Abortion Rights Keep Winning, and Democrats See a Lesson for 2024
The 19th, November 8, 2023
Tuesday’s elections confirmed that voters remain concerned about threats to reproductive rights 16 months after the end of Roe v. Wade and the issue is a potent one for Democrats at the ballot box. The 12-point margin of victory of the Ohio ballot measure guaranteeing a right to abortion and other reproductive health care is energizing supporters of similar state referendums planned in 2024. Plus, Democrats’ new legislative majority in Virginia suggests voters are motivated by the issue even when it’s not directly on the ballot, an important indicator ahead of congressional and state races next year. Abortion rights advocates also notched wins up and down the ballot in Pennsylvania and New Jersey and won school board and other local races around the country. In deep-red Kentucky, Gov. Andy Beshear’s successful reelection campaign against Attorney General Daniel Cameron gave a major boost to Democrats — Kentucky’s odd-year gubernatorial elections have accurately forecast the result of the presidential election for the past five cycles. “Abortion motivates voters, no matter how it appears on the ballot,” said Angela Vasquez-Giroux, who leads messaging and research at Reproductive Freedom for All, a prominent abortion rights group. “We had pretty powerful evidence last night that supporting abortion access, being vocal about it, being proud about it — that it aligns with the vast majority of American voters and that voters are eager to support people who support their values.” Advocates in Ohio credited their victory to early investment and a broad, grassroots coalition of groups building on their existing infrastructure. In a campaign that brought tens of millions of dollars in outside spending to the state, the coalition supporting the measure, Issue 1, raised far more than its opponents and outspent them on the airwaves. “This was a fight that we took very seriously,” Jordyn Close, deputy director of the Ohio Women’s Alliance, said at an election night event for Issue 1 supporters. “We outspent them, we out-strategized them and in the end, we ended up with a victory.”
Texas, Biden Administration Square Off in Court Over Emergency Abortions
Reuters, November 7, 2023
The Biden administration on Tuesday urged a U.S. appeals court to let it enforce federal guidance telling healthcare providers that they must perform abortions for emergency room patients when needed to treat an emergency medical condition, even if it would conflict with Texas’s abortion ban. McKaye Neumeister, a lawyer with the U.S. Department of Justice, told a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans that the Emergency Medical Treatment and Active Labor Act (EMTALA) may conflict with Texas’s abortion ban in “narrow” circumstances. The Texas law allows abortion to save the mother’s life, while EMTALA requires emergency room doctors to provide “stabilizing treatment” to a patient with an “emergency medical condition.”
The U.S. Department of Health and Human Services issued guidance stating that EMTALA takes precedence over state abortion bans last year after the U.S. Supreme Court reversed its 1972 landmark Roe v. Wade ruling recognizing a nationwide right to abortion, which cleared the way for Republican-led states, including Texas, to pass new laws banning or limiting abortion. Neumeister said the guidance was not new policy, but was merely “reminding hospitals of what (EMTALA) has always required.” Natalie Thompson, of the Texas Attorney General’s office, countered that EMTALA did not include any specific requirements for medical treatments, meaning that it did not conflict with the Texas law. She said the government’s guidance went beyond the law and was “untenable to the extent that it allows doctors to act outside the law.” All three members of the 5th Circuit panel – Circuit Judges Leslie Southwick, Kurt Engelhardt and Cory Wilson – were appointed by Republican presidents. The judges questioned both sides and did not clearly indicate how they would rule. U.S. District Judge James Wesley Hendrix issued a preliminary order blocking HHS from enforcing the guidance in Texas last August, finding that the guidance “discards the requirement to consider the welfare of unborn children when determining how to stabilize a pregnant woman.” EMTALA requires providers to evaluate the condition of the fetus when treating a pregnant patient. The judge found that EMTALA says nothing about how to handle conflicts between the health of the mother and the fetus, and the Texas law “fills that void.” The case is Texas v. Becerra, 5th U.S. Circuit Court of Appeals, 23-10246. For the government: McKaye Neumeister of the U.S. Department of Justice. For Texas: Natalie Thompson of the Texas Attorney General’s office.
Self-Managed Abortion Usually Isn’t Illegal—but Many Were Criminalized Anyway
Rewire News Group, November 2, 2023
Self-managed abortion isn’t a crime in most states, but a new report released this week by If/When/How details the very real threat of prosecution for ending a pregnancy or helping someone to do so. The report explores criminal cases in 26 states, with a majority in Texas followed by Ohio, Arkansas, South Carolina, and Virginia from 2000 to 2020. During this time, at least 61 people were either criminally investigated or arrested for allegedly ending their own pregnancies or helping someone else end theirs. A majority of the cases involved medication abortion, which underscores the anti-choice movement’s laser focus on trying to eradicate it any way it can. Also underscored in the report is the role health-care workers and mandatory reporting laws play in the pregnancy-to-prison pipeline. Mandatory reporting laws are the triggers that turn a health-care setting into one of law enforcement. These laws unfairly deputize health-care workers into quasi-law enforcement agents. Mandatory reporting laws often put patients’ interests directly at odds with their providers’. And the results? Often disastrous, especially for Black and brown patients. “Once law enforcement became involved in an adult case, 87 percent led to an arrest; of these, 42 cases proceeded through the criminal court process,” the report stated. In one particularly egregious case, a woman was facing multiple charges for allegedly helping her daughter obtain a medication abortion, and the judge increased her bail from $14,000 to $185,000 because he was so upset that a “child’s life was terminated.” In a medication abortion. To learn more about the effects of abortion criminalization, read this piece about misconceptions around punishing people who self-manage their abortion by one of the researchers of the If/When/How report, Laura Huss—who’s also a former Rewire News Group colleague.
How Abortion Became the Central Issue in Pennsylvania’s Supreme Court Race
Pennsylvania Capital-Star, November 8, 2023
After a bruising campaign that is likely to set a new record as the state’s most expensive judicial race ever, Democrat Dan McCaffery is the projected winner of the vacant seat on Pennsylvania’s Supreme Court. Spending on the campaign topped $17 million by the end of October, campaign financial disclosures show, with large sums coming from conservative billionaires as well as reproductive rights organizations like Planned Parenthood Votes, the political arm of Planned Parenthood. Unlike in neighboring Ohio, abortion was not explicitly on the ballot in Pennsylvania this year. And the election was not going to alter the balance of the state’s highest court, where Democrats held a 4-2 majority. But the terms of three of the Democratic justices on the court will be up in 2025. Gov. Josh Shapiro is a staunch abortion rights supporter who terminated state funding for Real Alternatives anti-abortion centers. But he has been rumored to have presidential aspirations. So Pennsylvania, mostly considered a “safe” state for abortion rights, could see the balance of power change relatively quickly in just a few years’ time. “Pennsylvania is one of only seven states in the entire country when we vote for all of our judges in partisan elections,” said Kadida Kenner, CEO of voting rights organization the New Pennsylvania Project. “It gives us lots of power as a voter.” When the Dobbs decision overturning Roe v. Wade came in 2022, she added, it was clear abortion would be an issue for states to grapple with. “By punting Roe v. Wade down to the states, that just makes our state courts even more powerful and in need of protection, and in need of justices who will protect our rights and freedoms,” Kenner said. Reproductive Freedom for All (RFFA) Vice President of Political and Government Relations Ryan Stitzlein said advocacy groups saw a preview of what’s playing out now in Pennsylvania in 2022, when Shapiro defeated anti-abortion Republican candidate Doug Mastriano, and Democrats regained control of the state House. Stitzlein said these helped add some protection.
In Michigan, #RestoreRoe Abortion Rights Movement Hits its Limit in the Legislature
NPR, November 8, 2023
A year ago, Michigan Democrats celebrated the same kind of victory Ohio notched this week. Michigan voters overwhelmingly passed Proposal 3, a ballot measure proponents said would “#RestoreRoe” by creating a “new individual right to reproductive freedom” in the state constitution. But last week, Michigan Democrats failed to muster the votes needed from their own members to remove two key restrictions on abortion in that state — despite Democrats having control of the state House, Senate, and governorship for the first time in decades. Democrats in the Michigan legislature introduced the Reproductive Health Act earlier this year, billing it as a way to put the lofty promises of Proposal 3 into practice.The legislation would have allowed state Medicaid dollars to be used for abortion care. And the RHA would have removed a 24-hour mandatory waiting period that requires abortion patients in Michigan to find, sign and print an online consent form. It’s a process that, health care professionals say, regularly results in patients regularly being turned away from their own appointments. “Keeping the Medicaid ban in place and keeping the 24-hour delay in place…disproportionately impacts people of the lowest means, people who have the least ability to return to clinic, who have the least ability to pay out of pocket for their health care,” said Dr. Halley Crissman, an OB/GYN in Ann Arbor who testified in favor of the RHA on behalf of the American College of Obstetricians and Gynecologists. But after the dust of a late-night voting marathon settled in the Michigan House last week neither measure passed. The Medicaid ban and the 24-hour waiting period still stand. Instead, Michigan Democrats passed “a watered-down version of the Reproductive Health Act that lacks key policy reforms that are both desperately needed and widely supported by voters across the state,” according to a joint statement from Planned Parenthood of Michigan and the ACLU of Michigan.
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