1). “Florida & Abortion, Explained: Everything you need to know on the two state Supreme Court rulings”, Apr 02, 2024, Jessica Valenti, Abortion, Every Day, at < https://jessica.substack.com/
2). “Abortion, Every Day (4.3.24): 80% of Texas women don't know the extent of the state's abortion ban”, Apr 03, 2024, Jessica Valenti, Abortion, Every Day, at < https://jessica.substack.com/
3). “The Giant Threat Lurking Behind Florida’s November Abortion Vote”, April 02, 2024, Mark Joseph Stern, Slate, at < https://slate.com/news-and-
4). “Florida Will Now Be Ground Zero for the Abortion Wars in 2024”, April 01, 2024, Mark Joseph Stern, Slate, at < https://slate.com/news-and-
5). “Democrats dream of turning Florida blue with abortion rights boost”, April 02, 2024, Yacob Reyes, Axios, at < https://www.axios.com/2024/04/
6). “Florida Supreme Court upholds strict abortion bans while giving voters a say in November: The state high court’s ruling upholds the state’s previous abortion laws but also could deliver a stunning blow to Gov. Ron DeSantis and state Republicans”, April 01, 2024, Politico, at < https://www.politico.com/news/
7). “The Anti-Abortion Endgame That Erin Hawley Admitted to the Supreme Court”, March 27, 2024, Dahlia Lithwick & Mark Joseph Stern, Slate, at < https://slate.com/news-and-
8). “Republican Officials Openly Insult Women Nearly Killed by Abortion Bans: Red states would rather let a patient die than let her terminate a dangerous pregnancy. And they’re barely pretending otherwise”, Jan 9, 2024. Dahlia Lithwick & Mark Joseph Stern, Slate, at < https://slate.com/news-and-
~~ recommended by dmorista ~~
Introduction by dmorista: The ongoing struggle to return reproductive healthcare and abortion rights to even their inadequate Roe V. Wade status continues. The stakes are higher than ever and the situation grows more complicated; at the same time more promising but even more dangerous.
As always the indispensable Jessica Valenti has posted a couple of extremely informative essays at her substack outlet, Abortion, Every Day. Item 1)., “Florida & Abortion, Explained: ….”, discusses briefly but pretety comprehensively the recent Florida Supreme Court rulings. One that will end legal abortions in Florida as of May 1, 2024. The other that allows, grudgingly and by a slim 4 - 3 vote, the ballot initiative (Issue 4 on the Florida Ballot in November) to restore abortion and reproductive healthcare rights for Florida. It must pass by a 60% margin to take effect, polling looks good so it is another Turnout Battle. Item 2)., “Abortion, Every Day (4.3.24): ….”, restates some of the material from the previous post but also looks at what is going nationwide, and there is a lot going on. A total of 13 states have campaigns to put abortion rights state consitutional amendments on the ballot, Florida and Missouri are the best known but the issue is more widespread.
The important writer Mark Joseph Stern, from Slate, has posted some interesting viewpoints about the issues involved with the Florida Supreme Court and Initiative situation. Item 3)., “The Giant Threat Lurking ….”, discusses the deeper motivations behind the DeSantis handpicked ultra-reactionary Florida Supreme Courts decisions. And in an article posted the day before, Item 4)., “Florida Will Now Be Ground Zero ….”, he discussed some of the ramifications for the Florida events for the state itself and for the nation at large.
Item 5). “Democrats dream of ….”, and Item 6). “Florida Supreme Court upholds ….”, provide somewhat different analyses of what will be the likely effect of Intiative 4 in Florida concerning the Presidential vote as well as the Initiative itself. Item 5). is pessimistic as concerns the potential for the Abortion issue and initiative to give the Democrats a chance at winning Florida in the Presidential election. Item 6)., “Florida Supreme Court upholds ….” discusses the Florida Supreme Court's decision in general; but clearly the author thinks the issue will help Democratic Candidates in the state in 2024. He points out that the Florida Governor, Ron DeSantis has studiously avoided discussing abortion rights and stuck to other divisive issues like Disney, LGBTQ, and dominating the public schools and banning books. DeSantis signed the 15-week ban in an ostentatious prime-time ceremony at some Reactionary Christian School, the 6-week ban he signed in a sneaky low profile wee-hours ceremony in his office with only a score of fawning aides and allies in attendance. The actual likelihood that Trump could lose the Presidential vote in Florida is a real but still unlikely outcome. But we will see.
Finally something of the real agenda and attitudes of the Forced-birth Elite Officials and Court litigants and counsels is revealed by Item 7). “The Anti-Abortion Endgame ….”, and Item 8).
“Republican Officials Openly Insult Women ….”. The team of Dalhia Lithwick and Mark Joseph Stern looked at the background to the current situation. In Item 7). they concentrate on the legal arguments and opinions of Erin Hawley (yes, indeed she is the wife of far-right Missouri Senator Josh Hawley). She is a prominent attorney working in many ways to force draconian abortion and other policies on the general U.S. population. And Item 8). provides some short excerpted quotes from various Republican forced-birth supporting officials that show just how much they despise and want to dominate American Women in general. They also provide numerous links to the full statements of there reactionary monsters, that allow a reader to see the grim reality of the situation in the Red States more clearly.
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Florida & Abortion, Explained
Yesterday, the Florida Supreme Court came down with two abortion rulings—one that allowed the enactment of a 6-week ban, another that approved a pro-choice measure for the November ballot. You can read the rulings here, and if you missed yesterday’s breakdown, you can get caught up here:
The 6-Week Ban
One of the things I’ve noticed since the news dropped is how many pundits are talking about how good this will be both for Florida Democrats and the Biden-Harris re-election campaign. And it’s true; the ruling is absolutely going to drive outraged voters to the polls in November. But I hope the excitement over how badly this is going to go for Republicans doesn’t overshadow the real, tangible human impact of this 6-week ban.
Because it’s really, really bad.
The ban, which will go into effect automatically within 30 days, is a public health disaster that will cause a tremendous amount of suffering—suffering that’s sure to hit the most marginalized groups the hardest.
People are going to be forced to carry pregnancies they don’t want. They’re going to have their health and lives endangered by this law. Women will have to empty their savings account to get out-of-state care. They’ll be tied to abusive partners or be unable to finish school.
It is going to be a nightmare. Please, let’s not forget that.
And as I mentioned yesterday, this impact isn’t only going to be felt in Florida, but across the South. Abortion providers in the state have had a massive increase in out-of-state abortion-seekers, and are seeing thousands more patients than in previous years. Florida actually saw the second-largest surge in abortion patients since Dobbs.
Given all that, Florida abortion clinics have been preparing for a ruling like this one. Michelle Quesada of Planned Parenthood of South, East and North Florida, for example, tells WUSF that the group has been strengthening their partnerships with providers in pro-choice states so they can refer people elsewhere:
“Making sure we have all the right people in place with scheduling, making sure we can fit as many patients in as possible. Education is the biggest part really, just making sure Floridians are educated about what’s about to happen come May 1.”
But here’s the thing: as incredible as patient navigators and abortion rights groups are, there’s only so much they can do. Patients denied care in Florida aren’t going to be able to simply hop to another state for an abortion. From Lauren Brenzel of Floridians Protecting Freedom:
“There is nowhere in the Southeast that can absorb Florida’s patient base. It’s simply not possible. That is simply an unmanageable volume of patients to try to offset to another state.”
Like I said: public health crisis.
Incredibly, Florida Republicans are trying to paint their ban as a middle ground. House Speaker Paul Renner, for example, said that because the ban has exceptions for rape, incest and fatal fetal abnormalities, “It is a compromise that addresses where I think many Floridians are.”
But remember, 'exceptions’ have been written deliberately to make them impossible to use. Florida’s rape exceptions, for example, mandates that victims provide “a copy of a restraining order, police report, medical record, or other court order or documentation providing evidence” that she’s been assaulted. (It’s common knowledge that rape victims overwhelmingly don’t report their assaults.)
Something else to remember about the 6-week ban that hasn’t gotten a lot of attention: the law doesn’t just ban abortion, but makes it illegal to help someone get an abortion. The law says anyone who “actively participates” in an abortion is guilty of a felony.
Democrats and pro-choice activists have pointed out that this language is broad enough to criminalize someone who drives a friend to a clinic, or lends them money for an abortion. (We’ve seem similarly broad language in travel bans.)
All of which is to say: this ban is dangerous, cruel, extremist—and will hurt millions of people.
Now, the horror of it all doesn’t mean we can’t talk about the politics of the ban. (I’m about to do that myself!) But I’m begging the media, pundits, writers, etc to remember that the most urgent and important piece of news in all this is the real life impact that this ban is going to have on people, families and communities.
Amendment 4
The good news from yesterday’s rulings is that the state Supreme Court approved the language of Amendment 4, a pro-choice measure that protects abortion until ‘viability’. You can read it here.
Republican Attorney General Ashley Moody wanted the Court to reject the measure, arguing that the ‘viability’ language was deliberately misleading. This line of attack is something we’ve seen in pretty much every state considering an abortion rights amendment—claims that the language “tricks” voters.
It’s no secret why Florida Republicans are desperate to keep the amendment away from voters. Every time abortion has been on the ballot since Roe was overturned, abortion rights has won.
What makes this ballot measure fight different, though, is that the Florida amendment needs 60% of the vote to pass, as opposed to a simple majority. And now, anti-choice groups have had a chance in states like Ohio to test out their thus-far unsuccessful messaging. It’s possible that they’ve used that time to get better talking points. (Up until now, the conservative attacks on ballot measures have focused on language, claims about abortion ‘up until birth’, anti-trans scare tactics, and parental rights.)
In spite of the hurdles, the Florida abortion rights activists I’ve spoken to are feeling very good about November. Polling late last year showed that over 60% of Florida voters support the pro-choice amendment, including the majority of Republicans. And it’s safe to assume that support is going to increase in the wake of this massively unpopular 6-week ban.
In fact, Anna Hochkamner, Executive Director of Florida Women’s Freedom Coalition, tells me that their most recent polling shows over 70% support for Amendment 4. Which is tremendous.
“So many of us have been told that abortion is a dangerous word. Hogwash. People understand what’s at stake, and they know they don’t want the government messing around with their health.”
She’s not wrong. After all, it was just last week that a national poll showed that over 80% of Americans don’t want abortion to be regulated by the government at all. And despite the GOP’s attempts to make voters believe that abortion is something the country is split on, the truth is that Americans overwhelmingly want abortion to be legal—even in Florida.
As such, activists behind Amendment 4 say that their biggest hurdle isn’t voter support—but money. (These campaigns are extraordinarily expensive.) To support Amendment 4, donate here.
Florida & 2024
As I wrote yesterday, this is a fuck-around-and-find-out moment for the GOP.
In Florida, any Republican that’s on the ballot this November is going to have to answer for the 6-week ban, and explain their position to angry voters. After all, 75% of Floridians—including 60% of Republicans—oppose this bill. That’s not an easy hurdle.
And so far, Republican candidates have failed to come up with compelling messaging on abortion. For the most part, they’ve simply pivoted to saying that Democrats are ‘extreme’—which is becomes less credible with every new post-Roe horror story.
It’s the presidential election, though, that most politicos have their eyes on. We haven’t seen a Democratic presidential candidate win Florida since 2012, but Nikki Fried, the chair of the Florida Democratic Party, tells The Washington Post, “Florida’s back in play.” And President Joe Biden’s campaign manager, Julie Chavez Rodriguez, wrote a memo arguing that thanks to abortion rights, Florida is “winnable.”
Biden’s campaign also wasted no time blaming Donald Trump for the Florida ban, telling reporters, “Because of Donald Trump, MAGA Republicans across this country are ripping away access to reproductive health care and inserting themselves into the most personal decisions women can make, from contraception to IVF.”
The campaign also released an ad today, attacking Trump on abortion rights and pointing out how the disgraced former president loves bragging about overturning Roe:
As you know, Trump has made some noise about supporting different federal abortion bans—most recently telling a radio host that “people are agreeing on” a 15-week ban. This comes after months of trying to have it both ways on the issue: Trump likes taking credit for the end of Roe, but also called Florida’s 6-week ban “terrible” when it first passed last year. (You know what my prediction is for what Trump is going to do.)
In response to yesterday’s news out of Florida, Trump said, “We’ll be making a statement next week on abortion.” Whether that’s a dodge or teasing a specific announcement is unclear.
The issue Trump has is that he can’t really keep up his claim that he’s going to find a middle-ground that Americans will be happy with. Because the only way to make voters happy on abortion is to make abortion legal.
The former president also has to keep the powerful anti-abortion lobby satisfied—which is becoming harder and harder to do. Anti-choice groups and activists have been really unhappy with how Republicans are running away from talking about abortion, and they have no interest in compromising on policy.
Despite their bullshit rhetoric about ‘reasonable restrictions’ and ‘consensus’, I don’t see anti-abortion groups being pleased with anything short of a federal ban. (After all, they’re even pissed off that the GOP is publicly backing off IVF restrictions!)
No matter what kind of game Trump tries to play, his strategy will only be as successful as the media allows it to be.
I’ve written many times before about how mainstream outlets do Trump’s job for him. When Trump went on “Meet the Press” in September, for example, he insisted that abortion providers “kill the baby after birth” seven different times. Yet NBC News’s takeaway—and headline—was that Trump wants to “bring the country together” on abortion.
We can’t let this happen again in the wake of Florida’s ban. Trump is going to be more desperate than ever to paint himself as a moderate; it’s vital that publications don’t fall for it.
Because as powerful as abortion rights is right now, it doesn’t mean Florida is in the bag at all. As Axios points out, “Republicans in Florida have a staggering lead in active voter registration and a robust political infrastructure.” Voters in the state also have a history of supporting progressive ballot measures while still voting for Republicans.
We have our work cut out for us.
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Abortion, Every Day (4.3.24)
Click to skip ahead: In the States, news from Ohio, Texas, Kansas and more. In Ballot Measure Updates, good news in Arizona, bad news in Maine. All Eyes on Florida looks at more responses to the state Supreme Court’s rulings & the GOP’s plan to push for fetal personhood. South Dakota’s ‘Med Ed’ Law details the truth behind this new legislative trend. In the Nation, publications and lawmakers finally catch on to the Comstock Act & a new study on criminalization. Finally, 2024 looks at what the Florida rulings mean for Trump.
In the States
Ohio’s Republican Attorney General Dave Yost finally admitted in a filing on Monday that the state’s 6-week abortion ban is no longer constitutional in the wake of Issue 1—the abortion rights amendment that passed in November.
Yost, best-known at AED for claiming that the story of a 10-year-old rape victim was fabricated, has been desperate to stop Issue 1 from going into effect. But because he lobbied against the pro-choice measure before it passed—warning voters that it would automatically repeal the state’s ban—he didn’t really have a leg to stand on.
That doesn’t mean Yost is giving up trying to restrict abortion. He’s asking the court to only repeal the ban itself, while allowing other restrictions to remain—like requiring doctors to shame patients by telling them about fetal ‘heartbeats’ and mandating providers document the reason someone is having an abortion. (I wrote about the anti-choice strategy of ‘abortion reporting’ just last week.)
Remember, Ohio voters were very, very clear that they don’t want the government involved in legislating pregnancy. Yost’s move here is just another reminder that Republicans don’t care what voters want.
This is wild: the Austin American-Statesman reports that more than 80% of Texas women of reproductive age don’t have an accurate understanding of the state’s abortion ban.
A survey by Resound Research for Reproductive Health found, for example, that 32% of respondents incorrectly believed that rape and incest victims can get a legal abortion in Texas; and about 25% believed that women with a fatal fetal diagnosis can obtain an abortion. They can’t.
What’s more, the survey showed that Republican scare-tactics are working: 24% of women believed that it was illegal to leave the state for an abortion.
Now, several counties and towns have passed local ordinances that make helping someone leave the state for an abortion illegal—but the consequences are civil, not criminal. The point of these ordinances is to sow fear and paranoia within communities, and to make people too afraid to help each other. (For more on travel bans, click here, here, and here.)
A Kansas bill that would make abortion ‘coercion’ a crime punishable by 25 years in prison is heading to Democratic Gov. Laura Kelly with a near veto-proof majority. When I first reported on this legislation, I pointed out that the language was extraordinarily broad: it would be felony coercion, for example, to threaten an “adverse financial consequence.” Does that mean it would be a crime for a roommate to tell someone they’d have to move out if they have a baby?
And Kansas Democrats flagged that the “adverse financial” harm could even be interpreted to include the cost of a divorce! That’s the point, of course—to make this sort of bill as broad and scary as possible. (And remember: “coerced abortions” are a new focus of the anti-abortion movement, who are desperate to pretend as if they care about abused women.)
Finally, the Tennessee travel ban that we’ve been following passed a Senate committee yesterday, putting it one step closer to a full vote. This so called ‘abortion trafficking’ law would make it illegal to help a teen get an abortion in any way—from bringing them out-of-state to texting a minor the url of an abortion clinic.
Quick hits:
North Carolina abortion providers are preparing for an influx of Florida patients once that 6-week ban goes into effect;
Axios has more on the horrific report out of Louisiana showing that doctors are giving women with life-threatening pregnancies c-sections instead of abortions;
The president of EMILY’s List, Jessica Mackler, urges Minnesota voters to “show up for pro-choice champions;”
And The Los Angeles Times on how Trump could gut abortion access in California.
Ballot Measure Updates
Arizona abortion rights advocates say they’ve collected enough signatures to get a pro-choice measure on the November ballot. Arizona for Abortion Access, a coalition of reproductive rights groups, told NBC News that they’ve gathered more than 500,000 signatures—over 120k more signatures than they need, with months to go before their July 3 deadline.
The proposed amendment would protect abortion rights in the state constitution up until fetal ‘viability’, after which someone could end a pregnancy if their life, physical or mental health was endangered.
Abortion is legal until 15 weeks in Arizona while the state’s 1864 ban is being battled out in the courts; we’re expecting a ruling any day now. (A reminder: Abortion, Every Day helped to get an anti-abortion activist justice to recuse himself from this case!)
Abortion rights activists in Nevada also had some good news this week: Nevadans for Reproductive Freedom announced that they’ve collected more than 110,000 signatures for their pro-choice petition—more than half of the signatures they need by the state’s June 26 deadline.
Abortion is already legal in Nevada—but as is the case in a few other pro-choice states, activists want to enshrine abortion rights for an extra layer of protection.
Meanwhile, philanthropist and model Karlie Kloss is out there collecting signatures to restore abortion rights in Missouri. Kloss, who is a native of the state, says, “It's devastating to me the reality of what is happening and how it has become so politicized.” Love to see it!
In less exciting news, Democrats’ effort to enshrine abortion rights in Maine’s constitution has failed after lawmakers failed to get the two-thirds support they needed to send the measure to voters. The proposed amendment from Sen. Eloise Vitelli would have protected reproductive healthcare, “including access to abortion, birth control and fertility care—in our constitution.”
All Eyes On Florida
Florida abortion rights advocates are worried President Joe Biden will hurt their ballot measure effort by alienating Republicans, the majority of whom support the pro-choice measure heading to the November ballot.
State Senate Minority Leader Lauren Book, for example, tells POLITICO that the measure is seeing bipartisan support—and they want to keep it that way:
“This language was supported by Republicans and independents. While it’s deeply political, I had Republican women alongside me collecting petitions because they believe the Legislature went too far.”
Book’s comments come at the same time that activists behind the measure are trying to distance themselves from partisan politics, knowing that abortion rights are more popular than Biden is.
Meanwhile, the Associated Press looks at how the 6-week ban will put pressure on abortion clinics in pro-choice states, and The Guardian’s Carter Sherman speaks to abortion providers in Florida who are coming to terms with the state’s new reality.
Dr. Chelsea Daniels in Miami, for example, brings up the fact that there were more than 80,000 abortions performed in Florida in 2023. “Where are these 80,000 patients gonna go?” she says. Florida abortion fund workers also tell Sherman that they expect their cost-per-patient will double as a result of the ban.
Florida & fetal personhood
We’re not quite done with Florida yet, and this is important. Make sure to read Slate’s Mark Joseph Stern on the “giant threat lurking behind” the state’s abortion rights amendment. Namely, fetal personhood.
Abortion, Every Day actually flagged this back in February: During oral arguments over the pro-choice ballot measure, Florida Supreme Court Chief Justice Carlos Muniz asked whether the proposed amendment would interfere with the rights of the fetus, and questioned the state attorney on whether the guarantee that all “natural persons” be “equal before the law” in the Florida constitution can apply to fetuses.
Basically, Muniz was giving Republicans ideas for how to make a personhood argument. And late last month, Republican Attorney General Ashley Moody took the bait; her office raised the possibility of filing a brief about the “natural persons” provision of the state constitution.
What Stern points out in Slate is chilling: the state Supreme Court has made it clear that they’re ready to enshrine fetal personhood if Amendment 4 loses in November:
“The majority’s rhetoric indicates that if the pro-choice amendment fails this fall, the Florida Supreme Court remains ready to grant fetuses and embryos a constitutional right to life that prohibits the Legislature from legalizing abortion in the future.
…It means that if the initiative fails in November, the Legislature may never be able to loosen the state’s current restrictions on abortion.”
In fact, anti-abortion activists are already gearing up for a fetal personhood fight. For more on what’s happening in Florida with abortion rights—from the 6-week ban and ballot measure to what it all means for 2024—check out yesterday’s explainer:
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The Giant Threat Lurking Behind Florida’s November Abortion Vote
The Florida Supreme Court seemed to offer a compromise Monday when it greenlit the state’s six-week abortion ban while simultaneously approving a ballot initiative that would, if enacted, create a constitutional right to reproductive freedom. And indeed, the court’s split decision offers hope that Floridians can reestablish their state as an abortion refuge in the South this November. But an ominous current lurked beneath the rulings: Six of the court’s seven justices appeared to endorse fetal personhood under the state constitution as it stands now, expressing support for—as one justice put it—“the unborn’s competing right to life” over the patient’s right to bodily autonomy. The majority’s rhetoric indicates that if the pro-choice amendment fails this fall, the Florida Supreme Court remains ready to grant fetuses and embryos a constitutional right to life that prohibits the Legislature from legalizing abortion in the future.
There’s no doubt that this court is supremely hostile to abortion. In its first decision on Monday, the conservative supermajority overturned decades of precedent protecting access to abortion under the Florida Constitution’s right to privacy. In 1980 voters enshrined this right, the cornerstone of Roe v. Wade, into the state’s founding charter, with an evident understanding that it would safeguard reproductive autonomy. Yet, by a 6–1 vote, the court gutted the amendment by ignoring historical evidence of its broad original meaning. At the same time, by a 4–3 vote, the court upheld a proposed amendment that would restore an expansive right to abortion access throughout the state. It will require 60 percent support to pass in November.
This second ruling might seem to temper the majority’s hostility toward reproductive freedom. Not quite: Piecing together the fractured opinions, it becomes clear that six justices stand ready to institute fetal personhood under existing state law. The disagreement among this far-right supermajority comes down to tactics, timing, and deference to democracy. Three are prepared to now wield fetal personhood as a sword against any expansion of abortion, even by constitutional amendment. Three are waiting to impose personhood if the upcoming amendment fails and will not weaponize the doctrine today to keep the initiative off the ballot. (All but one of these justices were appointed by Gov. Ron DeSantis.) Just a single justice, Jorge Labarga—who dissented from the court’s first decision gutting the right to privacy—declined to board the personhood train.
Notably, the parties to the ballot initiative case did not focus on fetal personhood until Carlos Muñiz, the DeSantis-appointed chief justice, injected it into oral arguments in February. Muñiz quoted an existing provision of the Florida Constitution that states that “all natural persons” are “equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty.” He pressed lawyers defending the initiative to explain why “the term ‘natural person,’ as a matter of just, ordinary meaning, doesn’t include the unborn,” adding: “We certainly talk about the unborn that way.” Later, Muñiz suggested that the initiative might unconstitutionally abridge the rights of fetuses by expanding the rights of doctors and patients.
Before this point, the initiative’s opponents had focused on highly technical arguments to kill the amendment, claiming (absurdly) that words like viability and health lack a clear meaning. After Muñiz’s questions, they pivoted to personhood. Anti-abortion groups like the Susan B. Anthony foundation, the Conference of Catholic Bishops, and Liberty Counsel filed unusual “supplemental briefing” to promote the idea that the amendment would violate fetuses’ rights. Liberty Counsel highlighted the Alabama Supreme Court’s notorious decision establishing embryonic personhood, asserting that the Florida Supreme Court should do the same. One abortion foe rushed out a law review article purporting to show that the original meaning of the Florida Constitution grants equal rights to “the preborn child.” These advocates insisted that the initiative was invalid for failing to inform voters that it would roll back existing constitutional rights for the “unborn.” They urged the court to hold that the state constitution already grants fetuses and embryos a fundamental “right to life” and that any amendment legalizing abortion must, at a minimum, clearly state to voters that it would nullify this right.
Three justices—Jamie Grosshans, Renatha Francis, and Meredith Sasso—adopted that argument in dissents on Monday. In a dissent joined by Sasso, Grosshans wrote, “The public should be made aware that the scope of the amendment could, and likely would, impact how personhood is defined” by Florida law. The sheer “breadth of the amendment,” she went on, would undermine fetuses’ “right to enjoy and defend life” under the state constitution. Yet the initiative does not “identify” this fact, preventing the public from “fully comprehend[ing] the contemplated changes” to fetuses’ fundamental liberties. This lack of “candor and accuracy,” Grosshans concluded, renders the proposal invalid.
Francis, in her own dissent, went even further, openly condemning abortion and mocking the notion that there could ever be a “right” to terminate one’s pregnancy. “The exercise of a ‘right’ to an abortion,” the justice wrote, “literally results in a devastating infringement on the right of another person: the right to live. And our Florida Constitution recognizes that ‘life’ is a ‘basic right’ for ‘[a]ll natural persons.’ ” The proposed amendment, Francis continued, cannot go to the ballot because it conceals its impact on this “basic right” of fetuses. “One must recognize the unborn’s competing right to life,” she concluded, “and the state’s moral duty to protect that life.”
Ironically, Muñiz himself voted to let the initiative go to the voters. But he penned a concurrence, joined by Justices Charles Canady and John D. Couriel, declaring that he was none too happy about it. The Florida Constitution—including the “right to life” provision cited by the dissenters—“assumes a pre-constitutional, objective moral reality,” Muñiz wrote. The proposed amendment would clash with this “moral reality” by “constitutionaliz[ing] restrictions” on the state’s ability “to protect an entire class of human beings”—that is, fetuses—from “private harm.” The amendment would also “cast into doubt” the state’s authority “even to enact protections that are prudent, compassionate, and mindful” of fetuses’ liberties. To Muñiz, Canady, and Couriel, however, this solicitude for fetuses’ rights must yield to “the people,” in whom “all political power is inherent.” If the people wish to strip personhood from fetuses by constitutional amendment, Muñiz suggested, the court has no power to stop them.
These opinions add up to an alarming revelation: Six Florida justices want to constitutionalize fetal personhood in the state right now. Three of them—Grosshans, Sasso, and Francis—are so devoted to the principle that they would use it to prevent Floridians from legalizing abortion via ballot initiative. Three more—Muñiz, Canady, and Couriel—are reluctantly willing to let the people overturn fetal personhood by popular vote, at a 60 percent threshold, if they so choose. But the fact remains that all six believe that personhood is the law of Florida today.
This supermajority’s commitment to the equal rights of fetuses and embryos has far-reaching implications. It means that if the initiative fails in November, the Legislature may never be able to loosen the state’s current restrictions on abortion. Constitutionalizing fetal personhood would entrench the six-week ban—and raise the possibility of a court-imposed ban that goes even further, outlawing abortion from the moment of conception, with no exceptions. The Florida Supreme Court could implement this total ban on the grounds that it is necessary to protect the constitutional liberties of embryos and fetuses, following the lead of the Alabama Supreme Court. If a future Legislature tried to roll back the ban—by, for instance, allowing more exceptions or pushing the gestational limit to viability—the judiciary could block it, invoking the rights of “the unborn.” It could also effectively prohibit in vitro fertilization by banning the disposal of embryos as the unlawful killing of a human child. Six of the seven current justices are already laying the groundwork for such a decision. And five of those six justices have decades left in their terms on the bench.
So the stakes for November are even higher than they already seem. Should the initiative fall short of the 60 percent mark, the Florida Supreme Court apparently stands ready to hold that embryos and fetuses are “natural persons” under the constitution, forestalling any other democratic efforts to reinstate reproductive freedom, including IVF access. The justices are not exactly hiding the ball. Florida voters are on notice: This amendment may be their last, best chance to thwart the court’s push for fetal personhood, their final opportunity to elevate the real-world rights of actual people over the theoretical interests of fetuses. If the initiative fails, no can say that voters weren’t warned about what will come next.
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Florida Will Now Be Ground Zero for the Abortion Wars in 2024
The Florida Supreme Court upheld the state’s right to ban abortion on Monday, with devastating consequences for the women of Florida, who will live under one of the most draconian abortion bans in the country. With this ruling and two others issued on Monday, however, the court turbocharged the state’s 2024 election, centering the upcoming vote around abortion rights and other personal freedoms. First, by a 6–1 vote, the conservative supermajority abolished the right to abortion under the state constitution, overruling decades of precedent in the process. Its decision greenlights the six-week ban championed by Gov. Ron DeSantis and Republican legislators, effectively ending legal abortion access throughout the entire South when the ban goes into effect on May 1. Next, by a 4–3 vote, the court allowed a ballot initiative that would enshrine abortion rights in the state constitution onto November’s ballot; this decision gives voters a chance to overturn the six-week ban and establish Florida as the sole haven for reproductive care in the South. Finally, by a 5–2 vote, the court approved another initiative that would legalize recreational marijuana in the state, rejecting DeSantis’ strenuous effort to keep the question off the ballot. The initiatives on abortion and marijuana will require 60 percent approval to pass.
This trio of decisions constitutes a legal and political earthquake. The Florida Supreme Court has protected access to abortion under the state constitution’s right to privacy for 35 years; now, in one fell swoop, the conservative supermajority has overturned that entire line of precedent. But a bare majority also let Florida voters have the final say on reproductive freedom, teeing up a momentous battle over personal liberty in a presidential election year. If that were not enough, the majority also defied DeSantis’ crusade to prevent marijuana legalization from going to the voters, giving residents the chance to greenlight recreational sales long after many other states have made the move. Florida remains a red state dominated by Republican lawmakers and judges. And the consequences for women in Florida and the surrounding area will be horrific in the coming months. But Democrats could not have asked for a better set of issues to campaign on.
The court’s split decision on reproductive rights should not obscure the reality that it has essentially ended legal abortion in the state. DeSantis has signed two major abortion bans: one beginning at 15 weeks and another at six weeks, before most people even know they’re pregnant. Monday’s ruling upheld the 15-week ban and allowed the six-week ban to take effect in 30 days. Since the fall of Roe v. Wade, Florida has served as a sanctuary for abortion access, treating a surge of patients from nearby states with stringent bans; soon, these patients will have to travel hundreds of miles farther for care. For instance, Kate Cox traveled from Texas to Florida to terminate her failing pregnancy after Texas courts decided that her complications did not pose a sufficient danger to her life to justify an abortion. Now Florida will join Texas on the list of states that make abortion criminal under virtually all circumstances, and patients like Cox will have to flee elsewhere. Those with time to spare may travel to Virginia, the closest state with broad abortion access. Those in immediate medical peril will simply have to wait until they are close enough to death to terminate under Florida’s stringent law.
What’s exasperating about the Florida Supreme Court’s decision is that, unlike the U.S. Constitution, the Florida Constitution explicitly guarantees a right to privacy—the basis for SCOTUS’ decision in Roe v. Wade. Floridians amended their constitution to protect privacy rights in 1980, seven years after Roe. And since 1989, the Florida Supreme Court has interpreted this guarantee to safeguard abortion access. Yet Justice Jamie Grosshans, writing for the majority, declared on Monday that the court had gotten it wrong all these years. (Grosshans was appointed by DeSantis, as were all but one of the justices who joined her.) This precedent, she wrote, is “clearly erroneous,” because the “original, public meaning” of the privacy amendment did not encompass reproductive autonomy. For proof, Grosshans undertook a “historical survey” of the 1980 campaign for the initiative and found no “robust public debate” about abortion. She concluded that “the public would not have understood, or assumed, the language of the [amendment] to encompass abortion.”
Grosshans only reached this conclusion by ignoring or downplaying ample evidence that Floridians did, in fact, link the initiative with abortion and discuss its impact on reproductive health throughout the 1980 election. Justice Jorge Labarga, the lone dissenter, canvassed this history to demonstrate that “the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy.” He also protested that his colleagues should respect the reliance interests created by 35 years of precedent interpreting the amendment to shield reproductive decisions. Labarga’s pleas, however, were in vain: DeSantis selected his justices with an eye toward this issue, picking hard-right ideologues with a record of hostility toward abortion to guarantee a favorable ruling down the road. It was a foregone conclusion that a court stacked with DeSantis appointees would overrule abortion rights by any means necessary.
And yet, the court refused to give DeSantis a complete victory: In a separate decision, a bare majority allowed Floridians to enact a constitutional amendment expressly protecting abortion this November. (Again, it will require 60 percent approval to pass.) Pro-choice advocates gathered enough signatures to put this question on the ballot, but DeSantis’ administration tried to block it by arguing that its title was somehow “misleading.” Florida Attorney General Ashley Moody, backed up by anti-abortion activists, argued that the initiative’s title—“Amendment to Limit Government Interference with Abortion”—constituted “inflammatory political rhetoric” and failed to convey the impact it would have on Florida law.
The majority easily spurned these objections as meritless distractions. Yet three dissenters—Grosshans along with Justices Renatha Francis and Meredith Sasso—would have shot down the amendment. They embraced a version of the fetal personhood argument, asserting that the initiative should have clarified that it would strip equal protection from fetuses, which the dissenters describe as “natural persons” with their own constitutional rights.
DeSantis and Moody’s objections to the ballot initiative on recreational marijuana were also frivolous; only Francis and Sasso could muster dissents in that case. Florida already has a robust medical marijuana market, and this amendment seeks to extend legal sales to all adults over 21. In 2021, the Florida Supreme Court blocked a nearly identical initiative on highly dubious grounds; it decision on Monday suggests that a majority has given up the battle against legal weed. Why? Over the past few years, the cannabis industry has spent huge sums of money currying favor with the Florida GOP, and many Republican lawmakers have dropped their opposition to a recreational market. The court’s about-face on the matter suggests that several conservative justices, too, have grown more favorable toward this massively booming industry.
As governor, DeSantis frequently touts his staunch advocacy for freedom, pitching Florida as a refuge for liberty-loving Americans who just want to be let alone. Monday’s decisions, though, highlight his passion for wielding the machinery of the state to interfere with some of the most private decisions a person can make. In seven months, Floridians will have an opportunity to undo both his assault on reproductive rights and his war against legal marijuana if they can reach the 60 percent threshold. These issues are bound to dominate the discourse leading into the election, and Republicans’ positions on both poll terribly with the electorate. A large majority of Americans support legal access to both abortion and cannabis. Florida Democrats are already planning to put these topics at the center of their campaign. It’s no wonder DeSantis fought to keep them from getting a vote. Individual freedom will be on the ballot in November, decided through a democratic process that the governor tried relentlessly to obstruct.
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Democrats dream of turning Florida blue with abortion rights boost
The Florida Supreme Court's seismic rulings on abortion Monday unleashed a frenzy of campaigning among Democrats eager to turn the Sunshine State back into the nation's most important battleground.
Why it matters: Abortion rights have won in every state they've appeared on the ballot since the Supreme Court overturned Roe v. Wade, consistently overperforming President Biden and juicing turnout for Democrats.
Catch up quick: In a pair of rulings Monday, Florida's highest court cleared the way for a near-total abortion ban to take effect May 1 — while also giving voters a chance to undo the restrictions in November. The ban will remain in place until at least January.
- The ballot effort, if successful, would enshrine access to abortion until fetal viability in the state's constitution.
- In the meantime, the six-week abortion ban "will affect more women seeking abortions in the first trimester than any other single abortion ban to date," the Washington Post reported.
Zoom in: Within 24 hours of the rulings, the Biden campaign and other top Democrats were rapidly mobilizing — and fundraising — to ensure voters understood the stakes of November's vote.
- Biden and Vice President Kamala Harris both issued searing statements blaming Republicans — including former President Trump — for Florida's new abortion restrictions.
- Biden campaign manager Julie Chávez Rodríguez released a memo declaring that Florida — which Trump carried by 370,000 votes in 2020 — was now a "winnable" state.
- House Minority Leader Hakeem Jeffries (D-N.Y.) flew to Florida for a press conference Tuesday and declared the state "ground zero" in the fight for abortion rights.
The intrigue: The Biden campaign also released a new ad Tuesday featuring Trump's boasts about getting Roe v. Wade "terminated" — but the spot will not run in Florida.
- That could be a sign that while the campaign wants the state to be competitive in November, it's not yet prepared to invest serious cash in what many Florida Democrats believe is a pipe dream.
Between the lines: Matt Isbell, a Democratic elections analyst, tells Axios that operatives are excited not only for the abortion referendum itself, but for the "on-the-ground" infrastructure the ballot effort will generate.
- "There is a well-founded belief that a lot of money will come into the state now, and that's going to be good for the entire Democratic column," Isbell said.
Context: Even with a 15-week ban, Florida has been a more accessible state for women seeking abortions than its nearest neighbors — Georgia, Alabama and South Carolina.
- Women in much of the South already have to travel long distances to receive an abortion. Tighter restrictions in Florida would mean they'd need to travel even farther — potentially as far north as Virginia, depending on how far along they are in their pregnancies.
Reality check: Republicans in Florida have a staggering lead in active voter registration and a robust political infrastructure, with Gov. Ron DeSantis winning re-election by nearly 20 points in 2022.
Florida voters also have a history of embracing progressive ballot measures, such as restoring felons' voting rights after they've completed all terms of their sentences and raising the state's minimum wage, while still voting for Republican candidates.
- "Democrats are always looking for a silver bullet" to counter their voter registration deficit, progressive activist Thomas Kennedy tells Axios. "There are voters, like me ... who will march to the voting booth, vote 'yes' on [the abortion question], and leave the rest of the ballot blank."
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Florida Supreme Court upholds strict abortion bans while giving voters a say in November
The state high court’s ruling upholds the state’s previous abortion laws but also could deliver a stunning blow to Gov. Ron DeSantis and state Republicans.
Staff work at a Planned Parenthood Abortion Clinic in West Palm Beach, Florida, on July 14, 2022. | Chandan Khanna/AFP via Getty Images
Updated:
TALLAHASSEE, Florida — The Florida Supreme Court has upheld the state’s ban on abortion at 15 weeks of pregnancy but also ruled that a ballot initiative seeking to protect the procedure can go before voters in November.
In dual decisions released Monday, the conservative-leaning high court appeared to attempt to please both sides of the abortion debate: It upheld the GOP-led state’s bans on abortion while also giving voters a say in protecting the procedure in November.
The Supreme Court’s 4-3 ruling on the ballot initiative could deliver a stunning blow to Gov. Ron DeSantis and state Republicans, who have passed strict abortion laws in recent years that ban the procedure at 15 weeks without exceptions for rape and incest and another six-week ban that hasn’t yet been implemented. That six-week ban will go into effect within 30 days of the high court’s ruling.
Those laws have signaled an end to Florida’s reputation as a safe haven for patients in the South who seek abortions. Thousands of patients from neighboring states with more restrictive laws — like Alabama and even as far as Texas — travel to Florida to get abortions.
But the high court’s decision also means that, if 60 percent voters approve a ballot measure in November, patients seeking to end their pregnancies will still be able to travel to Florida, the third-largest state in the country, to receive abortions.
House Speaker Paul Renner and other Florida Republicans quickly began framing the abortion rights amendment as “radical” and “extreme,” signaling how they plan to campaign against the initiative in the coming months.
“This amendment goes far, far beyond where most Floridians would land on the issue,” Renner said just minutes after the court issued its ruling.
Renner additionally contended that Floridians soon-to-be implemented ban on abortions after six weeks of pregnancy wasn’t as “restrictive” as other states since it does allow some exceptions such as for rape and incest.
Both Renner and Republican Party of Florida chair Evan Power said there would be an organized effort to challenge the amendment. Power vowed that the party — which has a substantial financial advantage over Democrats — “will fight to inform voters on the dangers of this amendment.”
Justices Renatha Francis, Jamie R. Grosshans and Meredith L. Sasso dissented with the majority opinion due to concerns that the impact of the amendment was far greater than what voters will be led to believe at the ballot box. The three women were appointed by DeSantis.
Jeremy Redfern, a spokesperson for the governor, said the female justices got the ruling right.
“We agree with the three women on the Court,” Redfern wrote in a statement. “This amendment is misleading and will confuse voters. The language hides the amendment’s true purpose of mandating that abortions be permitted up to the time of birth.”
The effort to place abortion access on the ballot began after a large network of abortion rights and women’s rights groups banded together in April to form Floridians Protecting Freedom. The initiative known as Amendment 4, if approved, will allow abortion up to the point of viability, which is generally around 24 weeks into a pregnancy.
During a Monday news conference, Lauren Brenzel, director of the ‘Yes on 4' campaign that supports the measure, said her grassroots network of supporters will fight the state’s tighter abortion bans.
“The fact is, we can never know what someone else is going through — we’re not in their shoes,” Brenzel said. “That’s why we must vote ‘yes’ on this amendment: to keep government out of our exam rooms and make sure Florida families and the doctors who treat them can make the decisions that are right for them.”
The high court justices appeared to favor placing the measure on the ballot during oral arguments that were held in early November. Chief Justice Carlos Muñiz told a lawyer from Republican Attorney General Ashley Moody’s office that voters were smart enough to understand abortion.
The campaign also received a huge boost in November when Ohio voters approved a similar referendum that blocked abortion controls that had been tightened by the state’s GOP-led government.
At the same time, many expected that the state high court would end Florida’s position as an abortion haven in the South, due to DeSantis’ dramatic reshaping of the court into a conservative institution. The Republican governor appointed five of the seven justices, and several have ties to anti-abortion groups or legislation that sought to restrict the procedure.
The justices’ ruling upholding the abortion bans also allowed time for a rehearing.
In the wake of the U.S. Supreme Court’s 2022 decision to end federal protections under Roe v. Wade, roughly 4,000 pregnant people from out-of-state traveled to Florida for abortions from other states where the procedure is outlawed at almost any stage of pregnancy except for very narrow exceptions. It represented a nearly 40 percent surge in people from out-of-state getting abortions in Florida.
The Florida decision also comes during the 2024 election cycle, where abortion will play a major role. DeSantis, who signed the abortion restrictions into law, rarely highlighted the state bans while campaigning for president before he dropped out — even before anti-abortion crowds.
The country’s leading anti-abortion group, Susan B. Anthony Pro-Life America, also strongly criticized DeSantis when he wouldn’t support federal abortion restrictions during an interview over the summer with Megyn Kelly.
More broadly, anti-abortion groups have in the last two years deployed a wide range of tactics to keep abortion-rights proposals off the ballot, including pushing bills in statehouses that would make it harder to pass constitutional amendments, working with GOP attorneys general and secretaries of state to stymie the initiative process, and challenging the measures in court.
Those tactics have not succeeded in blocking a state referendum on abortion. Already this election cycle, the Missouri Supreme Court allowed a lower court decision to stand that deemed that ballot question language proposed by Republican Secretary of State Jay Ashcroft was politically partisan. Ashcroft’s summary of the measure had said the proposal, which aims to protect abortion until viability, would lead to “dangerous and unregulated abortions until live birth.”
And the Montana Supreme Court ruled last month that proposed ballot language to protect abortion rights did not bundle multiple subjects together and that Republican Attorney General Austin Knudsen overstepped his authority when he argued the measure was confusing and would conflict with other parts of the state Constitution.
The courts are only one tool anti-abortion rights groups are wielding. In Arizona, Missouri and South Dakota, they have also launched campaigns to dissuade voters from signing petitions to put abortion rights on the ballot, and groups in many states plan to challenge the validity of signatures once submitted later this year.
The lawsuit challenging the 15-week ban was backed by abortion rights groups such as Planned Parenthood. On Monday Laura Goodhue, executive director of the Florida Alliance of Planned Parenthood Affiliates used the court’s decision to uphold the law as a rallying cry for the amendment.
“The extraordinary groundswell of grassroots support Amendment 4 has received is no surprise to us,” Goodhue wrote. “Today’s decision paves the way for Florida voters to stop these ridiculous abortion bans once and for all.”
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The Anti-Abortion Endgame That Erin Hawley Admitted to the Supreme Court
Erin Hawley speaks to the media after oral arguments in FDA v. Alliance for Hippocratic Medicine on Tuesday in Washington. Anna Rose Layden/Getty Images Somewhat lost in the debate around abortion pills and oral arguments that took place at the Supreme Court in FDA v. Alliance for Hippocratic Medicine on Tuesday was one deeply uncomfortable truth: The very notion of what it means to practice emergency medicine is in dispute, with anti-abortion doctors insisting upon a right to refuse treatment for any patient who doesn’t meet their test of moral purity. Indeed, the right asserted is that in the absence of certainty about which patients are morally pure, the doctors want to deny medication to all patients, nationwide.
In public, the plaintiffs in this case—a group of doctors and dentists seeking to ban medication abortion—have long claimed they object to ending “unborn life” by finishing an “incomplete or failed” abortion at the hospital. But in court, they went much further. Their lawyer, Erin Hawley, admitted at oral argument that her clients don’t merely oppose terminating a pregnancy—they are pursuing the right to turn away a patient whose pregnancy has already been terminated. Indeed, they appear to want to deny even emergency care to patients whose fetus is no longer “alive,” on the grounds that the patient used an abortion drug earlier in the process. And they aim to deploy this broad fear of “complicity” against the FDA, to demand a nationwide prohibition on the abortion pill to ensure that they need never again see (and be forced to turn away) patients who’ve previously taken it. This is not a theory of being “complicit” in ending life. It is a theory that doctors can pick and choose their patients based on the “moral distress” they might feel in helping them.
It should come as no surprise that the same judge who tried to ban mifepristone in this case, Matthew Kacsmaryk, has also attempted to legalize anti-LGBTQ+ discrimination in health care nationwide. This is the ballgame: weaponize subjective religious beliefs against secular society to degrade the quality of care for everyone. If you can’t persuade Americans to adopt hardcore evangelical views, exploit the legal system to coerce them into it anyway.Alliance for Hippocratic Medicine is at once embarrassingly frivolous and existentially important. Don’t let the jokes about how silly the Comstock Act seems, or how speculative the theory of standing is, get in the way of taking a serious look at the claims on offer. The plaintiffs say they are terrified that one day, a patient may walk into their emergency room suffering complications from a medication abortion prescribed by some other doctor. This patient may need their assistance completing the abortion or simply recovering from the complete abortion, which these plaintiffs deem “complicity” in sin. And they say the solution is either a total, nationwide ban on mifepristone, the first drug in the medication abortion sequence, or a draconian (and medically unnecessary) set of restrictions that would place mifepristone out of reach for many patients. (The U.S. Court of Appeals for the 5th Circuit ruled to reinstate those restrictions at their behest.)
It is a twisted line of logic, one that should never have reached the Supreme Court in the first place. But it is also a product of the court’s past indulgence of outlandish claims about moral “complicity.” As was made plain in the oral arguments and briefing, activist doctors are no longer satisfied with personal conscience exemptions already granted under state and federal law; they now insist that nobody, anywhere, should have access to the abortion pill, in order to ensure that they themselves won’t have to treat patients who took one. At a minimum, they say, they should be able to radically roll back access to the pill in all 50 states to reduce the odds that one of these handful of objectors might someday encounter a patient who took it. This extremist argument lays bare the transformation of the idea of “complicity” from a shield for religious dissenters to a sword for ideologues desperate to seize control over other people’s lives and bodies.
At oral arguments, several justices pressed Hawley, who argued on behalf of Alliance for Hippocratic Medicine, with an obvious retort: Why can’t her clients simply refuse to treat these hypothetical someday patients on the grounds that they cannot help end the “life” of a fetus or embryo? After all, federal law guarantees doctors the right not to have to provide an abortion if doing so is “contrary to his religious beliefs or moral convictions.” Justices Amy Coney Barrett and Brett Kavanaugh secured assurances from Solicitor General Elizabeth Prelogar, early in the arguments, that under no circumstances could the government force any health care provider to ever participate in an abortion in violation of their conscience. Justice Elena Kagan asked Prelogar: “Suppose somebody has bled significantly, needs a transfusion, or, you know, any of a number of other things that might happen.” Would the plaintiffs object to treating them? Prelogar said the record was unclear.
Hawley, who is married to far-right Republican Sen. Josh Hawley, then approached the lectern and cleared up any confusion: Yes, she insisted, treating a patient who has undergone a medication abortion violates the conscience of the plaintiff physicians even if there is no “live” fetus or embryo to terminate anymore. “Completing an elective abortion means removing an embryo fetus, whether or not they’re alive, as well as placental tissue,” Hawley told Kagan. So the plaintiffs don’t object just to taking a “life.” They also object to the mere act of removing leftover tissue, even from the placenta.
Of course, these doctors must remove “dead” fetal tissue and placentas all the time—from patients who experienced a spontaneous miscarriage. By their own admission, the plaintiffs regularly help women complete miscarriages through surgery or medication. Those women they will gladly treat. Other women, though—the ones who induced their own miscarriage via medication—are too sinful to touch. Before the plaintiffs can administer even lifesaving emergency treatment, they need to know the circumstances of this pregnancy loss: Spontaneous miscarriages are OK; medication abortions are not.
Justice Ketanji Brown Jackson, too, zeroed in on this admission. She told Hawley that she had thought the objection was to “participating in a procedure that is ending the life [of the fetus].” Hawley told her no: Any participation in an abortion, even through the indirect treatment of a patient without a “live” fetus, violated the doctors’ conscience. So, wait. What about “handing them a water bottle?” Jackson asked. Hawley dodged the question, declining to say whether helping a patient hydrate would constitute impermissible complicity in sin.
All this is reminiscent of Little Sisters of the Poor, a case about a Catholic charitable group that was afforded an exemption from the Affordable Care Act’s contraception mandate. The Little Sisters were asked to check a box signaling to the government that they could not comply with the mandate, at which point the government would step in to cover their employees. But the Little Sisters refused, viewing this action—the checking of a box to opt out of coverage—as “complicity” in abortion because it would in turn trigger government payment for contraception (which they viewed as abortifacients). The Supreme Court and the Trump administration ultimately indulged the Little Sisters’ claim.
Here, we have emergency room physicians asserting that they will not participate in lifesaving medical intervention unless they approve of the reason for the pregnancy loss. Presumably, if the pregnant patient is an unwed mother, or a gay or transgender person, the doctor would be similarly complicit in sin and decline service. Seen through this lens, since one can never know which sins one is enabling in the ER, each and every day, a narrow conscience exemption becomes a sweeping guarantee that absolutely nobody in the country can ever have access to basic health care, let alone miscarriage management. (Of course, these plaintiffs might focus only on one set of “sins” they see as relevant.) In a country effectively governed by Kacsmaryk and his plaintiff friends, a gay person suffering a stroke could be turned away from any hospital because of his sexual orientation, all to spare a doctor from a glancing encounter with prior sin. As Tobias Barrington Wolff, a professor of law at the University of Pennsylvania Law School, put it to us in an email, this unbounded view of complicity “is part of enacting the social death of people and practices you abhor, which in turn can contribute to the material death of people and practices you abhor.”
One of the most exhausting lessons of post-Roe America is that being “pro-life” definitively means privileging the life of the presumptively sin-free unborn—or even their “dead” remains—over the life of the sin-racked adults who carry them. This is why women are left to go septic or to hemorrhage in hospital parking lots; it is why C-sections are performed in nonviable pregnancies, at high risk to mothers; it’s why the women who sued in Texas to secure exceptions to that state’s abortion ban are condemned by the state as sinners and whores. And it’s why—in the eyes of the Alliance for Hippocratic Medicine—it is a greater hardship for a physician to “waste precious moments scrubbing in, scrubbing out” of emergency surgery, as Hawley put it, so long as they don’t believe that the emergency warrants their professional services, than it is for a pregnant person, anywhere in the country, including in states that permit abortion, to be forced to give birth.
At oral argument, Hawley explained that her clients have “structured [their] medical practice to bring life into the world. When they are called from their labor and delivery floor down to the operating room to treat a woman suffering from abortion drug harm, that is diametrically opposed to why they entered the medical profession. It comes along with emotional harm.” The emotional harm alleged here is that unless these doctors approve of the specific circumstances of the ER visit, they violate not only their own medical preference but also their religious convictions. But they will never truly know enough about the sins of their patients to be able to shield themselves against being a link in a chain of subjective lifelong sin. And to be a doctor, especially an emergency physician, should be to understand that your patients’ private choices and spiritual life are not really open to your pervasive and vigilant medical veto. This deep-rooted suspicion of patients deemed insufficiently pure for lifesaving treatment didn’t begin with the availability of medication abortion. It will assuredly not end there.
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Republican Officials Openly Insult Women Nearly Killed by Abortion Bans
Nicole Blackmon, Allie Phillips, and Jennifer Adkins. Photo illustration by Slate. Photos by Center for Reproductive Rights. For many years before S.B. 8 passed in Texas and was then swept into existence by the Supreme Court, and before Dobbs ushered in a more formal regime of forced childbirth six months later, the groups leading the charge against reproductive rights liked to claim that they loved pregnant women and only wanted them to be safe and cozy, stuffed chock-full of good advice and carted around through extra-wide hallways for safe, sterile procedures in operating rooms with only the best HVAC systems. Then Dobbs came down and within minutes it became manifestly clear that these advocates actually viewed pregnant people as the problem standing in the way of imaginary, healthy babies—and that states willing to privilege fetal life would go to any and all lengths to ensure that actual patients’ care, comfort, informed consent, and very survival would be subordinate.
We are only beginning to understand the extent to which pregnant women are dying and will continue to die due to denials of basic maternal health care, candid medical advice, and adequate treatment. The issue of emergency abortions, though, has already rocketed to the U.S. Supreme Court, which agreed on Friday to decide whether federal law compels hospitals to terminate dangerous pregnancies regardless of state bans. No matter how SCOTUS rules, the fallout is already all around us. The stories of Kate Cox in Texas, devastated would-be mothers in Tennessee, and a horrifying prosecution of a mother who miscarried in Ohio all surface the brutal reality of the post-Dobbs zeitgeist: Any woman who seeks to terminate a pregnancy is wicked, any woman who miscarries is evil, and any woman who—for reasons of failing health, circumstance, or simple bad luck—does not prove to be an adequate incubator deserves whatever she gets. Every unborn fetus is the priority over the pregnant person carrying it and must be carried to term at all costs. So goes the moral calculus of the death-panel judges who now determine how to weigh the competing interests between real, existing human life and a state’s dogmatic fixation with a fetus that, by definition, must be seraphically innocent.
One need only look at red states’ scramble to defend their draconian abortion bans to witness this perverse moral hierarchy in action. In the wake of Roe v. Wade’s demise, the victims of these laws are no longer hypothetical: They are flesh-and-blood women, directly and viscerally injured by the denial of basic health care, and some of them have even had the gall to fight for their rights. Republican attorneys general have responded with furious indignation, openly demeaning these women as liars, wimps, partisans, and baby killers.
A recent filing by the office of Tennessee Attorney General Jonathan T. Skrmetti, a Republican, captures the dynamic all too well. Skrmetti has been fighting a lawsuit filed by a group of Tennessee women denied emergency abortions under the ultranarrow medical exception to that state’s ban. The women plaintiffs suffered an appalling range of trauma, including sepsis and hemorrhaging, because they could not terminate their pregnancies. The attorney general’s response to their complaint is a scathing, shockingly personal broadside against the victims of the ban. He accused them of attempting to draw “lines about which unborn lives are worth protecting” by imposing a medical exception “of their own liking.” He mocked them for asserting that ostensibly minor conditions like “sickle cell disease” might justify an abortion. And he insisted that the lead plaintiff, Nicole Blackmon, lacks standing, because she underwent sterilization after the state forced her to carry a nonviable pregnancy and deliver a stillborn baby. The attorney general viciously suggested that, if Blackmon really wanted to fight Tennessee’s ban, she could have tried for another doomed pregnancy.
Perhaps Skrmetti deserves half credit for candor, because he did not even pretend to treat these plaintiffs like compelling moral human beings. Instead, he wrote that Tennessee may allow different standards of care for pregnant and nonpregnant women. A pregnant woman, the attorney general averred, may be refused a treatment if it “has the potential to harm unborn lives—an issue not implicated” when treating nonpregnant women. “No equal-protection rule,” he concluded, “bars lawmakers from acting on that difference to protect unborn babies.” In other words, once a woman is pregnant, she becomes a vessel for “unborn babies,” giving the state authority to cut off her access to urgently necessary health care. Since nonpregnant women don’t immediately suffer the consequences of abortion bans, those bans don’t discriminate on the basis of sex.
Texas Attorney General Ken Paxton and his staff have evinced similar hostility toward plaintiffs in the Lone Star State who brought a nearly identical suit. The lead plaintiff in that case, Amanda Zurawski, was denied an abortion for three agonizing days after her water broke in the second trimester, leading her to develop sepsis; she nearly died in the ICU, and may never be able to get pregnant again. Paxton’s response? Because she might now be infertile—as a direct result of Texas law— Zurawski lacks standing to sue. When the case went to trial, Texas’ lawyers asked profoundly insulting questions of the plaintiffs. “Did Attorney General Ken Paxton tell you you couldn’t get an abortion?” they pressed each woman after pressing them for invasive details about their failed pregnancies. One plaintiff vomited on the stand after recounting her horror story.
These arguments are echoed by red-state attorneys general around the country, like Idaho’s Raúl Labrador, who proclaimed that women forced to carry dangerous, nonviable pregnancies merely “disagree with the legitimate policy choices made by the Idaho legislature.” (Should an Idaho resident suffering excruciating pain from a failing pregnancy drive to the statehouse rather than the emergency room? Labrador seems to think so.) Critically, these lawyers and politicians and activists are gaslighting their real victims. During a hearing over Zurawski’s case at the Texas Supreme Court, Beth Klusmann of the Texas attorney general’s office shifted the blame onto doctors: “If a woman is bleeding,” Klusmann said, “if she has amniotic fluid running down her legs—then the problem is not with the law. It is with the doctors.”
Months later, this exact scenario occurred: Kate Cox was bleeding and leaking amniotic fluid. She asked for an abortion. Her doctor could not provide one under Texas law without risking a 99-year prison sentence. That physician sued for permission to obtain one. Paxton immediately fought her lawsuit tooth and nail, accusing Cox of being a shameless liar and threatening to prosecute any health care provider who assisted her in terminating the pregnancy. And he prevailed, securing a Texas Supreme Court decision blocking Cox’s abortion. (She traveled out of state to get it.)
Cox’s problem was not with the doctors. It was with the law. Specifically, it was with a set of judges, state officials, and lawyers who cast her as a selfish liar and a bad mother for valuing her life above that of a nonviable fetus. Nothing Cox, nor Zurawski, nor the Tennessee plaintiffs could have alleged or argued would have saved them from being derided, insulted, and denied treatment for the crimes of failing to put their unborn fetuses before their own lives.
Or look to Dr. Ingrid Skop, an anti-abortion activist who has routinely testified in favor of total abortion bans. During a congressional hearing, Skop assured Zurawski that her doctor could and should have provided her a legal abortion, given the condition to which she had degenerated, and that her physician simply misunderstood the relevant Texas law. Then, Skop filed a declaration in Cox’s case attesting that her doctor could not provide a legal abortion under Texas law. These activists know what to say in public to assure Americans that abortion bans treat women humanely. And then they use every legal, medical, and advocacy weapon they hold at their disposal to strip these women of their humanity when they’re in need of an abortion.
If you have opted to move through the political landscape under the view that flawed persons are disposable and potential persons are flawless, the benefit of the doubt will always be afforded to the unblemished, someday rosy-cheeked soul that resides inside of the actual living human with the actual uterus. Indeed, the very instant that the hypothetical perfect babe becomes a real-life, in-the-world girl, a future pregnant woman is also birthed, and she will begin a long journey toward putative moral decay: potential miscarriage, poverty, health challenges, and other ostensible infirmities that will make her too flawed to be trusted to make judgments about her own future pregnancy. The tie will always go to the fetus, perfect in its secret unknown-ness. The mother will never be able to show that she wanted the pregnancy enough, took good enough care, made every correct predictive decision. And as such, the state will happily dismiss her interests as not only irrelevant, but self-serving, greedy, and dishonest. That it’s being said aloud in courtrooms, in pleadings, and in affidavits should not surprise anyone.
The pregnant woman has always been the fallen and the damned. Now, according to red states, it’s acceptable—necessary, even—to ensure that she knows this, from the very moment of conception until the moment she loses the power to make any choices about how she gives birth. Even if she dies, she was forever that which stood in the way of flawless, purest life.
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