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  • Red States Are Rolling Back the Rights Revolution

    Red States Are Rolling Back the Rights Revolution

    The struggle over the sweeping red-state drive to roll back civil rights and liberties has primarily moved to the courts.

    Since 2021, Republican-controlled states have passed a swarm of laws to restrict voting rights, increase penalties for public protest, impose new restrictions on transgender youth, ban books, and limit what teachers, college professors, and employers can say about race, gender, and sexual orientation. Some states are even exploring options to potentially prosecute people who help women travel out of state to obtain an abortion.

    In the early legal skirmishing over this agenda, opponents including the federal Justice Department have won a surprising number of decisions, mostly in federal courts, blocking states from implementing the new laws.

    But eventually most of these issues are likely to be resolved by the U.S. Supreme Court, and the court’s six-member Republican-appointed majority has generally ruled in ways that favor the conservative social-policy priorities reflected in the red-state actions. That inclination was most dramatically demonstrated in last year’s Dobbs decision, when the Court overturned the constitutional right to abortion.

    In the coming years, the Court will face a series of decisions on the new red-state agenda that may determine whether the U.S. maintains a strong baseline of civil rights available in all states or reverts back toward a pre-1960s world where people’s rights varied much more depending on where they lived.

    “The idea of the Bill of Rights was that we would have a floor of civil rights and civil liberties that the states could not go below,” David Cole, the national legal director of the American Civil Liberties Union, told me. “But for that floor to be meaningful, it has to be enforced by the Supreme Court ultimately.

    “In our history, the courts have sometimes done that courageously and bravely, and other times they have fallen down on the job,” Cole continued. “And when they have fallen down on the job, you get a two-tier system in this country.”

    Since President Joe Biden’s election, the 22 states where Republicans hold unified control of the governorship and the state legislature have moved with remarkable speed to create a two-tier system on issues including abortion, classroom censorship, and the treatment of LGBTQ people. “The fact that all of this is happening on so many different fronts simultaneously is unprecedented,” Donald Kettl, a former dean and professor emeritus of the University of Maryland’s School of Public Policy, told me.

    This broad red-state push to retrench rights, as I’ve written, is reversing the general trend since the 1960s of nationalizing more rights, a process often called “the rights revolution.”

    Civil-rights advocates have limited options for reversing this tide of red-state legislation. So long as the Senate filibuster exists, Democrats have virtually no chance of passing national legislation to override the red-state actions on issues such as abortion and voting rights, even if the party regains unified control of the federal government after the 2024 elections.

    Read: Why Biden just can’t shake Trump in the polls

    In some states, opponents can try to rescind these measures directly through ballot initiatives, like the Ohio referendum that, if passed in November, would overturn the state’s six-week abortion ban. But not all states permit such referendums, and even in those that do, ballot measures to reverse many of the key red-state restrictions would face an uncertain fate given the underlying conservative lean of their electorates.

    Opponents are challenging some of the new statutes in state courts. The Center for Reproductive Rights, a group that supports legal abortion, has cases pending in six states, including Ohio, Wyoming, Iowa, and Florida, arguing that abortion restrictions adopted since the Dobbs decision violate provisions in those states’ constitutions. But recent rulings by state supreme courts—in South Carolina, upholding the state’s six-week abortion ban, and in Texas, dismissing an injunction against the state’s ban on gender-affirming care for transgender minors—show the limitations of relying on red-state courts to undo the work of red-state political leaders.

    “Sometimes the state courts provide a sympathetic venue,” Cole said. “But oftentimes in the red states, precisely because the courts have been appointed by red-state governors and legislatures, they are not especially open to challenges to their legislature’s laws.”

    That leaves federal courts as the principal arena for those hoping to overturn the restrictive red-state laws.

    These federal cases raise a range of legal arguments. Mostly they revolve around the claim that the state laws violate the U.S. Constitution’s protection of free speech in the First Amendment and the due process and equal protection provisions of the Fourteenth Amendment. As courts consider these claims, the key early federal rulings have covered cases involving a variety of issues.

    Freedom of speech: In a striking victory for critics, a federal district judge in Florida issued two decisions blocking enforcement of Florida Governor Ron DeSantis’s signature Stop WOKE Act, which restricts how private employers and college and university professors talk about racial inequity. In one ruling, Judge Mark Walker called the law “positively dystopian.” He wrote: “The powers in charge of Florida’s public university system have declared the state has unfettered authority to muzzle its professors in the name of ‘freedom.’”  The Eleventh Circuit Court of Appeals has denied DeSantis’s request to lift Walker’s injunction against the law while the case proceeds.

    Federal courts have also blocked enforcement of the Florida law DeSantis signed increasing the penalties for public protest. But another federal judge has twice dismissed a case attempting to block DeSantis’s “Don’t Say Gay” law restricting discussion of sexual orientation and gender identity in K–12 classrooms. (Opponents of the law are appealing that decision.)

    Litigation against the multiple red-state measures making it easier for critics to ban books in school libraries has not advanced as far. But in May, PEN America, a free-speech group, together with Penguin Random House and several authors filed a suit against Florida’s Escambia County school district over the removal of titles about people of color and LGBTQ people that could become the bellwether case.

    Abortion: Though the Supreme Court’s Dobbs decision preempted any frontal federal legal challenge to the state laws restricting or banning the procedure, abortion-rights supporters continue to fight elements of the new statutes.

    In late July, a federal district judge blocked guidance from Raúl Labrador, the Republican attorney general of Idaho, a state that has banned abortion, warning doctors that they could be prosecuted for helping patients travel out of state to obtain the procedure. A separate federal lawsuit filed in July is challenging Idaho’s law imposing criminal penalties on adults who transport a minor out of state to obtain an abortion. The Justice Department won an injunction last year preventing Idaho from enforcing another portion of its abortion ban on the grounds that it violates federal law requiring treatment of people needing emergency care in hospitals.

    “Dobbs overturned 50 years of precedent and got rid of the fundamental liberty right to abortion, but it definitely didn’t answer every question,” Amy Myrick, a senior staff attorney at the Center for Reproductive Rights, told me. “And federal courts are now being faced with a public-health crisis of enormous magnitude, so at some point they will have to decide whether a ban becomes irrational if it forces patients to get sick or even die based on what a state says.”

    Immigration: Another front in the red-state offensive is an increasing effort to seize control of immigration policy from the federal government. The Biden administration last week won a federal-district-court decision requiring Texas to remove a flotilla of buoys it has placed in the Rio Grande River to repel undocumented migrants (though the conservative Fifth Circuit Court of Appeals put that ruling on hold just one day later). A coalition of civil-rights groups is suing Florida in federal court over a DeSantis law making it a crime to transport an undocumented migrant in the state.

    Voting: As with abortion, critics have found a legal basis to challenge only provisions at the periphery of the voting restrictions approved in most red states since 2021. Last month, the Justice Department won a federal court ruling blocking a measure that Texas had passed making it easier for officials to reject absentee ballots. In July, a federal-district-court judge upheld key components of Georgia’s 2021 law making voting more difficult, but did partially overturn that law’s most controversial element: a ban on providing food and water to people waiting in line to vote.

    LGBTQ rights: Federal litigation has probably progressed most against the intertwined red-state moves to impose new restrictions on transgender people. The Biden Justice Department has joined cases seeking to overturn the red-state actions on each of the major issues.

    Two federal appellate courts have blocked policies requiring transgender students to use the bathroom (or locker room) of their gender assigned at birth, while the Eleventh Circuit late last year upheld such a law in Florida. Two federal circuit courts have also blocked the enforcement of laws in Idaho and West Virginia barring transgender girls from participating on female sports teams in high school, though a lower federal court has subsequently upheld the West Virginia law.

    Of all the issues affecting transgender people, litigation against the statutes passed in 22 Republican-controlled states barring gender-affirming care for minor children, even with their parents’ approval, may reach the Supreme Court first. In a flurry of decisions made mostly this summer, multiple federal district courts have issued injunctions blocking the implementation of such laws in several states. One federal appellate court has upheld such an injunction, but two others recently overturned lower-court rulings and allowed Tennessee and Alabama to put their laws into effect. (After those decisions, a federal district court last week also allowed Georgia to enforce its ban.) Such a split among circuit courts could encourage the Supreme Court to step in, as do the momentous and timely stakes for families facing choices about medical care. “For families who have adolescents who need this care, some of whom have been receiving this care, it’s a matter of family urgency,” Jennifer Pizer, the chief legal officer at Lambda Legal, a group that advocates for LGBTQ rights, told me.

    Although liberal groups and the Biden administration have been heartened by many of these early rulings, they recognize that the most significant legal fights are all rolling toward the same foreboding terminus: the Supreme Court.

    Over recent years, the Court has restricted the ability of blue states to impinge on rights that conservatives prize while mostly allowing red states to constrain rights that liberals prioritize. The Court has displayed the former instinct in its rulings striking down gun-control laws in blue jurisdictions, allowing religious-freedom exemptions to state civil-rights statutes, and barring public universities from using affirmative action. Conversely, the Court has loosened restrictions on red states with the Dobbs decision and the 2013 Shelby County ruling effectively revoking the Justice Department’s authority to preemptively block changes in state voting laws.

    Those who see this past as prologue believe that the current Supreme Court majority may provide the red states great leeway to establish a legal regime that defines rights much more narrowly than in the rest of the country. At various points in American history, the Supreme Court has certainly done that before, most notoriously in the 1896 Plessy v. Ferguson case, when the justices approved the system of “separate but equal” Jim Crow segregation across the South that persisted for nearly the next 70 years.

    But several legal experts I spoke with said it was premature to assume that these recent rulings ensure that the Supreme Court will reflexively uphold the contemporary wave of red-state measures. Erwin Chemerinsky, the dean of UC Berkeley’s law school, told me that the Court’s decisions in recent years have advanced “what’s been the conservative Republican agenda for decades: Overrule Roe v. Wade; eliminate affirmative action; protect gun rights.” It’s less clear, Chemerinsky believes, what the Court will do with this “new conservative agenda” rising from the red states. Although the six Republican-appointed justices are clearly sympathetic to conservative goals, he said, “some of what the [states] are doing is so radical, I don’t know that the Supreme Court will go along.”

    The ACLU’s Cole notes that the Court appeared to move more cautiously in the term that ended in June than it did in the 2021–22 session, which concluded with the cannon shot overruling Roe. With a few prominent exceptions headlined by the decision banning affirmative action in higher education, “civil rights and civil liberties did pretty well in the Supreme Court this term,” Cole maintained. “Much is still to be determined, but I think this term showed us that you can’t just assume that this Court is going to impose right-wing results regardless of precedent.”

    Conservatives remain confident that this Supreme Court majority will not reject many of these new red-state laws. They see an early signal of how some of these fights may play out in the August decision by the Eleventh Circuit Court of Appeals allowing Alabama to enforce its law banning gender-affirming care for minors.

    Written by Barbara Lagoa, who was appointed by Donald Trump, that ruling specifically cited the Supreme Court’s logic in the Dobbs case to argue that Alabama’s ban on gender-affirming care for minors would likely survive legal scrutiny. In Dobbs, the majority opinion written by Justice Samuel Alito said the Fourteenth Amendment did not encompass the right to abortion because there was no evidence that such a right was “deeply rooted” in American history. Likewise, Lagoa wrote of gender-affirming care that “the use of these medications in general—let alone for children—almost certainly is not ‘deeply rooted’ in our nation’s history and tradition.”

    Sarah Parshall Perry, a senior legal fellow at the conservative Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies, predicted that such logic would ultimately persuade the conservative Supreme Court majority. “What we are seeing now is the use of the Dobbs framework in actual action,” she told me. “I think the Supreme Court quite frankly is going to be very wary of expanding Fourteenth Amendment jurisprudence to rubber-stamp an experimental new treatment, especially when minor children are involved.”

    The one point both sides can agree on is that the Supreme Court’s rulings on the red-state measures will represent a crossroads for the country. One path preserves the broadly consistent floor of civil rights across state lines that Americans have known since the 1960s; the other leads to a widening divergence reminiscent of earlier periods of intense separation among the states.

    Kettl believes that if the Supreme Court doesn’t constrain the red states, they almost certainly will push much further in undoing the rights revolution. “We haven’t seen what the boundary of that effort will be yet,” he told me, pointing to the ordinances some Texas localities have passed attempting to bar women from driving through them to obtain an abortion out of state.

    If the Supreme Court allows the red states a largely free hand to continue devising their own system of civil rights and liberties, Chemerinsky said, it will present Americans with a “profound” question:

    “Will the county accept being two different countries with regard to so many of these important things, as it did with regard to other important things such as slavery and civil rights?” he said. “Or will there be a point that people will say, ‘What divides us as a country is much greater than what unites us.’ And will we start hearing the first serious calls to rethink the United States?”

    Ronald Brownstein

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  • I’m Sorry, but This COVID Policy Is Ridiculous

    I’m Sorry, but This COVID Policy Is Ridiculous

    Cases have surged in China since it dropped its zero-COVID policy in December, and the latest models now suggest that at least 1 million people may die as a result. Many countries have responded by policing their borders: Last week, the CDC announced that anyone entering the United States from China would be required to test negative within two days of departure; the U.K., Canada, and Australia quickly followed suit; and the European Union has urged its member states to do the same. (Taking a more extreme tack, Morocco has said it will ban travelers from China from entering altogether.) At a media briefing on Wednesday, World Health Organization Director-General Tedros Adhanom Ghebreyesus said, “It is understandable that some countries are taking steps they believe will protect their own citizens.”

    On Tuesday, a Chinese official denounced some of the new restrictions as having “no scientific basis.” She wasn’t wrong. If the goal is to “slow the spread of COVID” from overseas, as the CDC has stated, there is little evidence to suggest that the restrictions will be effective. More important, it wouldn’t matter if they were: COVID is already spreading unchecked in the U.S. and many of the other countries that have new rules in place, so imported cases wouldn’t make much of a difference. The risk is particularly low given the fact that 95 percent of China’s locally acquired cases are being caused by two Omicron lineages—BA.5.2 and BF.7—that are old news elsewhere. “The most dangerous new variant at the moment is from New York—XBB.1.5—which the U.S. is now busy exporting to the rest of the world,” Christina Pagel, a mathematician who studies health care at University College London, told me. “I’m sorry, but this is fucking ridiculous.”

    By now, it’s well known that travel restrictions can’t stop COVID from crossing borders. At best, they slow its entry. When Omicron was first detected, in South Africa in late November 2021, America blocked travel from southern-African countries in an attempt to prevent the variant from spreading; by mid-December, Omicron dominated the United States. Restrictions can delay the spread of a variant only if they are implemented while cases are low and before travelers have had a chance to spread it. Such policies were more effective early in the pandemic: A BMJ Global Health review concluded that the initial ban on all travel into or out of Wuhan, China, in January 2020 significantly reduced the number of cases exported to other countries and delayed outbreaks elsewhere by “up to a few weeks.” Later on, such restrictions lost value. The COVID Border Accountability Project, which tracks travel restrictions around the world, has found that border closures did not reduce COVID spread, at least through April 2021, Mary Shiraef, the project’s principal investigator and a political scientist at Notre Dame University, told me. (According to the study, domestic lockdowns did slow transmission.)

    At this stage of the pandemic, restrictions make sense only under two conditions, Pagel said: The country deploying them must have low levels of spread and good control policies, and the restrictions must be applied to all other nations, as opposed to just one. Neither of these conditions is being met right now by any country deploying travel measures against China. Even if a single-point ban did serve some useful purpose, the rules in place for China don’t add up. Predeparture testing likely won’t catch most infected travelers from China, Adam Kucharski, a professor of infectious-disease epidemiology at the London School of Hygiene and Tropical Medicine, told me. A person could test negative one day and then positive a few days later. If the point of restrictions is to slow local transmission, Kucharski said, calculations based on his research suggest that travelers should be tested twice: once before they arrive, then about three or four days afterward. Doing so would catch infected travelers who initially tested negative while limiting their window for spreading disease.

    Read: Why America scrapped its travel bans

    The best possible outcome of a travel restriction like the one the U.S. now has in place would be a very small delay before the arrival of a catastrophic new variant that has just emerged in China. In that scenario, any extra time might be used to intensify mitigation strategies and assess the degree to which current vaccines are expected to hold up. Historically, though, the time saved by travel bans has been wasted. After countries restricted travel from South Africa to keep Omicron at bay, governments responded by “not really doing much at all domestically,” Kucharski said. In any case, as my colleague Katherine J. Wu has pointed out, the virus is able to spread easily in China right now without any further changes to its genome. Population immunity there is modest, owing to the country’s low natural-infection rate and less effective vaccines, so the virus can infect people perfectly well as is.

    The travel restrictions on China will have little impact on the spread of COVID, but they do send a forceful political message. The U.S. measures are meant to pressure China, by slowing its economic rebound, into being transparent about its COVID situation, Stephen Morrison, the director of the Global Health Policy Center at the Center for Strategic and International Studies, a Washington, D.C.-based think tank, told me. China’s alleged official death count, for example—5,259 as of January 4—seems way too low to be believable, especially amid reports of overflowing Chinese hospitals and funeral homes. So long as the country isn’t more forthcoming, Morrison said, then Chinese tourists, who have only recently been allowed to travel internationally, will continue to be unwelcome.

    Expressing this message through a largely pointless public-health measure comes with a price. When that measure fails to keep COVID spread at bay, faith in public-health institutions could decline, which Pagel said is the “biggest danger” for the next pandemic. It also stokes the long-standing fear that Chinese people are more likely to carry disease than anyone else, whether foreign or American. “We are watching this policy so carefully to see if it will once again invite a racial backlash,” Manjusha Kulkarni, a co-founder of Stop AAPI Hate, told me. If a rise in anti-Asian hate and violence comes along with more transparency from China about its COVID situation, the cost of these restrictions hardly seems worth their benefits.

    Yasmin Tayag

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  • How a GOP Congress Could Roll Back Nationwide Freedoms

    How a GOP Congress Could Roll Back Nationwide Freedoms

    If Republicans win control of one or both congressional chambers this week, they will likely begin a project that could reshape the nation’s political and legal landscape: imposing on blue states the rollback of civil rights and liberties that has rapidly advanced through red states since 2021.

    Over the past two years, the 23 states where Republicans hold unified control of the governorship and state legislature have approved the most aggressive wave of socially conservative legislation in modern times. In highly polarizing battles across the country, GOP-controlled states have passed laws imposing new restrictions on voting, banning or limiting access to abortion, retrenching LGBTQ rights, removing licensing and training requirements for concealed carry of firearms, and censoring how public-school teachers (and in some cases university professors and even private employers) can talk about race, gender, and sexual orientation.

    With much less attention, Republicans in the U.S. House and Senate have introduced legislation to write each of these red-state initiatives into federal law. The practical effect of these proposals would be to require blue states to live under the restrictive social policies that have burned through red states since President Joe Biden’s victory in 2020. “I think the days of fealty [to states’ rights] are nearing an end, and we are going to see the national Republicans in Congress adopting maximalist policy approaches,” Peter Ambler, the executive director of Giffords, a group that advocates for stricter gun control, told me.

    Read: The double-negative election

    None of the proposals to nationalize the red-state social agenda could become law any time soon. Even if Republicans were to win both congressional chambers, they would not have the votes to overcome the inevitable Biden vetoes. Nor would Republicans, even if they controlled both chambers, have any incentive to consider repealing the Senate filibuster to pass this agenda until they know they have a president who would sign the resulting bills into law—something they can’t achieve before the 2024 election.

    But if Republicans triumph this week, the next two years could nonetheless become a crucial period in formulating a strategy to nationalize the red-state social-policy revolution. Particularly if Republicans win the House, they seem certain to explore which of these ideas can attract enough support in their caucus to clear the chamber. And the 2024 Republican presidential candidates are also likely to test GOP primary voters’ appetite for writing conservative social priorities into national law. Embracing such initiatives “may prove irresistible for a lot of folks trying to capture” the party’s socially conservative wing, Patrick Brown, a fellow at the conservative Ethics and Public Policy Center, told me.

    It starts with abortion. Senator Lindsey Graham of South Carolina in September introduced a bill that would ban the procedure nationwide after 15 weeks of pregnancy. In the House, 167 Republicans have co-sponsored the “Life Begins at Conception Act,” which many legal analysts say would effectively ban all abortions nationwide.

    In elections, Senator Rick Scott of Florida has proposed legislation that would impose for federal elections nationwide many of the voting restrictions that have rapidly diffused across red states, including tougher voter-identification requirements, a ban on both unmonitored drop boxes and the counting of any mail ballots received after Election Day, and a prohibition on same-day and automatic voter registration.

    In education, Senator Tom Cotton of Arkansas has proposed to federalize restrictions on how teachers can talk about race by barring any K–12 school that receives federal money from using “critical race theory” in instruction. Several Republicans (including Senator Josh Hawley of Missouri) have introduced a “Parents’ Bill of Rights,” which would mandate parental access to school curriculum and library materials nationwide—a step toward building pressure for the kind of book bans spreading through conservative states and school districts. Nadine Farid Johnson, the Washington director for PEN America, a free-speech advocacy group, predicts that these GOP proposals “chipping away” at free speech are likely to expand beyond school settings into other areas affecting the general population, such as public libraries or private companies’ training policies. “This is not something that is likely to stop at the current arena, but to go much more broadly,” she told me.

    Representative Mike Johnson of Louisiana, along with several dozen co-sponsors, recently introduced a federal version of the “Don’t Say Gay” legislation that Governor Ron DeSantis of Florida pushed into law. Johnson’s bill is especially sweeping in its scope. It bars discussion of “sexually-oriented material,” including sexual orientation, with children 10 and younger, not only in educational settings, but in any program funded by the federal government, including through public libraries, hospitals, and national parks. The language is so comprehensive that it might even prevent “any federal law enforcement talking to a kid about a sexual assault or sexual abuse,” David Stacy, the government-affairs director at the Human Rights Campaign, an LGBTQ advocacy group, told me.

    Read: Want to understand the red-state onslaught? Look at Florida.

    Johnson’s bill is only one of several Republican proposals to nationalize red-state actions on LGBTQ issues. During budget debates in both 2021 and 2022, Republican senators offered  amendments to establish a nationwide ban on transgender girls participating in school sports. Representative Marjorie Taylor Greene of Georgia has introduced a bill (the “Protect Children’s Innocence Act”) that would set felony penalties for doctors who provide gender-affirming care to minors. Cotton, in a variation on the theme, has proposed to allow any minor who receives gender-affirming surgery to sue the doctor for physical or emotional damages for the next 30 years.

    Meanwhile, Senator Steve Daines and Representative Richard Hudson of North Carolina have introduced legislation requiring every state to accept a concealed-carry gun permit issued in any state—a mechanism for overriding blue-state limits on these permits. When Republicans controlled the House, they passed such a bill in 2017, but the implications of this idea have grown even more stark since then because so many red states have passed laws allowing residents to obtain concealed-carry permits without any background checks or training requirements.

    Ambler told me he expects that the NRA and congressional Republicans will eventually seek not only to preempt blue states and city limits on who can carry guns, but also to invalidate their restrictions on where they can do so, such as the New York State law, now facing legal challenge, barring guns from the subway.

    Brown, of the conservative EPPC, said it’s difficult to predict which of these proposals will gather the most momentum if Republicans win back one or both chambers. Some congressional Republicans, he said, may still be constrained by traditional GOP arguments favoring federalism. The strongest case for contravening that principle, he said, is in those instances that involve protecting what he calls “fundamental rights.” Graham’s national 15-week abortion ban can be justified on those grounds because “we are talking about, from my perspective, the life of an unborn baby, so having a federal ceiling on when states can’t encroach on protecting that fetus in the womb in the later stage of pregnancy makes a lot of sense to me.”

    In practice, though, Brown thinks that congressional Republicans may hesitate about passing a nationwide abortion ban, particularly with no hope of Biden signing it into law. He believes they are more likely to coalesce first around proposals to bar transgender girls from participating in sports and to prohibit gender-affirming surgery for minors, in part because those issues have proved “so galvanizing” for cultural conservatives in red states.

    Conor Friedersdorf: The constitutional case against a federal abortion ban

    Stacy, from the Human Rights Campaign, said that although Senate Republicans may be less enthusiastic about pursuing legislation restricting transgender rights, he hasn’t ruled out the possibility of a GOP-controlled Congress advancing those ideas. “It’s hard to know how far a Republican majority in either chamber would go on these issues,” he told me. “But what we’ve seen again and again in the states is that when they can, they have moved in these directions. Even when you take a look at more moderate states, when they have the power to do these things, they move these things forward.” That precedent eventually may apply not just to LGBTQ issues, but to all the red-state initiatives some Republicans want to inscribe into national law.

    These approaching federal debates reframe the battle raging across the red states during the past few years as just the first act of what’s likely to become an extended struggle.

    This first act has played out largely within the framework of restoring states’ rights and local prerogatives. As I’ve written, the red-state moves on social issues amount to a systematic effort to reverse the “rights revolution” of the past six decades. Over that long period, the Supreme Court, Congress, and a succession of presidents nationalized more rights and reduced states’ leeway to abridge those rights, on issues including civil rights, contraception, abortion, and same-sex marriage.

    Now the red states have moved to reverse that long trajectory toward a stronger national floor of rights by setting their own rules on abortion, voting, LGBTQ issues, classroom censorship, and book bans, among other issues. In that cause, they have been crucially abetted by the Republican-appointed Supreme Court majority, which has struck down or weakened previously nationally guaranteed rights (including abortion and voting access).

    But the proliferation of these congressional-Republican proposals to write the red-state rules into federal law suggests that this reassertion of states’ rights was just a way station toward restoring common national standards of civil rights and liberties—only in a much more restrictive and conservative direction. “All of these things have been building for years,” Alvin Tillery, the director of the Center for the Study of Diversity and Democracy at Northwestern University, told me. “It’s just that Mr. Trump gave them the idea they can succeed being more [aggressive] in the advocacy of these policies.”

    Like many students of the red-state social-policy eruption, Tillery believes that Republicans and social conservatives feel enormous urgency to write their cultural priorities into law before liberal-leaning Millennials and Generation Z become the electorate’s dominant force later this decade. “The future ain’t bright for them looking at young people, so they are acting in a much more muscular and authoritarian way now,” he said.

    With Republicans likely to win control of the House, and possibly the Senate, the next two years may become the off-Broadway stage of testing different strategies for imposing the red-state social regime on blue America. The curtain on the main event will rise the next time Republicans hold unified control of the White House and Congress—a day that may seem less a distant possibility if the GOP makes gains as big as those that now seem possible this week.

    Ronald Brownstein

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  • The Other Abortion Pill

    The Other Abortion Pill

    In the months since the Supreme Court overturned Roe v. Wade, demand for medication abortion has soared. The method already accounted for more than half of all abortions in the United States before the Court’s decision; now reproductive-rights activists and sites such as Plan C, which shares information about medication abortion by mail, are fielding an explosion in interest in abortion pills. As authorized by the FDA, medication abortion consists of two drugs. The first one, mifepristone, blocks the hormone progesterone, which is necessary for a pregnancy to continue. The second, misoprostol, brings on contractions of the uterus that expel its contents. The combination is, according to studies conducted in the U.S., somewhere between 95 percent and 99 percent effective in ending a pregnancy and is extremely safe.

    The second drug, misoprostol, can also safely end a pregnancy on its own. That method has long been considered a significantly less effective alternative to the FDA-approved protocol. But a growing body of research has begun to challenge the conventional thinking. In situations where people use pills to end a pregnancy at home, studies have found far higher rates of success for misoprostol-only abortions than were found in clinical settings. One recent study in Nigeria and Argentina showed misoprostol-only abortion to be 99 percent effective.

    Even before new restrictions began to ripple across the U.S., mifepristone—often referred to as “the abortion pill”—was tightly controlled by the FDA, which requires that the drug be dispensed only by doctors certified to prescribe it and only to patients who’ve signed an agency-approved agreement. As efforts to ban that drug intensify, the relative availability of misoprostol, which can be obtained at pharmacies in every state and prescribed by any doctor, could make misoprostol alone a more common option for women seeking abortions, legally or clandestinely.

    Read: The future of abortion in a post-Roe America

    Already, the Austria-based nonprofit Aid Access, which helps women in the U.S. order pills through the mail, helped thousands of women procure misoprostol-only regimens in the first months of the coronavirus pandemic, when shipments of mifepristone were disrupted. At least one U.S. abortion provider, Carafem, has been offering its patients a misoprostol-only option for close to two years, and other reproductive-health groups are now considering offering the same regimen. This approach follows a path that has been well established in places around the world, where mifepristone has been scarce or unavailable, but in the U.S., it represents a real shift in abortion provision.

    If in the past mifepristone has garnered the bulk of attention from politicians and the public in the U.S., that focus may owe in part to an oft-told story about the origins of “the abortion pill” and its lone inventor, the renowned French researcher Dr. Étienne-Émile Baulieu. The reality is that of the two drugs, misoprostol has always mattered more.

    For his work on mifepristone, Baulieu won one of the most prestigious prizes in medicine, whose recipients tend to be discussed as candidates for a Nobel Prize, and received France’s Legion of Honor. A lengthy profile in The New York Times Magazine called him “a different kind of scientist.” And though the chemists George Teutsch and Alain Belanger actually synthesized the compound, Baulieu became, to American audiences, “the father of the abortion pill.”

    Yet mifepristone is not, by itself, a highly effective abortifacient. Taken alone, the drug ends a pregnancy only about two-thirds of the time, which is why it has always been administered in combination with a prostaglandin—a drug that mimics the function of hormones that promote menstrual cramping and inflammation.

    For years, doctors in Europe had been administering mifepristone with a prostaglandin called sulprostone. The combination was nearly 100 percent effective, but required multiple in-person visits to a clinic or hospital because sulprostone could only be given by injection. “Everyone had been looking for a prostaglandin that didn’t have to be either injected or kept frozen,” says Beverly Winikoff, the founder of Gynuity Health Projects, whose research on medication abortion helped win FDA approval in the United States.

    In Brazil, women had already found one. No individual, or individuals, have ever been widely credited for that discovery, the way Baulieu is credited for mifepristone. But scholars agree that the practice began in the country’s impoverished northeast soon after the drug went on the market in 1986.

    Manufactured by G.D. Searle & Company, misoprostol was developed to treat stomach ulcers. To women in Brazil, where abortion was and remains severely restricted, the warning on the label, to avoid taking the drug while pregnant, advertised its potential as an abortifacient. And when they found the drug safer and more effective than other clandestine methods, misoprostol’s popularity exploded. (To state the obvious, no one should interpret drug warnings for pregnant people as covert advertisements for effective abortion alternatives.)

    Soon, doctors in Brazil reported seeing fewer women with severe abortion-related complications, and Brazilian researchers began documenting the drug’s off-label use. The first such study appeared in a 1991 letter to the editor of The Lancet: Helena Coelho and her colleagues at the University of Ceara had found that knowledge of misoprostol’s capacity to induce abortion had “spread rapidly” among both women and pharmacy personnel. But it had also reached government officials, who limited sales to authorized pharmacies and, in one state, banned misoprostol entirely.

    Read: Women in the U.S. can now get safe abortions by mail

    That same year, Baulieu, the French researcher, announced that he had devised a simpler way to use mifepristone—by combining it with misoprostol, which, unlike sulprostone, could be taken by mouth. Writing in The New England Journal of Medicine, Baulieu did reference misoprostol’s use in Brazil, but only as an example of what not to do. Citing anecdotal reports of cranial malformations in infants exposed to misoprostol in utero, he and colleagues claimed that administering misoprostol alone would risk “embryonic abnormalities,” adding that G.D. Searle “strongly disapproved” of the practice.

    The reports of cranial anomalies were never confirmed. But Searle did take pains to prevent the use of misoprostol for abortion, at one point publicly warning doctors in the U.S. against administering the drug to pregnant women. Over time, researchers established other important uses for misoprostol, such as treating miscarriage and preventing postpartum hemorrhage. Yet during the lifetime of its patent, the company refused to research or register the drug for any reproductive-health indication.

    Meanwhile, Brazilian newspapers had seized on the dangers that Baulieu had cited, fueling fears that failed abortions would create “a generation of monsters.” That in turn provided Brazilian authorities with a public-health rationale for regulating misoprostol as a controlled substance, the “possession or supply” of which carries penalties even more punitive than those for drug trafficking. But through informal networks, feminist activists continued helping women access both misoprostol and information about how to safely use it at home. More than three decades later, experts now credit Brazil as the birthplace of self-managed medication abortion.

    In the past few years, researchers have more formally documented what these informal networks established. In clinical trials, medication abortion with misoprostol alone was effective in completing first-trimester abortion roughly 80 percent of the time. As a rule, “We think about clinical-trials data as the gold standard,” says Caitlin Gerdts, a vice president at Ibis Reproductive Health and a senior author on the study in Nigeria and Argentina. Yet when researchers have examined misoprostol’s use in nonclinical settings, they have found far higher rates of success, with 93 to 100 percent of participants reporting complete abortions using only misoprostol. Given the many studies showing high effectiveness in self-managed settings, Gerdts says, “I think it’s time to reconsider the idea of the clinical trials data as being paramount.”

    One reason for the greater effectiveness of misoprostol alone in studies of self-managed abortion may have to do with how the studies were designed. “The problem with clinical trials is that often when we ask somebody to follow up in a week or two weeks, the body hasn’t had enough time to expel all of the products of conception,” says Dr. Angel Foster, a health-science professor at the University of Ottawa, whose work on the Thailand-Myanmar border was the first to rigorously investigate the effectiveness of misoprostol alone for abortion outside a formal health system. “If there’s a smudge on an ultrasound, it’s not that there’s a continuing pregnancy—it’s just debris. But rather than let the uterus absorb it or expel it, we do an evacuation procedure and we count it as a failure.” In studies of self-managed abortion, she says, the follow-up period tends to be longer—three or four weeks—and surgical intervention may not always be an option.

    “I do think because of the way it’s been treated in clinical trials, misoprostol has been defined as much less effective than we now believe it to be,” Foster says. “We talk about mifepristone as ‘the abortion pill,’ but I think it’s more appropriate to think of it as a pretreatment or an adjunct therapy. Because it’s really the misoprostol that’s doing the lion’s share of the work.”

    Elizabeth Raymond, a senior medical associate at Gynuity and the lead author of a systematic review of clinical trials on the use of misoprostol alone for early abortion, acknowledges that the clinical studies may have been too quick to intervene. But she says the shorter follow-up period was not without reason. Using ultrasound and a blood test to measure the amount of hCG, or human chorionic gonadotropin, doctors can diagnose a complete abortion “quite quickly, certainly within one or two weeks,” she says, “and the researchers wanted to do the assessments as soon as reasonable. They saw no sense in delaying.” Raymond suspects that misoprostol alone isn’t quite as effective as reported in the study in Nigeria and Argentina, in part because that study relied on its subjects to self-report whether the abortion was complete. “I think it’s an intriguing study, and it’s true that misoprostol alone is more effective than we thought,” she says, “but I think the general feeling is, if you can get both drugs, you should do that. The combination is more effective, and it may cause less cramping and bleeding.”

    Those side effects aren’t a safety concern, says Dr. Julie Amaon, the medical director of Just the Pill, which delivers abortion medication to people in Wyoming, Montana, Colorado, and Minnesota. “But it’s something to keep in mind,” she says, adding that anyone self-managing an abortion at home should adhere to the WHO-recommended protocol and follow up with a doctor, whether in person, by phone, or by text, to ensure that the process is complete. In the U.S., the FDA has approved only the two-drug regimen; although the WHO’s recommendations also suggest a preference for medication abortion with both drugs, that agency does recommend misoprostol-only abortion “in settings where mifepristone is not available.”

    Read: The abortion pill can be used later than the FDA says

    Right now, lawmakers across the U.S. are working to put both drugs out of reach. Fourteen states now fully or partially ban both mifepristone and misoprostol. Of the two drugs, though, misoprostol is still more easily obtained, either by prescription in pharmacies or via nonprofit groups in the U.S. and overseas. The Biden administration has said that it intends to maintain access to medication abortion, but so far has not acted to ease the stricter regulations on mifepristone. As long as those restrictions remain in place, ending a pregnancy with misoprostol alone could become a more common choice for people with few options.

    According to the Guttmacher Institute, a reproductive-health-research group that supports abortion rights, though the rate is difficult to measure, in the past self-managed abortions probably haven’t occurred in the U.S. on a large scale. But as conditions in red states come to resemble those in Brazil, the practice could become more and more common. In this way, says Mariana Prandini Assis, a Brazilian social scientist who has written extensively on abortion, the fall of Roe may well lead to the normalization in America of self-managed abortion with pills—a choice once thought of as a last resort or an act of desperation. For that reason, she says, the Brazilian women who pioneered the use of misoprostol for abortion should be considered the “other inventors of ‘the abortion pill.’”

    Patrick Adams

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