “it’s this weird moment where abortion might, ironically, be more available than it’s ever been,” Rachel Rebouché, an expert in abortion law and the dean of the Temple University Beasley School of Law, told me.

    The Guttmacher Institute sampled abortion clinics to estimate the change in abortion counts between the first halves of 2020 and 2023. Areas surrounding states with post-Roe bans saw their abortion numbers surge over that period of time. In Colorado, which is near South Dakota, a state with a ban, abortions increased by about 89 percent, compared with an 8 percent rise in the prior three-year period. New Mexico saw abortions climb by 220 percent. (For comparison, before Dobbs, the state recorded a 27 percent hike from 2017 to 2020.) Even states in solidly blue regions saw their abortion rates grow over the three-year interval from 2020 to 2023: Guttmacher estimates that California’s abortion clinics provided 16 percent more abortions, and New York’s about 18 percent more.

    Some shifts predated the court’s intervention. After a decades-long decline, abortions began ticking upward around 2017. In 2020, they increased by 8 percent compared with 2017. The researchers I spoke with for this story told me that they couldn’t point to a decisive cause for the shift that started six years ago; they suggested rising child-care costs and Trump-era cuts to Medicaid coverage as possible factors. But the rise in abortion rates reflects a broader change: Women seem to want fewer children than they used to. Caitlin Myers, a professor at Middlebury College, told me that abortion rates might have increased even more if the Court hadn’t reversed Roe. “It looks like more people just want abortions than did a few years ago,” she said. “What we don’t know is, would they have gone up even more if there weren’t people trapped in Texas or Louisiana?”

    One of the most significant factors in maintaining post-Roe abortion access dates from the latter half of 2021. As the coronavirus pandemic clobbered the health-care system, the FDA suspended its requirement that women pick up abortion medications in person. A few months later, it made the switch permanent. The timing was opportune: People became accustomed to receiving all of their medical care through virtual appointments at the same time that they could get abortion pills delivered to their doorstep, Rebouché told me. People no longer have to travel to a clinic and cross anti-abortion picket lines. But access to mifepristone, one of the most commonly used drugs for medication abortions, is under threat. After an anti-abortion group challenged the FDA’s approval of the drug, a federal court instated regulations that would require women to visit a doctor three times to get the pills, making access much more difficult. The Supreme Court is weighing whether to hear an appeal, and has frozen the 2021 rules in place while it decides.

    But paradoxically, several of the factors that may have contributed to the rise in abortion rates seem to have sprung directly from the Dobbs decision. In the year since the ruling, six blue states have enacted laws that allow practitioners to ship abortion pills anywhere, even to deep-red Texas. Although these laws haven’t yet been litigated to test whether they’re truly impenetrable, doctors have relied on them to mail medication across the country. Aid Access, an online service that operates outside the formal health-care system, receives requests for about 6,500 abortion pills a month. (The pills cost $150, but Aid Access sends them for free to people who can’t pay.) Demand for Aid Access pills in states that ban or restrict medication abortion has mushroomed since the Dobbs decision, rising from an average of about 82 requests per day before Dobbs to 214 after. The Guttmacher report doesn’t count abortions that take place in this legally fuzzy space, suggesting that actual abortion figures could be higher.

    As the Supreme Court revoked the constitutional right to an abortion and turned the issue back to the states, it also hardened the resolve of abortion-rights supporters. In the five months after Roe fell, the National Network of Abortion Funds received four times the money from donations than it got in all of 2020. People often donate as states encroach on abortion rights. In many cases, they bankrolled people’s travel out of ban states. Community networks also gained experience in shuttling people out of state to get abortions. “There’s definitely been innovation in the face of abortion bans,” Abigail Aiken, who documents abortions that occur outside of the formal health-care system, told me.

    Some researchers believe that the Dobbs decision has actually convinced more women to get abortions. Abortion-rights advocacy groups have erected highway billboards that promise Abortion is ok. Public opinion has tilted in favor of abortion rights. Ushma Upadhyay, a professor at UC San Francisco, told me that California’s rising abortion rates cannot all be due to people traveling from states that ban abortion. “It’s also got to be an increase among Californians,” she said. “It’s just a lot of attention, destigmatization, and funding that has been made available. Even before Dobbs, there was a lot of unmet need for abortion in this country.”

    Abortion used to be a topic that was “talked about in the shadows,” Greer Donley, an expert in abortion law and a professor at the University of Pittsburgh, told me. “Dobbs kind of blew that up.” Still, she believes that it’s unlikely that people are getting significantly more abortions simply because of changes within blue states. Just as obstacles don’t seem to have stopped people from seeking abortions, efforts that moderately expand access are unlikely to lead people to get an abortion, she said.

    The people I spoke with emphasized that even though overall abortion rates might be going up, not everyone who wants the procedure can get it. People who don’t speak English or Spanish, who don’t have internet access, or who are in jail still have trouble getting abortions. “What I foresee is a bunch of Black women being stuck pregnant who didn’t want to be pregnant, in a state where it’s incredibly dangerous to be Black and pregnant,” Laurie Bertram Roberts, a founder of the Mississippi Reproductive Freedom Fund, told me.

    Bertram Roberts’s fund used to provide travel stipends of up to $250. Now women need three times that. Most people travel from Mississippi to a clinic in Carbondale, Illinois. The trip takes two days—48 hours that women must take off work and find child care for. “If you are in the middle of Texas, and you have to travel to Illinois, even if funds covered all the costs, to say that abortion is more accessible for that person seems callous and wrong,” Donley told me.

    Many women spend weeks waiting for an abortion. “It is excruciating to be carrying a pregnancy that one knows they’re planning to end,” Upadhyay said. And although studies show that abortion pills are safe, women who take them can bleed for up to three weeks, and they may worry that they’ll be prosecuted if they seek help at a hospital. Only two states—Nevada and South Carolina—explicitly criminalize women who give themselves an abortion (and few women have been charged under the laws), but the legislation contributes to a climate of fear.

    More than a year out from the Dobbs decision, the grainy picture of abortion access is coming into focus. With the benefit of distance, the story seems not to be solely one of diminished access, widespread surveillance, and forced births, as the ruling’s opponents had warned. For most Americans, abortion might be more accessible than it’s ever been. But for another, more vulnerable group, abortion is a far-off privilege. “If I lived in my birth state—I was born in Minnesota—my work would be one hundred times easier,” Bertram Roberts told me, later adding, “I think about that a lot, about how the two states that bookend my life are so different.”

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    Rose Horowitch

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  • How Abortion Defined the 2022 Midterms

    How Abortion Defined the 2022 Midterms

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    Ask anyone what Mehmet Oz said about reproductive rights during last month’s Pennsylvania Senate debate, and they’ll probably tell you that the TV doctor believes an abortion should be between “a woman, her doctor, and local political leaders.” The truth is, that dystopian Handmaid’s Tale–esque statement did not come verbatim from the Republican’s mouth. But it may have cost him the election anyway.

    Instead, that catchphrase entered Pennsylvania voters’ consciousness—and ricocheted across social media—via a tweet by Pat Dennis, a Democratic opposition researcher. Dennis’s megaviral post included a clip purporting to show Oz pitching something akin to a pregnancy tribunal. But the clip was, well, clipped: In the 10-second video, Oz does not even say the word abortion. Did it matter? Not in the least. Here was Oz’s fuller, unedited response to the question:

    There should not be involvement from the federal government in how states decide their abortion decisions. As a physician, I’ve been in the room when there’s some difficult conversations happening. I don’t want the federal government involved with that at all. I want women, doctors, local political leaders, letting the democracy that’s always allowed our nation to thrive to put the best ideas forward so states can decide for themselves.

    Although that by no means utterly rebuts Dennis’s three-clause summary, it is different. Of course, voters zeroed in on—and recoiled from—the pithier version. Oz failed to shake his association with the thorny abortion hypothetical, much as he failed to shake the long-running joke that he actually lives in New Jersey. Abortion decided this race, and Oz was on the wrong side of history.

    In red and blue states alike, reproductive autonomy proved a defining issue of the 2022 midterms. Although much pre-election punditry predicted that Pennsylvania Democratic nominee John Fetterman’s post-stroke verbal disfluency was poised to “blow up” the pivotal Senate race on Election Day, the exit polls suggest that abortion seismically affected contests up and down the ballot.

    Concerns over the future of reproductive rights unequivocally drove Democratic turnout and will now lead to the rewriting of state laws around the country. In deep-red Kentucky, voters rejected an amendment that read, “Nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” In blue havens such as California and Vermont, voters approved ballot initiatives enshrining abortion rights into their state constitutions.

    In Michigan, a traditionally blue state that in recent years has turned more purple, voters likewise enshrined reproductive protections into law, with 45 percent of exit-poll respondents calling abortion the most important issue on the ballot. In the race for the Michigan statehouse, the incumbent Democratic governor, Gretchen Whitmer, trounced her Republican challenger, Tudor Dixon, who had said that she supports abortion only in instances that would save the life of the woman, and never in the case of rape or incest. Dixon lost by more than 10 percentage points and almost half a million votes.

    After the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision ended the federal right to abortion in June, many observers wondered whether pro-abortion-rights Democrats would remain paralyzed with despair or whether their anger would become a galvanizing force going into the election season. The answer is now clear—though, in fact, it has been for some time.

    In August, just six weeks after Dobbs, Kansas voters rejected an amendment to the state constitution that could have ushered in a ban on abortion. That grassroots-movement defeat of the ballot initiative was a genuine shocker—and it showed voters in other states what was possible at the local level.

    Nowhere in the midterms voting did abortion seem to matter more than in Pennsylvania. Oz, like his endorser, former President Donald Trump, spent years as a Northeast cosmopolitan before he tried, and failed, to remake himself as a paint-by-numbers conservative. That meant preaching a party-line stance during the most contentious national conversation about abortion in half a century. It came back to haunt him.

    At the October debate, Fetterman was mocked for (among other things) his simplistic, repetitive invocation of supporting Roe v. Wade. Even when asked by moderators to answer an abortion question in more detail, he simply kept coming back to the phrase. Whatever it lacked in nuance, Fetterman’s allegiance to his pro-abortion-rights position was impossible to misconstrue. This was an abortion election, and voters knew exactly where he stood.

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    John Hendrickson

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