1). “How Conservatives Are Rebranding Pro-Life: Their abortion legislation is costing them at the ballot, so Republicans are trying sneaky new tactics to push through policies Americans don’t want”, May 23, 2024, Jessica Valenti, The Rolling Stone, at < https://www.rollingstone.com/
2). “The Comstock Act, the long-dead law Trump could use to ban abortion, explained: A defunct federal law is Republicans’ best hope of banning abortion throughout the United States”, May 19, 2024, Ian Millhiser, Vox, at < https://www.vox.com/abortion/
3). “Surprise! The Worst Judge in the Country Just Landed Another Appalling Abortion Case”, June 07, 2024, Dahlia Lithwick & Mark Joseph Stern, Slate, at < https://slate.com/news-and-
4). “The Insidious Legal Movement to Make Pregnant Women Second-Class Citizens Is Growing: And the Supreme Court may only fuel it”, May 13, 2024, Jill Filipovic, Slate, at < https://slate.com/news-and-
5). “The chilling motive behind Louisiana’s new abortion pill bill: Many patients, aware that their use of such drugs will be tracked, will rightly fear prosecution”, May 21, 2024, Mary Ziegler, Professor of Law at UC Davis, MSNBC, at < https://www.msnbc.com/opinion/
6). “Watch: Trump brags about 'killing' Roe v. Wade”, Nov 8, 2023, Morning Joe Video Clip, MSNBC, Video duration 1:43, Trump Bragging about overturning Roe v. Wade from 0:00 – 0.44, at < https://www.youtube.com/watch?
7). “The World’s Abortion Laws: Globally, there is an overwhelming trend towards the liberalization of abortion laws”. “Only four countries have rolled back the legality of abortion: The devastating regression on abortion rights in the United States makes the country a stark outlier to the global trend toward liberalization”, The Center For Reproductive Rights, at < https://reproductiverights.
8). “How Project 2025 Turns Women into Handmaids: Think It's Unlikely? Click to See how its Already Started”, 2024, Anon, at < https://infogram.com/how-
~~ recommended by dmorista ~~
Introduction by dmorista: The struggle over Abortion Access and Reproductive Healthcare in general (yes, contraception and IVF are next on the Fascist hit-list) grows ever more pervasive and harsh. Jessica Valenti in Item 1):, “How Conservatives Are Rebranding Pro-Life: ….”, noted that
“.... overwhelming support for legal abortion leaves Republicans with a major problem: How do you defend and push a policy that no one wants? In the nearly two years since Roe v. Wade was overturned, the GOP has faced an unprecedented backlash. They’re losing election after election — from the 2022 midterms to state Supreme Court races — and abortion rights win every time they are on the ballot. Republicans are even considering doing away with the term 'pro-life' because Americans view it as too extreme. The horror stories regularly coming out of states with abortion bans certainly don’t help.
"In response, anti-abortion lawmakers and groups have recently launched a new two-pronged attack. They’re changing the way they publicly talk about abortion, using specific terms and phrases to make Americans believe that they’re softening on the issue; at the same time, they’re systematically chipping away at democracy so that voters won’t have a say in the matter, just in case their talking points don’t work. ….
“Anti-abortion lawmakers and the organizations directing them are desperate to hide the truth: They know Americans don’t want abortion banned, and they simply don’t care. In fact, they’re willing to pass bans at any cost to democracy, and to women’s lives.
"In Ohio, not only did lawmakers try to raise the standards on ballot measures to require 60 percent of the vote instead of a simple majority, but Secretary of State Frank LaRose admitted to working with anti-abortion groups to craft a biased ballot summary. That means when voters went to the ballot box to decide on a pro-choice amendment, they didn’t actually see the amendment as it was being proposed — but an anti-abortion interpretation of the measure. ….
“As pro-choice activists collected signatures to get abortion on the ballot in Missouri, anti-abortion groups warned voters via text messages that 'out-of-state strangers' would try to steal their personal information by asking them to sign petitions. Missourians got texts instructing them to “protect yourself from fraud & theft” by not signing any petitions. This move came after the state’s attorney general held up abortion-rights advocates signature-gathering for months by refusing to sign off on a cost estimate for the ballot measure before being forced by the state Supreme Court to let it move forward. (In fact: “As part of the procedure for qualifying for the ballot, the proposal was sent to the state’s auditor, Scott Fitzpatrick, who provided a cost estimate for the proposed initiative. Mr. Fitzpatrick, who opposes abortion, said the proposal would have an estimated cost of at least $51,000 annually in reduced local tax revenues. Mr. Bailey rejected that analysis, instead saying in a letter that the bill would most likely cost taxpayers “upward of $12 billion” because of fewer births and the loss of Medicaid funding.” {Bailey is the Missouri Attorney General, dm} [See “Missouri Supreme Court Allows Abortion Ballot Initiative to Move Ahead”, July 20, 2023, Anna Betts, New York Times, at < https://www.nytimes.com/2023/
“All of these efforts — the fake ballot measures, text trickery, and the war on language — are being pushed precisely because Republicans know that Americans support abortion rights. They know they can’t win on their own arguments and merits, so they try to lie and fool voters in order to win. As we speed toward the election this November, we’ll see the same kinds of tactics from the Republicans running — including Trump, ….” (Emphasis added)
In Item 2)., “The Comstock Act, the long-dead law ….”, Ian Millhiser, the author (who holds a Juris Doctorate degree from Duke University), provides a cogent discussion of the likelihood that Trump, should he ascend the throne for a second time, would use the Comstock Act to close down all abortion care in the entire U.S. It is sobering reading. In another event in Judicial proceedings and maneuvers, in Item 3)., “Surprise! The Worst Judge in the Country ….” Dahlia Lithwick & Mark Joseph Stern discuss the filing of a federal lawsuit by two reactionary professors at the University of Texas at Austin (who act as willing cat's paws for the Fascist Texas State Attorney General, the convicted swindler Ken Paxton). This court proceeding was filed in, “surprise surprise”, the federal court of arch reactionary Matthew Kacsmaryk in Amarillo, Texas. The article notes that: “These two guys are clients of Jonathan Mitchell, who is the architect of Texas’ vigilante abortion ban, S.B. 8. Mitchell is working on this case with Stephen Miller, former Trump adviser and head of the America First Legal Foundation. They’re teaming up with Texas Attorney General Ken Paxton, who’s spending Texans’ tax dollars on this fight. …. these professors are exploiting that gap in the policy. At a minimum, they want to lower the grade of any student who misses class for an abortion, even a perfectly legal one obtained out of state. I sent them questions asking for details about their intent here, but they declined to respond.” (Emphasis added)
The actions of Jonathan Mitchell have been integral to the moves by the Republican Right to limit the civil rights of American Women underlining this is the point made by Lithwick and Stern that: “Mitchell, who’s one of Trump’s top lawyers, argues that Comstock imposes a nationwide ban, because it talks about both drugs that induce miscarriage, like mifepristone, and things that can cause abortion, including medical equipment. He claims that the transportation of any medication or equipment meant to terminate a pregnancy is a felony offense. And he wants Donald Trump to implement this theory as policy if he wins a second term.” (Emphasis in original).
Item 4)., “The Insidious Legal Movement ….” and Item 5)., “The chilling motive behind ….” discuss other ways that the right-wing Republican actions are designed to treat pregnant women as less important than even early stage zygotes or fetuses. Also there is an ongoing attempt to criminalize any help given to a pregnant woman who is seeking an abortion. Item 5). Points out that he recent Louisiana law that, absurdly, classifies mifepristone and misoprostol as Schedule 4 Dangerous Drugs (in the same class as heroin) was passed after fanatical forced-birth / forced-pregnancy operatives realized that:
“.... the new bill recognizes that existing bans have not been enough to stop the flow of drugs and patients across state lines — and develops new tools to track the use of these critical medications and frighten anyone who might prescribe them. ….
“The state has had a hard time enforcing its abortion ban in part because it is hard to identify when and how pills change hands. At least when a prescription originates in state, this bill might give Louisiana prosecutors an extra edge in identifying people to prosecute.
“Equally important is the bill’s creation of a new crime: the possession of these abortion drugs without a prescription, with a sentence of up to 10 years in prison. (Emphasis in Original) …. it is intended to crack down on a group antiabortion advocates have targeted since the reversal of Roe: 'aiders and abettors,' a term applied to friends, family and others who help abortion patients. (Emphasis added) <<<------ NB NOTE - this paragraph should not be red, but Blogger will not let me change the color... UGGGGGGGGG!!!!!!!!!!!!!!!!!
“Perhaps more than anything, then, the bill was intended to have a chilling effect — and not only on those who could face charges based on the new law. ….
“Within the antiabortion movement, support for the idea of punishing women for ending their pregnancies has grown in recent years. Louisiana, in fact, is the only state where a so-called abolitionist bill passed out of committee. The easier it is to track the use of abortion drugs, the more real the threat of future criminal charges will feel.”
Meanwhile, the Trump Presidential campaign has tried to backpedal his role in the overturning of Roe v. Wade; and the endless stream of horror stories that have flowed onto the media ever since. The first 44 seconds of Item 6)., “Watch: Trump brags ….” is a set of 4 or 5 times when Trump bragged about his role in reversing Roe v. Wade.
Item 7)., “The World’s Abortion Laws: ….” provides a long detailed discussion and many graphics that look at the situation of women's access to safe legal abortion care around the world. Sadly much of the U.S. has joined the 16 nations that still prohibit abortion care completely they are: Honduras, Nicaragua, El Salvador, Dominican Republic, Jamaica, Haiti, Suriname, Congo (Brazzaville), Sierra Leone, Senegal, Mauritania, Egypt, Madagascar, Iraq, Laos, Philippines. About 1/3 of American Women now live in states that have similarly draconian laws. Maps 1 – 4 below demonstrate this grim reality.
Item 8)., “How Project 2025 Turns Women ….”, provides 10 Issues in which the horrific future the Forced-Birth / Forced-Pregnancy movement wants to impose on American Women. Each issue provides a live link to other material about that issue.
How Project 2025 Will Ruin Your Life:
The Graphics below from “how-project-2025-turns-women-into-handmaids” are just graphics. Go to the site, url provided, if you actually want to look at the material the live links take you to. That is available at:
https://infogram.com/how-project-2025-turns-women-into-handmaids-1hnq41o01qpmk23
How Conservatives Are Rebranding Pro-Life
Americans don’t want abortion to be banned. In fact, they barely want it legislated at all: A 2024 poll found that 81 percent of voters don’t want abortion issues to be regulated by the government. Instead, they want the decision to be between a patient and their doctor.
That overwhelming support for legal abortion leaves Republicans with a major problem: How do you defend and push a policy that no one wants? In the nearly two years since Roe v. Wade was overturned, the GOP has faced an unprecedented backlash. They’re losing election after election — from the 2022 midterms to state Supreme Court races — and abortion rights win every time they are on the ballot. Republicans are even considering doing away with the term “pro-life” because Americans view it as too extreme. The horror stories regularly coming out of states with abortion bans certainly don’t help.
In response, anti-abortion lawmakers and groups have recently launched a new two-pronged attack. They’re changing the way they publicly talk about abortion, using specific terms and phrases to make Americans believe that they’re softening on the issue; at the same time, they’re systematically chipping away at democracy so that voters won’t have a say in the matter, just in case their talking points don’t work.
I’ve been tracking these tactics in my newsletter, “Abortion, Every Day,” since Roe was overturned, finding that the GOP’s deception runs deeper than most people realize.
It wasn’t long after the Supreme Court’s 2022 decision, for example, that anti-abortion organizations and politicians stopped using the word “ban.” (James Bopp, general counsel for the National Right to Life Committee, called the term “the big ban word.”) Instead, they replaced it with words like “standard” and “consensus.”
It makes sense: “I support a national consensus” sounds a whole lot better than “I support a national ban,” especially given how unpopular Republicans’ bans are.
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More recently, conservative lawmakers and activists are using the phrase “the will of the people.” Donald Trump used it when announcing that he believed abortion should be left to the discretion of the states, and Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, used the phrase six times in an interview with The New York Times. Like “consensus,” “will of the people” gives voters the impression that the GOP actually cares what Americans want.
And in a moment when so many states are using citizen-led ballot initiatives to restore and protect abortion rights, Republicans are also eager to claim that “the will of the people” is being represented by legislators — rather than voters having a direct say on an issue. Before the Supreme Court heard arguments this spring over lifesaving abortions in emergency rooms, for example, conservative legal powerhouse Alliance Defending Freedom accused the Biden administration of “overrid[ing] the will of Idaho voters enacted through their elected representatives.”
Anti-abortion lawmakers and the organizations directing them are desperate to hide the truth: They know Americans don’t want abortion banned, and they simply don’t care. In fact, they’re willing to pass bans at any cost to democracy, and to women’s lives.
Consider the dirty tricks Republicans have pulled in every state where abortion has been on the ballot. In Ohio, not only did lawmakers try to raise the standards on ballot measures to require 60 percent of the vote instead of a simple majority, but Secretary of State Frank LaRose admitted to working with anti-abortion groups to craft a biased ballot summary. That means when voters went to the ballot box to decide on a pro-choice amendment, they didn’t actually see the amendment as it was being proposed — but an anti-abortion interpretation of the measure. (Voters were so eager to restore abortion rights that the amendment won regardless.)
Bad Boy for Life: Sean Combs’ History of Violence
In Kansas, anti-choice groups sent out text messages to voters to “Vote YES to protect women’s health,” even though a “yes” vote would have removed abortion protections. As pro-choice activists collected signatures to get abortion on the ballot in Missouri, anti-abortion groups warned voters via text messages that “out-of-state strangers” would try to steal their personal information by asking them to sign petitions. Missourians got texts instructing them to “protect yourself from fraud & theft” by not signing any petitions. This move came after the state’s attorney general held up abortion-rights advocates signature-gathering for months by refusing to sign off on a cost estimate for the ballot measure before being forced by the state Supreme Court to let it move forward.
In Arizona, Republicans took a different tack. After an 1864 ban was allowed to stand by the state Supreme Court, sparking a national backlash, Republicans decided to propose a ballot measure of their own in order to trick angry voters. A leaked GOP strategy document laid out the party’s plan to introduce a ballot measure that sounded pro-choice in order to siphon votes away from the real abortion-rights amendment in the state. They even floated using names like the “Arizona Abortion Protection Act” and the “Arizona Abortion and Reproductive Care Act.”
Anti-abortion groups in Nebraska did much the same thing earlier this year: After the pro-choice group Protect Our Rights launched a ballot initiative, conservatives proposed a similar-sounding amendment that they called Protect Women and Children. They claimed the measure would protect abortion in the first trimester of a pregnancy. What they failed to mention is that Nebraska recently enacted a 12-week ban; that means passing their “pro-choice” amendment would actually enshrine a ban into the state constitution — making it nearly impossible to repeal.
All of these efforts — the fake ballot measures, text trickery, and the war on language — are being pushed precisely because Republicans know that Americans support abortion rights. They know they can’t win on their own arguments and merits, so they try to lie and fool voters in order to win. As we speed toward the election this November, we’ll see the same kinds of tactics from the Republicans running — including Trump, who is desperate to escape voters’ post-Roe fury.
MTG Says Trump Is a 'Convicted Felon' Just Like Jesus
But as dystopian as the attacks on democracy are, there is also good news. The anti-abortion future Republicans want for this country is a vision shared by only a handful of powerful extremists. The vast majority of us want people’s health protected, women’s humanity and dignity intact, and personal health decisions to stay personal.
We quite literally have the power of the people on our side. We just have to be ready for a long-haul battle that doesn’t stop with one state or one win. And we have to point out, again and again, that what the GOP is doing with abortion rights is being done against our wills.
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The Comstock Act, the long-dead law Trump could use to ban abortion, explained
A defunct federal law is Republicans’ best hope of banning abortion throughout the United States.
Then-President Donald Trump speaks at the 47th March For Life rally on January 24, 2019 in Washington, DC.
Donald Trump is speaking out of both sides of his mouth on abortion.
On the one hand, Trump frequently claims credit for the Supreme Court’s decision eliminating the constitutional right to an abortion — and well he should, since the three Republicans he appointed to the Supreme Court all joined the Court’s 2022 decision permitting abortion bans. As Trump told Fox News last summer, “I did something that no one thought was possible. I got rid of Roe v. Wade.”
At the same time, Trump at least claims that he has no interest in signing new federal legislation banning abortion. When a reporter asked Trump if he would sign such a ban last month, Trump’s answer was an explicit “no.”
Behind the scenes, however, many of Trump’s closest allies tout a plan to ban abortion in all 50 states that doesn’t require any new federal legislation whatsoever. The linchpin of this plan is the Comstock Act, a long-defunct, 1873 law that, among other things, purports to ban “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion” from being mailed or otherwise transported by an “express company” such as UPS or FedEx.
Anyone who violates this law faces up to five years in prison — and the maximum sentence doubles for repeat offenders. Thus, anyone who delivers an abortion medication, or any device used in a surgical abortion, could potentially face such extraordinary sanctions that the transit of such goods would shut down.
Many of the leading proponents of using Comstock to ban all abortions, moreover, are likely to be very influential within a second Trump administration, if such a thing occurs. The Heritage Foundation’s Project 2025, for example, touts enforcing Comstock to ban abortion medication in its 920-page mega-white paper outlining policies for Trump.
There are very strong legal arguments that Comstock cannot actually be used to effectively ban abortion, at least in places where abortion is legal. The law has not been seriously enforced for nearly a century, and a long line of court decisions stretching back to at least 1915 have read the Comstock Act narrowly to prevent it from being used as a general ban on all abortions.
Still, these precedents are only meaningful if the Supreme Court chooses to follow them, and betting on the same justices who overruled Roe to honor previous pro-abortion decisions is always a dangerous bet. It will get even more dangerous if Trump gets to appoint more justices.
And, even if the Court ultimately decided to follow past decisions reading Comstock narrowly, months or years would likely pass between the Trump Justice Department’s decision to file criminal charges under the Comstock Act, and a Supreme Court decision halting that prosecution. In the interim, few, if any, distributors of medications and medical supplies are likely to risk shipping anything that could lead to themselves being prosecuted.
So, while there is a fair amount of uncertainty about whether a second Trump administration could permanently shut down all legal abortions in the United States by enforcing the Comstock Act, it is likely that, at the very least, a Trump Justice Department could shut down abortion care for months or even years while the courts were sorting out what to do with Comstock prosecutions.
So where does the Comstock Act come from?
The Comstock Act is a relic, not just of a more prudish era in American history, but of an age when the sort of individual rights that modern Americans take for granted effectively did not exist.
Much of the law is unconstitutionally vague. It purports to make it a crime to mail “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance,” for “any indecent or immoral purpose.” Comstock and similar laws inspired a century of litigation just to determine what the word “obscene” means, and it’s anyone’s guess which items are “lewd,” “filthy,” or “vile.”
Similarly, the law imposes a strict censorship code, targeting any “writing” that can be used “for any indecent or immoral purpose” — a provision that violates any plausible understanding of the First Amendment right to free speech.
The Comstock Act’s namesake is Anthony Comstock, a 19th-century anti-vice crusader who wielded it and similar state laws against artists, authors, and reproductive health providers as indiscriminately as he wielded it against actual pornographers. Comstock once successfully brought criminal charges against an art gallery owner for selling reproductions of famous nude paintings. He also bragged, after a woman he arrested for selling contraceptive pills died by suicide, that she was the 15th person targeted by one of his investigations to take her own life.
The censorious values that produced the Comstock Act, in other words, are quite alien to most modern-day Americans. The law stems from an era when women could not vote, when reproductive health care was far cruder and less reliable than it is today, and when Congress thought it was a good idea to ban books and fine art.
Would today’s courts actually allow Comstock to be enforced against abortion providers?
A 2022 memo by the Justice Department’s Office of Legal Counsel lays out the very strong case for reading the Comstock Act narrowly. This memo argues that the law does not prohibit mailing or otherwise transporting abortion medications “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”
Thus, under the current Justice Department’s reading of the law, abortion-related materials may still be shipped to states where abortion is legal. They may also be shipped if the sender is unaware that the recipient intends to use the item for an illegal purpose.
As the memo notes, federal appeals courts have held for more than a century that the Comstock Act should not be read as a general ban on shipping any abortion-related item. In Bours v. United States (1915), for example, the United States Court of Appeals for the Seventh Circuit held that the law must be given a “reasonable construction” to permit physicians to advertise in the mail that they will perform a lifesaving abortion.
Later decisions read the law even more narrowly. One of the seminal court decisions interpreting the Comstock Act, the hilariously named Second Circuit decision in United States v. One Package of Japanese Pessaries (1936), held that the law only applies when someone ships an item intending it to be used for an illegal purpose.
The Comstock Act, One Package concluded, “was not to prevent the importation, sale, or carriage by mail of things which might intelligently be employed by conscientious and competent physicians for the purpose of saving life or promoting the well being of their patients.” Accordingly, the court ruled that the statute must only be read to target “unlawful” activity.
Though the Supreme Court never explicitly embraced the reasoning of Bours or One Package, that’s most likely because the Court’s constitutional decisions rendered the Comstock Act irrelevant for many decades. The Court’s decisions in Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972) established a constitutional right to contraception, thus preventing Comstock from being used to target birth control. And Roe, of course, until very recently prevented the government from banning abortion.
Nevertheless, there are powerful legal arguments supporting the proposition that cases like One Package remain good law today and should prevent nearly any prosecution under the Comstock Act. As the Justice Department notes in its memo, the Postal Service “accepted the courts’ narrowing construction of the Act in administrative rulings, and it informed Congress of the agency’s acceptance of that construction” when Congress amended the law after Griswold to largely remove its provisions targeting contraception.
Ordinarily, when Congress amends a law that has been consistently interpreted in a particular way by the courts, Congress is understood to ratify the courts’ reading of that law. As the Supreme Court held in Texas Department of Housing and Community Affairs v. Inclusive Communities Project (2015), “if a word or phrase has been ... given a uniform interpretation by inferior courts ... a later version of that act perpetuating the wording is presumed to carry forward that interpretation.”
Many states, meanwhile, apply a doctrine known as “desuetude” to criminal laws that remain on the books, but that haven’t actually been used for a very long time. As the West Virginia Supreme Court said in a 1992 opinion, “a law prohibiting some act that has not given rise to a real prosecution in 20 years is unfair to the one person selectively prosecuted under it.”
That said, this same West Virginia opinion also warned that the desuetude doctrine does not encompass particularly reprehensible acts — “if no one had been prosecuted under an obscure statute prohibiting ax murders since Lizzie Borden was acquitted, we would still allow prosecution under that statute today” — so even if the US Supreme Court were inclined to embrace this doctrine, the Republican-controlled Court might look upon abortion as morally similar to murder.
Ultimately, in other words, the fate of a Comstock prosecution is not likely to rest upon whether Congress ratified One Package, or on whether there is legal support for the proposition that long-defunct criminal laws cease to function. The Supreme Court is made up of political appointees, some of whom are quite willing to ignore the law to achieve partisan goals, and the only way to definitely shut down Comstock prosecutions is to convince a majority of the justices to do so.
Many Republican judges, meanwhile, have been quite willing to revive long-dead abortion bans now that Roe is no longer around. Just last month, for example, Arizona’s Supreme Court reinstated a Civil War era ban on abortions — although the state legislature quickly moved to repeal that ban.
All of which is a long way of saying that the current status of the Comstock Act is highly uncertain, and will depend on who sits on the Supreme Court if and when the Justice Department decides to bring a prosecution under this law. And, even in the best-case scenario, if a future Justice Department is willing to do so, the mere threat of a Comstock prosecution is likely to shut down access to abortion pills (and potentially to surgical equipment used to perform abortions) throughout the country.
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Surprise! The Worst Judge in the Country Just Landed Another Appalling Abortion Case.
Two professors at the University of Texas at Austin are suing for the right to penalize students who miss class to obtain an abortion out of state. The professors, John Hatfield and Daniel Bonevac, are contesting the Biden administration’s efforts to shield students from retaliation when they obtain reproductive health care, a long-standing guarantee under Title IX. They also demand the freedom to discriminate against students and teaching assistants who identify as LGBTQ.
On Saturday’s bonus Slate Plus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discuss the lawsuit, which is part of a broader, coordinated attack on both Title IX and reproductive health care. A preview of their conversation, below, has been edited for length and clarity.
Dahlia Lithwick: This is an incredible story that didn’t get enough national exposure. Mark, can you tell us what’s happening here?
Mark Joseph Stern: These professors have joined a broader lawsuit that’s attacking the Biden administration’s new regulation clarifying the scope of Title IX, which bars sex discrimination in federally funded education. The Education Department has clarified that Title IX covers LGBTQ students, which follows from the Supreme Court’s decision in Bostock v. Clayton County. It tightened protections for student survivors of sexual assault. And also—this is the sticking point for Hatfield and Bonevac—it reiterates guarantees against discrimination for pregnancy-related conditions, as well as the termination of a pregnancy.
To be clear, these are not new additions: The Education Department has interpreted Title IX to protect students who terminate their pregnancies since 1975. This principle is deeply rooted in the statute and federal regulations enforcing it. And yet red states, Republicans, and anti-abortion advocates claim that Biden’s Education Department is unlawfully expanding Title IX, and they’ve filed this lawsuit seeking to block it nationwide. Dahlia, would you like guess which judge these plaintiffs shopped their case to?
I know this one—Matty K!
That’s right! They found their way to Amarillo, Texas, where they were guaranteed to draw our friend Matthew Kacsmaryk, a far-right Trump appointee and anti-abortion zealot. And Kacsmaryk is, in turn, basically guaranteed to issue a nationwide bar on everything the Biden administration is trying to do here.
Can you explain how these professors became part of this, um, creative lawsuit?
These two guys are clients of Jonathan Mitchell, who is the architect of Texas’ vigilante abortion ban, S.B. 8. Mitchell is working on this case with Stephen Miller, former Trump adviser and head of the America First Legal Foundation. They’re teaming up with Texas Attorney General Ken Paxton, who’s spending Texans’ tax dollars on this fight.
I’m a little mystified about what specific relief these professors seek. Do they want to be able to look at a woman in class and say, “You look like you left town for an abortion this week!” Like, what do they want to happen here?
I think it’s very much of a piece with Mitchell’s S.B. 8, which relied on random strangers to uncover abortions and sue anyone who “aided or abetted them.” That law encouraged people to surveil and turn in their own neighbors, friends, and families for facilitating reproductive health care. This lawsuit is a miniature version of that for the classroom. These professors seem to intend to rely on tips from other students; perhaps they can even open up a tip line to discover why a particular student missed class. They’re turning the classroom into a surveillance state. And it leads to all kinds of perverse classroom dynamics; students might try to curry favor with the professor by passing along information that somebody got an abortion. The professor can then presumably launch his own investigation to uncover the truth, which could include demanding answers from the student who has been targeted.
The UT–Austin system does not clearly allow students to travel for abortions without punishment. The accommodations policies are extremely vague on this point. So these professors are exploiting that gap in the policy. At a minimum, they want to lower the grade of any student who misses class for an abortion, even a perfectly legal one obtained out of state. I sent them questions asking for details about their intent here, but they declined to respond.
I would love for you to talk about the invocation of Comstock here, the zombie law that’s suddenly everywhere.
This is yet another experiment by Jonathan Mitchell to revive the zombie law and wield it in a maximally harmful, misogynistic, controlling way. Comstock is a statute from 1873 that was designed to censor the mail, and primarily targeted birth control and feminist literature. But it also includes hazy language about abortion. Mitchell, who’s one of Trump’s top lawyers, argues that Comstock imposes a nationwide ban, because it talks about both drugs that induce miscarriage, like mifepristone, and things that can cause abortion, including medical equipment. He claims that the transportation of any medication or equipment meant to terminate a pregnancy is a felony offense. And he wants Donald Trump to implement this theory as policy if he wins a second term.
That argument is really front and center not just in this lawsuit, but in the professors’ own declarations.
Right. Hatfield and Bonevac say they won’t even hire a teaching assistant who might obtain abortion pills because doing so is a felony and they refuse to harbor criminals. And it’s no coincidence that this case has been shopped to Matthew Kacsmaryk, who attempted to ban mifepristone nationwide last year—citing, among other things, the Comstock Act for support. The Supreme Court will probably reverse Kacsmaryk soon, but this Title IX case gives him another opportunity to talk Comstock. He can remind everyone that, in his view, this nationwide ban on both medical and procedural abortions already exists. In some ways, this is a Comstock lawsuit smuggled into an attack on Title IX.
And it’s trying to put the Comstock argument “on the wall,” right? All of Mitchell’s Comstock lawsuits are trying to breathe new life into the zombie law, making it look live and urgent. Of course, this is the same lawyer who is representing men who want to wield the legal system against estranged partners who terminate their pregnancies. It sure seems like he hates pregnant people.
Mitchell is committed to setting up an all-encompassing, almost totalitarian surveillance state where every single pregnant person is under constant watch, as are their friends and family. And any pregnancy loss subjects them and their loved ones to potential criminal penalties.
The sum effect is to silence and terrify and isolate people who need to be able to ask for help in the midst of a crisis. This entire regime of laws is designed to chill them from seeking help. It’s so unbelievably cruel, and I guess that’s the point.
There’s more, too: These professors are also seeking the right to discriminate against LGBTQ students. So this does not stop at the termination of pregnancies at all.
They are demanding a right to openly discriminate, particularly against transgender students, whom they deride as having “delusional beliefs.” Of course, the Supreme Court settled this issue in Bostock v. Clayton County, when it held that sex discrimination encompasses anti-LGBTQ discrimination. But Matthew Kacsmaryk is in open rebellion against Bostock—he refuses to recognize it as a legitimate decision, and instead cites Justice Samuel Alito’s dissent as though it’s binding law. So this will be a winning argument in his court.
I think it’s worth pausing and asking: Is this how educators are supposed to act? Are professors supposed to surveil their students, punish them for getting health care, and accuse them of having delusional beliefs on the basis of their identity? And then insist on your right to punish them for having the “wrong” beliefs or getting the “wrong” health care? I don’t understand why these guys want to be professors at all. Why would they want to engage in debate and discussion with students whom they evidently despise? And seek to weaponize the power of the state against them? I find it both baffling and disgusting.
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There’s an Insidious Legal Movement to Make Pregnant Women Second-Class Citizens
Should the very state of being pregnant place women in a subclass of citizen, vulnerable to criminal prosecution or civil penalties for behavior that would be perfectly legal from a nonpregnant person? Judging by their proposed legislation and various legal antics, the anti-abortion movement says: Yes. Pregnant women simply should not have the same rights as any other U.S. citizen.
Take, for example, efforts to criminalize the crossing of state lines for abortion. There is a very, very long tradition in the U.S. of allowing people to travel out of state to access medical care, and it’s so deeply ingrained we barely think about it. Consider, for example, the businesswoman who lives in New Jersey but works in New York City and so goes to the dentist in midtown Manhattan, or the dad who lives on the Kansas side of Kansas City but takes his sick kid to a specialist at a hospital on the Missouri side. A great many Americans don’t think twice about crossing state lines for health care.
Abortion opponents are trying to change that for one group of people: pregnant women.
Conservative legal groups are already drafting model legislation to prevent pregnant women from traveling for abortions by legally penalizing anyone who helps them, a strategy used by the state of Texas in one of its abortion bans, which allows anyone in the U.S. to sue those who assist women with abortions—and be rewarded with a bounty paid by the state.
The architect of that Texas abortion bounty law was Jonathan Mitchell, an anti-abortion activist (and Donald Trump lawyer) who is currently representing a Texas man in his quest to probe into his ex-girlfriend’s abortion, which she allegedly sought outside of their home state. Mitchell filed a petition to learn the details of this woman’s abortion for, he says, a potential future lawsuit. But to be clear, the woman in question did absolutely nothing illegal: Traveling out of state for health care, including abortion, is not against the law in Texas or anywhere else. It’s just that Mitchell and other abortion opponents would like to change that—and are apparently happy to represent controlling (and, in another case Mitchell took on, allegedly abusive) men to do it.
They’re also happy to reclassify pregnant women as a kind of sub-citizen who, by simple virtue of their pregnancy status, are not entitled to the same legal freedoms and protections as anyone else. A Texas woman who goes to a Colorado abortion clinic is being treated differently from any nonpregnant person who travels for a medical procedure—and you can bet that this categorization of pregnant people as suspect, should they travel out of state, will lead to all sorts of investigations and abuses.
Take this hypothetical: Say the anti-abortion movement succeeds and makes it a crime to travel out of state for an abortion. Say a woman in Idaho (where abortion laws are so extreme, they have no exceptions for saving a woman’s health) travels to Washington state, where abortion is legal, and gets her hands on abortion-inducing drugs. Say she’s not pregnant. Say she takes the drugs anyway. Has she committed a crime? Or, to use a more likely legal model, say Texas makes it a crime to help a woman travel for an abortion, and a Texas woman goes to Colorado, gets abortion-inducing drugs, and takes them, despite not being pregnant. Is the friend who helped buy her plane ticket still liable? Presumably not: No pregnancy means no abortion, which means no violation of an abortion ban. But if the two women in these scenarios had been pregnant, the legal calculus would be entirely different.
Or to use a perhaps more realistic scenario: Mifepristone, an abortion-inducing drug, is also commonly used to treat Cushing’s syndrome, and researchers say it has tremendous potential to treat other illnesses, too, from various cancers to PTSD. Under an anti-abortion legal scheme, if a Texas woman with Cushing’s syndrome travels out of state, gets mifepristone, and takes it, she (or those who help her) would face potential legal consequences only if she’s pregnant. It’s her status as a pregnant woman—not the act of traveling or even taking an abortion-inducing drug—that is the problem. And generally, the law frowns on making a person’s status—rather than their actions—the basis of a crime or a lawsuit. That’s part of treating all people equally under the law, and offering all people the equal protection of it.
Preventing pregnant women from crossing into a state for a legal medical procedure isn’t the only way in which the anti-abortion movement is attempting to curtail basic rights and protections for anyone carrying a pregnancy. Earlier this year, abortion opponents argued before the Supreme Court that pregnant patients should be treated differently than nonpregnant ones in cases of serious medical emergencies—that doctors and other health workers should be permitted to give pregnant women a substandard level of care, and to essentially refuse to appropriately stabilize them. If a woman comes in and is very ill, she’s entitled to one standard of care; if she comes in and is very ill and pregnant, that standard of care is lower in states that criminalize abortion.
At issue in the Supreme Court case, a ruling in which is expected early this summer, is the Emergency Medical Treatment and Labor Act (EMTALA), a law initially written to prevent hospitals from dumping seriously ill patients who couldn’t pay. Pregnant women in particular were often coming into hospitals in labor, only to be refused care; there were stories of women birthing in hallways and cars. EMTALA says that any hospital receiving federal Medicaid dollars (which is most hospitals, both public and private) must provide lifesaving care to anyone who walks through their doors, regardless of their ability to pay. That means that hospitals have an obligation to stabilize ill patients. (If they don’t have the ability to appropriately stabilize a patient, they must move the patient to a facility that does.)
This should all be very uncontroversial. The problem is that the Biden administration issued a clarification that specifically states that this law applies to pregnant women, too—and specifically to pregnant women who are in medical distress and for whom the appropriate course of stabilizing care is an abortion.
Abortion opponents in Idaho balked. In Idaho, if a pregnant woman is in serious medical distress and needs an abortion to, say, prevent her from going septic because of an incomplete miscarriage or to prevent serious complications that will result in her losing her uterus, doctors cannot provide that care unless the woman is about to die. Even then, they may face prosecution, and will have to prove to a potentially hostile jury that the woman’s life was at risk. This is true even if the woman’s pregnancy is doomed, and there is no chance that her fetus will survive. If any nonpregnant person comes into an Idaho hospital and is at risk of a systemic septic infection or losing an organ, everyone agrees the law is clear: ER doctors and other health workers have to stabilize or transfer them and would not face legal consequences for doing so.
The treatment of pregnant women primarily as vessels for a fetus, and the stripping of otherwise applicable rights and protections from women because of their pregnant status, underlies the entire ideology of the anti-abortion movement. As many others have pointed out, there are no other circumstances under which we force people to donate use of their organs to another, no matter how dire the need; even corpses need to have consented while alive before their organs can go to anyone else. A father with two perfectly healthy kidneys is under no legal obligation to donate one even to his own very ill child; he’s not even legally obligated to donate blood, or to, say, cut off his hair to make a realistic wig for his cancer-stricken kid. Fathers are not legally obligated to so much as hold or even meet their own babies, let alone risk their lives or give over their organs and bodily functions to them for 10 months.
No one parent is required by law to walk right up to the edge of death in order to save their child’s life, and no one is required to walk right up to the edge of death in the service of someone who cannot live.
No one, that is, except a pregnant woman in an abortion-hostile state.
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Opinion | The chilling motive behind Louisiana’s new abortion pill bill
UPDATE (May 21 2024, 6:12 p.m. ET): The Louisiana state House passed SB276, which would designate mifepristone and misoprostol as Schedule IV drugs under the state’s “Uniform Controlled Dangerous Substances Law.” The bill now returns to the state Senate.
The state of Louisiana has criminalized virtually all abortions from the moment of fertilization since the Supreme Court overturned Roe v. Wade in 2022. But now lawmakers want to go even further: On Monday, the state House began debate on a bill that designates the two pills most typically used in medication abortion, mifepristone and misoprostol, as Category IV controlled substances.
Why would Louisiana ban these pills again when it already has a sweeping prohibition in place? The proposal’s origins are of limited help in answering that question. It came as an amendment to a bill that originally focused on people who use abortion drugs on pregnant patients without their consent — an issue that has made headlines in several high-profile stories, including one involving the sister of the bill’s primary sponsor, state Sen. Thomas Pressley. Only after that bill unanimously passed the Senate, though, did Pressley propose the controlled substances amendment.
Abortion opponents have taken aim at members of a patient's support network partly because other targets are off limits.
An exercise in empty symbolism seems an unlikely explanation. A poll this month by The Times-Picayune found that a majority of Louisianans believe that the state should allow abortions until 15 weeks. Instead, the new bill recognizes that existing bans have not been enough to stop the flow of drugs and patients across state lines — and develops new tools to track the use of these critical medications and frighten anyone who might prescribe them.
Louisiana law typically categorizes medications, such as opioids, as Category IV drugs because they are addictive and thus have a high potential for abuse. To prescribe such drugs, physicians in the state need a special license, and the state tracks the patient, physician and pharmacy involved in each prescription. Therein lies one of the primary functions of the law: The state has had a hard time enforcing its abortion ban in part because it is hard to identify when and how pills change hands. At least when a prescription originates in state, this bill might give Louisiana prosecutors an extra edge in identifying people to prosecute.
Equally important is the bill’s creation of a new crime: the possession of these abortion drugs without a prescription, with a sentence of up to 10 years in prison. The bill does not make it a crime for a “pregnant woman to possess mifepristone or misoprostol for her own consumption” — and, in theory, it exempts other lawful medical uses. But it is intended to crack down on a group antiabortion advocates have targeted since the reversal of Roe: “aiders and abettors,” a term applied to friends, family and others who help abortion patients.
Abortion opponents have taken aim at these members of a patient’s support network partly because other targets are off limits. Antiabortion groups have vowed — in the face of dissension from so-called antiabortion abolitionists — not to punish women. Physicians, for their part, often prove unwilling to run the grievous legal risk involved in violating a criminal ban. That leaves others willing to help patients. This bill gives prosecutors a new tool: If anyone possesses mifepristone or misoprostol without a prescription, it does not matter whether they ever perform an abortion.
The interest in prosecuting aiders and abettors isn’t new. Texas’ SB8, a law that predated Roe’s demise, allowed anyone to sue members of a support network for at least $10,000 any time an abortion occurred. Local ordinances targeting “abortion trafficking” focus on those who transport others seeking an abortion.
The easier it is to track the use of abortion drugs, the more real the threat of future criminal charges will feel.
Even if this bill passes, patients might travel out of state for abortion, or receive abortion medication from a physician in a state that protects abortion rights. Targeting aiders and abettors in these circumstances isn’t easy. To begin with, there would be questions about which state’s law applied if an abortion took place somewhere that protects reproductive rights. Even if a state accuses those in a support network of conspiring around abortion — something that could take place entirely within state lines even when a patient later traveled — it is not clear criminal charges would hold. In a recent ruling, a federal judge in Alabama suggested such a prosecution could violate the right to travel and freedom of speech.
The chilling effect is unlikely to be limited to physicians. Those in a patients’ support network — the most likely targets of the bill — will be affected. That will isolate patients for whom pregnancy is already a dangerous prospect, in a state with one of the highest rates of maternal mortality in the nation. And many patients, aware that their use of such drugs will be tracked, will rightly fear prosecution.
Within the antiabortion movement, support for the idea of punishing women for ending their pregnancies has grown in recent years. Louisiana, in fact, is the only state where a so-called abolitionist bill passed out of committee. The easier it is to track the use of abortion drugs, the more real the threat of future criminal charges will feel.
Louisiana’s new law may feel duplicative of the bans already on the books, but the opposite is true. Since the overturning of Roe, we have seen relatively few abortion prosecutions. With more laws like this one, that won’t stay true for long.
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The World's Abortion Laws - Center for Reproductive Rights
This map is our definitive record of the legal status of abortion globally and is updated in real-time to show how countries and territories are protecting – or violating – individuals’ abortion rights.
Restrictive abortion laws
cause enormous harm.
- Around 39,000 deaths per year from unsafe abortions
Denial of abortion care is nothing short of a true human rights violation.
Human rights bodies have consistently condemned restrictive abortion laws and called for states and territories to decriminalize abortion and guarantee access to safe abortion services.
The Center for Reproductive Rights works in countries across the globe to ensure that pregnant people, not politicians, make decisions about pregnancies.
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