1). “Abortion Bans or Democracy — You Can’t Have Both: Controlling people’s bodies requires trashing representative government and violating every individual right”, August 24 2023, Judith Levine, The Intercept, at < https://theintercept.com/2023/
3). “Texas Says a Fetus Is a Child, Except When a Parent Sues a Negligent Doctor or State Official”, Aug 24, 2023, Dov Fox & Jill Wieber Lens, Slate, at < https://slate.com/news-and-
4). “Abortion Is So Popular Republicans Are Inventing Conspiracy Theories to Trick Americans Into Voting Against It”, Aug 21, 2023, Christina Cauterucci, Slate, at <https://slate.com/news-and-
5). “No OB-GYNs left in town: what came after Idaho’s assault on abortion”, Aug 22, 2023, Kathleen McLaughlin, The Guardian, at < https://www.theguardian.com/
6). “Agonising delays for women as Dobbs decision worsens OB-GYN shortage: Supreme court ruling on abortion has led to specialists leaving restrictive states, with 36% of counties maternity care deserts”, Aug 22, 2023, Robin Buller, The Guardian, at < https://www.theguardian.com/
7). “Abortion, Every Day (8.25.23): Docs challenge South Carolina's definition of 'fetal heartbeat' ”, Aug 25, 2023, Jessica Valenti, at < https://jessica.substack.
~~ recommended by dmorista ~~
Centrality of Reproductive Health Care Issues to Defeating the Right-wing Cabal
Introduction by dmorista: While the Ohio election, in which the state’s electorate refused to change the amendment process to require a 60% vote, was a victory; the Forced-Birth / Forced-Pregnancy movement just changed their immediate to medium-term tactics in response. There is no change in their vicious and implacable plan to begin the total defeat and enslavement of American working people, by starting with women during their most vulnerable time. Articles 1 & 2 (both from The Intercept) look at the general situation of recent, or relatively recent developments. In Article 1 there is mention of attempts to pass State Constitutional Amendments in Florida, Arizona, Nebraska, Missouri, and Virginia. Article 2 discusses the role of one evil mastermind in the process of criminalizing abortion: “ …. Jonathan F. Mitchell, former Texas solicitor general and architect of the state’s six-week abortion ban, Senate Bill 8. Mitchell filed the complaint along with Republican state Rep. Briscoe Cain and the Thomas More Society, a religious-right law firm known for pushing anti-abortion views through litigation. Dubbed a “brilliant legal mind,” Mitchell has a prolific background litigating right-wing causes, including anti-LGBTQ+, anti-union, and anti-abortion lawsuits. A former law clerk for the late U.S. Supreme Court Justice Antonin Scalia, Mitchell has ties to the Federalist Society, ….”.
Then there are a couple of good articles from Slate. Article 3 points out the incredible hypocrisy and duplicitous nature of the openly fascist Texas State Government. That is working assiduously to impose “Fetal Personhood” on Texas Women (those too poor and maginalized to travel to the relative freedom of a Blue State that is). But when confronted with a lawsuit from a woman who lost a baby due to not being allowed to leave work (she was a prison guard at the Middleton Transfer Facility in Abilene, Texas) the Legal response of the Texas Attorney General, at that point in time the fraudster Ken Paxton, was to say that: “ …. Issa may have suffered an injury, but it was to her body—to her pregnancy. Apparently, Issa’s injury is limited to her uterus. Never mind the death of the child whose arrival she and her husband had been eagerly awaiting.” Article 4 takes a look at the attempt by Republicans to portray State Constitutional amendments protecting Reproductive Rights as moves by shadowy Sexual predators to gain access to people’s children. An extension of the despicable “Groomer” meme the Rethugs have been using for years now.
Articles 5 & 6 (both from The Guardian) take a look at the growing shortage of OB GYNs in the U.S. that is most acutely felt in Red States that have passed draconian Abortion Bans. Article 5 looks specifically at Idaho, the most obvious example of this development. In that state a large proportion of OB GYNs have already left to practice in nearby Blue States (Colorado, Minnesota, and Oregon); where they are not going to be imprisoned or executed. And don’t kid yourself, Texas, South Carolina, Alabama, Louisiana, and Mississippi are eager to execute both women who obtained abortions and physicians or others who helped them. If they take overall power, the way they want to, we will surely see that happening.
Article 7 is the latest post from Jessica Valenti at Abortion Every Day. She addresses these issues and others in a typically high-quality survey.
If we don’t want to Join Weimar Germany and pre Fascist Italy from the 1920s, in their respective descents into fascist nightmare societies, we need to step up our resistance to this poison and to these evil movements in our country. The Forced-Birth / Forced-Pregnancy Movement is the main spearpoint of the far-right and their drive to defeat the working people of the U.S. and impose a vicious austere regime enforced by fascist terror and police state methods. The Forced-Birth / Forced-Pregnancy Movement has carried out a 40+ year terror campaign that is closely allied with the far-right’s legal and judicial offensive. The achilles heel of the right’s on-going program is that Reproductive Health Care is very popular with Americans. The Progressive and Left forces in the U.S. must tar every Republican, who runs for any office, with their extremist position of Reproductive Health Care and Abortion.
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1). “Abortion Bans or Democracy — You Can’t Have Both: Controlling people’s bodies requires trashing representative government and violating every individual right”, August 24 2023, Judith Levine, The Intercept, at < https://theintercept.com/2023/08/24/abortion-ban-laws-democracy/ >
Abortion Bans or Democracy — You Can’t Have Both
People celebrate the defeat of Issue 1 during a watch party in Columbus, Ohio, on Aug. 8, 2023.
Photo: Jay LaPrete/AP
The defeat of Ohio Issue 1 on August 8 demonstrated the strength of the pro-abortion rights vote. Activists secured an initiative to be placed on the November ballot constitutionally enshrining the right to abortion until fetal viability. To head off what promises to be a slam dunk for the pros, Ohio’s anti-abortion Republican legislature proposed its own amendment, to raise the bar to amend the state constitution. That was Issue 1, the sole question on the ballot of the special August election.
Issue 1 was a transparent ruse — polls showed 58 percent support for the abortion rights measure; the lawmakers specified a 60 percent majority to pass an amendment instead of the current simple majority — and voters soundly rejected it.
Now Ohio is set to follow the six states that have conferred the highest level of state protection on reproductive freedom through popular referendum. Campaigners for a similar 2024 ballot measure in Arizona are psyched by Ohio’s victory, and Nebraska is gearing up for one as well. Virginia Democrats were moved to elevate reproductive liberty to the top of their platform, in hopes of winning back the state House of Representatives and firewalling abortion from Republican Gov. Glenn Youngkin’s attempts to impose the most extreme prohibitions.
In Ohio, democracy prevailed — and the spirit is spreading.
Still, you could see it the opposite way. Ohio’s GOP contrived to upend a process of governance that’s been uncontroversial since 1912. The party introduced a bill to allow for an August election on a constitutional amendment — formerly one could be held only in the case of a “fiscal emergency” — and when the bill stalled in committee, they held the election anyway. The party of skinflints magnanimously allocated $20 million in taxpayer funds to run the referendum, which set in motion the spending of another $26.6 million in advertising by organizations for and against the initiative. All in all, that’s a slew of monkey wrenches in the gears of democracy, with one purpose: to force women to have children they don’t want.
You can have abortion bans, or you can have democracy. You can’t have both.
Criminalizing abortion is undemocratic in the most basic sense: Increasing majorities of Americans are against it. In fact, a new poll shows that given the chance, two in three would vote to protect the right to abortion in their state constitutions. That includes nearly half of Republicans.
Abortion bans, moreover, could not have been achieved without a long prehistory of dubiously legal, anti-democratic shenanigans like those the legislature pulled in Ohio. The conservative supermajority on the Supreme Court that overturned Roe v. Wade would be a mere, potentially negotiable majority had Republican Senate Majority Leader Mitch McConnell not refused to hold confirmation hearings for President Barack Obama’s nominee, the moderate Merrick Garland, to fill the seat left vacant by Antonin Scalia’s death in 2016.
Republicans would not hold seemingly permanent control of Ohio’s statehouse if the party had not radically gerrymandered election districts and ignored seven court rulings rejecting the maps it drew. Anti-abortion initiatives on the 2022 ballots in Kansas and Kentucky also emerged from legislatures gerrymandered to insulate members from the will of the people.
Ballot initiatives aren’t perfect: The biggest spenders tend to win. Still, when representative government is disabled by election rigging and voter suppression, direct democracy may be the citizens’ last resort. Watching ballot initiatives land repeated blows against minority rule, Republicans in states including Florida, Missouri, North Dakota, Utah, and Michigan are doing their damnedest to waylay referenda on the way to the polling booth.
In Michigan, Republicans on the Board of State Canvassers voted to keep two legitimately petitioned referenda off the 2022 ballot. One measure, unironically, instituted pro-voting reforms; the other constitutionally enshrined abortion rights. Both were blocked on technicalities — the latter because of spacing errors in the document. After the state Supreme Court restored the initiatives, voters approved both. Similarly, the anti-abortion measures in Kansas and Kentucky were rejected at the ballot box. In 2024, Arizona and Florida Republicans will attempt to limit the ability of voters to direct ballot or amend the constitution— but they’ll have to do it through popular referenda.
Enforcement of abortion bans requires the violation of basic constitutional and human rights. Using legislation crafted by the National Right to Life Committee, Texas and South Carolina have passed laws that stomp on free speech by shutting down websites that offer information on abortion. If the laws stand in the courts, other states are likely to follow.
In Idaho this month, six public university professors and two unions brought a federal lawsuit challenging the state’s 2021 No Public Funds for Abortion Act, which criminalizes the use of public funds not just to perform abortions but also to “promote [or] provide counseling in favor of abortion.” Educators have bowdlerized their syllabi, scrubbed their resumes, and pulled art from an exhibition in fear of overstepping the vague bounds of the law and losing their jobs or facing felony convictions that carry penalties of heavy fines and imprisonment. “This law censors teaching, discussion, and scholarship about abortion at Idaho’s public universities, effectively stripping professors of their First Amendment right to academic speech,” said the American Civil Liberties Union, which is representing the professors.
Not content with prosecuting pill distributors as drug traffickers or prohibiting the “trafficking” of fetal tissue, the antis have minted a new species of criminal trafficking. A statute signed this spring by Idaho Gov. Brad Little prohibits “abortion trafficking”; it defines as a trafficker anyone who “procures an abortion” or “obtains an abortion-inducing drug for [a] pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor” — language that suggests child sex slavery. Although “transporting” refers only to the in-state portion of the trip, the law contravenes both the constitutional right to travel and, arguably, the human right to asylum from persecution.
The persistence and prevalence of pill abortions in defiance of the bans has compelled red-state law enforcers to step up surveillance, and we can expect more violations of privacy in the future. If the Supreme Court upholds the recent Texas ruling severely limiting distribution of the abortion drug mifepristone, the Comstock Act of 1873 could be resuscitated and the U.S. Postal Service authorized to open mail in search of contraband. Last year, Nebraska prosecutors used private Facebook messages and federally protected medical records to charge a teenager, Celeste Burgess, and her mother, Jessica, with self-managing the daughter’s abortion using medication at about 28 weeks’ gestation and attempting to burn the stillborn fetus.
But the invasion of the Burgesses’ privacy was the least of it. Jessica faces up to five years in prison for violating Nebraska’s abortion laws by buying the pills online and giving them to her daughter. (The law back then prohibited abortion after 20 weeks; in May 2023, Nebraska’s governor signed a 12-week ban.) Celeste, who was 17 at the time and had no criminal record, pleaded guilty to the felony offense of “removing, abandoning, or concealing human skeletal remains.” And while anti-abortion propagandists allege that they seek compassion, not punishment, for women who abort, the judge gave Celeste 90 days’ jail time plus two years’ probation. “Confinement is necessary,” he wrote, because its omission “would depreciate the seriousness of the crime or promote disrespect for the law.”
Which law? It is fair to conclude that this teenager was locked up for three months for ingesting a legal drug to return her own body to its former, unpregnant state. So much for due process and proportional justice — the time fitting the crime.
The First “Wrongful Death” Case for Helping a Friend Get an Abortion
The more intimate the target, the more intrusive the surveillance. That’s why several states have deputized private citizens to inform on, and sue, those who “aid and abet” abortions — the new American Stasi. At the same time, the more numerous the aspects of personal life the state seeks to police — sexual behavior, gender expression, unsavory thought — the more pressing will be people’s desire and need to disobey the laws, just to carry on ordinary life. The more widespread such disobedience becomes, the greater will be the perception of crime and, with it, the state’s self-justification for repression.
The Grand Old Party has long since abandoned even the appearance of caring about democracy. It wants only power, and to get power its politicians pander to the base of nosy, self-righteous, cruelly unchristian evangelical Christians, who care even less. American democracy has never been perfect, but for duking out our differences, it’s all we’ve got. Still, some things are not proper subjects of democratic debate. Among these are people’s decisions about whether and when to have a baby. In this case, democracy means leaving our bodies alone.
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2). “The First ‘Wrongful Death’ Case for Helping a Friend Get an Abortion: The lawsuit’s long game — beyond instilling fear — is establishing fetal personhood, the holy grail of the anti-abortion movement”. April 26 2023, Mary Tuma, The Intercept, at < https://theintercept.com/2023/04/26/abortion-wrongful-death-texas-lawsuit/ >
The First “Wrongful Death” Case for Helping a Friend Get an Abortion
The lawsuit’s long game — beyond instilling fear — is establishing fetal personhood, the holy grail of the anti-abortion movement.
“Your help means the world to me,” a grateful Brittni Silva texted her best friends, Jackie Noyola and Amy Carpenter, last July. “I’m so lucky to have y’all. Really.”
A month after the U.S. Supreme Court overturned Roe v. Wade, the Houston mother of two experienced an unplanned pregnancy with her now ex-husband and allegedly sought abortion care with the help of her friends. For nearly a year, Texas had imposed a six-week abortion ban, and a full “trigger” ban would be enacted in just a few weeks. Silva needed to act fast and extricate herself from what appeared to be an emotionally unhealthy relationship with a husband she would go on to divorce in February. Her friends offered their unwavering support.
“I just worry about your emotional state,” wrote Carpenter, who had advocated that Silva “remove” herself from her husband, according to court documents. “He’ll be able to snake his way into your head.”
“I know either way he will use it against me,” Silva said of her pregnancy. “If I told him before, which I’m not, he would use it as [a way to] try to stay with me. And after the fact, I know he will try to act like he has some right to the decision.”
“Delete all conversations from today,” Noyola wrote. “You don’t want him looking through it.”
Not only did Marcus Silva access the private conversations his ex-wife had with her friends, he also filed an unprecedented lawsuit in March accusing Carpenter, Loyola, and Texas abortion rights activist Aracely Garcia of wrongful death, alleging the trio “conspired” to help his ex-wife obtain medication to terminate her pregnancy with a self-managed abortion. Attorneys for Silva also hope to sue “into oblivion” the manufacturer of the abortion pills procured. The complaint, filed in state court in Galveston County, Texas, seeks a stunning $1 million in damages from each woman.
In the first lawsuit of its kind since Roe was struck down, the legal filing, riddled with sensitive information, instills a chilling effect on anyone who wishes to assist in abortion care, raising the threat of surveillance and public scrutiny, legal experts say. Filed by an influential conservative legal figure, the lawsuit also offers a window into the anti-abortion movement’s growing push for fetal personhood.
Anti-abortion protesters pray as demonstrators gather outside city hall in Houston, during a “Bans Off Our Bodies” rally on May 14, 2022.
Photo: Mark Felix/AFP via Getty Images
An Influential Figure
The lawsuit claims that aiding a self-managed abortion is tantamount to murder under state law, allowing Marcus Silva to bring a wrongful death case. Texas law specifically exempts the abortion patient from facing prosecution, leaving Brittni Silva out of the legal crosshairs.
The alleged abortion occurred prior to enactment of the state’s criminal trigger ban, which makes performing an abortion a felony punishable by up to life in prison. Marcus Silva’s attorneys appear to rely instead on Texas’s pre-Roe criminal ban, a 1925 statute that penalizes anyone who “furnishes the means for” abortion with up to 10 years in prison. The status of the antiquated law is murky. In July, the Texas Supreme Court temporarily ruled in a case filed by abortion providers that the law could only be enforced civilly. Earlier this year, U.S. District Judge Robert Pitman ruled that the law was obsolete, as it had been repealed by implication following Roe, a finding that reaffirmed a 2004 5th U.S. Circuit Court of Appeals ruling.
Some legal experts consider the lawsuit’s argument highly tenuous. Since Brittni Silva is immune from prosecution, her alleged abortion shouldn’t be considered a crime, leaving no basis to bring a wrongful death suit.
“For this to be wrongful death, you would have to have committed that criminal act, and because the pregnant person cannot be charged for homicide for her self-managed abortion, it’s not criminal,” said Joanna Grossman, a gender and family law professor at Southern Methodist University. “So there is no reason to think what her friends did to help is facilitating crime.”
Supreme Court Ruling on Texas Abortion Law Opens Door to Copycat Schemes Everywhere
The suit might be easy to write off if it weren’t for the figure behind it: Jonathan F. Mitchell, former Texas solicitor general and architect of the state’s six-week abortion ban, Senate Bill 8. Mitchell filed the complaint along with Republican state Rep. Briscoe Cain and the Thomas More Society, a religious-right law firm known for pushing anti-abortion views through litigation.
Dubbed a “brilliant legal mind,” Mitchell has a prolific background litigating right-wing causes, including anti-LGBTQ+, anti-union, and anti-abortion lawsuits. A former law clerk for the late U.S. Supreme Court Justice Antonin Scalia, Mitchell has ties to the Federalist Society, a group aligned with the court’s right-wing bloc. Mitchell’s legal crusades are often successful. He recently represented an anti-LGBTQ+ Texas activist who struck down a nationwide Obamacare provision that required insurance companies to cover a range of preventive care services, including HIV prevention measures such as PrEP.
While reticent in the public spotlight, Mitchell has developed a reputation as a powerful actor behind the scenes, namely for crafting the novel legal provision at the heart of Texas’s S.B. 8. Enacted in 2021 as a result of inaction by the U.S. Supreme Court, the law allows private citizens to act as vigilantes and sue abortion providers or anyone who “aids or abets” the procedure.
Mitchell’s legal efforts have often laid the groundwork for a larger plan: In 2019, he helped mastermind a string of local “sanctuary for the unborn” ordinances, which became the blueprint for S.B. 8, compelling cities to declare themselves abortion-free by imposing a similar civil enforcement mechanism. The ordinances — which have proliferated in 65 towns across the U.S. — also sought to revive the Comstock Act, an archaic law that has emerged as the next weapon in the arsenal of the anti-abortion movement.
Anti-abortion demonstrators march during a “Right to Life” rally on Jan. 15, 2022, in Dallas.
Photo: Brandon Bell/Getty Images
Personhood Is the “Long Game”
Central to Mitchell’s controversial and “dangerous” ideology is his belief that old, unenforced laws never really die. Only legislatures that enacted laws can formally repeal them, he argues. In addition to seeking to resurrect the century-old Texas ban, Mitchell has signaled an interest in reviving the Comstock Act in Marcus Silva’s wrongful death suit.
The dormant 1873 anti-obscenity law bars any materials associated with abortion care — from pills to surgical equipment to information pamphlets — from shipment by mail, providing a possible foundation for a nationwide abortion ban. Initially intended to ban contraceptives, the law has not been enforced since the 1930s and has seen its scope narrowed over time. Violations can result in up to 10 years in prison.
In a memo issued last year, the Department of Justice clarified that the 150-year-old law did not prohibit mailing abortion medication to patients in states where abortion remains legal, yet that has not deterred anti-abortion actors. In the wrongful death suit, Mitchell argued that the Biden memo was “not entitled to deference” from state courts and that anyone involved in the distribution of the pills Silva obtained — including the manufacturer — committed a “wrongful act” in violation of Comstock. Mitchell doubled down on the push to revive Comstock in another recently filed suit, asking a New Mexico judge to declare that the outdated law supersedes any state law protecting abortion access.
“Sick and Twisted”: Women Sue Texas Over Harrowing Medical Episodes Caused by Abortion Bans
Signaling a coordinated campaign among anti-abortion conservatives, Texas-based U.S. Judge Matthew Kacsmaryk also exhibited eagerness to revive the Comstock Act in his recent ruling to suspend the Food and Drug Administration’s approval of the abortion drug mifepristone, as did the Trump-appointed justices of the 5th U.S. Circuit Court of Appeals who partially upheld Kacsmaryk’s ruling. While the U.S. Supreme Court halted restrictions on the drug from taking effect in April, sending the case back to the 5th Circuit for review, it remains to be seen how the appellate court — and possibly the Supreme Court down the line — might handle the issue of Comstock. Since 2019, the anti-abortion group Alliance Defending Freedom, a plaintiff in the mifepristone case, has paid Mitchell’s Austin-based law firm at least $92,000 for services listed as “sanctity of life” and “religious liberty,” according to IRS filings.
Mitchell’s broader ambition in the wrongful death lawsuit may be judicial recognition of fetal personhood, or classifying fetuses as equal to people with protected constitutional rights, according to Mary Ziegler, abortion historian and law professor at the University of California, Davis. Comstock, while a parallel strategy, helps push the similar view that all abortion violates federal criminal law. Fetal personhood has been the defining end goal of the anti-abortion movement since the 1960s, and with Roe’s demise, extremists have an unprecedented opportunity to achieve it.
“The lawsuit gets the ball rolling on the idea of how to bring fetal rights claims forward.”
Mitchell’s suit, Ziegler said, helps establish a personhood trend that the Supreme Court’s conservative supermajority could “seize” on. It “advances a particularly chilling vision,” she said: shaming and intimidating people who end pregnancies, incarcerating anyone who helps secure abortion care, and vindicating the will of men who oppose it.
“The lawsuit gets the ball rolling on the idea of how to bring fetal rights claims forward. It’s part of a long game,” Ziegler said. “Mitchell is hoping this builds to something bigger, and ultimately adds precedent to the recognition of fetal personhood by the courts.”
Two bills filed by Texas lawmakers this session appear to push for personhood; they would roll back criminal and civil protections for self-managed abortion and classify a fertilized embryo as an “individual,” opening the door for abortion to be treated as capital murder, punishable by the death penalty. The bills are awaiting committee hearings before the legislative session ends on May 29.
Photos: Abortion rights demonstrators rally in New York City against the decision of Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, who overruled FDA approval of the abortion medication mifepristone on April 15, 2023.
Olga Fedorova/SOPA Images/Sipa USA
A Chilling Effect
Recently revealed documents call into question Marcus Silva’s claims that he was wholly unaware of Brittni Silva’s alleged abortion, possibly undercutting his argument that he suffered emotional harm due to purported secrecy and should be awarded damages. A status hearing on the case is scheduled for June 8 before a Republican judge who has a history of verbal abuse in his courtroom, including erupting at a pregnant woman. But no matter how the case is resolved, Grossman said, the damage is already done, and that’s by design.
The lawsuit featured the word “murder” nearly 30 times, likening the women to killers. Notice of the suit was sent to the women’s private employers, as well as the National Latina Institute for Reproductive Justice, where Garcia was employed, demanding that they preserve all evidence of their relationship with the defendants so that attorneys could investigate whether the employers would be held liable.
“It’s an attempt to weaponize a woman’s most intimate medical decision and try to make it a crime.”
“It’s an attempt to weaponize a woman’s most intimate medical decision and try to make it a crime,” said Rusty Hardin, a high-profile Houston defense attorney who is representing two of the women targeted. “And it’s extremely unfortunate when lawyers use language to demonize people they disagree with.”
Despite the fact that no discovery has been taken, the legal complaint featured several pages of intimate text messages between the women — including Brittni Silva’s ovulation calendar — captured through photos of her phone, presumably (but not definitively) by her ex-husband. According to police records obtained by NPR, Marcus Silva searched through his ex-wife’s phone and purse on more than one occasion, reportedly finding abortion pills. The complaint also included a photo of the women in “Handmaid’s Tale” Halloween costumes to further the argument that they “celebrated the murder.” Their addresses have been made public, and their photos have been shared online by anti-abortion activists.
“This is going to scare away and intimidate anyone who now tries to help a friend or loved one obtain a self-managed abortion,” Grossman said. “The surveillance and violation of private conversations is going to instill so much fear. This sends a message that your personal ID, your photos, your text messages could all be fair game in a public case against you, and nothing you say is safe.”
“And it doesn’t matter if the case is thrown out or struck down — your lives are already likely ruined,” Grossman added. “I think that’s a major purpose of the suit. The chilling effect is part of the whole strategy, and it’s been very successful for Mitchell.”
Grossman pointed to the fact that even before any lawsuit was filed under S.B. 8, clinics in Texas halted the majority of their abortion services out of fear of liability.
Farah Diaz-Tello, senior counsel with the reproductive rights legal advocacy organization If/When/How, stressed that lawsuits like this publicly reinforce and empower “vindictive” partners, giving them another tool to exert control. It’s common for abusers who learn of their partners’ self-managed abortions to coerce them into continuing the relationship by threatening to go to law enforcement, Diaz-Tello said.
“Cases like this one essentially serve to isolate victims of abuse who are often turning to self-managed abortion, a pregnancy termination method that is easier to conceal,” she said. “It’s telling people, if you need help accessing abortion, you’re really on your own or else your friends or family members will get swept up in the net of criminalization.”
From 2000 to 2020, the group documented 61 cases in which people were criminally investigated or arrested for self-managing their abortions or helping someone else do so, often using other criminal laws, including homicide laws. The majority of the cases involved abortion medication, which is under an unprecedented legal threat. The number is likely the “tip of the large iceberg,” not accounting for dropped charges or plea bargains.
While it once seemed like a pipe dream for the anti-abortion movement, fetal personhood may be slowly making its way into mainstream judicial thinking. In his ruling, which echoed the inflammatory rhetoric and unscientific claims employed by anti-abortion activists, Kacsmaryk defended his use of the medically inaccurate terms “unborn human” and “unborn child” rather than fetus or embryo — a telling embrace of fetal personhood.
“The fall of Roe has emboldened the radical fringe and shifted the Overton window on the idea that people should be criminalized for having abortions. The more you push these ideas, the more you normalize them,” Diaz-Tello said. “And this Texas lawsuit is a piece of that.”
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Texas Says a Fetus Is a Child, Except When a Parent Sues a Negligent Doctor or State Official
Prison guard Salia Issa was seven months pregnant when she reported to work on a warm mid-November evening in 2021 at the Middleton Transfer Facility in Abilene, Texas. Issa had just started her night shift when she felt intense, contraction-like pains. She needed to get to a hospital right away. But, consistent with prison policy, supervising officers wouldn’t let her leave her post for hours, until someone came to replace her.
By the time Issa was allowed to drive herself to the emergency room, her baby had died. Doctors believe that had she made it sooner, the child would have been born alive. Issa and her husband sued the Texas Department of Criminal Justice and three senior officers there for violating their federal civil rights.
The Texas prison agency is represented by the state attorney general, Ken Paxton, who disputes one critical fact. As Paxton tells it, Issa may have suffered an injury, but it was to her body—to her pregnancy. Apparently, Issa’s injury is limited to her uterus. Never mind the death of the child whose arrival she and her husband had been eagerly awaiting. Or that Issa gave birth to her baby no differently than if her child were alive. Standard medical care encourages parents who deliver a dead baby to spend time with and hold the baby, take pictures, and make footprints and other memories. We don’t know whether Issa and her husband were able to spend time with their baby. But we do know that standard of care doesn’t include bonding like this for the loss of a colon, kidney, appendix, or even a uterus.
This isn’t the only context in which Texas has devalued the unborn child. If a doctor’s misconduct is to blame for fetal death, Texas malpractice law specifically defines the fetus as far less: as just part of the woman’s body and explicitly not as an individual. Ironically, in the current abortion pill litigation, plaintiff Shaun Jester, a Texas OB-GYN, claims that abortion denies him the joy of getting to “bring about a successful delivery of new life.” But if Dr. Jester were to negligently prevent that “successful delivery,” the legal injury is limited to the woman’s uterus—thereby capping any damages to a maximum $250,000. Dr. Jester specifically benefits from the devaluation.
Texas’ framing of the harm of pregnancy loss in terms of a body part is especially perplexing in light of its abortion ban that declares an “unborn child” exists as of fertilization. But Texas isn’t alone in treating the very same unborn life in strikingly inconsistent ways across different contexts; the contradictions actually pervade the legal landscape. For example, Florida bans abortion at six weeks to protect the unborn. But Florida law denies parents any basis to sue for the death of their unborn child. Wrongfully causing a pregnancy loss in Florida is merely a legal injury to “living tissue of the body.”
Indiana, Kentucky, Arizona, and Idaho criminalize abortion from the moment of conception to protect prenatal life. But these states deny grieving parents any cause of action for the wrongful death of their unborn child until the point of fetal viability at around 24 weeks. Mississippi, too, makes abortion a crime from conception, while also denying a legal claim for pregnancy loss until “quickening,” as early as 16 weeks. Ohio bans abortion at six weeks, but denies grieving parents a claim for the death of their unborn child until viability.
Things get even stranger when the embryos people created using in vitro fertilization are contaminated or destroyed. When fertility freezers failed at two clinics in the summer of 2018, some victims sued for the wrongful death of their unborn child, leaving courts to decide between malfunction and murder. The laws in Arkansas illustrate the tension. Its abortion ban says there’s an “unborn child” at “the fusion of a human spermatozoon with a human ovum,” which would also seem to include frozen embryos in a lab. Yet the state law denies relief for lost embryos as life if the death is before the embryo is transferred to the woman’s body. Similarly, ever since the first-ever IVF suit in Rhode Island, courts have treated people’s lost embryos as “irreplaceable property.”
An embryo or fetus is specifically an “unborn child” under public law that criminalizes abortion based on the state’s interest in the unborn. But they’re reduced to body parts or property under the private law of civil wrongs, or torts, when it comes to the interests of parents who grieve their mismanaged pregnancies or mishandled embryos. How can the state’s abstract interest in that life start so much earlier, and be so much stronger, than the interest that aspiring parents have in their very own unborn child?
For decades, the abortion debate has crowded out real talk about injuries like Salia Issa’s in Texas. For decades, the abortion rights movement has avoided this talk for fear that admitting that pregnancy loss matters risks ceding ground on abortion rights. It doesn’t. Recognizing the grief of reproductive loss is a function of how each person relates to their unborn, which can and often does vary across people and circumstances. That individualized assessment is exactly how tort law considers other personal injuries. This way of thinking about the value of the unborn poses no threat of collapsing into personhood-at-conception for those who seek abortions.
Issa felt her baby kick. She and her husband made all kinds of plans for the child in their life together. The state of Texas did not. Yet its interest is treated as mattering more than theirs. Had Issa ended her pregnancy, Paxton would prosecute the doctor who provided that service to her into prison for killing a baby. But because it wasn’t an abortion, according to Texas, it wasn’t a child, even if that’s how Issa valued him.
The state’s interest in nascent life shouldn’t count for more than that of an expectant parent. Taking reproductive loss seriously points to ways of protecting the unborn that don’t involve forcing pregnancy or childbirth: Support those who want to have their child. Expand access to prenatal care. Accommodate pregnant people at work. At the very least, if they have a miscarriage or their baby is stillborn, don’t devalue their loss; it can’t be a “baby” for the state but a “body part” for the parent.
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The Republican Plan to Trick Americans Into Voting Against Abortion
Abortion bans are unpopular. So unpopular that Republican extremists seem to have to invent conspiracy theories to trick Americans into voting for them.
That’s the major takeaway from recent political battles in Ohio, Michigan, and Wisconsin. In all three states, abortion-related ballot initiatives and elections were framed by right-wing groups as the only thing standing between parents and “trans ideology” in the classroom.
In Ohio, political ads intoned that malicious entities from out of state were arriving to “encourage sex changes for kids.” In Wisconsin, Republicans distributed a video that claimed a child was “transitioned into a boy by school officials without parental consent.” And in Michigan, millions of dollars went into ads that warned “minors as young as 10 or 11” could be sterilized without “their parents even knowing.”
All would be resolved, the ads assured, if voters just sided with conservatives at the ballot box. But in reality, “parental rights” were not on the ballot in any of these states. Instead, all three votes had enormous implications for access to abortion.
This is the new playbook. Using the specter of child corruption and social contagion, Republicans are attempting to manipulate parents, scapegoat trans and queer people, and erode multiple axes of bodily autonomy, all in one fell swoop. It does not appear to be a particularly effective tactic, as the recent right-wing efforts failed in each of the three states that tried it. But initiatives like Promise to America’s Children, a coalition of far-right groups that has advanced anti-trans legislation in states across the country, are putting money behind these fearmongering tactics. These groups believe that by agitating conservatives and uniting voters against a trans boogeyman, they can get people to ignore their own support for (or indifference to) abortion rights and eagerly line up to give those rights away.
This month, Ohioans went to the polls to vote on a ballot measure, known as Issue 1, that was specifically designed by the Republican Party to bulldoze a proposed amendment to the state constitution that residents will vote on this fall. That proposed amendment, if passed in November, will enshrine abortion rights in the state constitution.
Ohio Republicans knew they were at a disadvantage on this issue. Abortion rights are broadly popular in Ohio, as they are in most of the country. In a recent USA TODAY Network/Suffolk University poll of likely Ohio voters, 58 indicated support for the abortion rights amendment while only 32 percent opposed it, with 10 percent undecided. The ranks of the supportive included 85 percent of independent women and a full third of surveyed Republicans.
So conservatives knew they wouldn’t be able to thwart the proposed amendment on the merits of their anti-abortion arguments alone. Instead, they scheduled an emergency vote on a ballot initiative—in the dead of August—that would have made it much easier to defeat the abortion rights amendment on procedural grounds. If Issue 1 had passed this month, it would have required 60 percent of voters to approve any amendment to the state constitution, rather than a simple majority.
It didn’t work. Ohioans streamed to the polls—turnout was 38 percent, higher even than any regular primary election since 2016—and voters rejected Issue 1 by a resounding margin of 14 points.
In the aftermath, state Republicans lamented that they hadn’t enough time to get their message out—despite the fact that they were the ones who tried to rush the vote on Issue 1, and despite the millions of dollars that had gone into trying to make voters fear for their children.
In an ad that circulated before the August vote, funded by a right-wing group called Protect Women Ohio, a parent tucks a young girl into bed. “You promised you’d keep the bad guys away. Protect her,” the voice-over says. “Now’s your chance.” Malicious entities from out of state are arriving in sheep’s clothing to “encourage sex changes for kids” and sneak “trans ideology” into schoolrooms, it continues. “Protect your rights as a parent by voting yes on August 8th.”
What do “sex changes for kids” have to do with a ballot measure about the amendment-making process? Nothing at all. In trying to cloak an unpopular agenda in anti-trans messaging, GOP operatives were hoping to mislead voters and incite them to panic—regardless of the fact that Issue 1 would not have protected “parental rights” at all.
The Ohio special election was not the GOP’s first stab at this switcheroo tactic. In the lead-up to a Wisconsin Supreme Court election held in April, Republicans distributed a video that claimed to tell the story of an “innocent” 12-year-old child who was “transitioned into a boy by school officials without parental consent.” (In fact, the child had not medically transitioned but requested to use a boy’s name and he/him pronouns. After the school respected those wishes, the parents sued.)
The outcome of the election “will determine if parents still have rights,” said the video, which was funded by the American Principles Project, which is part of the coalition of far-right groups pushing anti-trans legislation in multiple states. “Don’t leave your children in the hands of Janet Protasiewicz,” it continued, referring to the liberal candidate on the ballot.
During the campaign, Wisconsin voters got texts from anti-Protasiewicz campaigners, many with links to the American Principles Project ads. Some texts said that the candidate “and her woke allies want to TRANS our children without notifying parents.” Other texts referred to the “trans madness” that would overtake Wisconsin’s children if conservative judicial candidate Daniel Kelly didn’t win the race.
In actuality, the election was widely seen as a referendum on abortion rights: It was set to determine the ideological balance of the state court, which was previously right-leaning, in advance of a case that would either uphold or strike down an 1849 abortion ban that had become newly enforceable in Wisconsin after Roe v. Wade was overturned. With money pouring in from across the country—to support both Protasiewicz and Kelly—this Wisconsin election became the most expensive state Supreme Court race in U.S. history.
Protasiewicz had never weighed in on the case of the 12-year-old mentioned in the attack ad, and her opposition never presented proof of her supposed opinions on health care for trans kids. But Terry Schilling, the president of the American Principles Project, has said that campaigns to ban gender-affirming treatments for trans people are “a political winner.” Trans rights are “enormous issues for swing voters and moderates” and can pull centrists toward conservative candidates, Schilling told the New York Times.
So even in a judicial election with little connection to trans issues, when you’re an anti-trans hammer, the race looks like a nail.
Republicans pulled the same trick last year in Michigan, where a right-wing PAC spent millions of dollars on anti-trans ads aimed at defeating an abortion rights amendment on the ballot in November. The amendment, which ended up passing, affirms that every person has the right to make their own decisions related to pregnancy, including “prenatal care, childbirth, postpartum care, contraception, sterilization, abortion care, miscarriage management, and infertility care.” Conservatives spent the months before the election trying to convince voters that the inclusion of the term “sterilization” was a sneaky admission, by Democrats, that they would be legalizing secret gender-affirming surgeries for children.
One ad that ran in the state focused on puberty blockers, depicting a syringe dripping with fluid. If the abortion rights amendment passed, the voice-over said, “minors as young as 10 or 11 will be able to receive this prescription without the consent of their parents or their parents even knowing.” The implication was that puberty blockers were somehow part of the amendment and that they would be used to sterilize children. (Puberty blockers do not cause “sterilization.”)
“A constitutional right to ‘sterilization’ surely includes a right to be sterilized to align one’s sex and gender identity,” wrote a spokesperson for Citizens to Support MI Women & Children, the PAC that funded the ads, in an email to the Detroit Free Press. “The majority of voters do not support a 12-year-old girl’s right to sterilization without her parent’s notice or consent.”
Legal analysts who responded in the Detroit Free Press said the abortion rights amendment in Michigan was not written to legalize clandestine procedures for children, nor could it be reasonably interpreted as such by a judge. But again, that wasn’t the point. Abortion access, though despised by Republican extremists, is quite popular; the right had no chance of blocking the amendment without inventing a conspiracy theory to go with it.
Conservatives are now promoting this same sort of misleading, disingenuous reading of an abortion-related text in Ohio, where just a simple majority of voters may pass the abortion rights amendment in November.
Protect Women Ohio, the main coalition fighting the amendment, maintains that the language the amendment uses—“every individual has a right to make and carry out one’s own reproductive decisions” without burdensome state interference—will mark the end of the Ohio law requiring a guardian’s consent for a minor’s abortion. In its ads, the group also says the amendment would allow a child to undergo “sex change surgery without her parents’ knowledge or involvement.”
The reproductive rights amendment, a woman says in one Protect Women Ohio ad, is “not just about abortion like they say it is.”
Again, nonpartisan legal analysts have refuted this interpretation. But anti-abortion activists aren’t concerned about the truth of the matter; they’re invested in the long-term maintenance of transphobic anxiety in the electorate as a means to achieve their other political goals. In trans people, they have found the perfect punching bag: members of a tiny minority with little political power who can be made out to represent a fundamental threat to the traditional gender order.
Pursuing an agenda that leans far further right than what constituents want is nothing new for conservative leaders. Due to a combination of aggressive gerrymandering and strong right-wing activism in Ohio, for example, the state has long been a vanguard of anti-abortion policy in spite of its relatively balanced political makeup and broad support for abortion rights. But lately, on abortion, Republicans have been watching their wins come undone by ballot measures and state constitutional amendments—in other words, by mechanisms that put the power back in the hands of voters.
It’s democracy in action. In the wake of the Supreme Court decision that overturned Roe v. Wade, every time abortion rights have been put to a popular vote—anywhere in the country—voters have rejected the anti-abortion ballot measures and approved the ones that codify or expand abortion rights. It’s no surprise that GOP operatives are trying to divert the focus to literally any other issue where they perceive themselves to have the upper hand, though it is horrifying to see that they believe virulent transphobia is a winning enough position that it may convince voters to sign away their access to legal abortion. The only silver lining, in Ohio as in Wisconsin as in Michigan, is that the bait-and-switch doesn’t seem to be working.
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No OB-GYNs left in town: what came after Idaho’s assault on abortion
It’s a scene out of an American dream: a stretch of city beach buzzes with young families playing and laughing under the hot afternoon summer sun, moms chasing after children, splashing in the shallow ripples of Lake Pend Oreille. We are on the outskirts of Sandpoint, Idaho, a quiet, charming lakeside town in the mountain west. From the idyllic scenery and bustling beach, you wouldn’t know this is a place recently overwhelmed with anxiety, grief and fear born of state politics.
Lauren Sanders relaxes among the beachgoers in a sea-green bikini that reveals her pregnant belly, keeping an eye under her sun hat on her young daughter, Gwen, who’s angling to get back in the water.
Sanders will give birth to her second child at home later this year with the assistance of a midwife. Her pregnancy has so far been healthy and she wants to have a home birth. But if anything goes wrong – a last-minute emergency, a scare, an unpredicted turn - and she needs hospital maternity care, she’ll be put into an ambulance and driven over the two-lane highway to a larger city half an hour away.
She is a bit worried. But she’s also angry that the options of pregnant people who live in Idaho were snatched away by politicians who appear willing to risk lives like hers in their haphazard quest to ban abortion.
Across Idaho, doctors are leaving, looking for states where politics don’t dictate how they practice medicine. The consequences of Idaho’s anti-choice laws hit Sandpoint fast and hard, hollowing out medical care for women within months. For years, the town had a maternity ward that delivered as many as 350 babies every year – now it has nothing. The OB-GYN ward shut down this spring and doctors have been fleeing the state in a steady stream, seeking shelter in places where their work doesn’t put them at risk of criminal charges or big lawsuits.
“Basically, I’m lucky because I have a healthy pregnancy,” says Sanders. “But there are all these other people out there who are going to give birth who aren’t healthy. I don’t think people even think about the little things that can happen that a midwife can’t handle.”
It’s become a gamble, getting pregnant and giving birth in a place that no longer has a maternity unit or any obstetricians. Sandpoint is small, fewer than 10,000 people, but it’s been a medical hub for a rural region of 50,000 in north Idaho, Montana and Washington.
For people like Sanders, pregnancy care in town is no longer an option. This is what happens when a state government that’s been itching to ban abortion enacts some of the most restrictive laws in the country and ensnares all of reproductive health and a good share of routine medical care in its dragnet. But the women of Sandpoint are clear about one thing they want others to know: this can happen anywhere in the post-Roe United States. Nowhere is as safe as you might believe and the battle won’t stop at state borders.
Idaho is one of several states that had trigger laws: immediate abortion restrictions that went into effect when Roe v Wade fell a year ago. In August of 2022, the state enacted a near-total ban on abortion with exceptions only if the mother’s life is in danger, or in the case of rape and incest. Those instances require a police report to be filed. The state also adopted what it called an “abortion trafficking” ban, which bars taking minors to other states for abortion care. Family members can sue doctors for thousands of dollars if they perform an abortion, and doctors may face criminal fines and even prison time.
Idaho also became the only state in the country to stop tracking maternal mortality rates. Activists say it’s like they don’t want anyone to know how deadly their decisions might be.
The abrupt shift has created a climate of fear and anxiety, especially for women and families. Krista Haller, a therapist who specializes in working with pregnant people and new parents, says many have lost trust in their medical system.
“You saw so much about abortion, like it was such a hot word, but it’s not even about that,” she says. “It’s about the medical rights that women have – that’s really what comes up. Women are feeling very scared about the care they’re going to get. They’re unsure about their medical care and whether they can trust the medical system.”
The fear beset doctors and is pushing them out.
Dr Amelia Huntsberger moved to Sandpoint 11 years ago with her husband, planning to put down roots, build a medical practice and stay through retirement. She’s an OB-GYN, her husband an emergency room doctor. They both grew up in smaller cities in the north-western United States, so Sandpoint was a natural fit.
This July, the Huntsbergers’ home on a winding road on the edge of town was filled with moving boxes.
By the end of summer, they will be gone, starting over in Oregon, starting over with new jobs and new schools for their three kids, practicing medicine in a state that doesn’t leave them vulnerable to arrest or lawsuits for saving their patients’ lives. This is not what they wanted or planned, but as Huntsberger explains through intermittent tears across her patio table, leaving Idaho became their only way forward.
“Yeah, this is a conservative state. We knew that when we moved here. But it’s become very extreme. We now have some of the most extreme examples of government interference in healthcare that exists across the country,” says Huntsberger. “And there’s that irony – we are a liberty state: ‘You do you. I’ll do what I do.’ Except if you have a uterus and it’s something related to healthcare, then the government suddenly has a lot to say, without bothering to understand what they’re legislating. There’s some real willful ignorance here.”
It has seemed, she says, like a willful act on the part of lawmakers to fail to understand the repercussions of the laws they have enacted. That impact falls most heavily on women and families, and particularly on those who don’t have a lot of money or power.
Like many women in Sandpoint, Huntsberger is by turns angry, exhausted and forlorn about what’s happening. This is a small town fueled by women, a hub for young families, a thriving resort and tourist destination that, yes, votes majority Republican but where many of the downtown businesses are owned and run by women. Many were shocked by how abruptly the new laws devastated their healthcare.
Jen Jackson Quintano, who owns an arborist business in town but has become a full-time organizer focused on abortion rights, is fighting back. Like many small towns, Sandpoint is trying to lure young families to move here but the disappearance of critical healthcare won’t help.
As a first step, she saw the need for women to tell their stories because abortion is taboo. When she solicited abortion experiences from around the community, they poured in. The flood of personal narratives surprised even Quintano, who worked to turn them into a local theater production. Breaking the stigma around abortion, she says, is a critical first step in getting the community to talk about the basic healthcare and human rights it has lost. The stage play touched a nerve.
“People were crying, just openly weeping in the audience, listening to these stories. It was so powerful. And then the aftermath of that, I started having people approach me in the community,” she says. “At the grocery store in the frozen food aisle, a man comes up to me, and he said, ‘I went to your stage production. And I want you to know, I got a woman pregnant when I was in Vietnam. And I’ve never told my kids this, but I want to tell you my story.’ And after he tells it to me, he says, ‘I think it’s time for me to share this with my kids.’”
In March, Bonner General Health, the local hospital, announced that it would no longer provide any obstetrical care, leaving pregnant patients and others to go elsewhere for their healthcare. In its announcement, the hospital cited Idaho’s new laws.
“Highly respected, talented physicians are leaving. Recruiting replacements will be extraordinarily difficult,” the hospital noted. “In addition, the Idaho legislature continues to introduce and pass bills that criminalize physicians for medical care nationally recognized as standard of care.”
The threats translate into real life for doctors. Huntsberger describes changing into her scrubs to perform emergency surgery on a pregnant patient who was bleeding internally. In that moment, she felt a wave of anxiety not about the actual surgery, but about the laws and whether her decision and actions in the operating room would get her into legal trouble. It happened more than once.
“I know that this is a high-stakes case, I know I need to move quickly. I need to get in there. I need to do my job. That stress, I know what to do with that. I can handle that,” she recalls thinking. What was less manageable was the potential threat of prosecution or a lawsuit for the procedure she needed to perform to save her patient’s life.
In the middle of the emergency, she found herself wondering: “What would a prosecutor choose to do, or the family [choose to do], because we have both civil penalty and criminal penalty laws?”
The raft of extreme abortion laws left doctors like Huntsberger unsure if they could continue to practice any kind of family medicine in Idaho, where untrained political figures now have greater say over medical decisions than physicians. Across Idaho, doctors are leaving, looking to practice in safer states. After months of weighing their options, including many sleepless nights, the Huntsbergers finally decided the risks and anxiety were too much. It was time to leave.
As she talks about the decision to leave, Huntsberger tears up again. They are not a family that hops from place to place; they found home here. She knows their ability to flee the state is also a privilege. Like much of the mountain west, Idaho is a place of growing economic inequality, and many residents simply can’t afford the cost of uprooting their lives to relocate to a safer state. As she talks about it, Huntsberger mentions having two pregnant patients within the last year who lived in their cars – women who live at the mercy of extreme politics.
“We can look across the country, at the abortion laws, and who bears the burden and the brunt of these abortion restrictions. And it is on people in lower socioeconomic classes, it is people of color, it is Indigenous people,” she says. “It’s this doubling down on vulnerable communities.”
Idaho has long been conservative in its politics, yet like most places it is more complex than one-dimensional national political conversations might have you believe. It was also one of the first states to allow women to vote. Like much of the Rocky Mountain west, its politics have been shaped by elected officials who espouse values of personal liberty and freedom, but pass increasingly intrusive legislation that creeps into the personal lives and private spaces of their constituents.
In recent years, seemingly liberated by the unhinged rhetoric and bizarre posturing of Donald Trump and the US supreme court’s decision on abortion, the state has veered off a cliff into political extremism. Trumpism has gone local, infiltrating state legislatures and local governments. But the women of Sandpoint warn this concerted attack on human rights won’t stop at their state’s borders. Idaho’s far-right undercurrent is now a norm in American politics.
Along with its ramping up of abortion restrictions this year, the legislature enacted a law banning gender-affirming care for minors and the governor signed a strict “bathroom bill” mandating that restrooms and changing rooms be segregated by the gender a person is assigned at birth. A bill to prohibit sex education in schools before the fifth grade finally died after weeks of debate, while a measure to provide free menstrual products in schools also died.
“It does seem to be decades of organizing that are paying off and it seems to be spiraling. The misogyny was always there, and the racism was always there,” says Amanda Hendrix-Komoto, a historian at Montana State University who grew up in southern Idaho and has researched Mormon histories of the place. The Church of Latter-Day Saints has a heavy presence in Idaho, but its attitudes about abortion and related healthcare are not so extreme as those of the evangelical Christians who now wield the heaviest political power in the state. Rather, generations of viewing women as not quite equal may have helped create an atmosphere that made it easier to erase the rights of marginalized people.
Huntsberger has become an unlikely activist, a doctor who decided she had no choice but to speak out when the state interfered with her ability to treat her patients. When I ask if she’ll really leave that behind in Oregon, she laughs, a quick respite from our deadly serious conversation about consequences for families in Idaho and what losing medical care will mean. It’s hard to imagine she’ll stop speaking out about the consequences of anti–abortion legislation.
“Nobody knows if their pregnancy is going to be uncomplicated or complicated. Nobody sets out to have a complicated pregnancy. Things happen, some of which can be predicted, and some of which cannot. So you have a little bit of a component of Russian roulette,” she says. “Being pregnant is always more dangerous than not being pregnant.”
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Agonising delays for women as Dobbs decision worsens OB-GYN shortage
Supreme court ruling on abortion has led to specialists leaving restrictive states, with 36% of counties maternity care deserts
When Caslin Gilroy learned she was pregnant in May, she immediately contacted her doctor’s office to book prenatal care. She’d visited the same clinic for years – including for her first pregnancy in 2020 – and thought booking an appointment would be straightforward. But Gilroy was told her doctor had no availability until August, when she would be close to 12 weeks along.
Unable to get a pregnancy confirmation appointment, which ideally happens between eight and 10 weeks, Gilroy grew anxious, and even struggled to convince herself that the pregnancy was real.
“With my first pregnancy, I felt like I was a priority. I never had trouble getting an appointment,” she said.
These setbacks are widespread. One woman waited more than five weeks to connect with a specialist for a complication; another had yet to receive care at 20 weeks because of cancellations and insurance issues.
Delays can be traumatizing when something goes wrong. At an ultrasound last fall, Kelsey Stolfer of Pittsburgh learned that there was no longer a heartbeat and needed to undergo dilation and curettage – a surgical procedure to remove fetal tissue. The earliest slot available wasn’t for another full week.
“I just felt numb,” said Stolfer, describing the mental toll of waiting for the miscarriage procedure. “At that point, you’ve already spent a week and a half with a dead baby inside of you.”
Experts say these delays are just one symptom of a long-predicted nationwide OB-GYN shortage that has intensified in the wake of abortion restrictions, and it’s affecting women’s health across the country.
In conservative states, care delays largely stem from the fallout of the Dobbs decision last summer when the supreme court revoked the constitutional right to abortion. Facing possible lawsuits for providing abortion care, OB-GYNs in Texas, Florida, Idaho and elsewhere are choosing to relocate to more liberal states, while medical students are opting for other fields entirely.
“Florida has become a place where it is unsustainable to be an OB-GYN,” said Stephanie Ros, a maternal fetal medicine specialist at the University of South Florida who, until recently, ran the school’s OB-GYN residency program.
For years, the program was among the nation’s top schools for abortion training, and was found on the prestigious Ryan list of the best family planning residency programs. But after the state banned most abortions after six weeks of pregnancy, the designation was revoked. Applicant numbers subsequently declined dramatically, as skilled candidates took their talents elsewhere.
In a national survey, 60% of medical students said they were unlikely to apply for residency in a restrictive state.
“States with stringent abortion laws won’t align with my goals as a future OB-GYN,” said Rohini Kousalya Siva, president of the American Medical Student Association. “If young doctors want to … get the skills they need, then they have to go to states where they can access [abortion] training.”
Verda J Hicks, president of the American College of Obstetricians and Gynecologists, described the trend as cause for concern about the “next generation of OB-GYNs”.
Notably, fewer residents means fewer doctors on the floor. To remedy that vacuum, USF hired locum doctors, who Ros described as “the substitute teachers of the doctor world”. Still, routine care appointments at USF are significantly pushed back. In August, the earliest a new patient could book a prenatal visit was November.
“We have people who … don’t get their first ultrasound until 30 weeks, because they just can’t get in,” she said.
Delays in prenatal care represent more than inconveniences. These scheduling issues can be dangerous. If a patient doesn’t receive first trimester care, they might miss windows for early genetic screening tests, or fail to safely treat diabetes or hypertension at a critical time in fetal development.
When chronic diseases are not managed as well, the overall risk of any pregnancy goes up, explained Erika Werner, chair of obstetrics and gynecology at Tufts medical center in Boston. “If you don’t have your first visit until 14 weeks, you don’t have the same access to prenatal testing. You may not have an early ultrasound that reveals a major structural problem,” she said.
Romeo Galang, an OB-GYN and medical officer in CDC’s division of reproductive health, echoed the importance of early treatment, noting that “quick and accurate treatment at the first sign of a serious pregnancy-related complication can save lives”.
Even parts of the country without abortion bans are struggling to keep up with care needs. Christina Han, the director of maternal fetal medicine at UCLA in California, pointed to the influx of out-of-state patients seeking abortion care and how it stretches the workforce thin.
Han specializes in complex procedures like multifetal reduction – an operation that must be completed early in pregnancy. That time crunch means that if a patient travels to LA for urgent reproductive care, which Han says is happening with increased frequency, the hospital has to defer local patients’ scheduled operations, including terminations, that are not as time sensitive.
“We have to tell our patient who is struggling with a miscarriage … that we just can’t get them in. And that is an emotional, physical burden for these patients,” said Han.
Werner, who also chairs the Society for Maternal Fetal Medicine’s health policy and advocacy committee, explained that this displacement effect is especially pronounced in states that directly border those with restrictive policies, and are now receiving the lion’s share of out-of-state patients.
In Pennsylvania, which borders West Virginia, Stolfer remembers thinking about women in other states as she awaited care for her miscarriage. “It was one way that I was trying to make peace with how long it was taking,” she said.
Dobbs is not to blame for all of these stressors, however. A nationwide OB-GYN shortage has been on the horizon since well before the supreme court struck down Roe v Wade.
“It’s always existed,” said Ros in Florida, contending that workforce strains have been a topic of discussion since she was in medical school in the early 2000s.
Kousalya Siva describes the shortage as “a significant driving force” behind her choice of field.
For years, studies have predicted that population rise paired with an ageing workforce would lead to gaps in women’s healthcare. Ruth Crystal of Stanford University also points to the high risk for medical malpractice litigation and demands for long and irregular hours as factors that steer people away from the field.
“OB care is a 24-hour-a-day job,” she said. “Babies don’t come only between banking hours.”
As in other sectors of the economy, awareness of burnout (which OB-GYNs suffer in high numbers) and desire for greater work-life balance have prompted doctors to limit their working hours in ways they previously did not.
Taken together, this confluence of factors means physicians across the country have fewer hours to devote to patients for routine care.
Constricted access hits some populations more than others.
Nationwide, 36% of counties are maternity care deserts, meaning they lack any obstetric care facilities or providers, explains Amanda Williams, clinical innovations adviser at Stanford University’s California Quality of Care Collaborative. The affected populations are also disproportionately people of color, people with lower incomes and people in rural areas – groups that already face care inequities.
In the US, Black women are experiencing soaring maternal mortality rates.
“All of these things compound for poor maternal health outcomes,” said Williams. “When patients give birth in these maternity deserts, they have higher rates of preterm births and maternal deaths.”
Resolving the crisis won’t be easy, said Crystal, underscoring the need for increased funding, especially in underserved regions, and student loan forgiveness, most notably for doctors who choose to practice in care deserts.
In Florida, Ros also points to government-mandated limits on the number of federally funded residency positions in each field, which have not been raised since 1996 despite population growth. “They need to undo these caps,” she said.
Werner believes the most critical fix is abolishing restrictive abortion laws and creating “parity across all states”.
“It’s only when it comes to OB-GYN care that what you can get in one state is different than what you can get in another,” she said. “That just forever means that we’re going to have unequal care in different states.”
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Docs challenge South Carolina's definition of 'fetal heartbeat'
In the States
Republicans in Ohio just won’t quit. They lost on Issue 1, which would have raised the ballot measure standards to require 60% of the vote instead of a simple majority, and their lawsuits to stymie the pro-choice ballot measure. So now they’re writing an inflammatory ballot summary that lies to voters about what the abortion rights amendment would actually do.
Yesterday, Republican Secretary of State Frank LaRose and the Ohio Ballot Board approved language crafted to deliberately confuse and scare voters. State Rep. Elliot Forhan outlines all the inaccuracies here, but to start, the summary uses the term ‘unborn child’ instead of fetus. And while the amendment limits abortion rights after ‘viability’ unless a person’s health or life is endangered, LaRose’s summary says the amendment would “always allow an unborn child to be aborted at any stage of pregnancy, regardless of viability if, in the treating physician’s determination” the exception applies.
Lauren Blauvelt, co-chair of Ohioans United for Reproductive Rights, told the Associated Press, “The entire summary is propaganda.” And as Kellie Copeland, the executive director of Pro-Choice Ohio, pointed out yesterday, the summary is actually longer than the full amendment being proposed! The move is “a last ditch effort to take away our freedom,” Copeland says.
Related: The Intercept looks at the anti-abortion attacks in Ohio and beyond in “Abortion Bans or Democracy—You Can’t Have Both.”
If pushing a bullshit ballot summary sounds familiar, that’s because Missouri Secretary of State Jay Ashcroft is being sued right now by the ACLU for doing the same thing in his state. Meanwhile, pro-choice activists in the state are debating which measure (they submitted eleven of them) to get in front of voters. Different versions of the measure have different limitations around ‘viability’—an issue that’s been at the center of abortion rights infighting in multiple states.
You know where I stand: ‘Viability’ is an arbitrary line; pregnancy is too complicated to legislate at any point; and conservatives claim pro-choice activists support abortion ‘up until birth’ no matter what the language of the amendment is. (Just look at how they’re doing it Ohio!) So you might as well get the exact protections you want and your state needs.
Also in Missouri: The Kansas City Star reports that the state health department “quietly scrubbed” their website of resources on sexual health and LGBTQ issues for young people.
In South Carolina, where a near-total abortion ban went into effect this week, doctors are struggling with how to interpret the law’s definition of ‘fetal heartbeat’. As you know, Republicans’ so-called ‘heartbeat laws’ are misnomers: at 6 weeks into pregnancy there isn’t even a heart formed, let alone a heartbeat. (South Carolina’s law defines a heartbeat as “cardiac activity, or the steady and repetitive rhythmic contraction of the fetal heart, within the gestational sac.”)
From Dr. Dawn Bingham, chair of the South Carolina chapter of the American College of Obstetricians and Gynecologists (ACOG):
“These medical definitions they tried to put forward are legislative and put forward by people who don’t practice medicine. This language creates uncertainty among medical providers who may be unsure they’re legally allowed to terminate a pregnancy.”
That means in South Carolina—where doctors could be charged with a felony and get prison time if they end a pregnancy—abortion appointments are being canceled. The chief medical officer of Planned Parenthood South Atlantic, Dr. Katherine Farris, says, “In the setting of very high penalties, the only option for providers is to pause as we try to figure this out.”
Meanwhile, providers have asked the state Supreme Court to reconsider their decision, filing a petition that points out the inconsistencies around the definition of ‘fetal heartbeat’. In the petition, Planned Parenthood South Atlantic asks the court to adopt the medically-accepted definition that recognizes a heartbeat once the four chambers of a heart are fully formed, usually between 17 and 20 weeks of pregnancy.
Also in South Carolina: sexual violence experts in the state are speaking out about the ban; and South Carolina Public Radio looks at state voters’ attitudes about abortion.
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A new poll out of Louisiana found that half of the voters want the state’s abortion banned overturned, and that 42% believe it should stay as it is. About 8% were undecided. (A poll conducted earlier this year by Louisiana State University found that 52% of people in the state believe abortion should be legal in all or most cases.) Anti-abortion activists the state responded by claiming that the poll is simply wrong.
The New Republic urges readers to pay closer attention to Virginia and abortion rights, warning that if Republicans flip the state Senate, Gov. Glenn Youngkin will feel emboldened to move forward with abortion restrictions. Remember, Youngkin was trying to push a 15-week abortion ban not so long ago, claiming that it was some kind of compromise. (And for all Republicans’ bullshit about not using bans to prosecute women, Youngkin’s budget at the time included money for the Dept. of Corrections in anticipation of increased arrests.)
TNR also points out that Youngkin would probably go even further than a 15-week ban, noting that last June the governor said, “Any bill that comes to my desk I will sign happily and gleefully in order to protect life.” Virginia is also the last abortion safe haven in the South—so we’ll definitely be paying close attention.
Meanwhile, North Carolina providers are trying to navigate doing their work under the state’s new abortion ban, which went into effect this summer. Jennifer Hille, a nurse at a clinic in the state, says that one of the harder things to get used to is the mandate that she read to patients from a script that was written by the state:
“There are statements in here that almost shame the patient. Am I really sure of what I want to do? And we have to ask them that multiple times. It’s trying to put doubt into their mind and shame them to make them feel guilty like they are doing something wrong. I just don’t think that’s very compassionate.”
Which, of course, is the point. The state wants to shame people out of getting the care that they want, or make them feel miserable if they do get it. It’s always been about punishment.
Quick hits:
New Jersey Democrats are taking on ‘contraception deserts’;
Tennessee is banning books that contain descriptions of contraception;
An update on the abortion rights fight in Florida;
Axios takes a look back at Arizona’s history with abortion rights ballot measures;
And the Associated Press on the anti-abortion activists trying to ban abortion in New Mexico towns despite state law.
In the Nation
A federal judge ruled yesterday that West Virginia can restrict the sale of abortion medication, even though the FDA has approved it as safe. As a reminder: this is a case brought by GenBioPro, the company that makes a generic version of mifepristone. The company argued that West Virginia’s abortion ban violates the Constitution’s supremacy clause that says federal laws take priority over any state law that conflicts with it. Their suit also argued that the ban violates their right to interstate commerce. (Obviously, the company’s sales in the state have dropped since the ban was passed.)
But yesterday, U.S. District Court Judge Robert C. Chambers dismissed the company’s challenges, ruling that West Virginia’s ban takes precedence. It’s too bad—I actually figured that a case like this had a better chance of succeeding than others because America cares more about companies losing money than women losing rights.
President Joe Biden’s campaign just released a new ad attacking Republicans on abortion rights, titled “These Guys.” The ad, part of a multi-million dollar ad campaign, will run in Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania, and Wisconsin. The White House knows just how pissed off voters are over abortion bans, and they’re not wasting any time tapping into that:
Quick hits:
The National Organization for Women (NOW) endorsed Biden this week;
NowThis takes on Republican myths about abortion later in pregnancy;
And the jury heard closing arguments yesterday in the federal trial against anti-abortion activists who blocked access to a D.C. clinic.
2024
An analysis from The New York Times shows that abortion was the most-discussed topic at the GOP presidential debate this week, getting nearly 8 minutes of air time—ahead of Donald Trump, border security, education and more. In response, RNC chair Ronna McDaniel said that she was glad abortion was discussed so heavily, and that, “If our candidates aren’t able to find a response and put out a response, we’re not going to win.”
It seems as if the RNC is borrowing talking points from Susan B. Anthony Pro-Life America, where president Marjorie Dannenfelser has been advising candidates to go on the offensive—blaming “the ostrich strategy” for the GOP’s midterm losses.
But Angela Vasquez-Giroux, the Vice President of Communications & Research at NARAL Pro-Choice America, writes in The Nation today that the debate demonstrated just how aware the candidates are that voters oppose their abortion bans. That’s why they’re working overtime to confuse Americans:
“Seeing the writing on the wall, the Republican presidential candidates are eager to change the subject. They want a national ban, but they also don’t want you to know exactly what that means. They don’t want you to know how people will be, and already are, criminalized because of bans. They don’t want you to know how these bans will be enforced, or how they will impact our lives and our families. They don’t want to answer any of those questions because the truth is a tremendous political liability, and they’ll do anything they can to try to hide it.”
2024 quick hits:
Axios breaks down the debate;
KFF Health News did some debate fact-checking on abortion;
And Politifact looked into Florida Gov. Ron DeSantis story about a woman who “survived multiple abortion attempts” and reports that “the scenario is dubious.”
The War on Birth Control
In the first part of “The GOP’s Plan to Ban Birth Control,” I wrote about how conservatives aren’t going to make contraception illegal with a single law: instead, it will be a slow chipping-away process. Part of that strategy is redefining contraception as ‘abortifacients’, or lumping in birth control with abortion in an attempt to conflate the two. Another tactic is using ‘religious freedom’ arguments to make birth control less and less accessible. We saw it happen with Hobby Lobby, for example, when the company successfully argued that they didn’t want to cover employees’ birth control because they believed some forms of contraception were actually abortion.
Now we’re seeing something similar happen on college campuses. The University of San Diego, a private Catholic college, is under fire because its new health plan helps to cover abortion care and contraception. Conservative media has been on the attack over the policy—focusing mostly on the abortion piece of the policy, and mentioning the birth control coverage as an aside. (They know that their stance on birth control is wildly unpopular and don’t want to draw too much attention to it.)
By focusing on religiously-affiliated institutions, conservatives can claim that they’re not interested in limiting anyone’s reproductive rights—but that they’re simply trying to protect the rights of that particular college or company. (Never mind what that means for the students or employees!) Again, this is how birth control gets banned: focusing narrowly, and then slowly broadening until access is limited in more and more places. We’re even seeing it happen in pro-choice states, where Catholic hospitals make up an increasing number of medical centers.
More on this in the next part of the series…
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