Hadley Duvall (photo by Lucy Valeski)

A new campaign ad from Vice President Kamala Harris’ presidential campaign features sexual abuse survivor Hadley Duvall, a Kentucky woman who was raped by her stepfather and became pregnant when she was 12 years old.

Duvall says in the 30-second spot, titled “Monster” that at the time she discovered she was pregnant, she “had options” that survivors of rape and incest no longer have after the U.S. Supreme Court overturned Roe v. Wade in 2022. Kentucky’s current abortion ban has no exceptions for rape or incest.

“I didn’t know what to do. I was a child. I didn’t know what it meant to be pregnant, at all,” Duvall says in the ad.? “Donald Trump overturned Roe v. Wade, girls and women all over the country have lost the right to choose, even for rape or incest.”

Trump appointed three of the Supreme Court justices who voted in favor of the Dobbs decision that overturned Roe. He has boasted about the appointments, and said during a Sept. 10 debate with Harris that he would not sign a nationwide abortion bill into law, but did not answer whether he would veto such a ban.

“What I did is something, for 52 years, they have been trying to get Roe v. Wade into the states, and through the genius and heart and strength of six Supreme Court justices, we were able to do that,” Trump said. He added that he “strongly” believes in exceptions for rape, incest and the life of the mother.

Harris said during the debate that she would “proudly” sign a bill into law that restored the federal right to an abortion.

Duvall first spoke publicly about her experience after Roe was overturned and Kentucky’s trigger law took effect. She appeared in a 2023 campaign ad for Kentucky Gov. Andy Beshear, criticizing Beshear’s GOP opponent for his support of Kentucky’s abortion ban.

“To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable,” she said in the Beshear campaign ad.

Beshear won his bid for reelection.

Duvall also appeared at the Democratic National Convention last month with other women who had been affected by abortion bans in southern states, and joined Gov. Josh Shapiro in Philadelphia on Sunday to kick off the Harris campaign’s “Fighting for Reproductive Freedom” bus tour. The tour stops in Harrisburg on Wednesday.

The soundtrack to the “Monster” ad is the song “When the Party’s Over” by Billie Eilish, who on Tuesday endorsed the Harris-Walz ticket “because they are fighting to protect our reproductive freedom.”

Harris was in Philadelphia on Tuesday for an interview with the National Association of Black Journalists, where she reiterated her support for reinstating Roe and codifying its protections into law. Women, she said, should be able to decide what is best for them when it comes to their own bodies, “instead of having her government tell her what to do —? especially a bunch of people in these state capitals who think they’re in a better position to tell her what to do than she is to know what’s in her best interest.”

“Monster” begins airing today on national TV and on broadcast and cable networks across battleground states, including Pennsylvania.

Pennsylvania Capital-Star is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Kim Lyons for questions: [email protected]. Follow Pennsylvania Capital-Star on Facebook and X.

Hundreds of people rallied at the Alabama State House in Montgomery, Ala., in February in support of legislation to protect in vitro fertilization. Democrats are hoping that increased engagement on the issue of in vitro fertilization will translate into voter turnout at the polls in November. (Brian Lyman/Alabama Reflector)

Marilyn Gomez was sitting at her kitchen table in Charlotte, North Carolina, on Feb. 16 when news alerts and friends’ texts began pinging her phone: The all-Republican Alabama Supreme Court had ruled that frozen embryos created through in vitro fertilization were children under state law. That meant providers could be held liable for discarding them, a common part of the IVF process.

As Alabama clinics began suspending IVF services and public outrage mounted, politicians on both sides scrambled to distance themselves.

In Gomez’s quiet kitchen, it all felt deeply personal.

“I remember thinking, this is the only way I was able to become a mother,” Gomez told Stateline. She and her husband went through years of fertility treatments and multiple rounds of IVF before the birth of their daughter in 2016. Without freezing her embryos and going through IVF, she said, “I would not be a mom. My 8-year-old would not be here.”

Gomez owns a small business, called Infertile Tees, where she designs and sells shirts and accessories aimed at people experiencing infertility. Less than two hours after hearing about the Alabama court ruling, Gomez, who describes her political views as Democratic-leaning, had created a new set of T-shirt designs featuring the slogan “Protect IVF.”

In the wake of the Alabama ruling, potential threats to IVF access have become an election-year issue, pushing many political novices toward involvement and activism. Reproductive rights groups say they’ve seen unprecedented interest in protecting IVF access, and Democrats hope it will motivate voters in the swing states that will decide the election, including North Carolina.

At least 19 states — either through state law, criminal statutes or case law — have declared that fetuses at some stage of pregnancy are people, according to a 2023 report by Pregnancy Justice, a nonprofit that conducts research and advocates for the rights of pregnant people, including the right to abortion. Such statutes could, in theory, be used to restrict or ban IVF by classifying the destruction of embryos as causing the death of a child. The Alabama high court cited so-called fetal personhood language in the state constitution when it issued its decision.

North Carolina isn’t one of those 19 states, but conservatives there have been testing the waters.

A bill proposed last year by three Republican state representatives would have banned abortion from the moment of fertilization, and last year an appeals court judge terminated a woman’s parental rights for conduct during her pregnancy because “life begins at conception,” though the opinion was later withdrawn.

Michigan, Pennsylvania and Wisconsin, all swing states, do have laws that include references to “unborn children.” And in Georgia, another contested state, the state’s abortion ban defines a person as “any human being including an unborn child.”

Democrats are eager to highlight the issue. The newly minted Democratic vice presidential candidate, Minnesota Gov. Tim Walz, has been outspoken about the seven years of fertility treatments he and his wife, Gwen, went through before conceiving.

“This is very personal for my wife and I,” Walz told a crowd in Eau Claire, Wisconsin, last week. “I remember each night praying that the call was going to come, and it was going to be good news. The phone would ring, tenseness in my stomach, and then the agony when you heard the treatments hadn’t worked.”

Republicans say the idea that IVF is under threat is overblown, and dismiss Democratic warnings as scare tactics.

“There is no concerted Republican, conservative, pro-life effort mounting against IVF,” said Cole Muzio, executive director of Frontline Policy Action, a Georgia organization that lobbies for abortion restrictions and other conservative policies.

“I think this is something the left largely has tried to use as a wedge issue, but I don’t think most people are buying it as something that’s a real threat,” he said.

But Muzio acknowledged that some anti-abortion advocates have asked his organization to talk more publicly about IVF. And he predicted that eventually, more conservative lawmakers will turn their attention to the issue.

“Long term, we believe in the value of human life, and that’s my concern with IVF, that it results in the discarding of human life,” he said. “Now that Roe has been overturned and we’re able to have legislative conversations and think about where life begins, it’s an important conversation to have.”

Following public backlash over the Alabama court decision, lawmakers in a dozen states, including Alabama, introduced bills to protect IVF, according to the Guttmacher Institute, a research organization that supports abortion rights.

But so far, only Alabama has enacted a law. In March, Alabama’s Republican-majority legislature hastily passed a measure shielding IVF providers from criminal and civil liability. The only other bill that gained traction was one in Louisiana, where both legislative chambers approved it. However, it was scuttled in May after the state’s powerful anti-abortion lobby opposed the removal of fetal personhood language that would have left IVF providers open to criminal prosecution and civil lawsuits.

Far-reach consequences

For many people, the IVF issue illustrates how fetal personhood laws can have consequences far beyond abortion. And it has energized them.

The National Infertility Association, which goes by the name Resolve, has held a national advocacy day annually for more than two decades. This year, after the Alabama Supreme Court decision, more than a thousand people attended the event virtually, twice the number that attended last year, said Barbara Collura, CEO of Resolve.

“We ended up with our largest advocacy day ever,” she said. “More than half of the people attending were brand new to the event. We feel very much that what happened in Alabama motivated people to figure out a way for themselves to get involved.”

In North Carolina, Gomez sold out her “Protect IVF” T-shirts within 24 hours. She launched a new batch a week later, and sold out again. Since then, she’s continued selling new “Protect IVF” designs, donating a portion of her proceeds to Resolve.

Before getting involved in IVF advocacy, Gomez said she barely paid attention to politics. Now, she’s been active in supporting pro-IVF legislation and contacting her state lawmakers. And she often fields Instagram messages from customers in other states who are scared, she said, and want to know what they can do.

“People are saying to me they didn’t know IVF was on the line, that they were surprised it wasn’t protected in every state,” said Gomez, who sends them links to sites where they can learn more about the state of IVF access where they live. “Customers are saying their parents and grandparents are having these conversations in their social circles, saying they wouldn’t be grandparents without IVF.”

She added: “I think we forget how much power we have. Regardless of what happens with the presidency, we have so much control over what happens in our state.”

‘New territory’

Less than two weeks after the Alabama court decision, Jamie and Dontez Heard stood at one end of a long hallway on the fourth floor of the Alabama State House, staring nervously at all the doors of state lawmakers’ offices. They considered turning around and going back home.

“It was intimidating, and it was scary, not knowing what to say, thinking, ‘I’m going to stumble over my words,’” Jamie said. “What if I say the wrong thing? Neither one of us has ever been in any type of advocacy role, so this was new territory.”

The couple had driven down to Montgomery that morning from their home in Birmingham, anxious but determined to defend their chance at having another baby by convincing their legislators to save in vitro fertilization.

The court decision had landed just two days after the couple met with a specialist in Birmingham to begin a new round of IVF. They’d conceived their son, Legend, now 2, through IVF in 2022 after years of struggling through infertility. They’d hoped to add another child to their family this year.

“It was devastating,” said Jamie. “We didn’t understand what it meant for us and our family.” But a few days after the ruling, she saw a social media post that her fertility clinic had shared about a gathering of IVF families and supporters at the state Capitol.

“I knew then that we needed to be there,” she said. “We couldn’t afford to sit on the couch and wait and see how this plays out.”

Since speaking to Alabama lawmakers, Heard has testified before Congress and traveled to other states to advocate for federal and state laws that would protect access to IVF.

Next door in the battleground state of Georgia, one of the biggest reproductive justice advocacy organizations in the Southeast recently launched its first-ever Black (in)Fertility Awareness Week. SisterSong, which is focused on reproductive rights for women of color, hosted a panel, documentary screening, online discussions and a raffle of $40,000 in fertility services for Black Georgia families.

Leah Jones, director of maternal health and birth equity at SisterSong, said the new initiative had been in the works for a while, but the Alabama ruling highlighted for people how IVF access is connected to other reproductive health issues, from preconception through pregnancy to postpartum.

“What we realized when we started this conversation around infertility in Black communities and listening to their stories, these are the same people talking about maternal health, abortion, mental health, birth justice,” said Jones. “Once you make the connection that this is part of an attack on overall bodily autonomy, I think that’s when it clicks for people.”

Even in Minnesota

As Minnesota’s governor, Walz in 2023 signed a law confirming the right to abortion and other reproductive health care in Minnesota.

And yet Minnesotans like Miraya Gran felt the shockwaves from the Alabama court decision. Gran and her husband struggled for years with infertility before finally conceiving their daughter Isla, now 3, through IVF.

Gran advocates for a Minnesota law that would require health insurers to cover fertility treatments.

“We saw some great momentum after the Alabama decision,” said Gran. “It didn’t really matter which political party you were a part of. If you believed in access to IVF, you joined our group.”

Gran said she considers Minnesota a “safe state” for IVF access and other reproductive rights, at least for now. “But we look to our neighbors in Iowa, where they introduced some personhood bills recently. It’s terrifying. It’s too close to home.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: [email protected]. Follow Stateline on Facebook and X.

A “Bans off our bodies” pin was worn to an election night watch party in Louisville celebrating defeat of an anti-abortion constitutional amendment in Kentucky on Nov. 8, 2022. (Kentucky Lantern photo by Arden Barnes)

LOUISVILLE — Between 2014 and 2021, 6,162 people called the Kentucky Health Justice Network Abortion Support Fund to seek financial help to get an abortion.?

In a new study published last week, researchers analyzed calls made to the abortion support fund and compared them with the Kentucky Department for Public Health’s records of abortions.?

And while the available data paints a picture of life in the years before the United States Supreme Court overturned the constitutional right to abortion, researchers said they think the data is relevant in a post-Dobbs world.?

“We talk a lot about reproductive autonomy and having the ability to make choices that are best for us and the reproductive context,” said Melissa Eggen, one of the researchers and a faculty member at the University of Louisville School of Public Health and Information Sciences. “And we know that in a post Dobbs world, that restrictive policies don’t allow for that agency or autonomy.”??

Eggen and her co-researchers found a higher percentage of people who called the abortion fund for help were Black, younger than 30 and further along in their pregnancies than the population in the KDPH’s abortion records.?

They concluded young, Black Kentuckians were more likely to need financial assistance or emotional support to get an abortion. Medicaid, the federal-state program that pays for health care for lower-income people and those with disabilities, did not cover Kentucky abortions before the procedure was outlawed in most cases.?

“We also know that those are people who are impacted most negatively by poor outcomes” during and after pregnancy, Eggen said.?

In 2023, the KDPH found Black women were twice as likely to die around childbirth than their white counterparts. Kentucky is about 87% white, according to the United States Census Bureau. Meanwhile, about 9% of the population is Black and 4% is Hispanic.??

For the June 21 study, “we’re looking at a period of time in Kentucky when abortion was getting more restricted, but we didn’t have a total ban,” said Mikaela Smith, a research scientist with Ohio Policy Evaluation Network at The Ohio State University.?

“This can serve a little bit as a case study for states that still have abortion available, but are trying to further restrict it. So in that way, we can say…‘Hey, here’s what happened with Kentucky.’”?

The study?

Researchers sought to “assess characteristics of abortion fund callers” with their research.?

To do so, they analyzed KHJN’s administration records showing the age, race and pregnancy gestation of people who called the abortion fund. They then compared those data points with abortion data from the public health department.?

They found the fund “supported” — financially and otherwise — 6,162 people during the seven years before Roe V. Wade was overturned. During that time, 28,741 people had abortions in Kentucky.?

The people who called for help in getting their abortions were more likely to be at least 14 weeks gestation.?

“Compared with state data, KHJN supported a higher percentage of young people, people of color, and people at later gestations,” the report concluded. “These findings support evidence that structurally vulnerable groups are more likely to face barriers to care and that abortion funds provide essential support necessary for reproductive equity.”?

These findings are “not too surprising,” Smith said. However, “being able to apply it in this specific political context felt really important.”?

Abortion rights protesters at the U.S. Supreme Court. (Photo by Jane Norman/States Newsroom)

WASHINGTON — Exactly two years after the U.S. Supreme Court overturned the constitutional right to an abortion, the battles rage among both advocates and lawmakers over the future of reproductive rights at the state and federal levels.

Anti-abortion groups that have achieved considerable success in deep-red parts of the country are working to sway voters away from approving ballot questions in more than a dozen states this November that could bolster protections for abortion. Several will be decided in states that will have an outsized role in determining control of Congress and the White House.

Abortion opponents are also preparing a game plan to implement if former President Donald Trump regains the Oval Office, a prospect that could lead to sweeping executive actions on abortion access as well as at least one more conservative Supreme Court justice.

Reproductive rights organizations are honing in on the numerous ballot questions as a crucial way to remove decisions from the hands of lawmakers, especially in purple or conservative-leaning states.

Abortion rights supporters are also trying to shore up support for Democrats in key races for the U.S. House and Senate as well as hoping to keep President Joe Biden in office for another four years.

$100 million to be spent by abortion rights advocates

Both sides plan to spend millions to win over voters.

The Center for Reproductive Rights, National Women’s Law Center, American Civil Liberties Union and several other organizations announced Monday they’re putting at least $100 million toward building “a long-term federal strategy to codify the right to abortion, including lobbying efforts, grassroots organizing, public education, and comprehensive communication strategies to mobilize support and enact change.”

“Anti-abortion lawmakers have already banned or severely restricted abortion in 21 states with devastating consequences, and they won’t stop until they can force a nationwide ban on abortion and push care out of reach entirely, even in states that have protected abortion access,” they wrote.

Susan B. Anthony Pro-Life America and PAC Women Speak Out announced they would dedicate $92 million to make contact with at least 10 million voters in the swing states of Arizona, Georgia, Montana, North Carolina, Pennsylvania, Wisconsin, Michigan and Ohio.

SBA President Marjorie Dannenfelser wrote in a statement released Monday that there “is still much work ahead to ensure that every mother and child is supported and protected.”

“Meanwhile we are just one election cycle away from having every gain for life ripped away,” Dannenfelser wrote. “Joe Biden and the Democrats are hell-bent on banning protections for unborn children, spreading fear and lies, and forcing all-trimester abortion any time for any reason — even when babies can feel pain — as national law.”

Democrats have tried repeatedly to enact protections for abortion access, contraception and in vitro fertilization in Congress — both when they had unified control of government following the fall of Roe in 2022 in Dobbs v. Jackson Women’s Health Organization, and during divided government.

None of Democrats’ bills have garnered the support needed to move past the Senate’s 60-vote legislative filibuster.

In addition to calling on Congress to restore the protections that existed under Roe, the Biden administration is attempting to defend abortion and other reproductive rights through executive actions as well as in front of the Supreme Court.

Abortion pill, emergency care

Earlier this year, Solicitor General Elizabeth Prelogar argued two cases on abortion access.

The first case, brought by four anti-abortion medical organizations and four anti-abortion doctors, addressed access to mifepristone, one of two pharmaceuticals used in medication abortions.

The justices unanimously ruled earlier this month that the groups didn’t have standing to bring the case in the first place, though they didn’t address any other aspects of the case.

The second case, yet undecided, has to do with when doctors can provide abortions as emergency medical care under the Emergency Medical Treatment and Active Labor Act or EMTALA.

Assistant to the President and Director of the Gender Policy Council Jennifer Klein said on a call with reporters Monday that there’s not much the Biden administration will be able to do if the justices side with Idaho in the case.

“If the court rejects our current interpretation, our options on emergency medical care are likely to be limited,” Klein said.

U.S. Health and Human Services Secretary Xavier Becerra in July 2022, shortly after the Dobbs ruling came out, released a letter saying that EMTALA protected health care providers who use abortion as stabilizing care.

The letter stated that “if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.”

“And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” Becerra wrote.

The Centers for Medicare & Medicaid Services recently established a new portal that is supposed to make it easier for people to file complaints under EMTALA if they’re denied an emergency abortion.

Comstock Act repeal

Klein also said on the call the White House will likely support a bill introduced last week in Congress to repeal sections of the Comstock Act, an 1873 anti-obscenity law, that could be used to bar the mailing of medication abortion during a future GOP administration.

“We support all actions by Democrats in Congress to protect reproductive freedom, including this one,” Klein said, after noting the interagency process for determining whether the Biden administration will support the bill was still ongoing.

The legislation, however, is unlikely to pass in a Congress with a Republican-controlled House and a Democratic majority in the Senate. And divided government appears likely to continue during the next four years, regardless of which presidential candidate wins in November.

Ballot questions in states

Outside of court cases and executive actions, ballot referendums are shaping up to be the more fruitful battleground for those supportive of abortion access, though anti-abortion groups are hoping to make some headway this fall.

Advocates in Arizona, Arkansas, Colorado, Florida, Iowa, Maryland, Missouri, Montana, Nebraska, Nevada, Pennsylvania and South Dakota have either secured questions for the November ballot or are in the process of doing so, according to the health news publication KFF.

Residents in California, Kansas, Kentucky, Michigan, Vermont and Ohio have all previously decided to bolster or add protection for abortion access in the two years since the Supreme Court ruling was released.

Polling from the Pew Research Center conducted earlier this year shows that 63% of Americans support abortion access being legal in all or most cases, while 36% say it should be illegal in most or all cases.

The polling shows that Democrats and Republicans hold views in both directions, with 41% of Republicans and 85% of Democrats saying it should be legal in most or all cases, while 57% of Republicans and 14% of Democrats say it should be illegal in most or all cases.

The issue, as well as Biden and Trump’s records on abortion, are likely to be a central part of the first presidential debate on Thursday, just three days after the two-year anniversary of the Dobbs ruling.

Packages of Mifepristone tablets are displayed at a family planning clinic on April 13, 2023 in Rockville, Maryland. (Photo illustration by Anna Moneymaker/Getty Images)

WASHINGTON — The U.S. Supreme Court ruled in a much-anticipated decision Thursday that mifepristone, one of two pharmaceuticals used in medication abortion, can remain available under current prescribing guidelines.

The high court unanimously rejected attempts by anti-abortion groups to roll back access to what was in place more than eight years ago, writing that they lacked standing to bring the case.

Those limits would have made it more difficult for patients to get a prescription for mifepristone, which the Food and Drug Administration has approved for up to 10 weeks gestation and is used in about 63% of U.S. abortions.

Erin Morrow Hawley, senior counsel at Alliance Defending Freedom, who argued the case in front of the court on behalf of the legal organization, doesn’t believe this is the end of efforts to challenge access to mifepristone.

She said on a call shortly after the ruling was released the three states that intervened in a lower court — Idaho, Kansas and Missouri — could still advance their arguments against mifepristone and potentially hold standing, the legal right to bring a case.

“I would expect the litigation to continue with those three states,” Hawley said.

Kavanaugh writes opinion

Justice Brett Kavanaugh?wrote the opinion?in the united ruling from the Supreme Court, with Justice Clarence Thomas writing a concurring opinion.

“Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others,” Kavanaugh wrote.

The four anti-abortion medical organizations and four anti-abortion doctors who originally brought the lawsuit against mifepristone have protections in place to guard against being forced to participate in abortions against their moral objections, he noted.

“Not only as a matter of law but also as a matter of fact, the federal conscience laws have protected pro-life doctors ever since FDA approved mifepristone in 2000,” Kavanaugh wrote. “The plaintiffs have not identified any instances where a doctor was required, notwithstanding conscience objections, to perform an abortion or to provide other abortion-related treatment that violated the doctor’s conscience.”

“Nor is there any evidence in the record here of hospitals overriding or failing to accommodate doctors’ conscience objections,” he added.

Alliance Defending Freedom has not “identified any instances where a doctor was required, notwithstanding conscience objections, to perform an abortion or to provide other abortion-related treatment that violated the doctor’s conscience since mifepristone’s 2000 approval,” the opinion said.

Kavanaugh might have also included hints on how the court will rule later this session on?a separate abortion access case?that addresses the Emergency Medical Treatment & Labor Act, known as EMTALA.

“EMTALA does not require doctors to perform abortions or provide abortion-related medical treatment over their conscience objections because EMTALA does not impose obligations on individual doctors,” Kavanaugh wrote.

Thomas agrees but questions who can sue

Thomas wrote a concurring opinion in the case, saying that he agreed with the court’s unanimous decision, which he did join, but brought up concerns with how a certain type of standing is used by the Court.

“Applying these precedents, the Court explains that the doctors cannot establish third-party standing to sue for violations of their patients’ rights without showing an injury of their own,” Thomas wrote.

“But, there is a far simpler reason to reject this theory: Our third-party standing doctrine is mistaken,” Thomas added. “As I have previously explained, a plaintiff cannot establish an Article III case or controversy by asserting another person’s rights.”

Reaction pours in

Politicians, anti-abortion groups and reproductive rights organizations all reacted to the ruling within hours of its release, often pointing to November’s elections as a potential next step.

President Joe Biden released a written statement saying the “decision does not change the fact that the fight for reproductive freedom continues.”

“It does not change the fact that the Supreme Court overturned Roe v. Wade two years ago, and women lost a fundamental freedom,” Biden added. “It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states.”

Former President Donald Trump, the Republican Party’s presumptive nominee, was in meetings most of Thursday with U.S. House Republicans and then separately with Republican U.S. Senators.

Neither Trump nor his campaign released a statement by early Thursday afternoon addressing the Supreme Court’s ruling.

Louisiana Republican Sen. Bill Cassidy, ranking member on the Health, Education, Labor and Pensions Committee, wrote in a statement that the justice didn’t actually address the merits of the case.

“The Court did not weigh in on the merits of the case, but the fact remains this is a high risk drug that ends the life of an unborn child,” Cassidy wrote. “I urge FDA to follow the law and reinstate important safeguards.”

President of the American College of Obstetricians and Gynecologists Stella Dantas related a statement saying the ruling “provides us with long-awaited relief.”

“We now know that patients and clinicians across the country will continue to have access to mifepristone for medication abortion and miscarriage management,” Dantas wrote. “Decades of clinical research have proven mifepristone to be safe and effective, and its strong track record of millions of patient uses confirms that data.”

Hawley from Alliance Defending Freedom wrote in a written statement the organization was “disappointed that the Supreme Court did not reach the merits of the FDA’s lawless removal of commonsense safety standards for abortion drugs.”

“While we’re disappointed with the court’s decision, we will continue to advocate for women and work to restore commonsense safeguards for abortion drugs—like an initial office visit to screen for ectopic pregnancies,” Hawley wrote. “And we are grateful that three states stand ready to hold the FDA accountable for jeopardizing the health and safety of women and girls across this country.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, wrote in a statement she had “both relief and anger about this decision.”

“Thank goodness the Supreme Court unanimously rejected this unwarranted attempt to curtail access to medication abortion, but the fact remains that this meritless case should never have gotten this far,” Northup wrote.

“The FDA’s rulings on medication abortion have been based on irrefutable science,” Northup wrote. “Unfortunately, the attacks on abortion pills will not stop here — the anti-abortion movement sees how critical abortion pills are in this post-Roe world, and they are hell bent on cutting off access.”

Scientific evidence argued

The Supreme Court heard?oral arguments?in the case in March, during which Solicitor General Elizabeth Prelogar argued the FDA’s guidelines for prescribing mifepristone were based on reputable scientific evidence and years of real-world use.

“Only an exceptionally small number of women suffer the kinds of serious complications that could trigger any need for emergency treatment,” Prelogar said. “It’s speculative that any of those women would seek care from the two specific doctors who asserted conscience injuries. And even if that happened, federal conscience protections would guard against the injury the doctors face.”

Hawley of ADF told the court that conscience protections in federal law didn’t do enough to protect anti-abortion doctors from having to possibly treat patients experiencing complications from medication abortion.

“These are emergency situations,” Hawley said. “Respondent doctors don’t necessarily know until they scrub into that operating room whether this may or may not be abortion drug harm — it could be a miscarriage, it could be an ectopic pregnancy, or it could be an elective abortion.”

The case reached the Supreme Court within two years of ADF originally filing the lawsuit in the District Court for the Northern District of Texas, where ADF wrote the FDA “exceeded its regulatory authority” when it originally approved mifepristone in 2000.

ADF filed the case on behalf of Alliance for Hippocratic Medicine, the American Association of Pro-Life Obstetricians and Gynecologists, American College of Pediatricians and Christian Medical & Dental Associations, as well as four doctors from California, Indiana, Michigan and Texas.

Kacsmaryk ruling started journey to high court

Judge Matthew Joseph Kacsmaryk essentially agreed with the anti-abortion groups, in a?ruling?in April 2023, where he wrote he did “not second-guess FDA’s decision-making lightly.”

“But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions,” Kacsmaryk wrote.

The U.S. Supreme Court?issued a stay?at the request of the Justice Department, which put the district court’s ruling on hold until the appeal process could work itself out.

The Justice Department also appealed the district court’s ruling to the 5th Circuit Court of Appeals in Louisiana, where a three-judge panel?heard the case?in May 2023.

The panel — composed of Jennifer Walker Elrod, who was appointed by former President George W. Bush, as well as James C. Ho and Cory T. Wilson, who were both appointed by former President Donald Trump —?issued its ruling?in August 2023.

The appeals court disagreed with the district court’s ruling that mifepristone’s original approval should be overturned, though it said that the FDA erred in making changes to prescribing guidelines in 2016 and 2021.

“It failed to consider the cumulative effect of removing several important safeguards at the same time. It failed to consider whether those ‘major’ and ‘interrelated’ changes might alter the risk profile, such that the agency should continue to mandate reporting of non-fatal adverse events,” the appeals judges wrote. “And it failed to gather evidence that affirmatively showed that mifepristone could be used safely without being prescribed and dispensed in person.”

That ruling didn’t take effect under the Supreme Court’s earlier stay.

The Department of Justice wrote to the high court weeks later in September,?urging the justices?to take up an appeal of the 5th Circuit’s decision.

“The loss of access to mifepristone would be damaging for women and healthcare providers around the Nation,” the DOJ wrote in the 42-page document. “For many patients, mifepristone is the best method to lawfully terminate their early pregnancies. They may choose mifepristone over surgical abortion because of medical necessity, a desire for privacy, or past trauma.”

Briefs filed with court

Dozens of abortion rights organizations and lawmakers filed so-called amicus curiae or friend of the court briefs to the Supreme Court?calling on the justices?to keep access to mifepristone in line with the FDA guidelines.

A group of more than 16 medical organizations, including the American College of Obstetricians and Gynecologists and the American Medical Association, wrote that “restricting access to mifepristone will not only jeopardize health, but worsen racial and economic inequities and deprive women of the choices that are at the very core of individual autonomy and wellbeing.”

Anti-abortion groups and lawmakers opposed to mifepristone?wrote numerous briefs?as well.

Attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming sent in a 28-page brief.

They wrote that the availability of mifepristone undermined states’ rights, since some of their states had sought to restrict abortion below the 10 weeks approved for mifepristone use or had sought to bar access to medication abortion.

“The FDA’s actions undermine these laws, undercut States’ efforts to enforce them, and thus erode the federalism the Constitution deems vital,” the attorneys general wrote. “Given these harms to federalism, this Court should view the FDA’s actions with skepticism.”

During oral arguments in March, several Supreme Court justices brought up conscience protections that insulate health care workers from having to assist with or perform procedures they have a religious objection to, like abortion.

Associate Justice Ketanji Brown Jackson said she was “worried that there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought.”

“The obvious, common-sense remedy would be to provide them with an exemption that they don’t have to participate in this procedure,” Jackson said.

Associate Justice Neil Gorsuch said the case seemed “like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule, or any other federal government action.”

Kentucky Attorney General Russell Coleman (Kentucky Lantern photo by Mathew Mueller)

Kentucky Republican Attorney General Russell Coleman is urging the U.S. Supreme Court to hear a challenge to a New Jersey city ordinance creating a buffer-zone for protesters around health care facilities.?

The 3rd Circuit U.S. Court of Appeals recently backed the city’s rule in the lawsuit, Turco v. City of Englewood. Jeryl Turco is arguing that she has a right under the First Amendment to approach patients leaving abortion clinics or other facilities and give them anti-abortion literature.?

A Thursday press release from Coleman’s office said the city ordinance “prevents sidewalk counselors from holding compassionate conversations with women considering abortion.” Coleman’s office filed an amicus brief in the case backing Turco.?

“Buffer-zone laws cut off free speech, and they do it where the First Amendment is most necessary and effective,” Coleman said in the press release. “Although cities can stop obstruction on sidewalks, the First Amendment doesn’t tolerate laws based on the content of speech or that restrict more speech than necessary.”

A similar case is on hold in Kentucky, as noted in the brief. The 6th Circuit U.S. Court of Appeals ruled in 2022 that a buffer-zone law in Louisville had restrictions that “likely violate the First Amendment.” The attorney general’s office said that case is ongoing and could be affected by a ruling in the New Jersey case.?

Angela Minter, president and founder of Sisters for Life, one of the groups involved in the Kentucky case, said in a statement that buffer-zone laws “are a fundamental threat to the First Amendment and stop the work that can truly save lives.”?

Kentucky’s abortion ban went into effect immediately after the Supreme Court overturned Roe v. Wade in 2022. Since then, health clinics in the state are not allowed to perform abortions. There is a narrow exemption in cases where the life of the mother is at risk.

Proposals from the 14 Wisconsin residents, brought together to come up with consensus solutions on abortion, arrived at proposals?designed to address the economic, health, and education disparities that can lead to people choose abortion. (Baylor Spears/Wisconsin Examiner)

Editor’s note: This story is the third in a series about a group of people from Wisconsin trying to come up with policies to address abortion and its root causes that could be applied nationwide. Their larger goal is to find common ground on one of the most divisive issues in America.?

MADISON, Wis. — The Starts With Us civic experiment on abortion began with a hypothesis that was reflected in the session’s first working title: Abortion Access & Limits.

And the experiment’s results, following heated discussions among 14 Wisconsin residents with divergent abortion beliefs, are reflected in the session’s final title: Abortion & Family Well-Being, whose just-released five proposed consensus solutions are designed to address the economic, health, and education disparities that can lead people to choose abortion. The group ultimately could not come to any consensus about abortion itself.

But they came very close.

Shortly before Starts With Us went live with its public feedback period on Wednesday, participant Dr. Kristin Lyerly experienced what facilitator Mariah Levison had throughout this session described as heartburn.

The OB-GYN and abortion provider told States Newsroom she couldn’t sign off on the final language of what would have been a sixth proposal titled, “Keep abortion available when a woman is experiencing a life-threatening medical risk.” She said she took issue with some of the non-medical terms like “unborn child,” but her bigger concern was that the proposal used Wisconsin’s definition of a life-threatening medical risk, which she said is poorly defined and does not explicitly include mental health emergencies.

“As a physician … I do this in practice, and everybody else is just talking about the theory of it,” said Lyerly, who has since stepped away from the Starts With Us project because her recently launched congressional campaign conflicts with its nonprofit status. “When I’m taking care of my patients, I’m focused on, what does my patient need medically right now? Not, hey, can you Google what current Wisconsin law says about when a mother’s life is in danger?”

Starts With Us communications manager Tori Larned told States Newsroom that despite high-level consensus on this issue, several participants — both who support and oppose abortion access — disagreed with this proposal’s final language, so they’ve scrapped it for now with the potential to revisit in the near future.

“For some, the language is still too permissive and for others it’s too restrictive,” Larned said in an email. “Citizen Solutions is about bringing more nuance to what is often a binary, overly simplistic conversation.”

Lyerly said she is excited about the proposals the group did achieve consensus on and the connections she made with people who disagree with her. But she remains firm in her view that a medical procedure shouldn’t be narrowly regulated.

“I think we made some important headway, and I think that the fact that we were not able to address the pressing issue of abortion itself really emphasizes how complicated this problem is, and how it belongs in the realm of medical practice, not politics,” Lyerly said. “It’s really hard to find that middle ground because there isn’t necessarily middle ground that applies universally. It’s a personal issue for you that affects your personal self and your personal family.”

Several of the participants on either side of the abortion access divide told States Newsroom that this civic experiment motivated them to keep engaging in discussions about abortion with people they disagree with. A couple said they were disappointed with the ultimate results. And some expressed improved understanding in the other’s point of view, but no major shifts in thinking.

“Initially, I just felt that, how could you want to kill a baby inside your womb? How could you ever come to that conclusion?” said participant Jeff Davis, 76, who has worked with crisis pregnancy centers for women who are contemplating abortion. “From just some of the experiences of people who were there who viewed things differently than I do, I could see why a person could come to those conclusions. And so even though I didn’t change my view, it’s like, okay, now how can these concerns be addressed so that a person would want to choose life?”

Davis also told States Newsroom that he was among those abortion opponents who initially agreed that pregnancy termination should be allowed to preserve the life of the woman but could not agree to include mental distress as part of that definition. The semi-retired bovine veterinarian said his reasoning revolves around the qualitative nature of mental distress.

“It seems to me that those who are pro-abortion want to set the bar very low,” Davis said. “As a result, almost every woman could claim mental distress as a reason for being able to have an abortion.”

Participant Ali Muldrow, the executive director of the abortion fund WMF Wisconsin, said she ultimately thinks theirs is a progressive set of policy proposals in what it doesn’t include: abortion-ban exceptions for rape and incest.

“The fact that we actually didn’t agree on an exception for rape and incest I think is a win,” Muldrow said. “We’re not oversimplifying hugely traumatic experiences as if they can be easily identified, proven, and used to access health care. We didn’t take the bait of compassion with a condition of extreme brutality. That’s something you’re seeing around the country right now and it’s really dangerous.”

She said that for her the group’s dynamics reflect what she sees in the U.S., that there is a majority broadly on the side of abortion access despite their diverse personal views, and a minority (in this case five white Christians) advocating for limits because of deeply held religious beliefs.

“When you pair people who represent 80% of the population with people who represent kind of a specific religious perspective and pretend that those sides are equal, while also failing to kind of acknowledge that one of those groups of people has had historically more power than the other group of people, it creates a pretty complex dynamic,” Muldrow said.

Abortion opponents also expressed disappointment at what they saw as an imbalance of abortion perspectives. Kateri Klingele said that ahead of the final session held in April she acted as spokesperson for the five abortion opponents, and said they would refuse to consider an abortion exception related to fetal health diagnoses. Lyerly noted that three of the nine abortion-access supporters were absent for the final in-person debate. Heather Martell and Ramona Williams were absent because of personal issues, and Monique Minkens started feeling sick and had to leave.

Proposed consensus solutions on abortion and family well-being

This group of 14 Wisconsinites live all across the state, including Milwaukee, Rock, Chippewa, Door, Brown, Grant, and Dane counties. But now residents from the entire state – and the nation – can vote and comment on the group’s proposals for state lawmakers to potentially consider. The proposals were evaluated by 14 health, legal, and policy experts with divergent views on abortion access, three of whom (a “Catholic marriage and family expert,” “pro-life OB/GYN,” and “professor of educational policy studies”) chose to remain anonymous.

In brief, they would:

• Require human development education in schools (and ensure that it’s medically accurate, developmentally appropriate, and state-funded);

• Require all options information at pregnancy centers, abortion clinics, and prenatal care providers (and to make sure it is standardized, medically accurate, and required for dissemination at centers that oppose abortion the same way it is at abortion clinics);

• Extend Medicaid 12 months postpartum (something that failed to pass in Wisconsin’s most recent legislative session);

• Provide a refundable state child tax credit (“While Wisconsin recently expanded its state-level child and dependent care tax credit, the state has no state-level child tax credit. Fifteen states do provide these additional state-level child tax credits, many of which come in at or above $1,000 per qualifying child.”); and

• Enact paid family leave, including foster and adoptive parents.

“We envision a world where Wisconsinites have greater support for planning and sustaining their families,” the participants write in their joint vision statement. “Unintended pregnancies and poor fetal and maternal health outcomes are experienced disproportionately by women of color and lower-income women. … Better community and social supports — including for children and families, as well as during pregnancy, childbirth, and the postpartum period — help those who become pregnant feel like they have options for continuing their pregnancy.”

Starts With Us head of programs Ashley Phillips said that after the public feedback period concludes on May 31, the participants will find out which proposals got the most support and then evaluate potential next steps, including bringing them to state lawmakers. She noted that for their first session, on gun rights and safety launched last year in Tennessee, more than 30,000 Tennesseans weighed in on eight proposals and five majority-supported proposals were ultimately brought to the state legislature.

Phillips said Starts With Us absorbed a lot of participants’ feedback (including hiring a mental-health counselor to help guide the final session in April) as they continue to iterate their Citizen Solutions sessions throughout the country. She said the results of this particular experiment, on abortion in Wisconsin, make her optimistic.

“If you look at the five [proposals], they’re much more about root causes of abortion,” Phillips said. “That’s the conversation that this group is trying to have. How can we expand the conversation on abortion, so it’s not just about weeks, and it’s not just about exceptions and carve-outs and bans and not bans and morality or not?”

Many of the participants said this experience was hard, but for most it was worthwhile.

“I think it’s important to hear where people are,” Muldrow said. “As important as the areas where we agree, I think the areas where we disagree are deeply important. If you want there to be this kind of happy Kumbaya ending to a conversation about abortion with people with very different beliefs, it’s a little disappointing that one of the more pronounced elements of that conversation is where people disagree, but people were able to disagree and stay in that space together. I think there’s a lot to learn from that.”

Milly Gonzales, 31, who works with?domestic violence, sexual assault, and human trafficking survivors, supports abortion rights. She said the repeal of Roe v. Wade in 2022 was “devastating.”?(Baylor Spears/Wisconsin Examiner)

Editor’s note: This story is the second in a series about a group of people from Wisconsin trying to come up with policies to address abortion and its root causes that could be applied nationwide. Their larger goal is to find common ground on one of the most divisive issues in America.

MADISON, Wis. — For the 14 abortion-rights opponents and supporters recently recruited to find consensus solutions on abortion and family well-being, their first major agreement was that Wisconsin has some of the best cheese in the nation.

Their second was that even where abortion is outlawed (currently in Wisconsin that’s after 20 weeks gestation), life-saving treatment for the pregnant person should not be.

“If the mother’s having to make a choice between do I live or does my child live, she gets to make that choice,” said Bria Halama, a 31-year-old white, Catholic clinical mental health counselor in Milwaukee. In the past, she said she struggled with her stance on bodily autonomy and faith, but now opposes abortion and seeks to honor both the mother and child.

Five of the participants in the Wisconsin Citizen Solutions on Abortion & Family Well-Being defend the concept of “consistent life ethic,” which opposes the intentional ending of human life from conception until natural death. One exception they account for is called the doctrine of double effect, a principle that says that sometimes doing something morally good (for example, saving a pregnant woman’s life) will have a morally bad side effect (ending the unborn’s life, for example), and that this is morally permissible as long as the bad effect was not intended.

All 14 Wisconsinites agreed that situations like ectopic pregnancies are medical emergencies that need to be treated regardless of any abortion ban. But there’s an ultimately unresolvable dispute over how to determine “life-threatening,” something that OB-GYN Dr. Kristin Lyerly told the group is rarely black and white and always unique to a particular pregnancy. (Lyerly has since stepped away from the Starts With Us project because her recently launched congressional campaign conflicts with its nonprofit status.)

However, there is a slight shift in some of the abortion opponents’ thinking on medical interventions to save the fetus when a pregnancy is terminated to preserve maternal life. When Halama suggested that within the exception for maternal health emergencies they include a caveat that all efforts should be made to save the baby, Lyerly pushed back.

“I really struggle with that, because there are babies that are born as a result of an abortion that are alive but are not likely to live,” Lyerly said. “And the parents … will wrap their babies and hold them until they die instead of taking them away and poking them with needles and putting a breathing tube down their throats and making them suffer and experience pain until they die. And I think that some people would choose one and other people would choose the other, and I can’t make that decision for my patients.”

Halama agreed with Lyerly that efforts to save fetal life may not always be the best option in all circumstances. And so did Thomas Lang, a Catholic from Janesville who opposes abortion.

“I really appreciate that,” Lang said. “Because we can bring that to end-of-life-care, too, where you know, the breaking of the ribcage, enough already. You’re prolonging death, you’re not prolonging life here.”

Another place of early agreement in the same realm involved miscarriage management. Stories of women being turned away from hospitals with non-viable pregnancies persist around the country and are the subject of the second major U.S. Supreme Court case since Roe v. Wade was overturned, which justices heard Wednesday. But there’s also a story around this table.

Participant Heather Martell shared with the group that her first pregnancy, at 19, ended in a miscarriage. She alleged that her doctor would not evacuate the pregnancy because of the doctor’s anti-abortion beliefs and that she bled for months before seeking treatment at a Planned Parenthood clinic.

“I almost died because of a pro-life agenda,” Martell told the group.

The participants initially agree on a proposal that says that receiving medical care for miscarriages should not be subject to a state’s abortion laws.

Dispute resolution on steroids

Facilitating these sessions were Mariah Levison and Kelly Wilder from Convergence Center for Policy Resolution, a Washington, D.C.-based nonprofit that for about a decade and a half has helped opposing groups in the public and private sectors find consensus on a range of policy issues like education, poverty, and health care. But what typically takes Convergence at least a year for each project, Starts With Us has asked them to do in three days (they will eventually add a fourth day in early April).

“This is the same methodology like on steroids,” Levison, Convergence’s CEO and president, told States Newsroom. The Minnesotan said she has worked in dispute resolution her whole career, but abortion is a new topic for both her and Convergence, which facilitated Starts With Us’s inaugural session, about gun rights and safety in Tennessee; a third session on immigration is being planned for later this year.

Beyond agreements on policy proposals, Levison said the larger goal is to help people build trust and understand each other.

And it’s the role of Starts With Us as a civic engagement nonprofit to elevate these examples of understanding and agreement and try to change the narrative that issues like abortion and guns and immigration are intractable. For the first three days of the session last December, camera operators filmed the participants, while the rest of the team watched in a makeshift video village in a drafty hallway space. In the months since, they’ve used the footage to help tell the group’s story and to give Wisconsin residents (and those in other states) a different option on abortion policy that isn’t just relegated to ban vs. no ban. They invited States Newsroom to observe the December sessions, though everything said was initially off the record unless participants gave permission to be quoted.

Levison told the participants they must find OPTIONS: Only proposals that include others’ needs succeed. She had them consider the example of a neighbor complaining about the other’s constantly barking dog. A real consensus solution, she explained, goes beyond keeping vs. getting rid of the dog. And she instructed them not to compromise; if a proposal would cause anyone “heartburn,” it didn’t go on the final list. As in a jury, even one dissenting vote can tank a proposal.

In the group, the biggest sticking points are: fetal health; maternal health that might not be immediately life-threatening; and sexual and domestic violence and whether someone should be forced to procreate with an abuser.

The teams are broken into two groups to facilitate better discussion. By the end, participants will raise their voices, burst into tears, slam a folder. Kai Gardner Mishlove, the executive director at Jewish Social Services, quickly becomes the group’s emotional stabilizer, guiding them through deep breathing during tense moments. But they keep showing up, and listening.

Walls coming down

Heading into the cold December night after the second day of heavy discussions, Thomas Lang told States Newsroom that his wife knows the very night their eldest of three was conceived. The 61-year-old property manager grinned as he remembered her reciting a prayer before being intimate on their honeymoon.

“There is a purpose and meaning of sexual intimacy,” said Lang, who supports the teaching of natural family planning as opposed to “artificial” birth control. He’s very much in love with Amy, who’s 11 years younger and whom he met on the dating site Ave Maria Singles 15 years after a divorce and annulment from a relationship with which he shares three adult children. “One of the basic principles behind the proper use of NFP is that married couples should always have an openness to life.”

Of the 14, Lang is among those on the most restrictive end of the spectrum, a stance informed by his deep Catholic faith, his mother’s abortion regret, his six living children, as well as two miscarriages and a stillbirth. To support his position, he repeatedly cites the 1968 papal encyclical “Humanae Vitae” and the legislative director of Pro-Life Wisconsin.

And unlike some of the other abortion opponents in the group, Lang is comfortable using the word murder to describe what Lyerly does for a living. He doesn’t expect to connect with her.

Throughout the initial three-day session, the OB-GYN from Green Bay patiently answered medical questions, described abortion procedures, and explained how she views abortion morally.

“My obligation to my patients is to make sure that I’m helping them with the right thing for them,” Lyerly said. “If I’m taking care of a woman from the Jewish faith, they have a very different perspective than my Catholic patients than my agnostic or atheist patients. So my job is to understand where they’re coming from and to make sure that they feel fulfilled and well taken care of and have what they need to be able to live their lives according to their morals.”

At one point Lyerly obliged Lang when he asked her to switch from clinical language (fertilization, products of conception) to his preferred terms (conception, baby), a move that frustrated several of the abortion-access participants but endeared her to him.

“I would have been repulsed to have met an abortionist before this meeting,” Lang told Lyerly on the second day of the session, “but I can’t tell you how much you enamor me with regards to the way you put yourself in your patients’ shoes. I would love you to be my wife’s doctor.” (He later acknowledged to States Newsroom that this could never happen because Lyerly’s “compassion is incoherent without principled procreative and life ethics.”)

With Lang and Lyerly at opposite ends of the spectrum, the 14 were able to come to only small agreements about when abortion should be legal and accessible, but found more common ground on how to mitigate some of abortion’s root causes, which many of the participants have experienced.

Kateri Klingele, 25, a white mental health professional and co-founder of Wisconsin Student Parents Organization at the University of Wisconsin-Madison, has two children. Not only was Klingele navigating poverty and school during her two unplanned pregnancies, but she was also incredibly sick. She was diagnosed with hyperemesis gravidarum, which resulted in her being fed intravenously during both pregnancies and delivering both her children early due to malnutrition. She said she also experienced partner abuse and was on every social support available, living in constant terror of falling off the so-called benefits cliff.

But she’s firm that abortion should rarely ever be an option because she believes that ending the life of a child is wrong and does not end other issues, like abuse and poverty.

“I am deeply troubled by this idea that providing an abortion and ending the life of a child is a way to stop domestic violence,” Klingele told the group. “As someone who’s experienced that, what’s harmful is the treatment of being abused. What’s harmful is that there’s insane wait lists for domestic abuse survivors’ housing. But my sons were not the problem here.”

Her life experience has brought her to the opposite conclusion to other participants who work with domestic and sexual violence survivors, like Monique Minkens and Milly Gonzales.

“In 2022 I could see both perspectives, especially as a person of faith,” Gonzales told the group. “But it scared me when Roe v. Wade was repealed. It was devastating, especially in my work, seeing how it affected women and all persons that are able to have children. Sometimes we don’t think through decisions that people have to make and how those decisions impact the babies that are being born.”

Meanwhile, Halama, who said she has counseled patients facing crisis pregnancies, began to grapple with the idea that maybe the hardline anti-abortion stance doesn’t reduce the most amount of harm.

“Am I coming from a place of pride? Am I coming from a place of rigidity and not loving compassion?” Halama told the group on the third day. “This is just like to challenge maybe us pro-lifers, but I don’t know, are we working so hard to eliminate this harm, and harming women who are in these positions of domestic violence, and in these positions of discrimination, when we know that we have a merciful God?? … I don’t know what to do with that because it’s so hard for me to concede on something that in my mind is harming, [but] I don’t know if having this harsh black-and-white stance on [abortion] is the right way to do it.”

Back in video village, the sometimes chatty or snacking Starts With Us staff are rapt looking at the screens. Someone whispers: “Wow.”

There’s also an understanding reached between Klingele and Ali Muldrow, a Black abortion fund director, where Muldrow agrees with Klingele about treating people with disabilities with compassion and not suggesting that they should not be born. “I want you to know with my whole heart and soul that I don’t think we should be universally killing people with Down syndrome,” Muldrow told Klingele.

“A variety of health factors inform why people terminate pregnancies, and to suggest that people simply don’t want children with disabilities is insensitive to the complexity of information people obtain about the health and quality of life that factor into people’s decisions around pregnancy,” Muldrow later clarified to States Newsroom. “I think folks who are anti-abortion access take disability into consideration when you’re talking about the fetus, but they don’t seem as willing to acknowledge disability as a factor for the pregnant person.”

Unlikely partnership

On the second day, during breakouts, Klingele smiles kindly at Lyerly and explains that the “intentional ending of a pregnancy” should not be legal.

“I think there should be no criminal charges on women for seeking that,” Klingele said. “But with regard to providers, I think there should be penalties. So, I want to look at you when I say this because I value you and I care about you and I know you care about your patients and about their children. But poisoning them and pulling them out of the womb and vacuuming, whatever terms you want to use, destroys their dignity.”

“I appreciate your perspective,” Lyerly replied. The next day she addressed some of the participants’ notions of her work. “I sit here with people who might be shouting at me as a doctor entering an abortion clinic. Someone who yesterday essentially said I should be in jail. I’m a murderer, right? But every time that I trust women and understand that they know what’s best for them, every time I perform an abortion for someone, we acknowledge that there’s a life there. And we honor that life. And I know that that sounds crazy. But we do the best that we can under every circumstance. And these are hard, hard decisions and everybody is different. But I would offer to you that we do love them both.”

And that’s the next point of common ground: Klingele clarifies that she doesn’t believe abortion providers should be incarcerated, which as Lyerly points out, they could have been under Wisconsin’s temporary abortion ban that went into effect after the Dobbs decision. Klingele ultimately can’t answer what it means for abortion providers if termination is illegal; she said she’s more concerned about making it easier for people to give birth and parent safely.

“I don’t have all the laws or regulations,” she told Lyerly. “But I see ending a life as wrong and there are consequences for doing something that’s wrong.”

But the two found that they agree on a lot more outside of abortion. Lyerly told States Newsroom that the two have agreed to work together in some capacity.

Starts With Us head of programs Ashley Phillips told States Newsroom she was heartened but not surprised to see participants agree and connect.

“It’s hard to hate up close,” Phillips said. “And when you have the opportunity to sit for three days across the table from one another and have nuanced discussions about both your lived experience and the issue at hand, it’s not surprising that you’re able to humanize and learn and grow. And it’s still beautiful to see.”

Tomorrow: A doctor gets heartburn.?

The Wisconsin Social Session on Abortion and Family Well Being has brought together 14 residents from a diversity of backgrounds and viewpoints to create proposals for state lawmakers on abortion. (Baylor Spears/Wisconsin Examiner)

Editor’s note: This is the first in a series about a group of Wisconsin residents trying to come up with policies to address abortion and its root causes that could be applied nationwide.

MADISON, Wis. — Thomas Lang, 61, is white, deeply Catholic and opposes abortion.

“Each one of us has a beginning, and that unique beginning … is conception,” Lang said. “And I would go back to the lack of personhood in slavery and how that personhood can be manipulated. … And I’m saying, no, that child has rights. … And yet we are going to allow for the killing, murder, because of this, this and this.”

Anti-abortion activists and legal scholars in the U.S. increasingly argue that denying the “personhood” of all unborn life is akin to slavery. It’s a comment that doesn’t sit well with the women of color in this room of people with different beliefs about abortion, including some with their own traumatic pregnancy experiences. The women repeatedly point out that white supremacy and racism are well rooted in every aspect of American life, including reproductive health care.

Ali Muldrow, who is Black, a mother of three girls, and runs an abortion fund in Wisconsin, told the group that the so-called father of gynecology, J. Marion Sims, invented tools like the speculum and surgical techniques after torturing enslaved women in horse stables. As someone who faced painful and medically complex pregnancies, Muldrow, 36, pointed out repeatedly that Black women are more likely to die in childbirth than white women, and more likely to experience criminalization because of their pregnancies. She said she was temporarily jailed while pregnant with one of her daughters after being beaten by an abusive boyfriend.

Muldrow’s first pregnancy was at 16, and she hired a lawyer to be able to have an abortion as a minor. She said she doesn’t regret that abortion or the one she had at 18, or her subsequent decisions to parent despite the varying medical, social, and economic perils she sometimes faced. But she’s firm that these were her decisions to make, and rejected Lang’s personhood argument.

“Our personhood is invalidated every day,” Muldrow said. “My health matters, and it’s a factor throughout the entirety of a pregnancy. My body as a tool for breeding, like a cattle animal that can be bred and forced to have kids, is something I’m really against, because I’m against slavery.”

In this room at a historic space in Wisconsin’s capital city, 14 people from around the state have been recruited to find common ground on abortion amid their deeply divergent stances. The Wisconsin Citizen Solutions on Abortion and Family Well Being is an experiment designed by Starts With Us, a nonprofit civic organization whose mission is to try to effect change through citizen solutions and show that people on opposite sides of controversial issues can come to a mutual understanding when they engage in guided mediation.

Founded in 2021, Starts With Us launched its first project last year on gun rights and safety in Tennessee, following a deadly school shooting in Nashville. KIND Snacks founder and “Shark Tank” entrepreneur Daniel Lubetzky has said that, as the son of a Holocaust survivor, he was motivated to co-found this nonprofit to address toxic polarization and extremist thinking. Other founding partners include renowned chef José Andrés, civil rights activist Bernice King, and hip-hop artist will.i.am.

For its second session, held for three days in Madison in December 2023 and for a final day this month, Starts With Us invited 14 Wisconsinites to tackle what has become a galvanizing political issue ever since the U.S. Supreme Court overturned federal abortion rights nearly two years ago.

“To us, the opportunity to build and to actually create solutions is the brass ring,” Starts With Us CEO Tom Fishman told States Newsroom. “But at minimum to have transformative experiences for 14 people in a room and then tell that story is such that it gives people hope and confidence … that at minimum we don’t have to … reduce each other as a caricature list of talking points on two sides of an issue that’s sold to us by algorithms and cable news.”

After months of processing the discussions from the sessions with health, legal and policy experts, Starts With Us on Wednesday unveiled what the group achieved consensus on. Wisconsin residents can now rank and comment on the proposals online. At the end of a monthlong public feedback period, the participants will see which proposals have majority support and evaluate next steps, including bringing some or all of the proposals to state lawmakers for consideration.

Why Wisconsin

The team chose Wisconsin because of its dynamic politics — a swing state with a Democratic governor, a GOP-controlled legislature, and a liberal-leaning state supreme court — and because it’s one of more than a dozen states that banned abortion in the wake of the historic Dobbs v. Jackson Women’s Health Organization decision. Abortion services resumed in Wisconsin last year, after a Dane County judge ruled that an 1849 feticide law does not apply to abortion, but litigation continues, as do further attempts to restrict abortion. Earlier this year the Wisconsin State Assembly passed a 14-week abortion ban that failed to advance in the Senate. As of now, abortion can be performed until 20 weeks post-fertilization.

The 1973 Roe v. Wade decision attempted to reconcile biological complexities and diverse moral worldviews regarding pregnancy, developing life, and reproductive autonomy. Dobbs changed that by letting states make their own abortion laws. And in many states that has meant conservative lawmakers pursuing hardline restrictions and even resurrecting laws from the 1800s, as in Arizona. These policy changes have broadly impacted maternal health care throughout the U.S.

A majority of voters post-Dobbs are showing they don’t want strict abortion bans. Already in six blue, purple, and red states voters have preserved abortion rights directly on the ballot, and about a dozen more are trying to do the same in November. Spurred by the fall of Roe, some have gotten into politics, like Wisconsin participants Heather Martell, now a Chippewa Falls alderman, and Dr. Kristin Lyerly, who this month launched a bid for Congress as a Democrat in Wisconsin’s 8th Congressional District (she has since stepped away from Starts With Us because her campaign conflicts with its nonprofit status). Lyerly is among several OB-GYNS around the U.S. who have sued their states for criminalizing pregnancy termination, which they believe cannot be divorced from standard medical care.

Starts With Us head of programs Ashley Phillips said they recruited individuals based on their nuanced public views on abortion and their willingness to come to the table with opponents on this issue. She said hundreds of Wisconsinites were contacted but many never responded. The selected participants were each paid travel expenses and a $900 honorarium for four days of their time and effort.

The chosen 14 consist of 11 women and three men. Five (three women, two men) mostly oppose abortion; they are white, range in age from 25 to 76, and identify as Catholic or Protestant. The remaining nine include four Black women, one Hispanic woman, and range in age from mid-30s to mid-70s, and identify as Unitarian, Jewish, and atheist. There’s a lot of overlap in the whole group. Several have experienced domestic violence, sexual abuse, and poverty. Most are parents.

How abortion views are born

From day one there is resounding agreement around the table that the current health, economic, and legal systems do not work for many families in Wisconsin or the country at large. Roe and Dobbs flipped the overall legality of abortion, but neither federal court decision addressed the underlying economic and social factors that, according to reproductive-health researchers at the University of California San Francisco, lead many to choose abortion — nor did they address the limited reproductive, prenatal and maternal care access around the U.S.

But the larger debate in the room, and outside of it, is who gets to make decisions in a given pregnancy: the person who is pregnant or the state? And at what point should the developing life be protected from termination?

Though life-of-the-mother exceptions exist in most of the current abortion bans, stories about women being denied health care pervade around the country. Patients who have been able to travel and survive their experiences have sued. On Wednesday morning, the U.S. Supreme Court heard arguments about whether doctors should be protected from prosecution under federal law if they provide abortion care to a patient in an emergency, even in a state with an abortion ban.

Also becoming more pervasive are stories about women denied abortions despite a fetus’s fatal anomalies. The same weekend the group met in Madison, the Texas Supreme Court overturned a court order that would have allowed Texan Kate Cox to terminate a non-viable pregnancy, forcing Cox to travel out of state. It’s a story that 37-year-old alderman and legal assistant Heather Martell is unfortunately familiar with.

As Martell explained to the other participants, in 2021, she went to her 19th week anatomy scan excited to see what would have been her second living child. But the ultrasound and subsequent detailed scans uncovered a rare disorder known as VACTERL association, which can affect multiple body systems and cause abnormalities in the vertebrae, anus, heart, trachea, esophagus, kidneys, and limbs. The disorder carries varying degrees of severity depending on how many systems are affected, according to the Cleveland Clinic. Martell said her baby’s case was incredibly rare in that it impacted nearly every part of his body. It was the worst possible prognosis: “incompatible with life.”

“This child would have needed open heart surgery before he was a year old, but wouldn’t have been able to have the surgery, because he would have been in late stages of kidney failure, having only one undersized kidney,” Martell told States Newsroom in an email after the sessions had concluded.

After a second opinion, Martell and her husband, who is Catholic and was at that time against abortion, sought a termination to spare the suffering of the baby they would name Oliver, which she learned was imminent if he continued to develop. They had to leave the state, because Wisconsin restricts abortion after 20 weeks.

“I Googled it, and I found studies that said the fetal nervous system develops fully by 24 to 26 weeks,” she told the group during their first day introductory discussions. “It gave me 14 days to get an abortion, or kill myself.”

Martell traveled to a Minnesota clinic, where she faced anti-abortion protesters telling her she had other options and where the type of abortion procedure she wanted — an induced stillbirth — was unavailable. That meant she couldn’t hold and bury Oliver, which remains a traumatic memory.

Her pregnancy and life experiences solidified Martell’s belief that reproductive health decisions should be left to patients and their families.

But it’s all about the child for Laura Brown, a 61-year-old chief financial officer for a nonprofit in West Allis, who’s on the board of an anti-abortion crisis pregnancy center.

“A concern I have is that in almost every discussion I don’t hear any mention of the child,’’ said Brown on the second day of the session.

“When I talk about abortion, I am talking about the child,” Martell said. “I’m talking about my child.”

Martell’s two previous pregnancies, when she was 19 and then 21, were marked first by a life-threatening miscarriage, and then by intimate partner abuse and extreme pressure to have an abortion, which she resisted. She told States Newsroom it was difficult to hear some of the statements from the abortion opponents at the sessions, including the implication that she didn’t consider the life of the child in her abortion decision.

“We would have had to pay millions of dollars out of pocket for Oliver to suffer and die. And in the meantime, our living child, Jack, would have become a glass child,” Martell said. “It isn’t easy to watch someone die. It’s even harder when it is your own child and sibling. I was not going to allow that to happen to my family. To be accused of not taking the child into consideration when I discuss abortion is a slap in the face, because I did.”

Brown’s view on abortion is also shaped by trauma.

At 20, her affair with a married man culminated in an unplanned pregnancy that she said she felt pressured to end. The man didn’t offer any support, she said, and though she didn’t want to end the pregnancy, she didn’t see other options. Brown alleges that a counselor at the Planned Parenthood sensed she was not sure about her decision and tricked her into believing she had an ectopic pregnancy that was not viable.

After the procedure began, Brown said she asked the doctor to stop and recalled him telling her, “You should have thought of that before.’’ The experience made her feel violated and eventually suicidal and informed her unbending view that “abortion is not health care,” she said.

Like Martell, Brown still mourns the baby that would never be born.

Brown said she turned to God and is now a regional coordinator for Silent No More Awareness Campaign, which shares stories of those who say they were harmed by abortion, and is affiliated with the national anti-abortion-rights group Priests for Life. She told States Newsroom that years ago, her daughter went into labor at 26 weeks and the medical care she received allowed her baby to be born very small but healthy. These life experiences have made it difficult for Brown to approve any reason for abortion, including if there’s a health risk, fetal anomaly, or the pregnant person is a child or victim of sexual abuse.

“Because abortion is traumatic, it’s also physically traumatic to force a young person to go through that. And then what happens is that the young person is a victim, and then they actually turn into a perpetrator,” Brown told States Newsroom in an interview. “Giving birth is less traumatic than having an abortion and later realizing what you did.”

The majority of those who oppose abortion in this group believe in the concept of “personhood” for all unborn children, starting at the early stages of fertilization. It is the principle behind banning some forms of contraception that can prevent implantation, as well as in vitro fertilization, which since the Alabama Supreme Court’s controversial ruling that frozen embryos are equivalent to human children, has proven to be very politically unpopular.

Martell told States Newsroom that hearing Brown’s story helped her understand how someone becomes an abortion-rights opponent.

“For me it was very interesting to see someone who regretted it, and how easily my life view could have been shaped by that one choice,” Martell said. “Had I not experienced that [pregnancy] loss in 2006, in 2008, I might have succumbed to that kind of peer pressure [to have an abortion], and who knows, I could have ended up like Laura, living with that shame and that regret. And if Laura had had a situation where she had put her foot down and said …? I’m having this kid, maybe she would have been pro-choice now.”

Brown said she agrees with “separation” of the embryo or fetus in life-threatening cases such as ectopic pregnancies, but she believes abortion is over-recommended and not always necessary to save maternal life. “With our medical advancements, high risk pregnancies can definitely be mitigated and cared for.”

But in this group, no one understands the medical nuance of pregnancy better than Dr. Kristin Lyerly, a white, 54-year-old OB-GYN and mother of four who has provided abortions throughout her career. When she herself needed a second-trimester abortion procedure after miscarrying years ago, she told the group she couldn’t find a doctor in Madison qualified to perform what she described as a complex and politicized procedure. Lyerly now commutes to Minnesota for work; she stopped performing abortions in her home state in 2023 while Wisconsin’s abortion ban was briefly in effect.

When gestational limits or narrow health exceptions are proposed, Lyerly consistently pointed out that things happen progressively in pregnancy and that each case is different. “We’re philosophizing. We’re not in the middle of it like my patients are,” she said. “When in the middle of it, you sometimes do things you wouldn’t expect.”

The only other doctor in the room is Jeff Davis, a white, semi-retired bovine veterinarian from southwest Wisconsin who has been involved with crisis pregnancy centers. He said his earliest defining moment on this issue happened on his family’s farm in Illinois.

“My whole pro-life view on life began when I was like 12 years old, and my hand was small enough to get inside the vagina of a ewe to pull out some twin baby lambs,” Davis told States Newsroom. “It was so exhilarating to be able to do that because if not, she might have had dead lambs.”

Davis believes that terminating pregnancies at any stage is wrong because it ends life. His belief was solidified by the birth of his children, the viewing of his first grandchild on an ultrasound, and his Catholic faith.

‘No magic solutions’

But when given the hypothetical, the majority of Americans take a middle position, explained Charles Franklin, a professor of law and public policy at Marquette University in Milwaukee, one of three subject-matter experts to address the group that weekend. The Marquette Law School Poll director has been polling Wisconsinites on abortion for years, and he said the overall numbers haven’t changed much.

Marquette’s most recent poll, from June 2023, finds that 32% of those polled believe abortion should be legal in all cases, 34% in most, 25% illegal in most, and 6% illegal in all.

A few in the group take that middle view, like Jacob VandenPlas, a white veteran and farmer who runs a rehabilitation farm for other veterans in Sturgeon Bay and has run for Congress (the same district as Lyerly, but as a Libertarian). The father of two said he thinks abortion should be allowed until approximately 15 weeks gestation and then qualified with exceptions for fetal and maternal health, rape and incest.

“I don’t believe the government has a place to dictate what someone can and can’t do,” VandenPlas said. “It doesn’t mean I have a disregard for life. I’m not happy about abortions and want to solve the root cause.”

“Morality is so personal; I struggle with assigning it,” said domestic violence advocate Monique Minkens. The 55-year-old Black mother and executive director of End Domestic Abuse Wisconsin told the group that she personally opposes abortion later in pregnancy, but that she doesn’t believe in imposing limits. She noted that she has worked with people trying to avoid being tethered to an abuser for life.

“Late-term abortion, that’s hard,” Minkens said. “I can’t see someone carrying a child, feeling it kicking, and then being given an abortion. And yet I know that there are times when someone says, your child is dead, you’re going to have to push out this child, or your child is going to die as soon as they’re born, or whatever it is, and your life is in danger. I’m not going to pull out my morality on them.”

Abortion polling numbers vary widely, Franklin explained to the group, depending on where people live throughout the state, their politics, their race, their religion, and when presented with real-life circumstances, like Martell’s husband.

“There’s no magic solutions here,” Franklin said. “I’m not trying to present you with solutions. But what I am trying to do is say we need to understand what the broad public is thinking when they think about these things and get a little bit away from the common impression that we have two monolithic, adamantly opposed groups. … We’re divided, though a majority in almost every measure say they favor legal abortion in at least some circumstances.”

As predicted, the solutions this group ends up with months later are not magical, though they are, the participants will eventually agree, positive steps toward improving reproductive health access and family well being in Wisconsin. They include standardizing and ensuring accuracy in pregnancy options information, and expanding health insurance coverage. The group is almost but ultimately unable to come up with abortion-specific policy agreements.

But while these participants were still in the thick of debating and trying to see past their own trauma-laced biases and experiences, consensus on this issue seemed far away.

“I think that we’ll go round and round and round, and I don’t know how we reach an understanding,” Minkens said at the end of the second day; on the third they would be expected to agree to a list of proposals. “I’m just thinking about … the history of harm that has happened over the years; it’s always been the Catholic Church or it’s always been a Christian state that has done the harm, and that is where I’m struggling. Your cold dead hands, my cold dead hands, I don’t know where we go from here.”

Tomorrow: The group struggles to find common ground.

Sidebar

Wisconsin Citizen Solutions on Abortion and Family Well Being participants

• Laura Brown — A 61-year-old white, Protestant nonprofit chief financial officer from West Allis, who opposes abortion rights.

• Jeff Davis — A 76-year-old white, Catholic semi-retired bovine veterinarian and widower with three daughters and eight grandchildren from southwest Wisconsin, who opposes abortion rights.

• Milly Gonzales — A Hispanic domestic violence, sexual assault, and human trafficking professional in Door County, who supports abortion rights.

• Bria Halama — A white, Catholic clinical mental health counselor in Milwaukee, who opposes abortion rights.

• Kateri Klingele — A 25-year-old white, Catholic clinical mental health professional and mother in Madison, who opposes abortion rights.

• Thomas Lang — A 61-year-old white, Catholic property manager from Janesville, who opposes abortion rights.

• Dr. Kristin Lyerly — A 54-year-old white OB-GYN, mother of four, and abortion provider from Green Bay. (She has since stepped away from Starts With Us because her campaign conflicts with their nonprofit status.)

• Heather Martell — A 37-year-old white mother, legal assistant, and Chippewa Falls alderman, who supports abortion rights.

• Kai Gardner Mishlove — A Black grief doula and the director of Jewish Social Services of Madison, who supports abortion rights.

• Patricia McFarland — A 75-year-old white abortion-rights activist, mother, grandmother, and retired college teacher.

• Monique Minkens — A 55-year-old Black executive director of End Domestic Abuse Wisconsin, who believes abortion should be available to everyone.

• Ali Muldrow — A 36-year-old Black mother of three daughters and the executive director of the abortion fund WMF Wisconsin in Madison.

• Jacob VandenPlas — A 39-year-old white veteran and farmer from Sturgeon Bay, who used to oppose abortion but now believes it should be available with limits later in pregnancy.

• Ramona Williams — A Black mother and regional nonprofit coordinator who supports abortion rights.

Protesters gather outside the U.S. Supreme Court on Wednesday, April 24, 2024, while justices hear oral arguments about whether federal law protects emergency abortion care. (Sofia Resnick/States Newsroom)

This story has been updated

U.S. Supreme Court justices spent two hours Wednesday morning debating whether a federal law about emergency treatment encompasses abortion care even in states with strict abortion bans, with no clear indication of how they may ultimately rule.

A decision could come as soon as the end of June whether Idaho’s near-total abortion ban means doctors who might need to terminate a pregnancy during a health emergency would be protected from prosecution under the Emergency Medical Treatment and Labor Act, or EMTALA, a federal law that requires hospitals to treat patients who come to an emergency room regardless of their ability to pay. That includes treatment to prevent serious damage to bodily functions.

If the court decides the law does not provide that protection, then hospitals and doctors in Idaho have said they will have to continue transferring patients out of state for that treatment. Since January, when the court decided to take the case and struck down an injunction that provided protection under EMTALA, transfers out of state for pregnancy complications that may require termination increased from one in 2023 to six over the course of four months.

The court’s liberal wing — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — ??questioned Idaho Deputy Attorney General Josh Turner about what EMTALA explicitly says about stabilizing treatment and whether abortion procedures fall into that definition when complications occur before a fetus can survive outside of the womb.

Turner argued that Idaho’s law should supersede federal law in the case of abortion procedures, even if it goes against commonly accepted medical care standards.

Sotomayor rejected that argument.

“There is no state licensing law that would permit the state to say, ‘Don’t treat diabetics with insulin. Treat them only with pills,’” Sotomayor said. “Federal law would say you can’t do that.”

She said federal law requires treatment of a person who is at risk of serious medical complications without that treatment, but Idaho’s law does not provide that much leeway.

“Idaho law says the doctor has to determine not that there’s really a serious medical condition, but that the person will die. That’s a huge difference, counsel,” she said.

Idaho’s abortion ban went into effect in August 2022, a few months after the U.S. Supreme Court issued its Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade, ending federal protection for abortion access and allowing states to regulate it instead. Providers who are prosecuted for performing an abortion are subject to two to five years in prison plus the loss of their medical license, and they are also subject to civil enforcement laws by any family members related to the person who had the abortion.

Doctors are subject to prosecutorial discretion in Idaho, deputy AG says

The justices repeatedly asked Turner to identify situations where a doctor might provide an abortion as part of stabilizing care and it would not be allowed under Idaho law. He continued to point to the state’s exception to save a patient’s life and referred to a doctor’s “good faith medical judgment” being enough to avoid prosecution.

The government listed nine emergency medical conditions where termination of the pregnancy may be the recommended treatment to stabilize a patient’s condition, including when the water breaks before a fetus is viable or when a patient experiences uncontrolled high blood pressure or bleeding. Idaho doctors identified one recent “traumatic” case when a patient had to wait until advanced infection set in before the doctor felt secure enough to end the pregnancy. Others are sending patients out of state as soon as termination might be needed to avoid having to wait until they meet qualifications under Idaho’s exception to prevent death.

Justice Amy Coney Barrett, considered one of the court’s more conservative members, said Turner was hedging in his answers and asked what happens if another doctor or prosecutor reaches a contrary conclusion about what the appropriate medical treatment should have been.

“That, your honor, is the nature of prosecutorial discretion,” Turner said.

Barrett also asked if Idaho had released any legal guidance about its abortion laws, the way a federal health agency might issue guidance. Turner said the “guiding star” is the Idaho Supreme Court’s opinion from August 2022 interpreting the abortion statute, where it said the law does not require imminence of death or medical certainty for a physician to intervene. The Idaho court also said another doctor’s opinion would only be considered if they accused the doctor who performed the abortion of acting in bad faith.

U.S. Solicitor General Elizabeth Prelogar said for those reasons, women in Idaho are not getting the treatment they need, often in already-tragic situations where a wanted pregnancy is lost because of complications.

“They are getting airlifted to Salt Lake City and to neighboring states where there are health exceptions in their laws,” she said. “The doctors can’t provide the care until they can conclude that a prosecutor looking over their shoulder won’t second guess that maybe it wasn’t really necessary to prevent death.”

Conservatives ask about conscience objections

The more conservative justices offered mixed questions to Prelogar, who argued on behalf of the government. Justice Neil Gorsuch posed questions related to the federal Supremacy Clause about when federal law can override state law in the context of medicine, while Barrett asked whether conscience exceptions exist for doctors who don’t feel comfortable terminating a pregnancy even in emergency situations. Or if a hospital did not want to provide the procedure, such as a Catholic hospital, would be exempt under EMTALA for conscience reasons. One of Idaho’s largest hospital systems, Saint Alphonsus, is a Catholic hospital.

Prelogar confirmed that yes, individual doctors and entire medical entities qualify for those conscience objections and are therefore not required to perform an abortion under EMTALA. But at a hospital that did not have a blanket objection, they would take individual objections into consideration for appropriate staffing so that there is always someone available to provide that care if necessary.

“If the question is, could you force an individual doctor to step in over a conscience objection, the answer is no, and I want to be really clear about that,” Prelogar said.

Justice Sam Alito also asked Prelogar if EMTALA could be understood to apply to other emergency situations such as a mental health emergency, if someone was expressing suicidal thoughts and wanted to end their pregnancy to resolve those thoughts. Idaho’s legal representation, conservative religious law firm Alliance Defending Freedom, argued in its brief to the court that a ruling in favor of EMTALA protection would allow such situations to occur. Prelogar said no, the proper treatment would be to administer medications to alleviate the suicidal thoughts.

“There can be grave mental health emergencies, but EMTALA could never require pregnancy termination as the stabilizing care … because that wouldn’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place,” Prelogar said. “If she happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. She might not be in a position to give any informed consent.”

Demonstrators, legislators from Idaho comment on court case

Hundreds of abortion rights advocates, medical professionals and two Idaho legislators gathered outside the U.S. Supreme Court building in Washington, D.C., on Wednesday morning before the arguments advocating for the court to uphold EMTALA as a guiding principle regardless of state abortion laws. On the anti-abortion rights side, Idaho-based crisis pregnancy center Stanton Healthcare argued the case was about forcing states with abortion bans to perform them. Danielle Versluys, the organization’s chief operating officer, said women with complications should deliver a baby naturally, regardless of the circumstances.

“The outcome is the same — a dead baby — but the difference is one is natural, and the other is not,” she said. “And one allows the woman the natural process to give birth and to grieve, and the other one is unnatural.”

Rep. Ilana Rubel, a Democrat and the legislature’s minority leader, told States Newsroom the case is a waste of state taxpayer dollars.

“It is, frankly, stunning that leaders in our state think that this is something they want so badly they were willing to take it to the Supreme Court to deprive women of appropriate care in medical emergencies,” Rubel said. And with the Idaho Legislature adjourned for the year, she added, “If the Supreme Court does not give us EMTALA back, there will be no lifeline for women at least until 2025.”

States Newsroom reproductive rights reporter Sofia Resnick contributed to this report.

Rep. Nancy Tate's proposed perinatal palliative care mandate in case of nonviable pregnancies has been added to a maternal health bill that had enjoyed broad support. (LRC Public Information)

FRANKFORT — The maternal health bill Momnibus took an unexpected turn in the final days of the 2024 legislative session that cost it some allies.?

Provisions of a bill that previously provoked a walkout by Democratic women were added with the sponsor’s consent but without debate in the Senate Health Services Committee.?

House Bill 10, dubbed Momnibus, now requires hospitals and midwives to refer patients who have nonviable pregnancies or whose fetuses have been diagnosed with fatal conditions to perinatal palliative care services. The previous bill, which is stuck in the House, described the palliative services “as alternatives to pregnancy termination.”?

The addition to the bill has led some supporters to bristle at it in its current form.?

The change flipped support from the American Civil Liberties Union of Kentucky, which still supports the bill in its original form, but not the palliative care addition.?

“A clean Momnibus, we’re 100% behind,” said Angela Cooper with the ACLU. “That was a bipartisan effort. It has been months and months and months — years, really — in the making. It’s a great piece of legislation.”?

“The problem is including any language from that bill … just opens the door for potential coercion,” Cooper with ACLU said. “It opens the door for people to be counseled in a way that is contrary to the standard of care.”?

Tamarra Wieder, Kentucky state director for Planned Parenthood Alliance Advocates, considers the additions to be “divisive language” that represent “politics at its worst.”?

The original Momnibus “was such a beautiful example of what we can do when we all work together and put politics aside and work for something that we all … agree on,” Wieder said. “We all agree on maternal health, we all agree on …. mortality reduction.”?

Rep. Kim Moser, R-Taylor Mill, the primary sponsor of Momnibus, said she was “surprised” that the Senate addition to her bill caused “angst” among allies.?

Momnibus now faces its penultimate hurdle before becoming law: the Senate floor. Should it pass there, Gov. Andy Beshear can sign or veto it. In order to retain its right to override a Beshear veto, the General Assembly has to approve the bill by the end of Thursday, which is the 58th day of the 60-day session.?

What got added to Momnibus??

Three Democrats walked out of a committee that passed HB 467, in fact, saying it “masquerades as help” but really “shames mothers who are losing children.” That bill would require health insurers to cover perinatal palliative care for people with nonviable pregnancies or whose babies are expected to die near birth and pitched “supports as alternatives to pregnancy termination.”?

HB 467 passed the House Health Services Committee in early March but did not advance further, making it unlikely to become law as the 2024 session is almost over.?

But part of the bill has now been folded into Momnibus, a maternal health bill that would incentivize Kentuckians to get that prenatal care by adding pregnancy to the list of qualifying life events for health insurance coverage, among other things.

HB 467, sponsored by Rep. Nancy Tate, included language to “consider the psychological and faith challenges associated with post-termination” of a pregnancy and said perinatal palliative care serves as “alternatives to pregnancy termination.”?

Moser cosponsored Tate’s bill.?

Opponents of that bill said that since hospitals already offer perinatal palliative care, the bill would only serve to incentivize against abortion, which is illegal in Kentucky in most cases.?

The Senate addition to Momnibus — in the form of a committee substitute — does not include that “alternatives” statement. It directs medical providers to refer patients for perinatal palliative care in cases when “prenatal diagnosis indicating that a baby may die before or after birth; diagnosis of fetal anomalies where the likelihood of long-term survival is uncertain or minimal; or newborn diagnosed with a potentially life-limiting illness.”?

Momnibus ‘ready to go’ in Senate??

Moser said Wednesday that the bill is “teed up” and “ready to go” in the Senate, which has one day — Thursday — left on its meeting schedule before breaking for the veto period.?

She doesn’t know “what form it’s going to be in,” though.?

But she “liked” Tate’s bill, she said. “I’m a little surprised at all the angst” about that language joining Momnibus.?

“I’m fine either way,” she said. “I think it’s a good addition. We’ll see.”?

In the middle of the hearing, three Democratic members of the committee walked out of the Annex meeting room in protest of the bill. Reps. Lindsey Burke, right, Rachel Roarx, center, and Adrielle Camuel, left. (Kentucky Lantern photo by Sarah Ladd)

FRANKFORT — In 2017, Central Kentuckian Heather Hyden faced an “upsetting, awful” and “horrific experience.” The baby she carried — a “very wanted pregnancy” — had a lethal fetal anomaly.?

She was induced in February of that year, medical care she would be unable to receive in Kentucky today because of the state’s near-total ban on abortion.?

In written testimony, Hyden raised concerns about a bill that passed unanimously out of the House Health Services Committee Thursday, saying it would further limit options for Kentuckians like her whose pregnancies are not straightforward.

Three Democratic lawmakers did not vote after they walked out to protest the measure, which one of them said “masquerades as help” but really “shames mothers who are losing children.”

House Bill 467, sponsored by Rep. Nancy Tate, would require health insurers to cover perinatal palliative care for people with nonviable pregnancies or whose babies are expected to die near birth. The bill also requires providers to refer patients in those circumstances to perinatal palliative care and mandates a list of services the programs shall provide including “assistance with the creation of memories and keepsakes.”

The bill says that one of its rationales is to provide “supports as alternatives to pregnancy termination,” essentially incentivizing Kentuckians against abortion, which is outlawed in most cases in the state.?

The bill outlines care parents should receive “through the remainder of a pregnancy, the birth, the newborn period, and the death.”

“Because I gave birth to my daughter (River Lee), I was able to hold her and take a lot of photos with her and learn more about her terminal diagnosis and have her cremated,” Hyden said in written testimony provided to lawmakers. Hyden was in her 16th week of pregnancy. River Lee passed during labor.?

“All of this was outstanding palliative care following my birth plan,” Hyden said. “Today, I would have to travel outside of the state to receive care like this because of our current statutes related to abortion. Because of this, I would also not receive the much needed care that HB 497 is offering.”?

Tate, R-Brandenburg, a staunch opponent of abortion, said she sees her bill as compassionate and calls it the Love Them Both Part II Act.??

“I think this is a very compassionate piece of legislation that gives us the opportunity to support women and their families, physically, mentally, spiritually, emotionally and financially,” she said in committee.?

Democratic women protest

Three Democratic members of the committee showed their disagreement by walking out of the room in protest of the bill.?

Reps. Lindsey Burke, Rachel Roarx and Adrielle Camuel declined to vote on the bill but returned to the Capitol Annex meeting room after HB 467 was approved.?

While in the hall, Burke, who represents a Lexington district, told members of the press that the bill “masquerades as help for grieving parents but in fact what it does is limit access for grieving parents.”?

“It shames mothers who are losing children,” Burke said. “Rather than providing them with the full scope of medical treatment that they need, it guilts them into following a prescriptive plan.”?

Burke recently shared her journey of becoming a mother — a road marked by assault, infertility, missed miscarriage, in vitro fertilization (IVF) and abortion.?

“Frankly, I view this as a personal attack,” she said Thursday. “It’s not been too long since I shared the story of my medically complicated pregnancy and my decision to terminate the life of one of my babies. It’s no coincidence that this bill was filed immediately after. We can’t reason with this and so we’re going to step out.”

Rep. Ryan Dotson, R-Winchester, slammed his Democratic colleagues for leaving, calling the move “an atrocity.”

“I’d just like for everyone to take notice,” he said. “My colleagues on the Democratic side all got up and left. When it comes to these types of issues, this is very important. And I want folks to understand we’re just protecting the health of these children.”??

‘Duplication of services’?

Dr. Elizabeth A. Case, a Lexington obstetrician/gynecologist, told committee members in a letter that the bill duplicates already available services.?

“Although perinatal hospice is an important service, it is already something offered by all hospitals in the state that have an obstetrical service line under the name Perinatal Bereavement,” Case wrote.??

“This bill would just be a duplication of services,” Case added. “Since this bill does … not allow for early induction of a pregnancy where the baby has been diagnosed with a lethal anomaly, patients with such pregnancies will still have to go out of state to seek an early induction and would therefore receive services in the state to which they go.”?

Abby Brown, a genetic counselor in Northern Kentucky who spoke alongside Tate, said her palliative care program provides “continuous support and anticipatory guidance to families who are facing a lethal or a life limiting diagnosis in order to honor and celebrate their baby in a way that is meaningful for them.”?

“I think that anyone who has welcomed a child into the world can attest to the feeling of anticipation and the anxiety in waiting for their baby’s arrival,” Brown said. “But how important that is to support our families who are anticipating not being able to bring that special baby home.”?

‘Pregnancy is very complicated’

Seven years after losing River Lee, Hyden is still grieving.?

“It freaks me out from getting pregnant again because I’m worried that I’m going to? have another chromosomal abnormality,” she told the Kentucky Lantern.?

She’s committed to talking with lawmakers and sharing her story, though.?

“It’s just super important that we build relationships with our legislators, even if we’re … not fully aligned with them,” she said. “Some of them really will fight for you as a constituent.”??

Pointing to a recent bill filed by Republican Rep. Ken Fleming of Louisville that would add exceptions to Kentucky’s abortion ban, Hyden said, “this is not a Republicans versus Democrats thing.”?

?“Pregnancy is very complicated,” she said. “We can’t capture every experience in bill language. It’s important to make sure when new programs or incentives are offered, they are open to as many women and families as possible.”?

Three women challenging Kentucky's abortion law with their lawyers: From left, Aaron Kemper, Jessica Kalb, Sarah Baron, Lisa Sobel and Benjamin Potash. (Photo provided)

For Lisa Sobel and her husband, being able to have a child through in vitro fertilization, or IVF, was “a dream come true.”

“For us, this really is a joy,” Sobel, of Louisville, said. “We want for there to be other families to be able to have this joy.”

But the recent state Supreme Court ruling in Alabama defining frozen embryos as live children — effectively suspending IVF in that state — has sent shock waves through the IVF community nationwide.?

That includes Sobel and her lawyers, who believe Kentucky’s laws on abortion — one virtually identical to Alabama’s — jeopardize IVF here because they define life as starting at fertilization.

“We read the laws and saw that what happened in Alabama could happen in Kentucky,” said Aaron Kemper. “We’re in trouble.”

He and lawyer Benjamin Potash represent Sobel, the lead plaintiff of three Jewish women suing over Kentucky’s abortion laws, in part because of the potential impact on IVF. They also allege the laws violate their rights under the state’s Religious Freedom Restoration Act because the abortion laws state life begins at the moment a human egg is fertilized, a Christian religious belief not shared by Jews.

In Alabama, several clinics, including one at the University of Alabama at Birmingham, stopped IVF services after the Feb. 16 ruling that frozen embryos are “extrauterine children” and thereby are entitled to protection as a human life.

Alabama Gov. Kay Ivey late Wednesday signed a measure the Republican-controlled legislature rushed into law meant to shield health providers from prosecution or lawsuits, which could allow IVF services to resume. But critics said the measure? fails to address the state’s Supreme Court finding that frozen embryos are children and merit protection as human life, allowing likely further legal disputes.

Sobel and her lawyers say the Alabama ruling heightens the urgency for a ruling in their lawsuit which was submitted to Jefferson Circuit Judge Brian Edwards nearly a year ago for a decision. The lawsuit, asking the judge to find the laws violate Kentucky’s Constitution, was filed in the wake of the 2022 U.S. Supreme Court ruling ending the federal right to abortion.

“We’re waiting on a decision, that’s where we are,” Kemper said.

Claims ‘hypothetical’

The Kentucky Attorney General’s office, which is defending the abortion laws, agreed to seek a decision, or summary judgment, from the judge in a May 2023 filing, asking Edwards to rule in its favor.

It argues the laws are constitutional and said the women’s claims of harm are “hypothetical.”?

The filing, under former Attorney General Daniel Cameron, a Republican, also argues the laws have no impact on IVF. Republican Attorney General Russell Coleman, who took office in January, is now handling the case.

Coleman, in a statement, called on state officials to focus on “safeguarding access to IVF,”? which he described as “an incredible blessing for so many seeking to become parents.”

Under IVF, a woman’s eggs are extracted and fertilized in the lab to be implanted in the uterus; unused embryos may be frozen for future use, donated for research or “adoption” by other parents or discarded.

“The plain language of Kentucky’s laws makes it clear that neither IVF nor the disposal of embryos created through IVF and not yet implanted are prohibited,” the attorney general’s filing said.

The women’s lawyers disagree, saying that Kentucky’s laws explicitly state human life begins at fertilization, leaving the door open for a challenge to IVF for the potential loss or destruction of embryos.

“The previous attorney general said until he was blue in the face that IVF is not illegal,” Potash said. “It’s come to pass.”

That leaves health providers scared of lawsuits or prosecution, they said.

That’s what happened in Alabama after three couples whose frozen embryos were accidentally destroyed in a fertility clinic filed a lawsuit under the state’s “wrongful death of a child” law. The high court ruled in their favor, saying state law “applies to all children, born and unborn, without limitation.”

The Sobel lawsuit challenges a pair of Kentucky laws that took effect after the U.S. Supreme Court in June 2022 struck down Roe v. Wade, ending the federal constitutional right to abortion. One, the “trigger law,” ended abortion upon such a decision; the other bans abortion after about six weeks, once embryonic cardiac activity is detected and before many women realize they are pregnant.

Both laws permit very narrow exceptions, allowing abortion only to save the life of or prevent disabling injury to a patient. The laws have no exemptions for rape or incest.

“Word for word, the law in Alabama is identical to the law in Kentucky,” Potash said, referring to the trigger law.

The Alabama law banning abortion even has the same title as Kentucky’s “trigger” law, the “Human Life Protection Act,” and both were passed in 2019, Potash said.

“In all likelihood, this is part of a larger concerted effort by conservatives,” Potash said.

Sobel and plaintiff Jessica Kalb both had children through IVF after struggling with fertility. A third plaintiff, Sarah Baron, was considering the procedure, said the lawsuit filed in October 2022.

A ruling in their favor would protect IVF — as well as restore the right to abortion, Potash said.

“We’re hoping we can get a ruling here in Kentucky,” he said.

The lawyers said they don’t know why Edwards hasn’t yet ruled.

Lawmakers scurry to save IVF

The potential threat to IVF has sent lawmakers scurrying to protect the procedure.

Three Kentucky lawmakers have filed such bills.

Senate Bill 373, filed by Sen. Whitney Westerfield, R-Fruit Hill, would protect health care providers from liability or prosecution over the loss of a human embryo.

Westerfield is a staunch opponent of abortion and has supported state laws pushed through by the legislature’s Republican supermajority that ban the procedure in almost all circumstances.

But he is an outspoken supporter of IVF.

Westerfield’s filing comes as he and his wife are?expecting triplets, he announced in January. He said on the Senate floor that they adopted and transferred embryos for the pregnancy. His 6-year-old son is an “embryo adoption” baby, he said.?

Sen. Cassie Chambers Armstrong, D-Louisville, filed Senate Bill 301, which would protect? from “criminal liability” IVF health care providers who meet a “professional standard of care.”

And Rep. Daniel Grossberg, D-Louisville, filed House Bill 757, which would prohibit state or local authorities from trying to limit or interfere with reproductive technology.?

It also calls for a new provision in state law declaring that a fertilized human egg or embryo in any form outside the uterus “shall not be considered an unborn child.”

The bills follow a recent flurry of action in the Alabama legislature which has advanced bills meant to shield IVF providers following a public outcry over that state’s Supreme Court decision.

Alabama Gov. Kay Ivey, a Republican who opposes abortion, said she supports such legislation.

Kentucky Gov. Andy Beshear, a Democrat and supporter of abortion rights, last week blasted Republicans for the current predicament over IVF.

“This is what happens, though, when you embrace extremism,” Beshear said.

In the U.S. Senate, a bill to establish national protections for IVF was blocked by Republicans last week.

Potash and Kemper, the lawyers for the women seeking to overturn Kentucky’s abortion ban, said the problem with most such efforts at the state level is that they try to sidestep laws that say human life begins at fertilization.

“These people want to pass an IVF law while maintaining that a fertilized egg is a human being and I don’t see how that’s possible,” Kemper said. “I don’t see how they’re ever going to be able to enact a law that protects IVF while maintaining that a fertilized embryo is a human being.”

The best outcome to clarify things in Kentucky would be a ruling in the pending lawsuit, the lawyers said.

“We’re hoping we get a decision on our case before someone sues for wrongful death in Kentucky,” Kemper said.

Sobel said the delays are frustrating for her and others in her position considering? IVF. The procedure is expensive — costing couples tens of thousands of dollars — and takes an emotional toll, she said.

It’s especially frustrating that the decision rests largely with male officials including a judge, she said.

“Women can only have children for so many years,” she said. “The older you get the more complicated your pregnancy is.”

Packages of Mifepristone tablets are displayed at a family planning clinic on April 13, 2023 in Rockville, Maryland. (Photo illustration by Anna Moneymaker/Getty Images)

WASHINGTON — Anti-abortion groups, attorneys general from 25 states and more than 140 members of Congress have signed on to dozens of briefs to the U.S. Supreme Court during the past two weeks, encouraging the justices to revert use and prescribing of the medication abortion pill mifepristone to what was in place prior to 2016.

The “friend of the court” briefs come just weeks before the court is scheduled to hear oral arguments on March 26 in a case that stems from a lawsuit that sought to overturn approval of the pharmaceutical.

Alliance Defending Freedom, an anti-abortion legal organization, filed the lawsuit on behalf of the Alliance for Hippocratic Medicine, American Association of Pro-Life Obstetricians & Gynecologists, American College of Pediatricians and Christian Medical & Dental Associations.

ADF’s latest brief in the case argues that because some patients who use medication abortion — a two-drug regimen that combines mifepristone with a second pharmaceutical, misoprostol — will have complications, anti-abortion doctors will have to violate their religious beliefs to provide medical care to those women.

“It’s not hard to see why doctors who consider abortion objectionable are harmed when they must complete a chemical abortion—even if the child is no longer alive,” ADF wrote in the 84-page brief.

The U.S. Food and Drug Administration has said that nothing requires doctors and other health care providers with conscientious objection to abortion to treat patients facing complications from medication abortion, but that isn’t sufficient, ADF said.

“FDA insists that nothing forces Respondent doctors to perform the procedures they deem objectionable,” ADF wrote. “But this ignores that FDA expressly relies on doctors like Respondents to treat emergent and life-threatening complications from abortion drugs … and that Respondents facing these emergency situations must act immediately.”

Changes the FDA made since 2016 to when and how mifepristone can be prescribed and distributed “create a substantial risk that Respondent doctors will see more women suffering emergency complications from abortion drugs, which threaten to inflict several concrete harms,” ADF wrote.

Those changes include:

• Extension of the maximum gestational age a patient can use mifepristone to 10 weeks, up from the prior approval of seven weeks.

• Health care providers qualified to prescribe medications, like physician’s assistants and nurse practitioners, can now prescribe mifepristone, instead of only doctors.

• Patients no longer needed to attend three, in-person doctor’s office appointments to complete a mediation abortion regimen.

• Providers can now prescribe the medication via telehealth and have it delivered through the mail.

Earlier ruling

All of that would change if the Supreme Court decides to agree with a ruling from the 5th Circuit Court of Appeals, which said in August 2023 that the FDA’s prescribing guidelines should go back to what was in place before the changes began in 2016.

The federal government appealed that decision, leading to the current case before the Supreme Court, Food and Drug Administration v. Alliance for Hippocratic Medicine.

States Newsroom earlier reported on briefs submitted in late January by abortion rights supporters, major medical organizations, pharmaceutical groups and Democratic lawmakers supporting access to mifepristone.

The medical groups wrote that since mifepristone was approved in 2000, “hundreds of medical studies and vast amounts of data have confirmed its safety and efficacy as part of this two-drug regimen.”

“The scientific evidence is overwhelming: major adverse events occur in less than 0.32% of patients,” the medical organizations added. “The risk of death is almost non-existent.”

Members of Congress, state AGs file briefs

A total of 145 members of Congress from 36 states, who opposed access to mifepristone remaining as it is today, submitted their own 39-page brief in the case, calling on the Supreme Court to limit access.

“Since 2016, the FDA has only required adverse events reporting for deaths resulting from chemical abortion drugs; reporting is otherwise voluntary,” the members of Congress wrote, making the argument that reports are not required for injuries or impairment. “This action was not only arbitrary and capricious, but it also raised safety concerns for women seeking chemical abortion drugs.”

The FDA’s decisions in 2016 and 2021 to change prescribing guidelines for mifepristone, they wrote, “exceeded its congressionally authorized power.”

Attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia and Wyoming submitted a 28-page brief in the case, pressing for changes.

The state attorneys general argue that the FDA’s decisions to change prescribing guidelines since 2016 “push constitutional bounds.”

“Those actions test the separation of powers, sap federalism, and take important decisions from the people,” they wrote. “This Court should therefore exercise searching review of those actions and reject the FDA’s plea for deference.”

The attorneys general wrote that because some states have severely restricted or banned abortion access or implemented requirements for mifepristone use in addition to what the FDA allows, the availability of the pharmaceutical erodes states’ rights.

“The FDA’s actions undermine these laws, undercut States’ efforts to enforce them, and thus erode the federalism the Constitution deems vital,” the attorneys general wrote. “Given these harms to federalism, this Court should view the FDA’s actions with skepticism.”

More arguments

Attorneys general from Idaho, Kansas and Missouri wrote in a separate 32-page brief they “have an exceptionally strong interest in the outcome of this case.”

They wrote the FDA’s decisions, especially allowing the mailing of mifepristone, have “encouraged and enabled private parties to evade the States’ laws.”

“Beginning in summer 2023, organizations started shipping abortion drugs into all 50 States in large quantities in an attempt to evade state laws,” the three attorneys general wrote.

Students for Life of America —? an organization that aims “to abolish abortion and provide policy, legal, and community support for women and their children” — wrote in its 32-page brief that the FDA has “failed to consider the impact Mifepristone could have on the environment, specifically on endangered species or listed habitats.”

Before the FDA approved the pharmaceutical, they claim, it should have consulted with the United States Fish and Wildlife Service as well as the National Marine Fisheries Service.

Students for Life called on the Supreme Court to uphold a ruling from U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk, who issued a stay that would have removed mifepristone from the market.

That ban on access to the drug should remain in place until “the FDA conducts the proper consultation with the Services,” they wrote.

“The FDA reviewed only the impact that packaging, production waste, and pharmaceutical waste would have on the environment, failing to examine the impact the excretion of Mifepristone itself would have on the environment,” Students for Life wrote. “Further, the assessment underestimated the number of chemical abortions due to Mifepristone, which are today the most popular form of abortion.”

Gov. Andy Beshear during his weekly news conference said he supports protections for in vitro fertilization and renewed his call for exceptions to the near-total ban on abortion in Kentucky. (Kentucky Lantern photo by McKenna Horsley)

FRANKFORT — Gov. Andy Beshear on Thursday called out Kentucky lawmakers for wasting time on “culture war type issues” and denounced “extremism” that he said is limiting reproductive options.

The Democratic governor said he is “100% for” protecting access to in vitro fertilization and called an Alabama Supreme Court ruling that frozen embryos are children “horrendous.”?

Speaking at his weekly news conference, Beshear said: “This is what happens, though, when you embrace extremism.” He cited Kentucky’s near-total ban on abortion as another example. “Women that have non-viable pregnancies still have to oftentimes carry that pregnancy to term knowing they’re going to hear their child die moments afterwards if it hasn’t already happened.”

Kentucky lawmakers of both parties have filed bills to allow exceptions to the abortion ban for rape and incest and some medical conditions. Republicans hold supermajorities in both chambers; their leaders have not said whether the bills will move.

Beshear? was also asked about a new Republican bill dubbed the Women’s Bill of Rights. Versions of the bill have been introduced in other state legislatures spurring warnings that it could lead to discrimination against transgender people.?

Introduced by Sen. Lindsey Tichenor, R-Smithfield, the measure, Senate Bill 336,? among other things, declares there “are only two sexes, male and female.”?

Beshear said he had not read the bill, which was filed Wednesday, then pointed out that the legislature has a limited amount of time to do its work. Friday will be the 42nd day of this year’s 60-day session.

“Every moment that they focus on these culture war type issues, trying to create a new bogeyman for the next election, trying to rile people up, it means they’re not doing important work that could benefit every single person.”?

Beshear said his reelection in November shows that people want government officials to focus on “jobs and health care and moving their life forward.”

Tichenor said her bill is needed to maintain resources and private spaces for women. In a statement she said: “Over the past few years, we have seen men taking away female-specific resources, scholarships and accolades and invading their private facilities. As we have borne witness to the deterioration of the rights so many women have fought for, it is my hope this legislation will provide necessary language that will ensure the protection of those fundamental rights.”

Tichenor also said: “Men and women deserve to be treated equally, but that doesn’t mean they are identical. There are many biological differences between men and women that warrant the creation of separate social, educational, and athletic spaces for the safety and success of members of each sex.”

In response to the Alabama ruling, Kentucky lawmakers of both parties have filed bills seeking to protect in vitro fertilization (IVF), which is used to treat infertility, according to the Mayo Clinic, and can help people trying to get pregnant to do so.??

The Alabama Supreme Court ruled in mid February that frozen embryos are children, as the Alabama Reflector reported. Some worry this ruling will deter people in Alabama from attempting to conceive children via IVF, which sometimes involves freezing embryos for future attempts at insemination. Several clinics in Alabama, including the University of Alabama Birmingham, have paused IVF treatments and embryo transfers in response to the ruling.

Beshear said, “I’m of the generation where numerous of my friends have amazing children that have grown up with mine that I know so well that wouldn’t be here without IVF.”?

IVF, he added, “is helping people who want to be parents so badly to welcome special children into this world.”?

Beshear also hopes, he said, that the empathy response to the IVF ruling will carry over and help Kentucky get exceptions for rape and incest to its abortion ban. A Republican lawmaker has filed a bill that would add those exceptions, though it would allow abortions for rape and incest no later than the sixth week of a pregnancy, which doctors say is not medically helpful.?

“If these people really want to have a kid and science is going to help them do it, and they will be such great parents,” Beshear added about IVF, “why would we ever stand in the way of that?”

Allie Phillips testifies before the U.S. Senate Budget Committee about her experiences with Tennessee’s abortion laws during a hearing on Wednesday, Feb. 28, 2024. (Screenshot from committee webcast)

WASHINGTON — U.S. senators heard detailed testimony Wednesday on the economic impacts women face and how those considerations can play into whether they seek elective abortion access.

The Senate Budget Committee also heard examples of the increased pressures women who need abortions for medical reasons have experienced after more than a dozen states severely restricted access to the procedure in the last two years.

Testimony came from medical professionals, economists and from Allie Phillips, a Tennessee woman who was forced to travel for an abortion after her fetus was diagnosed with several medical issues that threatened Phillips’ health.

“We want to have another child but we’re terrified because Tennessee still bans abortion and criminalizes doctors for providing essential healthcare for pregnant patients,” Phillips, now a Democratic candidate for a state legislative seat, testified.

Caitlin Myers, John G. McCullough professor of economics at Middlebury College in Vermont, told the panel that the “decision of whether and when to become a mother is the single largest economic decision many women will make in their lifetimes.”

“Men and women’s earnings trend pretty similarly right up until the point of parenthood,” Myers said. “When they become mothers, women’s earnings fall off a cliff, declining by about 30% and opening up a gender gap that persists even after the kids grow up and leave the home.”

Myers said that as a mother of four, the decision to become a parent was “entirely worth it for her,” though she said that doesn’t hold true for everyone for a variety of factors.

“But that’s the point — the trade-offs and decisions about whether and when to become a parent are inherently personal and closely tied to our economic lives,” Myers said. “And even the best laid plans of mice and men — and let’s add women — can commonly go awry.”

Dr. Leilah Zahedi-Spung, a board certified OB-GYN and a maternal fetal medicine specialist, told senators that she felt she had to leave Tennessee after that state instituted stringent restrictions on abortion. She now practices in Colorado.

Requiring pregnant people, including those with complex diagnoses, to stay pregnant is “exceptionally dangerous given the state of maternal morbidity and mortality in this country,” she testified.

“Studies have shown us that people who are denied an abortion are more likely to fall into poverty, increase their amount of debt and generally have worse financial security for years following their abortion denial,” Zahedi-Spung said.

“Inability to access abortion care has severe consequences and this is especially true for our Black, Indigenous and people of color who face systemic racism in all aspects of their lives,” Zahedi-Spung added.

Joy turns to heartbreak

Philips told senators that she and her husband were both excited to learn she was pregnant in the fall of 2022. But that turned to heartbreak when she learned when she was 19 weeks pregnant that her fetus had several health conditions, including to the heart and brain, that would lead Phillips’ health to deteriorate.

“Knowing I had a daughter to live for, we made the difficult decision to seek an abortion,” Philips said, referencing her 6-year-old daughter.

Tennessee’s abortion laws, Phillips testified, meant her doctor couldn’t offer her any advice or help finding a doctor out of state to perform the procedure. So she and her mother began searching for a doctor that could perform an abortion, eventually finding one in New York City.

She testified that she had to ask strangers for help affording the travel, turning to the online website Go Fund Me.

Once in New York, she had to deal with her loss alone, since due to threats against abortion clinics, only the patient is allowed to enter. Once inside, she learned there was no longer a heartbeat and the abortion would happen immediately.

“I went into surgery alone and I sat in recovery alone. I grieved her loss alone in a city I’ve never been in; far away from the comfort of my home, my family and my friends,” Phillips said while crying.

“No one should be treated this way — not in Tennessee and not in the other 13 states that now criminalize abortion, the standard of care that I needed in my situation,” Phillips added.

The state’s abortion laws, she said, are continuing to negatively affect her and her husband, who want to try for another child, but are fearful of what might happen during another pregnancy.

Improvements in safety net programs

Leslie Ford, adjunct fellow in the Center on Opportunity and Social Mobility at the conservative-leaning think tank American Enterprise Institute, told the Budget Committee that abortion is not a solution that “vulnerable women” should seek.

“Many women considering an abortion face significant challenges, but abortion is not the answer,” Ford testified. “We have a duty to focus on real solutions.”

Congress, she said, “should hesitate to make policy based on research that says abortion results in better outcomes for women.”

Instead, lawmakers should seek to overhaul safety net programs that provide food, housing and other forms of assistance to low-income women in order “to address many of the challenges women considering abortion face.”

“Despite good intentions the safety net often impedes the path back to self-sufficiency,” she testified, later adding those programs trap “people in poverty by discouraging both work and marriage.”

The government, however, “can’t do everything,” she said. Other services should be provided by fathers and community organizations.

“We can and must encourage these mothers to find the pathway back to self-sufficiency,” Ford testified.

Tamra Call, the executive director of Obria Medical Clinic in Ames, Iowa, told the committee that many of the women who enter the clinic say they’re considering an abortion due to economic circumstances and that staff there try to dissuade that by providing references to other services.

Obria clinics are defined as “faith-based, pro-life nonprofits” by the legal organization Alliance Defending Freedom, which is representing two Obria clinics in a case Thursday in U.S. District Court for the Western District of Washington.

“Our mission is to provide reproductive health care and support women in a way which empowers them to make informed, life-affirming decisions,” Call said.

The clinic, she said, tries to help women get connected to places that can assist with education, job applications, food and housing.

Those programs include the Women Infants and Children, or WIC, program, Medicaid, family assistance planning in Iowa and child care planning resources.

“A woman should never feel that abortion is her only option,” Call said.

Whitehouse, Grassley comment

Rhode Island Democratic Sen. Sheldon Whitehouse, chairman of the panel, said that reproductive rights “are intrinsically tied to economic opportunity.”

“Stripping women of this freedom casts a long shadow over their lives and over their families lives,” said Whitehouse, who has backed federal legislation to ensure access to abortion care across the country. “And it casts a long shadow over our economy as well.”

Iowa Republican Sen. Chuck Grassley, ranking member on the committee and a longtime opponent of abortion, criticized the hearing for taking place at all, saying that abortion “is not an issue that lends itself at being looked at solely through an economic lens.”

Grassley later said that “yes, having and raising children has costs, but so does abortion on demand and the culture that lacks respect for life.”

Congress, he contended, should focus on increasing coordination between safety net programs that help families, including promoting work and education.

Utah Republican Sen. Mike Lee said that the U.S. Supreme Court’s decision nearly two years ago to end the constitutional right to an abortion sent regulation of abortion back to lawmakers.

Since Congress hasn’t passed any laws that would affect access nationwide, Lee said, “states will handle this differently, but states handle many things differently.”

“Sometimes those laws can end up having unforeseen consequences, sometimes tragic ones,” Lee said. “Those laws can be changed from time to time.”

Virginia Democratic Sen. Tim Kaine said the results of some of the state laws restricting abortion access would be almost unimaginable had Congress not heard the testimony.

“The cruelty is astounding,” said Kaine.

Sen. Whitney Westerfield shared polling results with his colleagues in the state Senate Friday night. (LRC Public Information)

FRANKFORT — Republican Sen. Whitney Westerfield, a staunch opponent of abortion, filed a bill Wednesday aimed at protecting access to in vitro fertilization in Kentucky.

Senate Bill 373, which is not yet online, says any facility or “procedure related to in vitro fertilization shall not be liable” for damages “to a patient or patient’s surviving spouse or partner resulting from the loss of a human embryo, except in cases of negligence or wanton, willful, malicious or intentional misconduct.”?

It also protects health care providers “performing any procedure” related to IVF from being criminally charged. IVF is used to treat infertility, according to the Mayo Clinic, and can help other people trying to get pregnant to do so.?

This comes a day after Sen. Cassie Chambers Armstrong, a Louisville Democrat, filed a similar bill in response to a ruling from the Alabama Supreme Court stating that frozen embryos are children. A few days before that, Louisville Democrat Rep. Daniel Grossberg filed House Bill 757 to protect access to IVF.?

Grossberg’s bill also states explicitly that “A fertilized human egg or human embryo that exists in any form outside of the uterus of a human body shall not be considered an unborn child, a minor child, a natural person, or any other term that connotes a human being for any purpose under state law.”

Some worry this ruling will deter people in Alabama from attempting to conceive children via IVF, which sometimes involves freezing embryos for future attempts at insemination. Several clinics in Alabama, including the University of Alabama Birmingham, have paused IVF treatments and embryo transfers in response to the ruling.

Westerfield’s filing comes as he and his wife are expecting triplets, he announced in January. He said at that time on the Senate floor that they adopted and transferred embryos for the pregnancy. His 6-year-old son is an “embryo adoption” baby, he said.?

At the podium, Dr. Virginia Stokes, a board certified OBGYN, said she’s treated many conditions that required abortion to prevent sepsis and preserve a patient's fertility. (Kentucky Lantern photo by Sarah Ladd).

FRANKFORT — Saying that abortion bans handicap their ability to provide comprehensive care, nearly 300 Kentucky health care providers and medical students have signed a letter asking lawmakers to restore abortion access in the state.?

While unveiling the letter Wednesday, Louisville’s Dr. Marjorie Fitzgerald said abortion bans in Kentucky cause “devastating consequences” for patients.?

“We are losing obstetricians who will not practice in our state,” said Fitzgerald. And because of the restrictions, she said, “Doctors are violating their Hippocratic oath to do no harm.”??

Fitzgerald was joined in the Capitol Annex by Democratic lawmakers, other medical providers and a second-year medical student in Frankfort Wednesday to discuss the letter, written by the Kentucky Physicians for Reproductive Freedom and signed by 280 providers.?

They detailed the complex nature of medical decisions that lead to abortions and slammed lawmakers for restricting their ability to provide that care.?

Dr. Nancy Newman, a board certified obstetrician, said the “sanctity of the patient-doctor relationship has been violated” by abortion bans.?

“As a practicing OBGYN in this state for over 30 years, I’ve provided health care for women and that has been my goal and my dream,” Newman said. “Would I come to this state now? No, I would not.”?

That’s because, she said, there is a “culture of fear that our legislature has created” in which providers have to decide between jail time and what their patients need.?

“How do you practice medicine in a culture of fear?” Newman asked. “I don’t think you can.”?

Dr. Michelle Elisburg, a pediatrician in Louisville, told the story of a 14-year-old patient who was raped by a 60-year-old landlord and got pregnant.

“She had the baby and then dropped out of high school to get a job to support (them),” she said. “Now both mother and child have multiple risk factors for poor health, educational and vocational outcomes, requiring more financial assistance from the state.”??

Elisburg said as a Jewish physician she’s governed not only by the Hippocratic oath to do no harm, but also a faith-based oath to act in the best interest of her patients.?

“As a physician in Kentucky, I am now being forced to make impossible choices that put my professional ethics and my faith in direct conflict with the law,” said Elisburg.?

Urooj Nasim, who attends the University of Louisville Medical School but spoke only on behalf of herself, said abortion bans may keep her and her classmates from getting the hands-on training they need to become OBGYNs and tackle Kentucky’s high rates of maternal mortality.?

“In order to make the best calls for the patients of my future, I need to receive high quality training and all of the tools and procedures available,” Nasim said. “And in a state where physicians live in fear of being prosecuted for delivering standard care, that is just not possible.”?

The American College of Obstetricians and Gynecologists (ACOG) has said that “in states with abortion bans, medical students and residents are not able to receive the hands-on training they need in order to provide patients with comprehensive care.”?

Nasim, who was born in Saint Louis and lived in Somerset until she was 8, later told the Lantern she is “undecided” on her specialty path but was “moved by that patient population” when she worked with an obstetrician previously.?

“I’m a very … mission driven medical student,” she said. “I really want to help patients with a lot of the social factors that affect their health. And OB is a really great specialty to do that in.”?

Physician Sen. Karen Berg, D-Louisville, and Rep. Pamela Stevenson, D-Louisville, also spoke alongside the health care providers.?

Latest in a line of protests?

The Thursday letter is the latest in a long line of efforts to protest Kentucky’s tight abortion bans.?

In 2022 the U.S. Supreme Court overturned Roe v. Wade, the 1973 decision that established abortion as a constitutional right. Immediately, Kentucky law updated to all but ban abortion entirely, except in rare and life-threatening situations.?

Several lawmakers and organizations have attempted to change this. Both Republicans and Democrats have filed bills seeking to loosen or undo Kentucky’s abortion bans, to no avail.?

In 2022, Kentucky voters defeated the anti-abortion Amendment 2, which would have specified there’s no right to an abortion in Kentucky’s Constitution.?

In late 2023, a Kentucky woman sued for the right to access abortion and end an unwanted pregnancy, but dropped the lawsuit when the fetus lost cardiac activity.?

Several anti-abortion lawmakers have focused their efforts during the 2024 session on making Kentucky a safer place to give birth and codifying support for expectant parents.?

‘Outside the scope of treatment’?

This week a Republican lawmaker filed a bill seeking rape and incest exceptions to Kentucky’s abortion bans — with a 6-week cutoff.?

Newman, an obstetrician, said that time frame is “not reasonable” and “outside the scope of treatment.”?

“Most women don’t even know that they’re pregnant by six weeks,” she said. In the case of assault, she said, “the victim likely may not even tell anyone before six weeks.”?

Dr. Virginia Stokes, a board certified OBGYN, said she’s treated many conditions in her tenure as a physician that required abortion — placenta previa,? first and second trimester ectopic pregnancies, preterm rupture of membranes, cancer, sepsis and more.?

A lack of early interventions, she said, can cause “total body sepsis and death due to the sepsis. And if death is avoided, there is a frequent loss of fertility due to disruption of the uterus.”?

“The fetus will not survive if the mother doesn’t survive,” Stokes said.?

In such cases she’s treated, she said, these are “gut wrenching decisions with no choice to be made” involving “very much wanted and cherished pregnancies.”?

“There are lots of really bad things that can happen between six and 12 weeks,” Stokes added. “and we need to have permission to take care of those patients.”?

“I am pro life,” Stokes said. “I am for saving the life of these women who have these early pregnancy complications that require, unfortunately, a cessation of the pregnancy ….? As an OBGYN, my first priority is the life of my female patient. Please don’t tie my hands.”?

Read the letter:

Julia H. Littell, a professor at the Graduate School of Social Work and Social Research at Bryn Mawr College, said that in the post-Roe era, as abortion restrictions increase, pressure has mounted to correct the record on abortion safety. ?Littell is the lead author of a commentary in the British Medical Journal calling for the retraction of four older abortion-related studies. (Getty Images)

Health and science experts published a commentary in the British Medical Journal on Tuesday calling for the retraction of four older abortion-related studies that, despite documented flaws, have influenced major anti-abortion decisions over the past 20 years, including the 2022 U.S. Supreme Court decision that overturned federal abortion rights.

The commentary comes the same month academic publisher Sage Journals retracted studies calling into question the long-established safety record of the abortion drug mifepristone, which were produced by anti-abortion activists shortly before they sued the U.S. Food and Drug Administration over the same drug.

The timing of these two events is coincidental, lead author Julia H. Littell told States Newsroom (she said the authors submitted their article last year, and it only recently completed the peer review and editorial process). But she said that in this post-Roe era, as abortion restrictions increase, pressure has mounted to correct the record on abortion safety.

“There’s a lot of damage that has been done, and probably will continue to be done, but it’s really important that scientific and medical journals correct these kinds of mistakes so that people don’t lose faith in science,” said Littell, a professor at the Graduate School of Social Work and Social Research at Bryn Mawr College. “How that’s going to play out in courts is a whole different story. It’s quite possible that some expert witnesses, and maybe even judges, will continue to cite these papers, even if they are retracted. But we think it’s really important to get this corrected, so that the downstream effects on medicine and public policy aren’t dire.”

The authors, 17 experts on reproductive and mental health and scientific methods from around the world, are calling for the correction or retraction of four studies published between 2002 and 2011, which they say erroneously attributed women’s mental health issues to abortions they had, in some cases by confusing correlation with causation and failing to correct for factors that explained the relationship.

“It turns out that women who have abortions may be more likely to have mental health problems to begin with,” Littell said. “They tend to be living in greater situations of adversity; they tend to be more exposed to domestic violence and other forms of interpersonal violence. … And when you don’t control for that, which is absolutely a predictor of abortion, then yes, later on, it looks like they have more serious mental health problems. But the problem was there all along. Abortion isn’t really predicting that. Abortion is co-occurring with that.”

The studies were authored by a handful of longtime anti-abortion activists and have received intense scrutiny and criticism over the years, but continue to be cited by lawmakers and judges to defend anti-abortion policies, including the FDA case the U.S. Supreme Court will hear next month.

The studies are:

• “Depression and unintended pregnancy in the National Longitudinal Survey of Youth: a cohort study,” published in 2002 in the British Medical Journal (which also published?Tuesday’s commentary). The authors of this study are longtime abortion opponent David C. Reardon, who also co-authored two of the recently retracted Sage articles, and Jesse R. Cougle. The cohort study concluded that the risk of depression was higher in women who had an abortion compared with those who continued an unwanted first pregnancy. But the commentary writers say an independent re-analysis of the same data found that the study incorrectly identified unwanted first pregnancies and did not control for pre-pregnancy levels of depression. The journal made partial corrections, but the commentary authors say “serious methodological problems remain uncorrected.”

• “Generalized anxiety following unintended pregnancies resolved through childbirth and abortion: a cohort study of the 1995 National Survey of Family Growth,” published in 2005 in the Journal of Anxiety Disorders, and written by Cougle, Reardon, and Priscilla K. Coleman, a retired Bowling Green State University professor of human development and family studies, and a longtime anti-abortion activist. The study concluded that abortion was associated with higher rates of anxiety than giving birth, but, according to the commentary authors, an independent re-analysis showed that pre-existing levels of anxiety and exposure to domestic violence accounted for this association.

• “Induced abortion and anxiety, mood, and substance abuse disorders: isolating the effects of abortion in the national comorbidity survey,” published in 2009 in the Journal of Psychiatric Research and authored by Coleman, Catherine T. Coyle, Martha Shuping, and frequent anti-abortion expert witness Vincent M. Rue. This analysis concluded that abortion increased the likelihood of various mental health problems and substance use disorders, but the commentary authors say the results could not be replicated because of incorrect statements about the methodology.

• “Abortion and mental health: quantitative synthesis and analysis of research published 1995-2009,” published in 2011 in the British Journal of Psychiatry, authored by Coleman. This was a meta-analysis that ultimately concluded that abortion accounts for a substantial increase in the risk of adverse mental health outcomes. The commentary authors say the study failed to meet methodological criteria for systematic reviews, noting that 11 of the 22 included studies were authored or co-authored by the sole author of the meta-analysis.

“We believe that journal editors and their publishers have an ethical obligation to correct the scientific record in these cases,” the commentary writers said, several of whom have been studying the health impacts of abortion for years. They are calling for the 2002 and 2005 articles at minimum to be accompanied by expressions of concern and the 2009 and 2011 articles to be retracted “because of the overwhelming and incontrovertible evidence of their methodological flaws, inaccurate results, and invalid conclusions.”

Littell, an expert on meta-analyses, said the 2011 study is the most egregious, in part because there was only one author, which is not the recommended standard for this type of difficult analysis. She said she was among several researchers who wrote letters to the editor of the British Journal of Psychiatry more than a decade ago calling for its retraction. The commentary writers estimate it has been cited in at least 25 court cases and 14 parliamentary hearings across six countries.

Neither Coleman, Cougle, or Reardon responded to requests for comment by the time of publication.

These researchers have long stood by their work and some continue to testify as expert witnesses in abortion-related lawsuits. Coleman in a rebuttal submitted to the British Journal of Psychiatry in 2022 blamed renewed calls to retract her research on pro-abortion bias. “I have not been the only recipient of this form of bullying due to publishing research results that run counter to a political agenda,” Coleman wrote.

The British Medical Journal told States Newsroom in a written statement: “We are grateful for the concerns raised in the analysis article that we have published today. The issue remains under consideration by our research integrity team. We will make our final decision public once we have completed our internal process”

The remaining three journals did not respond to a request for comment by the time of publication.

Correcting the scientific record: ‘If we don’t, who will?’

The commentary writers also say they are trying to restore public confidence in science.

“It is a concern to me that people will begin to, if they haven’t already, lose trust in science if they can’t rely on the publications out there to be valid,” said Antonia Biggs, associate professor and social psychologist at the University of California San Francisco’s Advancing New Standards in Reproductive Health, which produced the Turnaway Study. That research found that women who have abortions do not suffer worse mental health outcomes than those denied abortions. “It is the responsibility of us as researchers or publishers to adhere to science and to make sure that the scientific record is accurate. If we don’t, who will?”

UCSF professor Diana Greene Foster, who led the longitudinal Turnaway Study, also co-authored the commentary. (Editor’s note: Reporter Sofia Resnick contributed proofreading and editing to Foster’s 2020 book about the study.) UCSF professor Ushma Upadhyay, another commentary co-author and Turnaway Study researcher, is also pursuing a paper re-examining the retracted Sage research.

Chelsea Polis is another commentary co-author who has been involved in efforts to retract flawed reproductive-health-related research. She is a senior scientist of epidemiology at the Center for Biomedical Research at the Population Council, which developed the abortion pill at the center of the FDA lawsuit, along with contraceptives and other reproductive health products.

In 2022, the journal Frontiers in Psychology published?Coleman’s critique?of the Turnaway Study but,?according to Inside Higher Ed, re-examined the article post-publication after critics, including Biggs and Polis, pointed out that Coleman’s article had been edited and peer reviewed?primarily by scientists from the anti-abortion think tank the Charlotte Lozier Institute.

Also in 2022, Polis led a group of 16 scholars who submitted their concerns to the British Journal of Psychiatry about Coleman’s 2011 meta-analysis. An investigative article published by the British Medical Journal reported that an independent panel had determined that the 2011 study should be retracted. But according to the BMJ, the Royal College of Psychiatrists, which owns the British Journal of Psychiatry, overruled the panel after Coleman threatened to sue. Panelists and editorial board members resigned in protest over concerns the journal lacked editorial independence. The Royal College defended its decision not to retract in a 2023 statement, citing the “distance in time since the original article was published” and “the widely available public debate on the paper.”

Polis told States Newsroom the fear of lawsuits can deter retractions, a fear she understands firsthand. In 2020, the medical device company Valley Electronics of Zurich, Switzerland, sued Polis for defamation after she raised concerns about how their Daysy fertility tracker was being marketed as a contraceptive based on a paper that was ultimately retracted. The company lost the lawsuit.

“Editors, journals, and publishers have very little incentive to retract papers (and sometimes avoid retracting even when it really should be done),” Polis said in an email. Polis is an advocate for abortion access, but she said her research critiques have been based on concerns over methodology and not policy positions. She said this work analyzing and calling out flawed science has brought her into a community of scientists dealing with similar legal battles.

“In so many ways, people willing to do this kind of unappreciated, generally unrewarding, sometimes dangerous, and yet extremely critical scientific integrity work need more help and meaningful support,” Polis said.

Biggs told States Newsroom she doesn’t know where these new calls for retraction will lead. But she said she plans to continue pointing out the flaws in these studies, because their influence has had real-world impact.

“When we’re talking about these policies, they have real effects and can have the effects of denying someone a wanted abortion,” said Biggs, referencing the Turnaway Study she worked on, which found more negative short-term mental health outcomes for patients denied abortions, as well as more long-term health and socioeconomic outcomes. “It’s going to impact them. It’s going to impact their children and their families.”

Rep. Ken Fleming, R-Louisville, has filed a bill creating new exceptions to Kentucky's near total ban on abortion. (LRC Public Information)

Citing his affection for his daughters, a Louisville Republican has filed a bill that would expand exceptions to Kentucky’s abortion ban, including for rape and incest.

Rep. Ken Fleming’s House Bill 711 would leave it up to the physician to determine if rape or incest had occurred, allowing an abortion “if, in the physician’s best clinical judgment, the pregnancy is the result of” rape or incest, according to draft language provided to the Lantern. The bill, ?not yet available online, was introduced on the final day for filing legislation in the House.

The bill would allow people who qualify for the exceptions to end a pregnancy “if the abortion can be performed no later than six weeks after the first day of the woman’s last menstrual period.”?

Fleming’s bill would also “clarify that abortions may be performed to remove a dead unborn fetus, an ectopic pregnancy or incomplete miscarriage or in cases of a lethal fetal anomaly.”?

Physicians who perform abortions would be required to “document the circumstances surrounding” them, according to a release from the Kentucky House Majority Caucus.?

“We all encounter difficult heart-wrenching decisions in life. As a father of two daughters, I have always supported them financially, emotionally, and especially spiritually. With them on my mind and in my heart, exceptions for life-saving measures for the mother and in cases involving rape or incest should be included in our state’s abortion law. HB 711 leaves the abortion law intact while allowing exceptions for life of the mother and for rape and incest,” Fleming said in a statement.

Several bills seeking to loosen Kentucky’s strict abortion restrictions were filed earlier in the session by Democrats, but have not moved.?

In 2023, Republican Rep. Jason Nemes, R-Louisville, filed a bill seeking rape and incest exceptions up to 15 weeks. That bill did not advance.

Amanda D'Angelo and husband James honeymooned in Hawaii in 2021. The rainbow is widely regarded as a symbol of having a living child after losing one during pregnancy. (Courtesy Amanda D'Angelo)

Amanda D’Angelo only had a few weeks to get used to the idea that she was going to be a twin mom, before her eight-week scan revealed one had died.

It’s a relatively common occurrence early on in twin pregnancies, and while it was upsetting, she took comfort in still being pregnant. She went on her honeymoon with her husband to Hawaii in July 2021, and the newlyweds smiled for a photo on the beach with a double rainbow behind them — a rainbow being the widely regarded symbol of having a living child after losing one during pregnancy.

She didn’t know just how symbolic that rainbow would become until a few weeks later.

D’Angelo went to a clinic in Manchester, New Hampshire, for a routine 12-week scan on her lunch break, without her husband, James, who had to work. But when the ultrasound technician began looking in detail, she told D’Angelo, “I don’t like the look of the head.”

The technician went to talk to the doctor, and D’Angelo was left alone in silence for about 20 minutes, staring up at an orange-brown overhead light, repeating to herself, “There’s no way two bad things can happen.”

Before and after Dobbs, questions of ‘when and where’ affect abortion access

The doctor’s look said it all. ‘“I wish I was meeting you on better terms,’” she recalled him saying. She started to cry.

“I was beside myself.”

The connection of mental health and abortion is a talking point used by anti-abortion and abortion rights advocates alike, for different reasons. Research shows that most women do not experience significant emotional harm after an abortion and do not regret the decision, and those denied an abortion are more likely to have anxiety, low self-esteem, and fewer aspirational goals for the future.

For mothers whose pregnancies have been diagnosed with fetal anomalies, there is a high risk of traumatic stress and depression at the time of the diagnosis and over time.

D’Angelo’s doctor told her the fetus suffered a defect of a neural tube that never closed, leading to a condition called anencephaly, where the skull and large sections of the brain do not form. The condition affects 1 in 4,600 pregnancies, according to the Centers for Disease Control and Prevention. Many cases end in miscarriage or stillbirth. Those that make it to delivery die shortly afterward. It’s more common in females, which is what D’Angelo was carrying.

“I knew right away I mentally could not handle carrying a baby that was going to die,” D’Angelo said. “I knew that prolonging the suffering for myself and for her was not going to be a good environment.”

She walked out of the appointment in a daze, along the skywalk at the hospital to the parking garage.

“I kept looking over the edge, and I remember thinking, ‘I could just throw myself off of here right now,’” D’Angelo said. “What made me stop, and cry even harder, was that my husband would have no answers as to why I did that.”

Abortion stigma still exists in places like New England

A study from Saint Martin’s University in 2022 showed about 2.4 million deaths occur every year in utero or by stillbirth, which is four times greater than the annual number of deaths from cancer. That type of loss was not recognized by many health care professionals as an emotional trauma prior to 1970, the research said, but is now considered a traumatic event that can lead to post-traumatic stress disorder. Symptoms can be debilitating, and include depression, substance abuse and suicidal ideation.

D’Angelo’s diagnosis came nearly a year before the U.S. Supreme Court’s Dobbs decision to overturn Roe and return the right to regulate abortion to the states. In New Hampshire, access to abortion is legal until 24 weeks. Both sides of the abortion rights debate have tried to change that, but as recently as Feb. 1, members of the state’s General Court are in a stalemate. Representatives voted on a proposed constitutional amendment that would have asked voters to guarantee a right to abortion until 24 weeks, but it needed 226 votes to pass and received 193.

A competing bill would have banned abortion after a fetus has reached 15 days of gestation, which is before a menstrual period is considered “late” if gestational age is counted from the last menstrual period. Representatives voted 363-11 to indefinitely postpone the bill, according to the New Hampshire Bulletin.

Unlike in 14 other states, D’Angelo’s doctor was free to refer her to another clinic for termination. Within a week, she was able to get an appointment at a Dartmouth facility in Lebanon, New Hampshire, about an hour and a half away, at almost 14 weeks. Her husband didn’t question the decision, she said, and gave his full support.

She acknowledged she lives in an area of the country where abortion access is widely available, but said that doesn’t stop societal stigma. A 2020 study of 4,000 abortion patients found nearly two-thirds thought people would look down on them if they knew they had an abortion. A 2012 survey of college students in New England found 87% of participants agreed there is a stigma around women who have abortions, and 23% felt they had to withhold their beliefs about abortion from people they were closest to.

“In New England, a lot of places are very liberal and open about abortion, but that doesn’t mean there aren’t a ton of people around here that judge someone for that,” D’Angelo said.

Although in favor of abortion rights, she called herself the black sheep of a family where her father was very religious and conservative, including vehement stances against abortion.

“It was definitely something in the back of my mind, that religious guilt and knowing they would judge me over this,” she said.

Termination allowed her to go on to have a living child

Following her termination, D’Angelo said her obstetrician referred her to a perinatal therapist, and that therapy helped her feel prepared to try again a few months later. By December of that year, D’Angelo was pregnant with her now 18-month-old son, Jacob — her rainbow baby. He was due about a week after the year anniversary of her abortion.

During her pregnancy with Jacob, the Dobbs ruling happened in June 2022. She worried for every person whose mental health might go by the wayside during a termination experience because they couldn’t receive care first for their physical health.

“It makes me so upset and distraught for these women and families and what they’re facing, because I know how I felt in that situation, I felt very alone,” she said.

By sharing her story, D’Angelo said she hopes to increase understanding of why people need abortions.

“I cannot let this just go on and have people think that people just get abortions left and right,” she said. “Even if that’s the case, who is that for you to judge? But also, it happens to people who are trying to start families and want to have a baby.”

If she had been forced to carry the pregnancy to term, D’Angelo said she is unsure if she would have made it through her suicidal thoughts to be able to go on and have her son.

“I hope middle-of-the-road people that are undecided, and people who are conservative, look at this and say, ‘Oh my gosh, this is a really hard situation, and I don’t know what I would do in their situation,’” D’Angelo said. “And I hope they realize a woman’s mental health does matter. A woman’s health matters in general.”

The U.S. Supreme Court is scheduled to hear arguments on access to the abortion pill on March 26, and dozens of groups are weighing in ahead of the court date. (Photo by Al Drago/Getty Images)

WASHINGTON — The U.S. Supreme Court has been inundated with dozens of organizations seeking to weigh in on the future of the abortion pill by filing “friend of the court” briefs.

The groups include governors, attorneys general, state lawmakers and members of Congress as well as medical organizations, civil rights groups and pharmaceutical companies — all of whom argue the justices’ ruling will have significant effects on American society and health care.

“Turning back the clock to reimpose unnecessary restrictions on mifepristone will exacerbate existing inequities in maternal health for women of color, low-income women, and those living in rural areas,” wrote a group of more than 16 medical organizations, including the American College of Obstetricians and Gynecologists and The American Medical Association.

“Restricting access to mifepristone will not only jeopardize health, but worsen racial and economic inequities and deprive women of the choices that are at the very core of individual autonomy and wellbeing,” the medical organizations added in their 45-page brief.

The medical groups wrote that since mifepristone was approved in 2000, “hundreds of medical studies and vast amounts of data have confirmed its safety and efficacy as part of this two-drug regimen.”

“The scientific evidence is overwhelming: major adverse events occur in less than 0.32% of patients,” the medical organizations added. “The risk of death is almost non-existent.”

Arguments set for March 26

More than 35 “amicus curiae” or friend of the court briefs have been filed in the days since the Supreme Court scheduled oral arguments for March 26. While none of the briefs filed so far are from anti-abortion organizations, those documents are likely to be sent to the justices in the weeks ahead.

The case eliciting the interest centers around access to mifepristone, an FDA-approved pharmaceutical that’s part of a two-drug regimen used for both medication abortions and miscarriage care. The process is used in more than half of pregnancy terminations in the United States.

The drug is currently approved for use up to 10 weeks gestation and healthcare providers can prescribe it through telehealth. Patients have the option to then have the medication shipped to their home.

All that would change if a majority of the justices side with anti-abortion organizations, which want the conservative-leaning Supreme Court to overturn changes the FDA began making in 2016 regarding how the pharmaceutical can be prescribed and taken.

Reverting to instructions last used more than seven years ago would mean that:

• Mifepristone would be approved for up to seven weeks gestation, not the current 10-week ceiling.
• Only doctors would be able to prescribe it, not health care providers with the authority to prescribe medications, like physician’s assistants and nurse practitioners.
• Patients would need to attend three in-person doctor’s appointments to complete the two-drug regimen.
• The dosage of mifepristone would change along with when the second drug, misoprostol, is taken as well as the dosage of that medication.

Democratic governors speak out

Nearly two dozen Democratic governors, dubbing themselves the Reproductive Freedom Alliance, filed a 52-page brief that sought to reinforce the safety of medication abortion while arguing that it is “a critical component of the reproductive health care regime in states in which abortion is legal.”

“Physician shortages, insufficient resources, and rural communities without enough clinics to serve the local populations (known as maternal health deserts) all create enormous challenges for Governors when confronting one of their most important roles — protecting public health,” the governors wrote. “And that is particularly true with respect to reproductive healthcare, given the changing legal landscape over the past several years.”

The group included governors from Arizona, Colorado, Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington state and Wisconsin.

Attorneys general from a similar coalition of states wrote their own 37-page brief to the Supreme Court, saying that changes the FDA has made to prescribing and dosage since 2016 “have greatly benefited their residents, the health care system, and the public.”

“Medication abortion promotes access to abortion as early as possible, when it is safest and least expensive, and has contributed to an increase in the proportion of pregnancy terminations taking place at less than six weeks gestation, when risks are lowest,” the attorneys general wrote. “Mifepristone is also critical to managing early pregnancy loss.”

State legislators voice opposition?

More than 600 state lawmakers wrote in a 74-page brief that the Supreme Court’s ruling in the Dobbs case, which overturned the constitutional right to abortion, sent decisions about abortion back to “the people and their elected representatives,” not the court.

Returning mifepristone use and dosage to what was used before 2016 “improperly undermines state legislatures’ ability to decide whether to expand or restrict abortion access, taking regulatory choices away from legislators and their constituents,” they wrote.

A group of seven former commissioners of the Food and Drug Administration noted in a 36-page brief that the case doesn’t actually focus on how the federal agency interpreted the law or the legal standard it used to approve mifepristone, or update prescribing guidelines.

“Instead, the dispute involves FDA’s evaluation of the scientific data submitted to support the approval of a new drug application,” they wrote.

The former commissioners raised concerns about the precedent it would set were the Supreme Court to allow judges to substitute their “own opinions about the scientific data for the expert judgments of FDA clinicians and scientists, and on that basis overturned FDA’s reasoned, evidence-based decisions.”

“The resulting uncertainty would threaten the incentives for drug companies to undertake the time-consuming and costly investment required to develop new drugs and ultimately hinder patients’ access to critical remedies that prevent suffering and save lives,” they added.

Racial disparities in maternal health care cited

The NAACP Legal Defense & Educational Fund, Inc. called on the Supreme Court to reject efforts to return the use of mifepristone to what was in place before 2016, saying that would “exacerbate the impact of inequities in access to health care.”

“When Black pregnant women who wish to terminate a pregnancy are unable to access abortion care, including via medication abortion, and remain pregnant, they are at greater risk for adverse health outcomes as demonstrated by racial disparities in maternal health care and the maternal mortality rate,” the NAACP wrote in its 29-page brief. “Restricting access to medication abortion exacerbates racial disparities in health and likely results in additional barriers to care that will be disproportionately borne by Black people.”

A group of more than 300 reproductive health researchers, many of whom work at universities throughout the country, filed their 68-page brief, saying that “vast scientific evidence” supports the changes made in 2016 and afterward.

“This Court should not allow the politics of abortion to obscure the clear, abundant, and plainly sufficient scientific record supporting FDA’s decision-making in this case,” the researchers wrote.

Religious groups say it’s ‘for the pregnant woman to decide’

A group of nearly 35 religious organizations filed their 32-page brief on the premise that many religions “view the decision to have an abortion as something for the pregnant woman to decide, based on her own moral values and religious faith.”

Those organizations include Catholics for Choice, Hindus for Human Rights, Interfaith Alliance, Jewish Democratic Council of America, Muslims for Progressive Values, Rabbinical Assembly, The Sikh Coalition and Unitarian Universalist Association.

“We understand that some physicians object to participating in abortions,” the religious groups wrote. “But, federal laws already provide protections to individuals that refuse, based on religious or moral beliefs, to participate in abortions.”

The religious organizations added that the decision to push the use and dosage of mifepristone back to what was in place before 2016 “would make it difficult or impossible for many women to access abortion care consistent with their moral values and the teachings of their religious faith, by restricting patient access to a safe medication that is used in most abortions in the United States today.”

“Moreover, the burden of these restrictions would fall most heavily on vulnerable women from marginalized communities — people that many religions view as particularly deserving of protection.”

Experts have said that mifepristone, part of a two-drug regimen, has a record of safety and efficacy in more than two decades of use. (Chris Coduto/Getty Images for UltraViolet)

Two of the key studies cited by plaintiffs and judges as evidence that medication abortion should be pulled from the market or heavily restricted have been retracted because of undeclared conflicts of interest and unreliable findings, academic publisher Sage announced Monday.

States Newsroom was the first to report last year that Sage had opened an investigation into some of the research featured prominently in the initial Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration case, whose appeal goes before the U.S. Supreme Court next month. The case is centered on mifepristone, part of a two-drug regimen used to terminate pregnancies and to manage miscarriages.

Study cited by Texas judge in abortion-pill case under investigation

Sage retracted three studies published in its journal “Health Services Research and Managerial Epidemiology,” which were funded and produced by the Charlotte Lozier Institute, the research arm of the influential Susan B. Anthony Pro-Life America, which works to elect federal and state anti-abortion lawmakers.

“Following Committee on Publication Ethics (COPE) guidelines, we made this decision with the journal’s editor because of undeclared conflicts of interest and after expert reviewers found that the studies demonstrate a lack of scientific rigor that invalidates or renders unreliable the authors’ conclusions,” reads a statement issued by Sage.

The studies are:

• “A Longitudinal Cohort Study of Emergency Room Utilization Following Mifepristone Chemical and Surgical Abortions, 1999–2015” (2021)

• “A Post Hoc Exploratory Analysis: Induced Abortion Complications Mistaken for Miscarriage in the Emergency Room are a Risk Factor for Hospitalization” (2022)

• “Doctors Who Perform Abortions: Their Characteristics and Patterns of Holding and Using Hospital Privileges” (2019)

The lead author for each study was James Studnicki, Charlotte Lozier’s vice president and director of data analytics, who was on the editorial board of “Health Services Research and Managerial Epidemiology” at the time the studies were published.

Abortion rights advocates say consequences dire if SCOTUS declines to hear pill case

“Upon submission, the lead author declared no conflicts of interest and all authors declared the same within each article; however, all but one of the article’s authors had an affiliation with one or more of Charlotte Lozier Institute, Elliot Institute, and American Association of Pro-Life Obstetricians and Gynecologists – all pro-life advocacy organizations that explicitly support judicial action to restrict access to mifepristone,” the Sage statement reads. One of those groups, AAPLOG, is a plaintiff in the Alliance v. FDA lawsuit.

In a statement, Studnicki and Tessa Longbons, senior research associate, called the Sage retraction a “baseless ideological attack on our scientific research and experts. To date, Sage hasn’t identified a single substantive objection to the studies to the research team. However, Sage has launched a political assault against an organization whose research has been cited in major pro-life legal victories, such as the Dobbs decision and the AHM v. FDA case. Even after reviewing and publishing this study and standing by it for years, Sage has now caved to outside partisan pressures that dominate elite circles,’’ Studnicki and Longbons said.

“Sadly, this incident points to a larger, newer phenomenon, which is, many of our scientific institutions no longer stand in defense of open inquiry. Rather, what we’re seeing is a biased faction in the medical community (that) holds all the power and attempts to suppress any research that cuts against their approved, pro-abortion narrative,’’ Studnicki and Longbons said.

Last year, pharmaceutical sciences professor Chris Adkins contacted Sage with his concerns about the 2021 “Longitudinal Cohort Study,” which was cited by U.S. District Judge Matthew Kacsmaryk as evidence that the anti-abortion doctor-plaintiffs had standing to sue because “they allege adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress’ on doctors during emergencies and complications.”

That paper looked at Medicaid patients’ visits to the emergency room within 30 days of having an abortion and concluded that medication abortion is excessively risky.

“I can’t prove that there was intent to deceive, but I struggled to find an alternative reason to present your data in such a way that exaggerates the magnitude,” Adkins told States Newsroom at the time. “They’re misrepresenting its conclusions to begin with.”

The epidemiology and public health experts who conducted an independent post-publication peer review of the three studies ultimately agreed with Adkins. Regarding the 2021 and a follow-up 2022 paper using the same dataset, the experts found “fundamental problems with the study design and methodology,” “unjustified or incorrect factual assumptions,” “material errors in the authors’ analysis of the data,” and “misleading presentations of the data.”

The 2019 article, using a different dataset, contained “unsupported assumptions,” “misleading presentations of the findings,” and “demonstrate a lack of scientific rigor and render the authors’ conclusion unreliable,” the experts found.

Experts have cited mifepristone’s safety and efficacy with more than 5.6 million uses over the past two decades. The FDA has recorded 28 deaths but has stated that the drug cannot be identified as the cause of those deaths.

Lexington Democrat Rep. Lindsey Burke hopes her own story of becoming a mother appeals to “friendly faces across the aisle" and helps her restore abortion access in Kentucky. (Kentucky Lantern photo by Sarah Ladd)

FRANKFORT — Despite believing there is “very little appetite” in the Republican-controlled Kentucky legislature to roll back abortion bans, a Lexington Democrat hopes her own story of becoming a mother appeals to “friendly faces across the aisle.”

Rep. Lindsey Burke, D-Lexington, is filing three bills that roll back all abortion bans in Kentucky, protect medical records of Kentuckians who travel out of state to receive abortions where it’s legal and expand the Health Access Nurturing Development Services (HANDS) program to make sure new parents in the state can learn about mental health following birth.?

Meanwhile, Senate Democratic Whip David Yates, of Louisville, filed Senate Bill 99 in early January that would add exceptions for rape and incest to the state’s abortion bans. It has not been assigned a committee.?

Burke filed similar legislation in 2023, which did not move. This time, she hopes being transparent about her rape at 17 and experiencing a missed miscarriage later in life and then a complicated twin pregnancy appeal to lawmakers who “really do believe, sincerely, in the right to life.”?

Burke’s three bills would:?

• Undo all anti-abortion laws enacted since 2015
• Ensure anyone who travels out of state for abortion cannot have medical records subpoenaed in Kentucky.?
• Ensure recipients of the HANDS program have access to information about postpartum depression and other mental health issues related to pregnancy.?

For Burke, the bottom line motivating her is that pregnancy is “very complicated.”?

“It’s not always a straightforward, ‘Yay, we have a happy, positive pregnancy test. Nine months (later) — oh, I got a little sick to my tummy. But everything’s okay. And now we have a baby.’ That’s not reality.”??

Her reality, she told reporters, followed a winding road that began as a teenager.?

“I lost my virginity at age 17 through rape,” Burke said. “Fortunately, I was infertile. And that rape did not lead to a child.”?

“I was so ashamed of what happened that I didn’t tell anyone for years,” she added. “It impacted my mental health. It impacted my education. It impacted my sense of self.”?

A decade later, she got married and, while in law school, saw a specialist about her polycystic ovary syndrome, or PCOS, a hormone problem which can cause infertility. The Centers for Disease Control and Prevention estimates 5 million Americans could live with PCOS.?

A few years later, Burke said, she and her husband borrowed more than $50,000 to “pursue the dream and the joy of parenthood,” first through intrauterine insemination (IUI) then through in vitro fertilization (IVF).?

In 2020, she suffered a “missed miscarriage” with her first successful embryo transfer through IVF.?

At her first appointment for that pregnancy, “instead of hearing the sound of electrical impulses or heartbeat, we heard silence,” Burke said. A missed miscarriage happens when an embryo dies in utero, but the pregnant body does not pass it.?

“You don’t have the dramatic bleeding episode,” Burke said. “In fact, your body still believes that you’re pregnant.”?

She got a dilation and curettage (D&C) in Cincinnati, which is a procedure to remove tissue from the uterus.?

“Having the ability to know the day and time that that horrible nightmare was going to come to an end was a gift to me. And I’m incredibly grateful that I was able to access that care.”?

A few months later, Burke and her husband decided to transfer two embryos, she said. After a promising start to that pregnancy, Baby A showed signs of struggle.?

“He had a very large cystic hygroma, which is a mass, a bubble, behind his neck and it ran the entire length of his body,” Burke recalled. He developed three rare fatal fetal anomalies. His organs, Burke said, were developing outside his body: heart, bladder, lungs. His spine did not develop below the lungs.?

“There are in utero surgeries that can be done to save a baby who has that abnormality,” she said. “But in a twin pregnancy, they can’t do surgeries in utero.”

Her doctor gave her difficult news.?

“She said, ‘You have two options. You can wait until Baby A passes on his own, which I believe he will before he’s born,’” Burke recalled. “‘The positive of that is that you give him a chance. The negative of that is that you will probably have an active miscarriage when he dies, and that could compromise Baby B.’”?

The doctor continued, Burke said: “‘Best case scenario, you would have a permanently disabled child and maybe another one. But chances are, you will lose Baby A and you might lose baby B also.’”?

After “anger” and “grief,” Burke underwent a selective reduction, which is an operation to abort one fetus in a pregnancy involving more than one.?

After the procedure, which happened out of state, “Baby A was gone,” Burke said. “But we managed to save Baby B.”?

“As I speak, very transparently, I loved all three of those children,” Burke said, her voice breaking. “I still do.”?

DakotaRei Frausto, 19, traveled 11 hours from their hometown of San Antonio, Texas, in April 2022 for an abortion after their contraception failed. (Courtesy of DakotaRei Frausto)

DakotaRei Frausto was 17 years old and 12 weeks pregnant when they had to travel 11 hours by car from San Antonio, Texas, to New Mexico to terminate a pregnancy after contraception failed them.

The appointment was April 1, 2022, about six months after Senate Bill 8 initially took effect in Texas, banning abortions after about six weeks. “I had a lot of health issues that played into me wanting to get an abortion, but those very issues made it difficult for me to realize I was pregnant in the first place,” said Frausto, who was eight weeks along by the time they discovered they were pregnant.

Among them: chronic nausea, anemia that causes dizziness and fatigue, and premenstrual dysphoric disorder — better known as PMDD — which causes severe mood swings and other symptoms often associated with premenstrual syndrome, including a missed period.

“Those are big signs of pregnancy early on, and I did not see those at all,” they said.

Although Roe v. Wade established a federal right to abortion prior to fetal viability in 1973, obtaining an abortion over the next five decades was still difficult for many, depending on where they lived. Abortion can be a complicated decision fraught with health issues for both the pregnant person and the fetus, and individuals often need emotional and financial support.

The stigma around making that decision can be especially heightened in certain regions of the country — prior to Roe’s passage, Texas consistently had the highest illegal abortion death ratio and rates in the United States, according to research.

States have had varying levels of access since 1973, but following the Dobbs decision in June 2022, when regulation of abortion changed from a constitutional right to a procedure that could be restricted at any stage at the state level, the fragmented nature of access became much more significant. Fourteen states have banned abortion in nearly all cases, while others expanded rights through constitutional amendments and other state laws. But even over the past year and a half, those restrictive laws have shifted, sometimes multiple times, through legislative action and ongoing court cases at the state, appellate and federal levels, creating confusion and chaos for patients and providers alike.

Today, States Newsroom begins “When and Where? Abortion access in America,’’ an occasional series that will profile individuals who have navigated the patchwork of laws around reproductive health care in the U.S. before and after Dobbs.

Health care environment in Texas didn’t feel welcome to all

Texas’ laws were at the heart of the Roe court case, and in the years following the original U.S. Supreme Court decision, the state continued to pass laws meant to limit access, including the requirement of parental notification for minors seeking abortions, requiring admitting privileges for providers, and then the 2021 law allowing lawsuits from family members against anyone who provided or “aided and abetted” an abortion after fetal cardiac activity could be detected.

For Frausto, being a nonbinary, Indigenous person seeking care in Texas presented even more challenges. They told States Newsroom the general attitude toward reproductive health care where they live played a major role in the unwanted pregnancy, because they wanted to be tested for any complicating health conditions, such as endometriosis, before starting hormonal birth control and got the brush-off from their provider. They also got the message that only one type of person was welcome in the clinic.

“You walk into the waiting room and it’s just pictures of babies and mothers everywhere, and at the one I went to there was even Christian music playing,” Frausto said. “It just felt like I was boiled down to my reproductive organs, and told that my job was to be a mother (rather than being treated as a whole person). That played a major role in not accessing hormonal birth control and having my contraceptives fail.”

A 2016 survey from the National Center for Transgender Equality showed 23% of more than 27,000 respondents said they did not seek health care due to fear of mistreatment, and 33% reported incidents of mistreatment from a provider within the past year. A 2020 study found that transgender and nonbinary people in the South experience increased oppression and stigma, with as much as 50% of trans people reporting suicidal ideations. Texas also passed a law that went into effect Sept. 1 banning transgender youth from accessing gender-affirming care.

Frausto and their partner had been together almost two years at that point and talked about safe sex. They talked about not wanting children, and using contraceptives to ensure that didn’t happen. It was never treated as a taboo with their family either — but the contraceptives failed and Frausto ended up pregnant anyway.

“As much as I knew I wanted an abortion, I of course still considered the possibility … but I cannot in good conscience bring a child into this world with these social and political conditions,” Frausto said.

Two-day trip and procedure cost nearly $1,500

Frausto called Planned Parenthood and remembers being told several states that normally would have been an option for them were hesitant to take out-of-state patients because there were fears that abortion access nationwide would soon be overturned by the nation’s highest court. The two best options seemed to be New Mexico and Oklahoma. They chose New Mexico because of family ties.

Between Sept. 1 and Dec. 31, 2021, Planned Parenthood clinics in Oklahoma experienced a 2,500% increase in patients from Texas compared to the previous year, according to Axios, while Colorado saw a 1,000% increase and Louisiana took in nearly 350% more. New Mexico saw a 100% increase in patients from Texas during that time.

The first appointment Frausto could get in New Mexico was four weeks out, putting them at 12 weeks of pregnancy. Oklahoma likely would not have been an option as the state passed its own abortion ban that started at conception during the same timeframe.

“I found out that the day I was having my abortion … people who were in the waiting rooms of those clinics were told they could no longer be given the procedure and had to leave,” Frausto said. “I felt extremely grateful to be in a place where it was still accessible to me.”

The procedure was $600, discounted to $525 through donor support. Food and gas cost between $600 and $700. Lodging for the night was somewhere around $300. Through the goodwill of strangers online, Frausto raised $400 to help offset the costs.

Frausto was still in high school, as was their boyfriend, and their mom was a full-time student as well, so they couldn’t afford a longer trip. They drove out on Thursday, arriving at the hotel in the wee hours of the morning, went to the appointment at 9 a.m., then drove back to San Antonio a few hours later while Frausto dealt with the cramps, bleeding and nausea in the back seat of the car.

Every other person in the clinic who was there for an abortion was from Texas, Frausto said. Patients from Houston, Dallas, Austin, one of whom was also 17 years old and getting on a plane right after her appointment.

“In the recovery room there was this girl who was talking to me after her abortion, and she was saying she came there alone, she flew there alone, and immediately after she had to catch a flight back to Texas all by herself,” Frausto said.

‘My abortion saved my life’

Two months later in June 2022, the U.S. Supreme Court issued its decision to topple Roe v. Wade, and more than a dozen states implemented near-total abortion bans. Frausto started telling their story through Planned Parenthood’s Patient Advocacy Storytelling Program, and in February 2023, they started an abortion support group on Facebook to help dispel myths around abortion, decrease its stigma and connect people with resources. The group gained 531 members over the course of four months, but toward the end of the year it was shut down by Meta, the owners of Facebook. Frausto said they weren’t given a reason for the action, but their other chats that did not have the word “abortion” in the title went untouched.

But Frausto continues to be active with advocacy work and open about their story, which they said breaks apart a lot of stigmas around abortion.

“When people think about me and see me, their immediate thought is, ‘promiscuous young woman,’ and I am able to tell them that I stayed with my fiancé and it made us stronger,” they said. “I tried to take the steps to be proactive about my reproductive health care, and I was dismissed.”

It’s important to Frausto that people see they are confident and fearless about telling their story, because it wasn’t until the experience at the New Mexico clinic that they actually felt seen, cared for and embraced. At the same clinic, Frausto was offered a hormonal birth control implant to be placed for free, which was possible because of state funding that wasn’t available in Texas.

“I never really felt like I was treated as a human until I got my abortion, which was the craziest experience for me,” they said. “Even before I was pregnant, just living here in Texas, I was told abortion was horrible, and painful, and the worst experience of your life, but then I would say my abortion saved my life and showed me that it was possible to have compassionate and adequate health care.”

The U.S. Supreme Court will hear arguments in March on access to mifepristone, a prescription medication used for abortions and miscarriage care. In this photo illustration, packages of mifepristone tablets are displayed at a family planning clinic on April 13, 2023, in Rockville, Maryland. (Anna Moneymaker/Getty Images)

WASHINGTON — The U.S. Supreme Court will hear oral arguments on March 26 in the case that could significantly curtail access to a prescription drug used for both abortions and miscarriage care.

The case centers on when and how patients can access mifepristone, a pharmaceutical the U.S. Food and Drug Administration originally approved in 2000.

Mifepristone is currently approved for use up to 10 weeks gestation and accounts for more than half of abortions in the United States when used in combination with a second pharmaceutical called misoprostol.

Doctors also often use the two-drug regimen to provide treatment following a miscarriage.

Lawsuit history

The original lawsuit, brought by the anti-abortion legal organization Alliance Defending Freedom, asked the U.S. District Court for the Northern District of Texas to overturn the FDA’s original approval of mifepristone.

If the judge didn’t agree to that, the organization requested the court revert prescribing and dosage of mifepristone to what was in place before the FDA began implementing changes in 2016.

Judge Matthew Joseph Kacsmaryk stayed the FDA’s original approval of mifepristone in an April 2023 ruling that was later put on hold by the U.S. Supreme Court pending appeal.

The 5th Circuit Court of Appeals heard oral arguments in May 2023 before issuing its ruling a few months later, in August.

That three-judge panel said that mifepristone could remain legal in the United States, but that prescribing and dosage guidelines should go back to what was used before changes began taking effect in 2016. That ruling is on hold pending the Supreme Court’s decision in this case.

That ruling, should it ever take effect, would lower the maximum gestational age from 10 weeks to seven weeks and remove the option for mifepristone to be prescribed via telehealth appointments and mailed to patients’ homes.

Patients would once again be required to attend three in-person doctor’s office visits to complete a medication abortion.

Only doctors would be able to prescribe mifepristone, instead of health care providers who are authorized to prescribe medications.

Dosage and timing of mifepristone and the second drug used in medication abortion, misoprostol, would need to be administered under guidelines that went out of use more than seven years ago.

Briefs filed

Dozens of medical organizations and pharmaceutical groups have filed briefs with the Supreme Court, urging it to decide one way or another.

The Pharmaceutical Research and Manufacturers of America wrote in its 28-page brief that if the 5th Circuit Court of Appeals ruling is left in place it “could invite boundless litigation to FDA drug approvals.”

“Congress created an FDA approval process that is both rigorous and thorough, and pharmaceutical companies invest billions of dollars in research and development to meet FDA’s scientific standards,” they wrote.

If the appeals court’s ruling is allowed to take effect, they wrote, it “threatens to stifle pharmaceutical innovation by disrupting industry’s reasonable investment-backed expectations.”

Several medical organizations, including the American College of Obstetricians and Gynecologists and the American Medical Association, wrote in a 36-page brief to the Supreme Court that “[n]o patient should be denied treatment for miscarriage or other early pregnancy loss because of Respondents’ hypothetical fears or personal beliefs.”

When it comes to abortion access, they wrote that patients “in states where abortion remains legal and protected should not be denied the ability to safely and privately seek to exercise that right through safe and effective medication abortion.”

“Restricting access to mifepristone — the safety of which is proven by decades of rigorous scientific study and millions of uses — in ways that are not medically necessary or scientifically sound would seriously increase risk for hundreds of thousands of patients, while protecting none,” they wrote.

“For already vulnerable populations (particularly those living in areas with limited access to OB/GYN care) the rollback approved by the Fifth Circuit promises to be especially devastating and to further perpetuate racial and socioeconomic inequalities,” they added.

Alliance Defending Freedom Senior Counsel Erin Hawley said in a written statement released last week that she urged “the Supreme Court to hold the FDA accountable and require the agency to reinstate its safety standards.”

Students from Assumption High School in Wisconsin Rapids, Wisconsin, brave this year’s snowy March for Life in Washington, D.C., on Jan. 19, 2024. (Sofia Resnick/States Newsroom)

Falling snow and flight delays thinned this year’s anti-abortion March for Life in Washington, D.C., on Friday, but did not deter the most impatient activists in the movement, those unsatisfied until the entire U.S. map is red with abortion bans.

“I’m not okay with abortion states and non-abortion states. I want an abortion-free America,” said Right to Life of East Texas director Mark Lee Dickson, standing outside the White House the day before, at a sparsely attended protest organized by the Christian Defense Coalition where activists held signs of aborted fetuses.

Nearly two years into a post-Roe America, the battle over abortion rights is being waged primarily at the state level, but this year holds multiple opportunities for abortion opponents to effect a national ban. Beyond the two major abortion cases headed to the U.S. Supreme Court lies a pivotal presidential election. Many anti-abortion groups have galvanized around former President Donald Trump, who despite his more recent mixed messaging on abortion in the face of GOP election losses, personally takes credit for overturning Roe v. Wade. Dickson is among activists confident that Trump would try to fast-track national abortion restrictions through executive orders and by enforcing archaic laws like the Comstock Act, as part of the Project 2025 plan drafted by far-right groups.

“If we got Donald J. Trump back in the White House, he could end abortion in every single state in America, by enforcing the Comstock Act,” Dickson told States Newsroom.

Dickson, who is one of the architects behind Texas’s controversial SB8 abortion ban, which empowers private citizens to sue abortion providers or those who assist abortion seekers, has been helping to pass local ordinances that make it a crime for an abortion to be performed on residents of specific cities. He said many anti-abortion activists are working to enforce these ordinances by spending time outside of clinics in neighboring abortion-access states like New Mexico and asking traveling Texans where home is.

“The pro-life movement is very interconnected,” Dickson said. “There are people outside of the abortion facilities in Albuquerque. What are they doing? They’re reaching out trying to save lives. And in that process, as those discussions are happening, it’s very easy to imagine a situation where someone a sidewalk counselor is ministering and the person says, ‘Where are you from?’ And they say, ‘I’m from Abilene, Texas.’ ‘Well, abortion facility, you’re in violation of the law of Abilene, and you can be sued if you perform an abortion on this Abilene resident.’”

He said his group has been shutting down sections of major roads in Texas saying “if you cross this road then you could be sued into oblivion if you are assisting in abortion trafficking.”

It’s in this atmosphere that has deeply impacted access to abortion around the country but especially for people of color and undocumented immigrants, said National Latina Institute for Reproductive Justice Executive Director Lupe M. Rodriguez, speaking at a media briefing earlier this week organized by abortion-access advocates.

“Roe never made abortion care accessible for communities of color,” Rodriguez said. “Anti- abortion politicians have been working for decades to make abortions difficult to get. And these attacks have fallen hardest and continue to fall hardest on Latinas and Latinx and other communities of color in the U.S. who may work multiple jobs that provide no sick days or insurance coverage and often live in underserved communities. Since Roe was overturned, access to care has absolutely gone from bad to worse.”

Since the Dobbs ruling overturned federal abortion rights under Roe, patients across the country alleging they’ve been denied emergency pregnancy care have been filing lawsuits and jumping into politics. The New Yorker recently published a high-profile story about Yeniifer Alvarez-Estrada Glick, who reportedly died of pregnancy-related causes and was not offered the option to terminate her dangerous pregnancy.

Abortion opponents have largely dismissed concerns about people being denied emergency medical care because of abortion bans. At this year’s March for Life, headlined by former NFL tight end Benjamin Watson, none of the rally’s speakers brought up the issue. The theme this year was “With every woman, for every child,” focused on helping people facing crisis pregnancies.

“Roe is done, but abortion is still legal and thriving in too much of America,” said Watson, during a pre-march rally Friday, ahead of what would have been the 51st anniversary Monday of the Roe v. Wade decision. “Roe is done, but even so in the cold and the snow you have continued to travel from around the nation to this place to recognize that the fight for life is not over. … With uncommon courage we must do justice not only by protecting innocent people in life, but by correcting injustice and rebuilding opportunities so that mothers and fathers can flourish.”

But the policy prescriptions offered at the rally focused largely on public funding for anti-abortion pregnancy centers, which are largely staffed by conservative Christian volunteers and offer certain baby items. Many of these centers have a record of spreading misinformation about abortion, disrupting online searches for abortion seekers, and sometimes serving as abortion-law enforcers.

New U.S. Speaker of the House Mike Johnson (R-La.) touted two bills the House passed this week, one that would require colleges to inform students about the rights of pregnant students and one that would require the federal government to fund anti-abortion pregnancy centers.

“I am myself a product of an unplanned pregnancy in January of 1972,” said Johnson, who has fought abortion and contraceptive rights most of his career and previously worked as a lawyer for Alliance Defending Freedom. The conservative Christian legal firm is involved in both lawsuits to be heard by the Supreme Court this year, which could impact the future of receiving emergency medical care in states with abortion bans, and access to an abortion drug commonly used for first-trimester abortions and to manage miscarriages. “Exactly one year before Roe v. Wade, my parents who were just teenagers at the time, chose life. And I am very profoundly grateful that they did. … We have to build a culture that encourages and assists more and more people to make that same decision.”

But some abortion opponents think political leaders are not doing enough to address the root causes of abortion in policy.

Catherine Glenn Foster, a constitutional lawyer and a longtime leader in the anti-abortion movement, said current state abortion bans are not adequately providing support to pregnant people, and she noted concern about stories of being denied emergency medical care. Foster drew criticism shortly after Roe was overturned when during a congressional appearance she said terminating a pregnancy for a young child should not be considered an abortion. Having previously led the anti-abortion policy organization Americans United for Life and worked for ADF, Foster is now an independent speaker and writer and currently assisting Terrisa Bukovinac’s long-shot presidential campaign as an anti-abortion Democrat.

The divorced mom has spoken often about an abortion she had as a college student that she now regrets and felt pressured into. She told States Newsroom in a phone interview on her way to speak at a March for Life event that she leans progressive in a movement whose leadership is overrepresented by far-right conservatives. Foster’s is one of the quieter voices advocating for making birth free.

“I think we need to just take a step back and look at our policies of how we handle life in America, how we’re supporting pregnant people and parenting people and families and partners and make sure that we’re there for them, things like make birth free, things like parental leave, things like workplace protections, resources, taking care of people’s financial and relational needs, and just empowering them.”

Notably, Foster said states should not enact bans and restrictions without passing policies that address economic instability, which is a common driver of abortion.

“Really, I don’t think we should be introducing any kind of ban without coordinating a corresponding joint effort to simultaneously provide resources and support – even beyond the issue of abortion,” Foster said.

But she opposes the growing movement around the country to enshrine abortion rights in state constitutions and supports attorneys general fighting these efforts. While at Americans United for Life, Foster helped push model legislation passed in states all over the country that reproductive rights activists say limited abortion and reproductive care access long before Roe was overturned. These activists are now capitalizing on the momentum from the previous two elections where voters have demonstrated broad support for abortion access.

“Abortion is not a controversial issue; it’s a gerrymandered issue,” said Jennifer Driver who spoke at Wednesday’s abortion-landscape media briefing. The senior director of reproductive rights for the State Innovative Exchange (SiX), which she said does not endorse candidates, said the abortion rights movement needs to focus on the states this year and highlighted her home state of Alabama, whose lawmakers have proposed prosecuting pregnant people who have abortions for murder.

“People are being robbed of their freedom, sometimes their fertility, because they do not have timely access [to abortion],” said Nourbese Flint, the vice president of All* Above All Action Fund. Their new national political action committee Flint said is the first founded by women of color and will focus on funding candidates that support reproductive justice. “This is our rallying cry. … It is deeply important that we need to be bold, courageous in our fight for our ability to control our bodies and our future.”

Abortion rights activists react to the Dobbs v. Jackson Women’s Health Organization ruling in front of the U.S. Supreme Court on June 24, 2022 in Washington, D.C. The decision overturned Roe v Wade and the constitutional right to abortion. (Photo by Brandon Bell/Getty Images)

WASHINGTON — Abortion rights advocates and Democrats in the U.S. Senate pressed for a return to legal, safe access throughout the country during a briefing Wednesday.

The nearly three-hour conversation, held in the Capitol Visitors Center, featured doctors speaking about the challenges they and their patients face in states that have implemented restrictions on abortion since the Supreme Court overturned the constitutional right to abortion.

“As an OB-GYN I know firsthand that everyone’s reason for needing an abortion is valid and personal,” said Dr. Austin Dennard, a Texas physician who is one of the women suing the state over its abortion laws. “Even planned, prayed-for pregnancies can end in abortion.”

Dennard said she’s heard from patients who are fearful about starting a family or growing the size of their family over concerns that if something goes wrong and they need an abortion, they’ll have to travel out of state. Others worry they wouldn’t have the resources or time away from work to travel to end their pregnancy should something go wrong.

Anti-abortion laws, Dennard said, have “taken so much joy out of what should be an enormously joyful chapter in someone’s life.”

March for Life to hear from Johnson, Smith

The event came just ahead of the annual March for Life this weekend, where people who oppose abortion access will travel to Washington, D.C., to call for a nationwide ban.

U.S. House Speaker Mike Johnson, a Louisiana Republican, and GOP Rep. Chris Smith of New Jersey are both scheduled to speak during that event.

During Wednesday’s briefing, Senate Democrats decried efforts to restrict when and how patients can end a pregnancy and spoke about two cases the U.S. Supreme Court plans to take up this session that could affect abortion access.

One case centers around mifepristone, a pharmaceutical approved in 2000 that’s part of a two-drug regimen used in medication abortion and miscarriage treatment.

The drug is FDA-approved for up to 10 weeks gestation and accounts for more than half of pregnancy terminations in the United States, but a lawsuit filed by anti-abortion organizations will put access to mifepristone in front of the justices.

The second case is about the Emergency Medical Treatment and Active Labor Act, or EMTALA, a federal law that requires hospitals to determine if a patient has an emergency medical condition, then to provide stabilizing treatment or transfer the patient if the hospital cannot help them.

The 1986 law should protect doctors in states with strict anti-abortion laws if they perform an abortion as a stabilizing treatment for an emergency medical condition, according to the Biden administration.

An emergency medical condition includes diagnoses that would result in either “serious impairment of bodily functions,” or “serious dysfunction of any bodily organ or part,” or “placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,” according to the law.

That Supreme Court case stems from Idaho’s laws regarding when and how patients can access abortion care.

Dr. Serina Floyd, an OB-GYN who works as chief medical officer for Planned Parenthood in Washington, D.C. and who is a fellow with Physicians for Reproductive Health, said she doesn’t understand why Republican politicians are targeting EMTALA.

“The fact that you would deny someone emergency care that could save their life makes no sense,” Floyd said. “If the idea is to be able to promote life, that is counter-intuitive because now the life of that pregnant person is potentially going to be lost as well as any potential for any future possibility to have children.”

Floyd said research shows negative repercussions for patients denied access to abortion.

“Evidence shows that women denied abortion care are more likely to experience serious medical conditions during the end of pregnancy, more likely to remain in violent relationships and more likely to experience economic hardships and financial insecurity,” Floyd said.

Anyone who has the ability to become pregnant could end up needing an abortion, Floyd told senators at the briefing.

What health care providers need, Floyd said, is for “zero political interference” in how they treat their patients.

“Patients are fully equipped to be able to make complex decisions about their health and their lives,” Floyd said. “They are able to make decisions about themselves and their families in conjunction with their providers. There is absolutely no need for interference from any government.”

Influx of patients in Washington state

Washington Sen. Patty Murray, who hosted the briefing, said that her home state has seen an influx of patients needing abortion access from states like Idaho that have significantly restricted when and how patients can end a pregnancy.

“The vast majority of Americans support the right to abortion,” Murray said. “They understand that it should be women who are making decisions about their pregnancies — not politicians, not judges.”

Several of the senators at the briefing expressed concerns that people living in states with protections for abortion access don’t realize decisions by the Supreme Court or GOP plans for a nationwide abortion ban would affect them.

Michigan Democratic Sen. Debbie Stanebow noted how voters in her state enshrined reproductive rights and abortion access in the state’s Constitution during the 2022 elections. But she cautioned that doesn’t fully insulate patients or doctors.

“They think we’re OK. They think because we have this in the Michigan Constitution now — and the other states that have it — that we’re not affected by a national abortion ban,” Stabenow said.

After listening to the doctors’ stories about their own experiences and that of their patients, Stabenow said she was shocked by how challenging it has become for doctors and women who need abortion access.

“I keep sitting here thinking is this 1824 or 2024,” Stabenow said. “I mean, what the heck is going on here?”

Calling Kentucky’s near-total abortion ban dangerous and cruel, Sen. David Yates, center, unveils a bill to add exceptions for rape and incest. Lt. Gov. Jacqueline Coleman, left, and Hadley Duvall joined him Tuesday in the Capitol Rotunda.?(Kentucky Lantern photo by Sarah Ladd)

FRANKFORT — Calling Kentucky’s near-total abortion ban “dangerous” and “cruel,” Sen. David Yates, D-Louisville, introduced a bill Tuesday to add exceptions for rape and incest.?

The bill will at least make it to a committee, the president of the Republican-controlled and staunchly anti-abortion Senate told Renee Shaw on Kentucky Tonight. Senate President Robert Stivers said on KET Monday night that the bill “will be assigned to a committee.”?

In 2023, a Republican-backed bill aiming to add the same exceptions got stuck in the Committee on Committees and did not advance. Kentucky has exceptions currently for the life of the mother.?

Woman in Beshear’s abortion ad says she wants to give voice to victims

This bill is named after Hadley Duvall, who appeared in campaign ads for Gov. Andy Beshear speaking about being raped by her stepfather and getting pregnant at 12 years old.?

“Hadley’s Law” would rely on the “good faith belief of the physician” that a pregnancy in question is the result of rape or incest, according to draft language.?

Beshear, speaking in the Capitol Rotunda Tuesday alongside Yates and Duvall, said he would sign the bill should it reach his desk.?

“We know that there will be trauma where there is an act of incest or rape,” Stivers said on KET. “That’s tough. That’s where it gets (to be a) hard decision.”?

He then said any perpetrators should be “swiftly” and “harshly” punished and called for wrap-around services for survivors.?

“There is a lot of discussion,” Stivers said. “I do not know what the outcome will be.”?

Tamarra Wieder, state director for Planned Parenthood Alliance Advocates Kentucky, said abortion exceptions for rape and incest do not make a huge difference in access.

“As a policy, they don’t work,” she told the Lantern. That’s because, she explained, there are already mechanisms in place to penalize providers with a Class D felony for “performing a prohibited abortion.”

And, religiously-affiliated medical providers aren’t likely to grant the procedure anyway under an exceptions clause.

Yates “got it right,” Wieder said, when it comes to doctors only needing to have “good faith” that the unwanted pregnancy was the result of rape or incest.

If his bill becomes law, she said, “victims in Kentucky will not have to go through a level of the courts to prove that their rape happened.”

“My heart goes out to victims of rape and incest,” Wieder said. “Hadley is incredibly brave. And we need change in Kentucky and we need change now. Unfortunately, we need a repeal of the statutes that are criminalizing the providers. That is what we need to be able to bring back care.”

Yates, who said he hopes for bipartisan support on the legislation, said his bill won’t “fix” all the problems he sees in the state’s laws, but “this is a very small step in the right direction for a very limited number of victims that we can help.”??

“We limited it in this particular bill,” he said, “because that’s what we think may pass.”?

Duvall said she hopes legislators from both political parties will support the exceptions.?

“Unless you’ve been in this position,” she said, “you have no idea what any woman or girl is currently going through. Legislators shouldn’t feel entitled to force victims who have stories like mine to carry a baby with a rapist.”?

Duvall said she hopes her story will educate people for whom “it’s hard to think that those things (rape and incest) do happen behind closed doors.”??

“I could have been anybody’s daughter,” Duvall said. “I could have been anybody’s sister. Anybody’s niece or granddaughter. And at any point, it could be theirs.”?

Sen. Whitney Westerfield shared polling results with his colleagues in the state Senate Friday night. (LRC Public Information)

A Republican legislator from Western Kentucky has filed a sweeping measure to provide more support for families through a major financial boost to child care, education, housing, health services and other measures aimed at pregnant individuals and women with children.

Senate Bill 34, filed Tuesday by Sen. Whitney Westerfield, carries a $551 million price tag in state spending over the next two years with an influx of cash into services such as child care, food assistance, college tuition, housing and other needs. It would draw another estimated $112 million in federal funds.

Westerfield, a staunch opponent of abortion, said that now that the procedure is essentially banned in Kentucky, lawmakers must address ways to meet the needs of women who continue their pregnancies as well as encouraging them to do so.

Abortion is outlawed in Kentucky, except in rare, life-threatening circumstances, under laws that took effect after the U.S. Supreme Court in 2022 struck down Roe v. Wade, the 1973 decision that established abortion as a constitutional right.

“We’re 50 years too late in doing this,” said Westerfield, of Fruit Hill in Christian County. “We need to do a whole lot more investing in the lives of the women involved and the children involved.” Westerfield, an attorney and chairman of the Senate Judiciary Committee, was elected to the legislature in 2012 and is not seeking reelection this year.

The breathtaking price tag of the measure may give some lawmakers pause in the General Assembly where Republican supermajorities control both the House and Senate, Westerfield? acknowledged.

But he hopes it will garner support among legislators who have supported Kentucky’s abortion ban and consider themselves “pro-life.”

“I think there’s broad support for doing something like this,” said Westerfield, who has described SB 34 as a “pro-life” measure on his website. “I just don’t know if some of this or all of this is what they want to spend the money on.”

With Kentucky sitting on a record budget surplus of $3.7 billion, Republican House Speaker David Osborne has expressed a willingness to dip into some of the money, also known as the “rainy day” fund, as lawmakers fashion a new, two-year budget.

At the same time, Republican lawmakers have called for spending restraint to position Kentucky to afford a third cut in the state income tax in future years as part of their plan to eventually eliminate Kentucky’s income tax.

Still, Sheila Schuster, who has been advocating in Frankfort for human needs for nearly five decades, said the time is now if lawmakers want to do something meaningful for low-income or disadvantaged Kentuckians.

“I’ve been asking legislators for money for 46 years,” Schuster said. “Most of the time they would say, ‘We just don’t have the money.’ Truly, they cannot say that this session.”

Schuster said she is delighted with Westerfield’s bill but she acknowledges it will need some help amid other competing demands in the 2024 legislative session.

“I think it will be an uphill battle but it’s good, sound policy,” she said. “I’m going to say we have a fighting chance. We know they have the money.”

Among provisions of SB 34:’

• $495 million in child care assistance for low-income parents, the highest-ticket item of the bill. The lack of affordable child care and the decline in the industry since the COVID pandemic has been identified as a growing crisis in Kentucky, one that prevents parents with young children from working.
• Free tuition at Kentucky’s public four and two-year post-secondary institutions for students who meet entrance requirements, are pregnant or have a child under 18 and who have incomes at or below 150% of the federal poverty level.?
• Expanding health insurance enrollment options for pregnant individuals and mandating inpatient hospital care for the mother and newborn for 48 hours for a regular delivery and 96 hours after a Cesarean delivery.
• Requiring Medicaid to cover lactation services and breastfeeding resources in order to encourage breastfeeding. Medicaid, the federal state health plan for low-income individuals, covers around half of all births in Kentucky.
• Improving access to healthy foods through local farmers markets, the Supplemental Nutrition Assistance Program (formerly food stamps) and the Women, Infants and Children, or WIC, program.
• Pumping about $90 million over the next two years for Medicaid “waiver” services for individuals with disabilities in an effort to start reducing the long waiting lists that many Kentuckians face in getting help with therapy, housing, supervision and other aspects of daily life.

Westerfield said he was shocked to discover such individuals, most adults living with aging parents or other caregivers, face years-long waiting lists for services to which they are entitled.

“I’m ashamed that I didn’t know,” he said. “It’s unconscionable that we have let that happen.”

Schuster said money to cut those waiting lists that number in the thousands could make a huge difference for many disabled individuals and their families.

“I think it’s exciting,” she said. “To see it in a bill is pretty damn exciting for people who have been on a waiting list for umpteen years.”

Westerfield said he plans to request a committee hearing on the bill as soon as possible.

In response to questions about Westerfield’s proposals, Senate President Robert Stivers told reporters late Wednesday that he had “yet to see the bill” and spoke about victims of rape and incest.

“Those individuals adversely impacted — the trauma, everything around that, surrounding it. That instance, we need to give it as much support to them as possible. And so mental health, access to preventative health care. I’m not getting into that abortion issue, but into health care to make sure the mother has everything they need for health care is available. Those are the types of things I think we will hear discussion,” Stivers said.

Lawmakers from both chambers, gathered on the floor of the House for last year's State of the Commonwealth Address, applauded first responders in the gallery, Jan. 4, 2023. (Photo for Kentucky Lantern by Arden Barnes)

Lawmakers will gather in Frankfort Jan. 2? to begin work on a state budget in a year when they will face voters at the polls.

Gov. Andy Beshear will deliver the State of the Commonwealth Address to the General Assembly at 7/6 p.m. Wednesday, Jan. 3. The speech will be broadcast on KET and KET.org/Live.

See 2024 legislative calendar and standing committee schedule here.

The 60-day session will see the Republican-led General Assembly consider constitutional amendments to put on the November ballot, as well as pass a two-year state spending plan. It will also be the first session of Democratic Gov. Andy Beshear’s second term in office.?

All 100 seats in the House of Representatives and half the Senate will be up for election this year, meaning some lawmakers will have one last chance to pass legislation. Senate Republican Floor Leader Damon Thayer and Senate Judiciary Chairman Whitney Westerfield are among lawmakers who have announced plans to not seek reelection in 2024.?

Here are a few things to watch for during the next legislative session.?

Budget?

Beshear, a Democrat who won reelection in November, released his budget Dec. 18 in a televised address ahead of the legislative session. It was an unusual move to seemingly prevent another unusual move that happened during the 2022 legislative session. Then, House Republicans filed their own budget bill ahead of the governor’s budget address.?

Beshear is proposing a $136.6 billion spending plan for the next two years. Priorities include investments in public education, including an 11% raise for teachers and other school employees; $500 million for water and wastewater infrastructure, and fully funding the state’s expanded Medicaid program.?

However, it’s unclear what, if any, of the Democrat’s proposals will make it through the General Assembly, which has veto-proof Republican supermajorities. House Republicans will file their own budget bill when lawmakers return to Frankfort.

Republicans approved income tax cuts in 2022 and 2023 as part of their plan to gradually eliminate Kentucky’s income tax. However, despite the record surplus, it was announced in August that state tax revenues failed to meet a benchmark set by the legislature in order to consider further income tax cuts in the 2024 session.?

At the time, Sen. Chris McDaniel, chairman of the Senate budget committee, told the Lantern Kentuckians can expect “spending restraint” that would allow for the legislature to meet the fiscal trigger in the future and cut the income tax rate again. “We do not need to spend every dollar that rolls into Frankfort,” McDaniel said. “The restraint that we will need to show will pay off when we’re able to further reduce income taxes.”

Beshear’s proposed budget doesn’t use any of the record $3.7 billion balance in the Budget Reserve Trust Fund, also known as the “rainy day” fund. A coalition of about 40 groups is calling on the state to use recurring revenue in the rainy day fund to pay for neglected needs in education, infrastructure and more.?

Beshear told reporters: “If the General Assembly decides though, based on actuarial studies, that they want to invest some of that money, depending on what they suggest I can be supportive of that. It has plenty of money for any unforeseen circumstance that we would face.”?

Charter schools, etc.

In recent years, Republican-sponsored laws aimed at funding charter schools and creating tax credits to pay for private school tuition have been struck down in court based on Kentucky’s Constitution, so it’s expected the General Assembly will pursue a “school choice” constitutional amendment during the next session

Recently, ??Franklin Circuit Court Judge Phillip Shepherd struck down a 2022 law creating a funding mechanism for charter schools in Kentucky. He wrote that charter schools are “private entities” that do not meet the Kentucky Constitution’s definition of? “public schools” or “common schools.” In December 2022, the Kentucky Supreme Court unanimously struck down a Kentucky law creating a generous tax credit to help families pay for tuition at private schools.

After a Louisville Forum luncheon in December, House Republican Whip Jason Nemes told a Kentucky Lantern reporter that the legislature will “likely put that on the ballot next year for constitutional amendment,” but was unsure if there would be any specific statutory changes. Thayer, the Senate Republican floor leader, also said in a recent interview that a constitutional amendment to allow “school choice” would be among his priorities for the next session.?

Abortion exceptions?

In the 2023 governor’s race, criticism of Kentucky’s near-total abortion ban was renewed after Beshear’s campaign released ads pushing back at Republican Attorney General Daniel Cameron’s support of the laws. Cameron responded by saying that he would sign exceptions if the General Assembly passed such laws and he were elected.?

In his first press conference after the election, Beshear called on the legislature to pass exceptions to the law in cases of rape and incest. Also, in 2022, Kentucky voters rejected an amendment that would have declared there is no right to an abortion in the state Constitution.?

On election night, Nemes, who filed a bill in 2023 creating exceptions that did not advance, told the Lantern the matter deserves consideration.

“I think our people believe in the exemptions,” Nemes said. “And at some point, we’re representatives of the people, and we have to do what their demands are.”??

Anti-crime bill

A group of Louisville Republicans is backing an omnibus bill they call the Safer Kentucky Act. The draft bill has undergone several changes since they first announced their plans in September and now includes a three strikes law for violent felonies, regulating bail fund organizations, provisions to prevent “street camping,” and strengthening privileges for business employees and owners to “use a reasonable amount of force necessary” to protect themselves or prevent a person detained for theft from escaping.

The bill’s primary sponsor, Rep. Jared Bauman, said during an Interim Joint Judiciary Committee?meeting in December that constituents across Kentucky are frustrated that “??the criminal element has become an all too normal part of our world today.”?

Some provisions in the original proposal have been removed, such as establishing a Kentucky State Police post in Jefferson County and creating a statewide wiretapping law for police officers. The wiretapping proposal may become separate legislation.?

A full draft of the bill is available on the meeting materials section of the committee’s page on the Legislative Research Commission’s website.?

Removing firearms from those at risk of doing harm

Senate Judiciary Committee Chairman Whitney Westerfield, who has been a member of the Senate for over a decade, is working on legislation that would establish crisis aversion and rights retention orders, also known as CARR. In an Interim Joint Judiciary Committee meeting, Westerfield noted the legislation is still being drafted and welcomed input from his colleagues and stakeholders.?

The proposal seeks to temporarily remove firearms from Kentuckians at risk of harming themselves or others. Several lawmakers voiced concerns about the bill, including Rep. Savannah Maddox, R-Dry Ridge.

Maddox voiced her “long standing opposition to this proposal” and concerns that it has the potential to violate constitutional rights such as due process and protection against government search and seizure. In response, Westerfield said he was not proposing a “search” or “ransacking of a home.”?

After the meeting, Maddox said on X, formerly Twitter, that House leadership told the National Rifle Association Westerfield’s proposal “will not advance this Session.”?

Family physicians practicing in places where there are no other medical professionals should be able to provide reproductive health care, says Dr. Christine Dehlendorf. (Getty Images)

More than a year after the U.S. Supreme Court overturned Roe, many have raised concerns about training for obstetrician-gynecologists, particularly in states with civil and criminal penalties for providers if they perform abortions. But researchers from the Person-Centered Reproductive Health Program at the University of California San Francisco have found there is reason to be concerned about training for family physicians in ban states as well.

A study published in the November-December issue of the Annals of Family Medicine found that 29% or 201 of 693 accredited family medicine residency programs in the U.S., are in states with abortion bans or significant restrictions on abortion access. The study used publicly available data from the American Medical Association to conduct the analysis, and found 3,930 residents out of 13,541 were in states where abortion is banned or heavily restricted.

This has implications for family physicians who are often tasked with helping patients manage early pregnancy loss, or miscarriage, the researchers said, as well as patients who self-manage an abortion at home with medication. Any of those patients might need follow-up care from a family physician, the study said.

States Newsroom spoke with one of the lead researchers, Dr. Christine Dehlendorf, about the results of the study. Her responses have been edited for clarity and conciseness.

States Newsroom: Why did you think it was important to conduct this study?

Dr. Christine Dehlendorf: We really just wanted to be descriptive about what the reality was. It was less than what was seen in previous analyses of OB residencies (which showed about 45% were in ban or heavily restricted states), but that was based on the assumptions of what bans would look like post-Dobbs. It is an evolving map — we know the abortion policy landscape is changing on a daily, weekly, monthly basis, so this is a moment in time that tells us already a substantial portion of residents are having their training influenced.

The residents that are in those programs are not going to have access to comprehensive reproductive health training because they’re not experiencing it within their state context. They cannot see abortions, cannot perform them, cannot learn how to care for patients after abortions in the same way they would be able to if they were working in a state where abortion was unrestricted.

SN: What does that mean for those residency programs?

Dehlendorf: What that means is that residency programs need to be very intentional about their curriculum and seek out ways for residents to get experience with reproductive health care, including ways they can get that training out of state.

In typical family medicine residency programs, you have your routine primary care curriculum, and then also specialty rotations (e.g., dermatology or other specialties), where you get more dedicated time with that topic. Having abortion be restricted will influence training in both of those contexts. You won’t see people who recently had an abortion and be able to help manage post-care, like bleeding, and you will not be able to provide abortion medication. You won’t be able to see patients who have abortions in hospital settings.

So residency programs will have to think about how, in the absence of this natural way people would be exposed, how they can substitute and supplement the curriculum to make sure people have that exposure. The experience of residency is a moment in time, and the reality is they will be taking care of these patients regardless of whether they’re in states with abortion restrictions.

SN: What supports can family physicians provide to those experiencing a miscarriage or who are self-managing an abortion?

Dehlendorf: People need to be able to go to their primary care doctors with any questions they have, including about bleeding or other side effects. Early pregnancy loss is a very common experience, and the skill set for caring for that and first trimester abortion are very similar.

SN: How concerned are you that these programs won’t provide this training?

Dehlendorf: I’m very concerned that programs will not pay adequate attention to this newfound gap in their curriculum, and therefore that their residents will not be comprehensively trained, and their future patients will be negatively impacted by that.

Patients are going to receive less patient-centered care. Ideally, primary care providers should be able to take care of people throughout the reproductive health cycle. If we can’t do that, what that means is care will be fragmented in a way it doesn’t have to be. It also means some of those patients won’t receive care at all, and some will receive lower quality care.

SN: Who might be affected the most by this lack of training?

Dehlendorf: We know that family physicians provide care in areas where there are no other health care professionals, and they are the safety net for underserved communities, rural or urban, where there is no access to specialty care. Those providers need to be able to provide the full scope practice of family medicine, including the full scope of reproductive health care. Those are the communities that are most likely to be impacted.

SN: What can be done to help support those training opportunities?

Dehlendorf: From an educational lens, people in states with abortion access funding training opportunities for people in states without it is something that is absolutely essential.

SN: What other implications might this have on family medicine?

Dehlendorf: Prior to Dobbs, there was a lack of recognition of the critical role that abortion access played in many aspects of our medical institutions and health care system, and that includes the fact that we prescribe medications that can cause birth defects with the knowledge that abortion could be available to the patient if needed. There have been cases of people being denied those medications because access is not available.

All of those things are affecting our lives and health. It’s multi-faceted, and we’re just beginning to see the impacts that are going to influence the system, and how it will fail to meet people’s needs in places where abortion is restricted.

“Bans off our bodies” balloons decorated the Protect Kentucky Access election night watch party on Nov. 8, 2022, in Louisville. Kentuckians rejected an anti-abortion amendment to the state constitution. The state Supreme Court has allowed the near-total ban on abortion to remain in force. (Kentucky Lantern photo by Arden Barnes)

Morgan Nuzzo, an advanced practice clinician nurse-midwife, started Partners in Abortion Care in Maryland about a year ago with Dr. Diane Horvath, an OB-GYN who specializes in complex family planning. The clinic is among the few in the country that provides abortions in the third trimester of pregnancy. Abortions that late in pregnancy are rare and often sought because of health risks to the pregnant person or because of a fatal fetal diagnosis.

In June, Nuzzo and other abortion providers and reproductive health experts told States Newsroom that, with the end of Roe v. Wade, they had begun to see a rise in later abortions in the U.S. because of diminished access and increased wait times and costs. But surprisingly, Nuzzo said that in the last few months her clinic has seen a drop-off in patients seeking later abortions, something she suspects could be due to patients not being aware or informed of other options when they can’t access abortion in other states, or because they’re unable to travel.

Some things that haven’t changed, Nuzzo said, are the significant distances people are traveling to end their pregnancies and the high number of young children who need abortions but now can’t get them in their home states. In 2017, there were nearly 4,500 pregnancies among girls under 15, with about 44% ending in abortion, according to the Guttmacher Institute. The age of sexual consent in the majority of states is 16, according to the U.S. Department of Health and Human Services’ guide to statutory rape laws and reporting requirements. Few of the abortion bans enacted since Roe was overturned have exceptions for survivors of rape and incest, and those that do typically have specific police reporting requirements.

This interview has been edited for brevity and clarity.

States Newsroom: Has anything changed at Partners in Abortion Care since June?

Morgan Nuzzo: We actually saw a decrease in later abortion patients from July until very recently. We were booked out several weeks in the spring and early summer. And then there was just this dramatic drop-off. Last year some advocacy folks did some data, and they were like, [the need for later abortion is] going to increase like a hundredfold. So I’m not really sure how to reconcile that with the reality of what we were seeing. But you know, even in California and Washington and Oregon, people were saying that they were seeing less people.

We aren’t booking out now for appointments — we have availability next week. Whereas before [the wait time] was two to three weeks on average, sometimes as much as five. We were getting a little worried about where the patients are.

SN: Why do you think you’re seeing fewer later abortion patients?

Nuzzo: I think there are more patients, and they’re not able to get where they need to go. I think hospitals are potentially seeing people, which we’ve always asked them to do. I think that people are trying, are certainly navigating to safe clinics, and maybe have that on their mind that if they are pregnant, and they need an abortion, that they should not delay for any reason and are trying, you know, realizing that they might have to travel and willing to do that maybe more than they were before.

I wonder, too, it almost feels like there’s a wall in the middle of the United States now that kind of runs from one end to the other of places you can’t get an abortion. And I wonder if people aren’t finding us because they’re not going to places that refer to us. People don’t expect to need a later abortion, or an abortion after 28 weeks. And so I think sometimes when people are told that they’re further along in pregnancy, it’s just like, well, that’s the end. And maybe those referral lists aren’t getting into the hands of people. We’re doing our best to make sure that people know that people can still access later abortion care. It might not be legal in their state, but it’s certainly legal here in Maryland.

SN: How many patients are you seeing on average a week?

Nuzzo: Ten a week now.

SN: And what are the average gestational ages?

Nuzzo: Between 20 and 34 [weeks’ gestation]. And then we’ll see first-trimester patients, too. That would make a much higher number; we can see a lot more first-tri patients.

SN: How often are you turning people away, because they are too far along or for other reasons?

Nuzzo: Once a week. The very worst thing to do is turn somebody away who wants an abortion. It’s a terrible feeling to take someone’s choice from them. I’m not saying abortion is for everyone. Some people get here and they choose not to continue, and that’s wonderful. But to say, someone who wants to not be pregnant anymore, and to say, “You have no other options,” is a terrible thing to have to do to somebody.

SN: Where are your patients coming from?

Nuzzo: Very few are local. I mean, today we have somebody from California. People come from all over. People are still traveling very far to get to us. But it’s just fewer of them.

Things are changing constantly. We’re just waiting for this Florida ban to come. [Florida’s six-week abortion ban, signed earlier this year, has been blocked until the Florida Supreme Court rules on the constitutionality of the state’s current 15-week abortion ban.] We know when that happens that we’re going to get an influx of people from Florida. We already see a good number of people from Florida.

SN: How do you deal with patients from states like Texas and Idaho that are trying to prevent people from traveling or even learning about legal abortion care in other states?

Nuzzo: I mean, we talk to our Texas patients. You know, it’s not illegal in Maryland. We can tell them the services that they can get. We often do have to do some patient education with people while they’re here and be like, ‘You know if you go home, it’s illegal in your home state, right?’ I think some people know and some people don’t really.

I’m just trying to navigate all 50 states’ changing rules all the time. What other medical practice do you have where you’re worried that it’s illegal to talk to somebody on the phone from that state?

SN: The last time we talked, you said your patients range from 10 to 53 years old? What is the age range like now?

Nuzzo: Yeah, still the range. We see a lot of kids. A lot of kids.

SN: About many kids do you usually see a week?

Nuzzo: Usually one to two.

SN: What are the risks of children giving birth?

Nuzzo: Younger people have risks for things like preeclampsia. There’s an increased risk certainly for smaller people who have not gone through puberty completely and become their full adult size. Their pelvises are very small. We see folks up to 34 [weeks’ gestation], so we usually don’t turn those kids away. But sometimes they need to be seen in a hospital. And we’ve certainly consulted for people who are younger than people we’ve seen in clinic [meaning younger than 10 years old] who needed hospital-based care.

What do you think will be some of the lasting effects of the Dobbs decision?

Nuzzo: Birth rates will increase, and then we’ll see an increase in maternal mortality and infant mortality. Maternal mortality is going to go up. If we haven’t already seen it, we know that this is what’s going to happen. We’re already a country that does not take care of their pregnant people in the way that they should be cared for. Black people who are pregnant and give birth are more likely to die than their white colleagues.

People don’t have the access that they need. We know that OB-GYNs aren’t going to places to train where abortion’s restricted. So you’re limiting OB-GYN services and L&D [labor and delivery] services in these areas. Hospitals are already closing down L&Ds all across the country. It’s going to be a ripple effect, even for pregnant people who want to have deliveries.

SN: What are some of the challenges you’ve faced this year?

Nuzzo: When we think about the things that have happened post-Dobbs, it’s like, all of a sudden, everybody’s eyes opened to how the system is just built on the goodwill of people. There isn’t a system. It’s, you know, eight dozen people being like, “All right, I know somebody who knows somebody who knows somebody, let’s try and get this done.” And taking those calls, on the weekends and at night and at your kids’ soccer games.

You want to keep your team in good spirits and also understand that they are real people with real lives. And it’s hard to do this work when every day you wake up and find out a new headline of something horrible has happened. It’s like trying to run a clinic on a foundation of quicksand. And we’ve got the 2024 election coming up. It’s going to be a stressful year.

SN: I read recently that abortion funds have been getting fewer donations. Has that affected your clinic?

Yeah, funds are going dry earlier and earlier each month. We want your readers to know that they can support their local abortion fund. That money really, really matters. It’s not just going into this pot that’s not going anywhere; it’s going directly to patients so that they can get seen. We work with over 40 abortion funds, and we couldn’t do this without their support.

SN: Is there anything else you want to share with our readers?

Make sure that you have a plan if you or someone you love were to find out that they were pregnant and they didn’t want to be or couldn’t be.

And then, you know, we are always wanting to bust later abortion stigma and let people know that these are patients that never expect to be seen by us. And something has changed in their life. And now they need a later abortion. And they’re incredibly brave and strong and resilient for being able to get from wherever they are to us. It’s incredible the things that people have to do just to get to us. And when they come here, they’re often frustrated, but not because they need a later abortion, but because of how frustrating and how many barriers it took them to get here.

Planned Parenthood's Louisville health clinic. (Kentucky Lantern photo by Deborah Yetter)

Lawyers for a Kentucky woman challenging the state’s abortion ban asked that the case be dismissed on Monday, a week after the fetus lost cardiac activity.?

This came a week after the Kentucky woman who sued for the right to abortion announced her pregnancy was no longer viable. At the time she filed her lawsuit, she was eight weeks pregnant but said she didn’t want to be.

The lawsuit argued her autonomy and right to self determination were violated by the near total abortion bans in the state.?

Lawyers with the American Civil Liberties Union, the ACLU of Kentucky, Planned Parenthood Federation of America and Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky are now looking for other potential plaintiffs to carry on a challenge to the law.

In a joint statement they said,?“The Kentucky Supreme Court’s decision earlier this year to take away health care providers’ ability to raise the rights of their patients has backed Kentuckians into a corner. The court’s decision has forced Kentuckians seeking abortion to bring a lawsuit while in the middle of seeking time-sensitive health care, a daunting feat, and one that should not be necessary to reclaim the fundamental right to control their own bodies. But we won’t stop fighting.”

The Kentucky Supreme Court in February ruled that abortion providers lacked legal standing to challenge the abortion ban on behalf of their patients. The providers then asked that the suit be dismissed as they sought a plaintiff who would have standing under the state Supreme Court decision.

This story may update.?

Experts have said that a U.S. Supreme Court ruling on the use of mifepristone, a key abortion medication, could have implications for drug approval by the U.S. Food and Drug Administration. (Getty Images)

This year will end on a major cliffhanger for abortion access.

Last November, anti-abortion activists via a powerful conservative Christian law firm asked a federal court to effectively ban or widely restrict the abortion drug mifepristone. Finally on Wednesday, the U.S. Supreme Court agreed to take the case, making Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration the high court’s first abortion-related case since overturning the federal right to an abortion in June 2022.

As abortion access advocates, providers, people of reproductive ability and anti-abortion proponents wait until mid-2024 for the results of this case, other ongoing abortion litigation (a Texas woman left the state after her request for an emergency abortion was granted before being blocked by that state Supreme Court) and a presidential election, uncertainty and fear about the future of reproductive health access remain high.

Abortion via a two-step medication process of mifepristone and misoprostol has become the predominant way Americans terminate pregnancies post-Dobbs, particularly those living in states with bans or in areas with no providers. Mifepristone blocks the progesterone hormone, which is necessary to continue a pregnancy.

“We should never be in a position where judges are deciding whether people can get effective medicines,” said Elizabeth Ling, an attorney for the legal advocacy group If/When/How, in a statement. “Mifepristone access is essential to people’s ability to determine their own future and actualize self-determination by ending a pregnancy, including self-managed abortion.”

Though the anti-abortion plaintiffs in this case asked the Supreme Court to fully reverse the FDA’s 2000 approval of mifepristone for first-trimester abortions, the high court is expected to review questions around restrictions that were lifted during the last decade because of mifepristone’s proven safety record. Depending on how the court rules next year, mifepristone will likely remain legal but could prove much harder to access, especially if the court strikes down the ability to obtain the drug via telemedicine. Legal and pharmaceutical experts have said this case could have far-reaching implications on approval for medications beyond abortion drugs.

“The future of telehealth for medication abortion care now hangs in the balance,” said Dana Northcraft, founding director of Reproductive Health Initiative for Telehealth Equity & Solutions, in a statement. “Telehealth for medication abortion is safe and effective and helps people overcome barriers to care, whether it be long travel distances or getting time off from work or school. Everyone deserves compassionate, accessible, and inclusive abortion care.”

Mifepristone is also used for miscarriage management but has become harder to access, doctors report.

For providers who spoke with States Newsroom on Wednesday, it’s not just about what restrictions will or won’t stand after a ruling from the U.S. Supreme Court, but the fact that the case got this far in the first place.

Dr. Erin Berry, an OB-GYN in Seattle who works at 15 Planned Parenthood clinics around the West, said it’s hard to sit with the idea that nine judges are making a decision about the medical science and safety of a drug.

“That’s just unprecedented, they are not to be the experts in that, and them getting to have a say on that, that’s a big deal to me,” Berry said. “And it has implications on all of our lives.”

Berry sees patients from all across the country in various clinics, including people from as far as Louisiana and Texas who travel to Seattle, often because they know someone who can help drive them home from an appointment and offer them a place to stay. But that alone is disruptive to a person’s privacy, she said, because if care was accessible in their home state, they might have been able to keep a very personal event to themselves.

Cynthia Dalsing, a retired nurse midwife in Sandpoint, Idaho, said restrictions have made local providers more wary about how they interact with pregnant patients, including how they reflect a patient’s demeanor in a medical chart. Abortion restrictions have made people second guess their decisions about evidence-based medical care out of fear, she said.

Dr. Caitlin Gustafson, an OB-GYN in a rural area of central Idaho, still regularly prescribes mifepristone for miscarriage management, and based on evidence, she said using it for that care results in fewer visits to the emergency room and a reduced need for procedures that empty the uterus. Access to the medication in Idaho is already more restricted because only providers can dispense it, not local pharmacies. Some people already have to drive more than an hour to get to a clinic in the case of a miscarriage, she said.

“As we lose providers (to other states) and then further lose access to this medication, if that’s what the Supreme Court does, it will make that experience harder,” Gustafson said.

In the year and a half since the abortion access landscape exploded into chaos and confusion, attorneys like Ling spend their days answering desperate phone calls on the Repro Legal Helpline, which is managed by If/When/How. Earlier this year, If/When/How joined a network of reproductive rights legal assistance groups and law firms called the Abortion Defense Network.

The helpline has been around for a few years, but the end of Roe v. Wade saw inquiries increase by 2,460%, If/When/How’s legal support director Kylee Sunderlin told States Newsroom earlier this year. Sunderlin said many people call before they ever see a provider about a suspected pregnancy or a pregnancy that’s turned into a health emergency because they’re scared about the legal consequences. She said most people don’t understand what is and isn’t legal these days.

On Wednesday, Ling reiterated that If/When/How is committed to helping people navigate these complex and ever-changing laws.

“This case is a further weaponization of the courts to deny people bodily autonomy,” Ling said. “But no matter what the court says, people will always have abortions. Myself and the rest of If/When/How are here to provide people the legal support they need to access the abortions they want and help them fight back against state violence.”

In states with extremely limited abortion access, like Idaho, some people are actively avoiding pregnancy.

Makayla Sundquist, 27, lives in North Idaho and said she has been with her partner for seven years and would consider having children if abortion access was available. She lives in Sandpoint, a rural area of about 9,000 people, where OB-GYN services are no longer offered at the county’s only hospital after the unit closed in March, citing staffing issues and the political environment of the state, where a near-total abortion ban has been in effect since 2022. The closest area with OB care is Coeur d’Alene, which is an hour-long drive both ways.

“We saw it when Roe fell, the number of vasectomies in young men rose dramatically, and I think so many people in red states are realizing that if they want children, this is not the place for them, and I fall into that demographic,” Sundquist told States Newsroom on Wednesday.

Sundquist said she can’t fathom a reason why the U.S. Supreme Court would further restrict a safe and well-tested medication when the other option for an abortion — a procedure that empties the contents of the uterus — is more invasive, but she thinks it’s a real possibility. According to the FDA, 28 deaths out of an estimated 5.6 million people in 23 years have been associated with mifepristone’s regimen for terminating a pregnancy, which is a markedly lower rate than many common FDA-approved drugs, like Tylenol and Viagra. The FDA notes that a small number includes fatal cases “regardless of causal attribution to mifepristone,” including people who died from homicide, suicide, and pulmonary emphysema.

“I will be angry and scared for the people in my life that would need (an abortion), me included if it came to it, but I would not be surprised if that’s what happens, unfortunately,” Sundquist? said.

Planned Parenthood's Louisville health clinic. (Kentucky Lantern photo by Deborah Yetter)

Four days after a Kentucky woman sued for the right to an abortion, her lawyers said the embryo she carried “no longer had cardiac activity” as of Monday morning.

A spokesperson for the American Civil Liberties Union of Kentucky declined to say whether Jane Doe, as the woman is called in her suit, will now be able to access abortion or if the case will proceed.?

Doe filed a class action lawsuit against Attorney General Daniel Cameron and others in Jefferson County Circuit Court to challenge the state’s near total abortion bans on Friday, the first lawsuit of its kind in Kentucky.??

At the time of the filing, Doe said she was eight weeks pregnant but did not want to be. Lawyers argued the state’s abortion bans, which do not offer exceptions for rape or incest, violated Doe’s right to privacy and self determination.?

Kentucky does allow for an exception to “prevent death or substantial risk of death” or “to prevent serious, permanent impairment of a life-sustaining organ of a pregnant woman.” However, the same law directs physicians to “make reasonable efforts” to save both the pregnant person and the embryo.?

?This story may update.?

Planned Parenthood's Louisville health clinic. (Kentucky Lantern photo by Deborah Yetter)

A Kentucky woman who is pregnant but does not want to be is suing Attorney General Daniel Cameron and others in Jefferson County Circuit Court to challenge the state’s near total abortion bans, the first lawsuit of its kind in Kentucky.?

The woman, identified only as Jane Doe, said in a statement that “I am angry that now that I am pregnant and do not want to be, the government is interfering in my private matters and blocking me from having an abortion.”?

Doe, who is represented by the American Civil Liberties Union in her class action lawsuit, is eight weeks pregnant, according to the court filing. She “seeks to terminate her pregnancy in the Commonwealth but cannot legally do so.”?

After the U.S. Supreme Court overturned Roe V. Wade, which gave Americans the constitutional right to abortion, in 2022, a “trigger law” went into effect in Kentucky that banned abortions. Another law bans abortions after six weeks. Kentucky does not have exceptions for rape or incest. Lawyers for this case are asking that the state’s bans be ruled unconstitutional.?

“At this moment, Jane Doe and the other putative and future class members, are suffering medical, constitutional, and irreparable harm because they are denied the ability to obtain an abortion,” the lawsuit states. It argues that the bans violate Doe’s right to self-determination, as well as the autonomy of others like her.?

This lawsuit is “historic” for Kentucky, said Amber Duke, executive director for the ACLU of Kentucky. Nationally, though, cases like this are not new.

“Even before Roe vs. Wade was overturned…we did bring class action lawsuits on behalf of individuals, often in the context of people who were pregnant and seeking abortion when they were in government custody,” said Brigitte Amiri, a deputy director at the ACLU’s Reproductive Freedom Project.

During an afternoon press conference to discuss the lawsuit, ACLU’s Duke said the fallout from abortion bans in Kentucky “have been devastating, leaving thousands of Kentuckians to manage life altering consequences and serious health risks over the past year..”

Rebecca Gibron, CEO of Planned Parenthood Kentucky and other states, said abortion bans “have nothing to do with health and well being and everything to do with power and control.”

Both Duke and Gibron pointed to a special election in 2022 in which Kentucky voters defeated the anti-abortion Amendment 2, which would have specified there’s no right to an abortion in Kentucky’s Constitution.

Because of that vote, Duke said: “We know that Kentuckians support access to legal, safe abortion care without government interference.”

In a statement, Doe said she hopes “this case will restore abortion access in Kentucky, if not for me then for the countless people in the future who deserve the autonomy to decide what is best for themselves and their families.”

The news was happier for supporters of reproductive rights in Kentucky as they celebrated the defeat of an anti-abortion constitutional amendment in November 2022. Less than five months earlier the Dobbs decision has allowed a near-total ban on the procedure to take effect in Kentucky. (Photo for Kentucky Lantern by Arden Barnes)

Standing before cheering supporters on election night, Kentucky Gov. Andy Beshear, a Democrat, wrapped up his reelection celebration with a round of thanks.

“First to my parents,” he said, embracing Jane and Steve Beshear — his father himself a former, two-term governor.

Andy Beshear, who defeated his Republican opponent, Attorney General Daniel Cameron, with about 52.5% of the vote, next thanked his wife, Britainy and their children, Will and Lila.

Then Beshear thanked a young woman in the crowd who appeared in a television ad that became the flashpoint of his campaign — describing her childhood rape and pregnancy and blasting Cameron for his support of Kentucky’s near-total ban on abortion.

“To tell a 12-year-old girl she must have the baby of the stepfather who raped her is unthinkable,” she says in the ad.

“Hadley is here tonight,” Beshear said of Hadley Duvall, a 21-year old from Owensboro who appeared in what political observers say was a devastatingly effective ad. “Because of her, this commonwealth is going to be a better place and people are going to reach out for the help they need. Thank you, Hadley.”

Abortion remains essentially illegal in Kentucky under a pair of laws enacted by the Republican-controlled General Assembly that provide no exceptions for pregnancies from rape or incest — laws Cameron, as attorney general, has defended.

The laws took effect after the U.S. Supreme Court last year struck down the landmark Roe v. Wade decision of 1973, establishing abortion as a constitutional right.

And the Republican supermajority in the state legislature has shown little interested in changing Kentucky’s laws, even to add exemptions for rape or incest.

But supporters of abortion rights are hopeful that Beshear’s reelection in a deep red state marks a turning point in attitudes about access to abortion as well as an awakening among voters about the real-life impact of laws that ban it.

“I think it is very obvious that abortion has become an issue that people are not afraid to talk about any longer and that certainly does drive people to the polls,” said Angela Cooper, communications director for the American Civil Liberties Union of Kentucky.

Tamarra Wieder, state director for Planned Parenthood Alliance Advocates Kentucky, noted that the Nov. 7 reelection of Beshear, a supporter of abortion rights, came the same day?voters in Ohio,?also a conservative state, approved a ballot measure establishing abortion as a state constitutional right.

And Beshear’s win comes one year after Kentucky voters rejected a ballot measure that would have declared Kentucky’s Constitution contains no right to abortion.

About 52% of the state’s voters opposed the measure — about the same share of voters who elected Beshear to a second term, Wieder said.

“I don’t think it’s a coincidence that those numbers are the same,” Wieder said. “Abortion is a winning issue.”

Who’s on offense?

Political observers say it’s likely Beshear would have won for other reasons — his overall popularity, his advantage as the incumbent,? and his management of crises in his first term including the COVID-19 pandemic and devastating tornadoes of December 2021 followed by deadly flooding the following year in Eastern Kentucky.

But the abortion issue — in particular, the ad featuring Duvall — deepened the contrast between Beshear and Cameron.

While Beshear has said he supports abortion access previously conferred by Roe v. Wade, he has focused in recent months on the fact current law contains no exemptions for rape or incest, which he has called “cruel.”

Cameron, who has defended Kentucky’s laws, was left struggling to explain his stance, giving conflicting responses to the issues raised in the ad.

And that worked to Beshear’s benefit, said Danny Briscoe, a long-time Democratic consultant from Louisville.

“You can’t say she won the campaign for him but you can say she played an awfully valuable role,” Briscoe said. “They put the ball in Cameron’s court and he never really got rid of it.”

Tres Watson, a GOP campaign consultant, said Republicans who once confidently campaigned on ending abortion are in an awkward spot now that it is effectively banned in 14 states and restricted in 11 more.

“I think it’s a new reality,” said Watson, a co-host of the Kentucky Politics Weekly podcast. “I don’t think the general public has changed. Who’s on the offense and who’s on the defense have changed.”

Briscoe was blunt about the impact on Republicans, who were responsible for appointing the justices who tipped the U.S. Supreme Court in favor of overturning the almost 50-year-old Roe v. Wade, “a huge mistake,” Briscoe said, for the GOP. “It’s haunting them.”?

A majority of Americans oppose the 2022 decision overturning Roe v. Wade and a majority continue to support at least some measure of access to abortion, according to a Marist poll in April.

Duvall ad ‘outstanding’

Both Briscoe and Watson thought the ad featuring Duvall was impressive.

“I think it will be remembered as the most outstanding ad of this election without question,” Briscoe said.

“I thought it was very effective,” Watson said. “It’s certainly a very emotional ad.”

The enthusiasm is not shared by Addia Wuchner, executive director of Kentucky Right to Life, which endorsed Cameron through its Victory PAC as “an unwavering defender of Kentucky’s pro-life laws.”

Wuchner, a nurse and health educator, said she found the Beshear ad “concerning and disappointing.”?

“We always hope that sexual violence is rare but using it to commercialize a campaign to his benefit is very concerning,” she said.

All other five constitutional offices on the Nov. 7 ballot were won by Republicans and all were endorsed by Right to Life, including Russell Coleman, who will replace Cameron as attorney general.

As for the outcome of the governor’s race in Kentucky, Wuchner said, “We’re still trying to evaluate everything.”

Kentucky’s laws ‘extreme’

Whether the Kentucky General Assembly will consider adding exemptions to the state’s stringent abortion laws remains in question.

Two laws are in in effect: A ?“trigger law” that banned all abortions once Roe v. Wade was overturned and another that bans abortions after six weeks, before many women realize they are pregnant. Neither law has exemptions for rape or incest and allow abortion only in rare instances to save the life or prevent disabling injury of a pregnant patient.

Beshear, the day after the election called on lawmakers to add exceptions for rape or incest, calling Kentucky’s laws among the “most extreme” in the nation.

Rep. Jason Nemes, R-Louisville, previously filed such a measure only to have it ignored by lawmakers in the 2023 legislative session.

He told the Lantern on election night that the matter deserves consideration.

“I think our people believe in the exemptions,” Nemes said. “And at some point, we’re representatives of the people, and we have to do what their demands are.”??

Wuchner said Right to Life is focused on pushing for more supports for women and children in the 2024 legislative session.

“When we look at the moms and young children in the state, can we do better?” she asked. “That’s the next step for the Kentucky General Assembly.”

Advocates for reproductive rights say they will continue to press on for full access to abortion in Kentucky.

“Exceptions for rape and incest are the minimum,” said the ACLU’s Cooper. “It’s really not enough.”

Wieder, with Planned Parenthood, agrees.

As part of that, Planned Parenthood will continue work to educate voters that the decision now rests with state lawmakers.

“People think the bans are national,” Wieder said. “They don’t realize it’s their local leaders.”

The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person.(Getty Images)

In early October, an Idaho woman 20 weeks into her pregnancy went to the emergency room after her water broke about five months early.

When the water breaks prematurely, an infection can develop and infect the fetus, placenta and other fluids. At that stage of pregnancy, the threat of infection becomes a ticking clock for everyone involved.

And in this case, time was already running out.

At 20 weeks, there is virtually no chance a fetus can survive outside of the womb even with medical intervention — the heart and lungs are too immature. And once an infection reaches the uterus, it is systemic, so there isn’t enough time to allow the fetus more days in utero.

The condition can progress to a blood infection called sepsis within a matter of hours, then septic shock, which can cause organ failure in as little as 12 hours, according to medical research. More than one quarter of patients who develop sepsis die. And if the patient survives, merely having the infection can leave them with permanent organ damage and other long-term health effects.

In another state, a doctor would be able to induce labor and let the patient deliver if that was their wish, then offer palliative care so the parents could hold their child until it passed.

But in Idaho, a state with a strict abortion ban, the doctor had limited options. The law does not allow for termination to preserve a person’s health, only to prevent death. And hours could pass before the hospital’s legal, administrative and medical teams might approve the decision to terminate the pregnancy and properly care for the infection.

So rather than roll the dice, the doctor ordered the woman transferred in the hospital’s small airplane to Salt Lake City, Utah — a state that has an 18-week ban, but also an exception to preserve the pregnant person’s health.

It’s a scenario physicians have warned about in the year since the Dobbs decision, when 14 states implemented near-total abortion bans. Doctors in ban states, including those with health exceptions, have said the exception language is written so vaguely that it is essentially meaningless, and hospitals have adjusted their policies to protect doctors from potential criminal charges and loss of medical licenses. Several states with a general health exception don’t include fatal or life-limiting fetal anomalies.

On that day in October, the stakes felt especially high for ER physicians in Idaho, because it was during a limbo period when doctors were more at risk for state prosecutions after a court ruling. In the 12-day span of time between the initial ruling and the reinstatement of protection, 11 St. Luke’s patients were transferred for pregnancy-related complications, said spokesperson Christine Myron, which is a typical amount of pregnancy-related transfers in that time frame. Seven were within the hospital’s network and four were sent out of state.

The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person. But five of the 14 states with bans — Idaho, South Dakota, Oklahoma, Arkansas and Mississippi — have an exception only to prevent death.

In all five states, legislation has been drafted to fix the issue, and in many cases, it is Republican lawmakers who offer such proposals. But with ongoing court battles, partisan fights at the local, state and federal levels, and arguments among anti-abortion advocates over policy details, those efforts failed during each state’s 2023 legislative session.

Opposition to health exceptions goes back to Roe-adjacent court case

In Arkansas, Democratic Rep. Denise Garner sponsored a bill in late March adding a health exception to the state’s ban. Garner, a retired oncology nurse, said during the committee hearing that several health care workers shared stories with her about the “devastating effects” on patient health after the ban went into effect. She told lawmakers about a 19-year-old college student who became pregnant while a contraceptive IUD was still inserted, causing the embryo to develop around the device.

Doctors delayed ending the pregnancy, hoping it would spontaneously discharge, Garner said, but four weeks later the IUD perforated the woman’s uterus, causing hemorrhaging and forcing doctors to remove the uterus entirely in a hysterectomy — ending her chances of giving birth to a child of her own.

“I can’t tell you how many times patients were diagnosed with cancer at the time of a pregnancy,” Garner said, and a pregnancy can make it difficult to continue chemotherapy treatments. “Let’s figure out a way to make sure that the specialists are able to do what they’re trained to do and take care of the health care of women who need these abortive treatments.”

The Arkansas Family Council immediately voiced its opposition, saying the legislation would effectively legalize all abortions in the state. During the committee hearing, Republican Rep. Marcus Richmond said he was “sympathetic” to the issue but voted no because he wanted the language to be more narrowly focused.

“It’s going to be such an arbitrary thing that anybody who’s wanting to perform an abortion will be able to make some claim somehow that their health is being affected, and they can find somebody who will support that,” Richmond said.

Jerry Cox, Arkansas Family Council president, told States Newsroom his organization believes cultural issues should have a biblical worldview, including abortion.

He said their opposition to health exceptions stems from the 1973 case of Doe v. Bolton, which was decided on the same day as Roe v. Wade. The U.S. Supreme Court struck down portions of a Georgia law that limited when and where someone could seek an abortion, namely that it had to be within a hospital with specific accreditations, and several layers of administrative and medical staff had to grant permission for the procedure if it met the exceptions for rape, a fetus with severe abnormalities or a life-threatening condition. The court said the requirements were unreasonable and ruled them unconstitutional on the basis of a right to privacy. That ruling invalidated many other state laws with restrictions.

Justices also said the Georgia law could not restrict the definition of “health” to physical health only, and said emotional, psychological, familial and age factors should also qualify.

To anti-abortion activists, the ruling effectively legalized abortion up until birth for almost any reason. The Doe ruling made clear, however, that a statute placing such limits on where abortions could be performed after the first trimester might hold up to constitutional scrutiny.

Prior to the Dobbs decision in 2022 that overturned Roe, less than 1% of abortions in the U.S. occurred after the 21st week of pregnancy. The ones that do happen after that stage are often related to fatal or life-limiting fetal anomalies.

“One would hope that doctors are not going to say, ‘OK, you’re going to start labor next week, but your health is bad, so we’re going to abort,’” Cox said. “I can’t name any cases where that’s happened, but that’s why over the years when people would say, ‘Well, we need a health exception in this abortion law,’ we’ve always resisted that, because it would pretty much then put it all back in the hands of the doctor.”

Cox said he knows doctors have to make judgment calls more often than the public is aware of, but since no doctors have yet been prosecuted under an abortion state law, then maybe the concerns are overblown.

“It makes me wonder if some people might think that’s a convenient way to justify doing the health exception, is to say that well, doctors won’t know what to do. It seems they’ve been able to figure it out pretty well,” Cox said.

Dr. Nisha Verma, an OB-GYN and abortion provider in Georgia, said even though her state includes medical emergencies in its six-week abortion ban, it’s impossible for a law to encompass the nuance and complexity of medical decisions in a patient’s life.

“There isn’t this line in the sand, there isn’t this moment in time where someone goes from totally fine to actively dying, it’s a continuum. It’s really difficult to determine where we can legally intervene,” Verma said.

In the case of a patient’s water breaking before fetal viability, Verma said the risk of maternal death increases by 50% if a doctor waits to treat until the person is sicker, which they often end up doing to protect themselves from legal consequences. One woman in Oklahoma named Jaci Statton was told to wait in a parking lot until her infection was more serious so she could be treated. Statton has filed a federal complaint over the incident, and she is one of several women in Idaho, Oklahoma and Tennessee who have taken action after being denied abortion care in their home states.

“I think these laws are establishing for people what risk is acceptable and what isn’t, and that component of it is really problematic,” she said. “And they’re using these non-medical terms to try to regulate the practice of medicine.”

Women in several ban states have sued over denial of care

Earlier this year, 13 Texas women sued the state after they were denied abortion care despite the fact that they were facing severe, dangerous pregnancy complications. Although Texas’ law includes an exception for the pregnant person’s health, the severity of the ban in place makes doctors feel uncomfortable relying on it, according to the lawsuit. One plaintiff, Amanda Zurawski, said she was forced to wait until her infection became septic to receive abortion care, causing one of her fallopian tubes to permanently close and affecting her future fertility. She spent three days in the intensive care unit.

A Texas district judge issued a ruling in early August saying doctors could use their own good faith judgment in emergencies, but the state immediately appealed it, which stopped the decision from taking effect. The Texas Supreme Court is scheduled to hear arguments on Nov. 28.

In August, a Texas Democratic lawmaker successfully passed a bill allowing doctors to legally terminate a pregnancy in two scenarios: When a pregnancy is ectopic, which is a nonviable condition, and when a pregnant person’s water breaks prematurely and the fetus is not yet viable. Republican Gov. Greg Abbott quietly signed the bill into law in August, and it took effect Sept. 1.

Exceptions in bans are ‘fake,’ Wisconsin Democrat says

For abortion rights advocates, even the states with health exceptions in their ban laws are causing harm, because often the laws lack clarity and do not account for instances of fatal or life-limiting fetal anomalies.

Jillaine St.Michel, an Idaho plaintiff in a lawsuit led by the Center for Reproductive Rights, was 20 weeks into her second pregnancy when her fetus was diagnosed with multiple developmental abnormalities of the organ and skeletal systems at a routine scan. It was so severe that the doctors asked St.Michel if she worked in a factory around any dangerous chemicals. She didn’t.

St.Michel had to spend three days in Seattle with her husband and 3-year-old child, which made her feel like she was doing something wrong.

“To have to go through that procedure and then go back to an unfamiliar hotel room, and have to heal and go through that process not in the comfort of your own home felt really degrading,” she said. “It felt really insulting that we had to go through that in such a demeaning way.”

Democrats in states like Wisconsin, which had a complete ban without exceptions until a recent court ruling prompted Planned Parenthood to resume its abortion services, think most Republican-proposed bills to add health exceptions are drafted in bad faith.

“The idea of exceptions to abortion bans, it’s absolutely fake, it’s false,” said Sen. Kelda Roys, a Democratic legislator in Wisconsin. “It’s intended to do one thing, and that is to give political cover to anti-abortion politicians who realize how deeply unpopular their position is and are desperately trying to scramble to appear less extreme.”

Wisconsin Republicans proposed legislation with a health exception in March, but Democrats immediately rejected it, calling it a publicity stunt that came just a few months after Republicans nationwide performed poorly in the 2022 midterm elections. It also came a little more than two weeks before a significant state supreme court election, which Justice Janet Protasiewicz went on to win in April. Protasiewicz openly campaigned in favor of abortion rights.

Wisconsin Gov. Tony Evers, a Democrat, also vowed to veto the bill if it passed, after which the bill died. While it passed the House, Republican Senate Majority Leader Devin LeMahieu said at the time that the Senate would not hear the bill because, “This is not a topic to use as a political football.”

As political minorities in ban states, Democrats sometimes protest exception bills

In most states with abortion bans, Republicans dominate the legislature in both chambers, and a lack of Democratic support for a bill typically won’t determine whether a bill advances or passes into law. For that reason, in places like Idaho and South Dakota, proposals to add health exceptions have drawn support and ire from Democrats at the same time.

In South Dakota, Democratic Rep. Erin Healy responded to a health exception proposal drafted by Republican Rep. Taylor Rehfeldt by saying she heard anecdotes from women in her life who had pregnancy complications and were affected by the vague laws, but health exceptions are just a small carveout to what is still a violation of individual privacy and doctor-patient relationships.

“Democrats really believe that there shouldn’t be just exceptions, that abortion should be an option for women, and that bodily autonomy is important,” Healy told the Mitchell Republic in January.

Rehfeldt did not respond to requests for comment.

In Idaho, Democratic legislators were angry after health exceptions were dropped from the bill that ultimately passed the legislature in April. Republican Rep. Brent Crane withdrew the version that included that language after opposition from Right to Life of Idaho and state Republican Party Chairman Dorothy Moon.

Rep. Brooke Green, a Democrat, said her caucus decided to walk out of the House chambers when the bill came up for a vote as a form of protest because it only included ectopic pregnancies and miscarriages as exceptions.

“It was one of those situations where we were damned if we do, and damned if we don’t,” Green told States Newsroom. “When you have an environment where you’re the super, super minority, these are the circumstances that play out.”

Crane said he is still working to find the right language for a bill that could pass during the 2024 legislative session, which begins in January. Rehfeldt has vowed to keep fighting for her bill in the next session as well.

National Right to Life helps guide legislative language to keep exceptions narrow

Ingrid Duran, director of state legislation for National Right to Life, also cited the Doe v. Bolton case as one of the reasons why the organization is typically opposed to legislation that adds a health exception to an abortion law. Because the court in that ruling said that a physician could use their own medical judgment to determine what qualifies as “health,” any exception related to health must be narrowly tailored if it is to earn the NRLC’s support.

From Right to Life’s perspective, during the time of Roe, doctors were providing abortions after viability for arbitrary reasons, even in states where the procedure was more tightly regulated after about 22 or 24 weeks of pregnancy.

“This is a tale as old as time, as far as the different medical associations — or maybe just a pro-choice senator or representative — that will introduce language that would make it not as narrowly tailored and kind of leave it open and vague to the person performing the abortion’s interpretation of what ‘health’ could mean,” Duran said. “I think when we do that, it is very akin to the wolf looking after the sheep.”

Right to Life was heavily involved in the passage of a narrow health exception in Tennessee’s abortion ban earlier this year. The Tennessee Medical Association supported an initial version of the bill that included fatal fetal anomalies and allowed physicians to provide an abortion if in their “good faith” judgment it would prevent serious health consequences.

After Right to Life’s objections, a different version passed without fetal anomalies and instead said the physician must act with “reasonable” medical judgment. Duran said that term is preferable because to her, it reflects a consensus of the medical community. Objections from the medical community must be taken with a grain of salt, in her view, because groups like Right to Life believe physicians profit from providing abortions.

“If you had a very terrible abortion doctor like Kermit Gosnell, you wouldn’t want to leave it up to him to determine what is his good faith medical judgment,” Duran said, referring to a former physician and convicted serial killer.

For attorneys like Peg Dougherty, deputy general counsel for St. Luke’s in Idaho, that distinction is important from a legal standpoint when advising medical staff. Dougherty would prefer to see “good faith” wording because in other areas of medicine, physicians are trusted to provide the appropriate training and expertise to a patient. If it is specific to a doctor’s “reasonable judgment,” she said, it is easier for prosecutors to find witnesses who might testify that a course of treatment wasn’t what they would consider reasonable.

“Doctors are treating patients and providing the best care for their patients that they can and they’re also working with their patient. They’re not trying to fabricate reasons for their patient to do something, ever.”

Ohioans for Reproductive Freedom hold a Bans OFF rally in Columbus on Oct 8, 2023, a month before Ohio voters approved a ballot initiative supporting abortion rights — and almost a year after Kentucky voters rejected an amendment denying them. (Graham Stokes for Ohio Capital Journal)

Anti-abortion leaders woke up Wednesday to the sobering reality that abortion rights remain the nation’s predominant political issue. Decisive wins in swing and red states in two national election cycles since Roe v. Wade was overturned last year have given momentum to reproductive rights groups, who aggressively campaigned and fundraised in key states across the country, and intend to triple down for 2024.

Meanwhile, the anti-abortion movement is scrambling for an effective 2024 strategy after crushing losses. Longtime anti-abortion activist the Rev. Pat Mahoney said in large part Republicans have been ineffective communicators on the issue and were wildly outspent.

“I think for the pro-life movement, we have to now truly recognize, when it comes to abortion bans, this is something that Americans do not want right now,” Mahoney told States Newsroom as he hustled to catch a connecting flight from Ohio – whose voters enshrined the right to abortion – home to Virginia, where Democratic candidates overtook the legislature after campaigns focused on abortion rights.

Mahoney is currently chief strategy officer for Stanton Public Policy Center, the political arm of Stanton Healthcare, a network of anti-abortion clinics headquartered in Idaho that offer limited reproductive health services. He said the anti-abortion movement needs to better coordinate a national messaging and fundraising strategy to be able to compete with the reproductive rights movement.

“Right now the pro-choice movement is more committed to funding in elections the protection and promotion of abortion than the pro-life movement is committed to ending abortion violence and making abortion unthinkable,” Mahoney said. “I live in Virginia. The state is doing well, the economy’s doing well, by all accounts. [Glenn] Youngkin is a relatively popular governor. Every ad I saw on television for every Democrat – I mean, a barrage of them – was how MAGA Republicans or pro-life anti-choice activists want to take women’s rights away. They were all about abortion.”

He said he’s expecting Republican candidates to continue “fumbling” the issue on the presidential debate stage in Miami tonight.

“Hardly any Republican has handled this well,” he said. “They’ve been all over the map.

Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, also urged the GOP – many of whose candidates tried to ignore the abortion issue or soften their stances – to “wake up.”

“The true lesson from last night’s loss is that Democrats are going to make abortion front and center throughout 2024 campaigns,” Dannenfelser said in a statement. “The GOP consultant class needs to wake up. Candidates must put money and messaging toward countering the Democrats’ attacks or they will lose every time.”

But anti-abortion leaders say they will not give up their mission and will continue pushing controversial policies like granting “personhood” to embryos.

“Voters overwhelmingly cast their ballot to enshrine abortion into the state constitution. This is a bitter pill, and there’s no sugarcoating it,” Americans United for Life interim president Kevin Tordoff said in an email to supporters. “You and I know that constitutional justice, always and everywhere, means equal protection for all. We will continue, as we have since our founding in 1971, to strive for the day when all are welcomed throughout life and protected in law. Let us continue to stand together in this mission.”

Anti-abortion movement leader Terrisa Bukovinac, meanwhile, is calling for the anti-abortion movement to get more radical. She comes from the direct-action wing of the movement that believes voters need to see graphic images of aborted fetuses in order to be moved on the issue. The self-described atheist and leftist used to work in animal rights activism in San Francisco before moving to Washington, D.C., to found Progressive Anti-Abortion Uprising, one of the few anti-abortion groups that supports LGBTQ rights. Bukovinac is running for president as a Democrat with a targeted goal of airing campaign ads in key markets that show graphic images of fetuses she and another activist obtained outside of an abortion clinic in 2022.

“The reason that we oppose [abortion-rights amendments] is because they are widening the scope of abortion into the third trimester for elective reasons,” Bukovinac told States Newsroom. “And if we’re not showing the victims, like non stop, of abortion in these later trimesters, then we’re not really communicating with people why we oppose these measures and why they should also.”

Bukovinac told States Newsroom she is working to air her first ad in New Hampshire by the beginning of next year, but fundraising for her tiny campaign has been slow-going. She said stations typically charge more for campaign ads that feature controversial content.

Following Tuesday’s losses, Bukovinac said Maryland Right to Life reached out to her to conference on strategies ahead of the state’s upcoming abortion referendum.

“I think that they have to show the victims of abortion in an aggressive way,” Bukovinac said, of anti-abortion groups. “They need to say that abortion is murder. They need to be doing direct actions. I think those are the three most important things that we’re going to be doing in the next however many years it takes to reach left on this issue.”

Tuesday’s results were equally instructive for abortion-rights organizers in showing how effective abortion rights is as a voting issue. Ohio organizers in particular faced many obstacles, led by state Republican leaders, in trying to even get their initiative on the ballot. Despite what activists said was misleading text on the ballot, the measure carried 57%, including 18% of Republican voters.

“Looking at the results in Ohio, Virginia, Kentucky and Pennsylvania, it is pretty clear that abortion matters to voters because it matters to people in their everyday lives,” said Angela Vasquez-Giroux, vice president of communications and research of Reproductive Freedom for All, an abortion rights lobbying group formerly called NARAL Pro-Choice America. “And I think when you look down the road to 2024, and you see places like Florida, that gives you a sense of what’s possible. Even where you have hostile legislatures and gerrymandering and all of the structural inequalities stacked against you, you can still make big change when you get the power back to voters.”

Since the U.S. Supreme Court overturned Roe v. Wade in June 2022, 21 states have eliminated or restricted access because of abortion bans. And as States Newsroom has reported, even with health exceptions and especially without them, women have been denied medical care during pregnancy-related emergencies.

“[Voters] understand that life is not these one-size-fits all bans,” Vasquez-Giroux said. “They don’t account for how complex pregnancy and life are. People understand that you can’t legislate a belief system onto a medical procedure and expect that nothing bad is going to happen.”

A sample of reproductive rights wins from Tuesday night:

Kentucky: Democratic Gov. Andy Beshear, who made the state’s. near-total abortion an issue in the race, won re-election. Challenger Republican Attorney General Daniel Cameron supports the ban and has defended it in court. After the Beshear campaign began airing ads criticizing Cameron’s support of the ban, the Republican gave varying answers on whether he would support exceptions in cases of incest and rape.

New Jersey: With every legislative seat up for grabs Tuesday, Democrats retained control of both houses, after Republicans had dismissed their strategy to focus on reproductive rights over issues like state spending and crime rates.

Ohio: A win for Issue 1 means the state’s constitution will now guarantee the right to abortion through viability (and beyond for medical emergencies), as well as the right to birth control,

childbirth, fertility treatment and miscarriage management. The win means a blocked six-week abortion ban currently under review by the courts will likely be struck down. And it marks the seventh state to affirm reproductive rights on the ballot since Roe v. Wade was overturned.

Pennsylvania: Democrat Daniel McCaffery won his seat on the liberal-leaning Pennsylvania Supreme Court, and marked the second time that Reproductive Freedom for All endorsed in a judicial race.

Virginia: Democrats winning both state houses means Republican Gov. Glenn Youngkin is unlikely to push through the abortion ban he championed this election cycle. For now the state remains one of the few abortion access points in the South.

Vasquez-Giroux said Reproductive Freedom for All will continue to support local reproductive-rights groups with their ballot measures and state and local elections, and will help to coordinate strategy at the national level.

“No matter how you apply abortion as an issue, in elections, it’s successful because people understand exactly what’s at stake – your ability to live in a place where it’s safe to become pregnant. It’s a pretty big deal,” Vasquez-Giroux said. “Folks understand that it means that you have to protect it at every opportunity. … I think we can expect to see repeats of last night and 2022 in 2024.”

Gov. Andy Beshear, right, and First Lady Britainy Beshear, left, walk into a post-election press conference Wednesday at the state Capitol in Frankfort. (Kentucky Lantern photo by McKenna Horsley)

FRANKFORT — The day after winning a second term, Democratic Gov. Andy Beshear spoke of several changes he would like to see from the General Assembly? — including educator raises and exceptions to Kentucky’s abortion law in cases of rape and incest.?

Beshear, flanked by First Lady Britainy Beshear, Lt. Gov Jacqueline Coleman and First Dog Winnie in the Capitol Rotunda, told reporters Wednesday that the state’s near-total abortion ban was “the most extreme.” It automatically went into effect after the U.S. Supreme Court overturned Roe v. Wade and prohibits abortions after six weeks of pregnancy.?

The governor referred to Hadley Duvall, a woman who appeared in one of his campaign ads criticizing Republican opponent Attorney General Daniel Cameron for his stance on abortion. Duvall was raped by her stepfather as a child and became pregnant and later miscarried. Beshear thanked her in his election night speech for speaking out.?

“What a brave, courageous young woman that she is,” Beshear said Wednesday. “We believe she and everyone else should have options, and the legislature should make that change as quickly as they come in.”?

Beshear added that he believes Kentuckians have shown that they oppose the abortion ban, or “at the very least, they want to see exceptions.” On the campaign trail, Beshear has expressed support for exceptions in cases of rape and incest. After Beshear’s campaign released ads critical of Cameron’s stance, the Republican said he would have signed similar exceptions into law if the General Assembly passed them.?

The General Assembly convenes in Frankfort in January. During the session this year, Majority House Whip Rep. Jason Nemes, R-Middletown, proposed a bill adding exceptions in cases of rape and incest to Kentucky’s abortion law. However, that legislation was never heard in committee.?

Nemes said Tuesday night that lawmakers need to look at polling and how the issue impacted the election. He added that he’s also spoken with other Republicans about it, but the issue is difficult for both sides.?

“It’s unquestionable that it is life. And so then what do you do with that? … Obviously, when people have been raped, and which is obviously what we’re talking about, it’s a very dramatic situation,” Nemes said. “So, where do you draw the line? What’s the balancing scale? People are going to have to come up with their own positions on that.

“I think our people, though, are clear in what they believe,” Nemes said.. “I think our people believe in the exemptions. And at some point, we’re representatives of the people, and we have to do what their demands are.”??

Kentucky voters have also spoken directly on the issue of abortion. Last fall, anti-abortion constitutional amendment failed, which would have enshrined no abortion access in the state constitution.?

Beshear’s legislative priorities

Beshear previously called on the General Assembly to fund an 11% raise for public school employees and universal pre-kindergarten programs for Kentucky students in the next state budget. He’s made similar pleas in the past, but hasn’t gotten much support from the legislature’s Republican supermajority.

He renewed his call in Wednesday’s news conference, saying the raises “are absolutely critical for moving our state forward.”?

When asked about how he moves forward with the General Assembly over his next term, Beshear extolled bipartisanship and said he’s signed more than 620 of the General Assembly’s bills already. Some of that legislation included legalizing medical marijuana and sports betting in Kentucky.?

“This is our chance to not only pay teachers closer to what they’re worth, but to boost the economy in each and every one of these areas, and listen, our shortage looks like it’s going to be even worse,” the governor said, before adding that recent raises for state troopers, social workers and corrections officers have brought more employees into those professions.?

Ahead of the press conference, Senate President Robert Stivers, R-Manchester, congratulated Beshear on his win in a Wednesday morning statement, but expressed disappointment in the outcome. He added that the General Assembly will continue to focus on passing its policies while bringing “forth legislation to protect Kentucky families from some of the extreme agendas of the Beshear and Biden administrations.”

“I am hopeful that in his second term, though, the Governor will choose to work collaboratively with his co-equal branch of government,” Stivers said. “This General Assembly remains committed to a fiscally responsible budget and creating an environment for economic growth.”

When asked about Stivers’ comment and negative reaction from other Republican lawmakers to their relationship with the governor, Beshear said he hoped that in the future people will no longer see the “outward bickering.” Beshear added he meets with legislators regularly and recalled but did not name a legislator who once said they never met with the governor after just having a meeting together.?

Beshear said his administration will “double our efforts” to work with the General Assembly.?

“Now the phone works both ways. We need to make sure that everyone is reaching out. And listen, I’m not going to respond to the negative. I mean, when somebody is yelling and you yell back, and there’s just two people yelling,” Beshear said. “My goal is to try to continue to be an adult, to continue to operate in a way that makes people proud and hopefully allows people’s children to watch what we say and what we do.”

Cancer is one of several conditions for which mifepristone is a potentially effective treatment. (Getty Images)

One of the anti-abortion doctors suing the U.S. Food and Drug Administration to rescind its 2000 approval of a medication abortion regimen on the basis that one of the drugs is dangerous is now consulting on the development of a breast cancer treatment that involves the same drug: mifepristone. It is the family doctor’s latest foray into medical consulting outside his medical certifications.

Dr. George Delgado is joining the scientific advisory board of Res Nova Biologics, Inc., which is developing a breast cancer treatment using mifepristone, despite plaintiffs’ arguments in the lawsuit that federal approval was illegally rushed (it was a four-year process) and that the drug’s approved use for first-trimester abortion should be reversed.

But in the press release announcing his role with Res Nova, he said: “In my opinion the concept of leveraging the effects of the abortion pill in life-saving as opposed to a life-taking scenario is extremely exciting. I am proud to join such a specialized team of therapeutic developers in advancing this novel approach to tumor immunotherapy.”

Delgado is among the four anti-abortion doctors and four conservative Christian medical groups whose claims are largely based on anecdotes and research that has raised red flags. And they contradict overwhelming evidence that mifepristone is safe after 5.6 million uses and effective for first-trimester abortions, miscarriage management and other medical conditions. The American Medical Association has accused the conservative courts that have advanced the case of? “elevat[ing] speculative pseudoscience over data and evidence, arbitrarily rolling back access to a safe and effective drug and leaving millions of women without a critical medication for reproductive health care.”

Nevertheless, the fate of U.S. abortion access once again rests on a forthcoming decision from the U.S. Supreme Court, to either take up this case, or effectively reinstate old restrictions to the drug. Conservative judges in lower courts have relied on plaintiffs’ claims along with testimony from Delgado and the other doctors alleging personal harm because mifepristone is FDA-approved for abortion.

In a legal declaration submitted in November 2022, Delgado wrote that he has treated women who “suffer complications from chemical abortions,” but he gave only examples of women whom he says felt regret and emotional distress. As an argument for standing, Delgado also said he loses money when patients have a medication abortion instead of seeking prenatal care services at his family practice in Escondido, California, which also offers anti-abortion counseling and a controversial protocol claiming to reverse the effects of mifepristone. The American College of Obstetrician Gynecologists says this protocol is “not supported by science.”

“[T]here is a tangible financial loss to my practice in losing the opportunity to render professional prenatal care for the mother or to care for babies who are never born,” he wrote.

Delgado is an outspoken anti-abortion activist best known for so-called “abortion pill reversal,” which is unregulated by the FDA and whose unverified claims led the AMA to sue North Dakota in 2019 over a state law promoting the procedure. Delgado serves on the American Association of Pro-Life Obstetricians and Gynecologists’ board of directors, despite not being an OB-GYN. At the height of the Covid-19 pandemic, Delgado also testified as a medical expert to keep mega churches open, though he is not a public health expert or epidemiologist. In legal filings he claimed expertise from having “treated many people with infectious diseases, including viral illnesses such as influenza, which tend to occur in epidemics.”

Now the family doctor has been recruited to the scientific advisory board of the biotech company based in Chula Vista, California, that is developing a breast cancer treatment using mifepristone.

Res Nova, a breast-cancer-focused spinoff of Therapeutic Solutions International, Inc., is developing FloraStilbene, a “proprietary formulation of RU-486 and pterostilbene which has been shown to overcome tumor associated immune suppression and increases responsiveness to chemotherapy and immunotherapy.” According to the press release (which refers to mifepristone as RU-486, the name the drug had during laboratory testing), the company “seeks to enter clinical trials of ‘repurposed’ abortion pill for breast cancer” and has signed with a compounding pharmacy.

“The similarities between pregnancy and oncology, including angiogenesis, immune modulation, and rapid growth are striking,” Delgado said.

Delgado is certified in family medicine and hospice and palliative medicine by the American Board of Family Medicine, and is not specialized in oncology or immunology. The Res Nova advisory board members currently listed on the website (Delgado has not yet been added) includes members with diverse specialties, including a board-certified neurologist and neuro-oncologist, a pharmacist, an attorney, a technology executive, and an IT consultant.

Res Nova president and CEO Famela Ramos—who is a nurse, an unsuccessful congressional and school board candidate, and on the board of an anti-abortion pregnancy center in Chula Vista—said she recruited Delgado partly because of the so-called abortion reversal technique he’s spent more than a decade developing and promoting.

“Having known the work of Dr. Delgado for many years and his great success in defending both the mother and the baby, it is exciting to have the opportunity to utilize his scientific and medical expertise in this unique intersection of reproductive medicine, immunology, and oncology,” Ramos said in the announcement, which refers to Delgado as an “expert in the biology of pregnancy and the abortion pill” and does not mention his lawsuit against mifepristone.

Delgado has also suggested that abortion is linked to breast cancer, a common anti-abortion claim. But according to the American Cancer Society, “scientific research studies have not found a cause-and-effect relationship between abortion and breast cancer.”

Ramos and Delgado declined to respond to States Newsroom’s questions.

Major U.S. medical groups have argued that Delagado’s lawsuit could have long-term consequences unrelated to pregnancy termination—and could upend drug research and development. Mifepristone is currently being investigated in clinic trials for a variety of cancers and mental health disorders. This lawsuit targets mifepristone for the specific use of abortion, and the drug’s manufacturers have said restrictions on the medication abortion regimen would not apply to clinical trials investigating mifepristone for non-abortion use. However, researchers have reported that even before Roe v. Wade was overturned anti-abortion policies made it difficult to study mifepristone.

Already mifepristone can be difficult to access for people who want abortions, but now the drug is also hard to access for the off-label use of miscarriage management because of high demand and confusion around medication abortion laws, according to States Newsroom affiliate Stateline.

“Dr. Delgado’s research interest in mifepristone as a potential preventive for cancer demonstrates the significant medical value that mifepristone provides,” said Molly Meegan, chief legal officer and general counsel for the American College of Obstetrician Gynecologists, which has filed friend-of-the-court briefs defending mifepristone’s approval and safety record in the FDA lawsuit.

Delgado helped create a network of anti-abortion health care providers willing to perform the so-called abortion pill reversal treatment without much data behind it and based on the doctor’s training at an institute that teaches a Catholic-friendly approach to reproductive health. The anti-abortion pregnancy center network Heartbeat International now manages the Abortion Pill Rescue Network.

The FDA’s medication abortion regimen, which is currently recommended for up to 10 weeks’ gestation, involves mifepristone to block the hormone progesterone, followed by the medication misoprostol which causes contractions. The “reversal” protocol has patients forgo the second drug in the regimen and receive doses of progesterone. States Newsroom has interviewed a patient who remained pregnant and gave birth to a healthy baby after going through this treatment at an anti-abortion pregnancy center in Idaho. But medical groups like ACOG and the AMA say there’s not enough evidence to show that it’s the progesterone that continues the pregnancy versus not completing the abortion regimen. The one attempt at a controlled study of this protocol ended prematurely because the OB-GYN and mifepristone expert leading the study determined it was unsafe after three patients hemorrhaged.

Though several states have passed laws requiring abortion clinics to tell patients they could potentially reverse their abortions if they change their minds, some states are now pushing back on the promotion and marketing of this treatment.

The California attorney general is suing Heartbeat International and another California-based crisis pregnancy network that have widely marketed “abortion pill reversal” despite its unproven claims, under the state’s False Advertising and Unfair Competition laws.

Earlier this year Colorado became the first state to ban the procedure, which was followed by a lawsuit from a Catholic clinic. State regulators have ruled that so-called “abortion reversal treatments” are not an accepted medical practice. But over the weekend, a federal judge appointed by former President Donald Trump blocked the new state law, citing the plaintiffs’ religious freedom.

Jillian Philips and her sons, Jude and Emmett, hold an urn containing some of the ashes of her daughter, Emilia Phillips, May 2, 2023, in North Brookfield, Massachusetts. Philips, who used the drug mifepristone to manage her miscarriage, is concerned that other women who miscarry could suffer if the pill, also used for abortions, is taken off the market. (AP Photo/Reba Saldanha)

Since losing her first pregnancy four months ago, 32-year-old Lulu has struggled to return to her body’s old rhythms. Lulu, who asked to be identified by her first name to protect her privacy, bled for six full weeks after her miscarriage and hasn’t had a normal menstrual cycle since.

Such disruptions aren’t uncommon after miscarriage, which affects roughly 1 in 10 known pregnancies. But for Lulu, they’ve also served as a persistent reminder that she couldn’t access the drug mifepristone — her preferred method of care — to help her body pass the miscarriage. Instead, her doctor prescribed a drug called misoprostol, which on its own is less effective.

“I recall clarifying with her about the kind of medication I would get,” Lulu said. “When she said misoprostol … I was really shocked. I made her repeat herself.”

Patients like Lulu are, experts say, a little-recognized casualty of America’s fractious abortion wars. In other contexts, both mifepristone and misoprostol are used to voluntarily terminate pregnancies, and both medications are often called “abortion pills.”

But while misoprostol is indicated for a wide range of medical uses, including labor induction and ulcer treatment, mifepristone is taken almost exclusively to induce abortions and manage miscarriages, the latter of which is an off-label use. The federal government regulates it tightly, as do most state governments. The?drug remains widely unavailable to patients experiencing pregnancy loss — even in states that do not otherwise restrict abortion,?for a variety of regulatory, cultural and political reasons.

“There’s been this conflation of abortion and miscarriage management,” said Dr. Elise Boos, an assistant professor of obstetrics and gynecology at Vanderbilt University and a practicing OB-GYN. “There’s so much stigma and worry about the optics — and as a result, patients get suboptimal care for miscarriage.”

Miscarriage patients have three options for passing pregnancy tissue, which can cause hemorrhage or infection if not removed: medication, minor surgery or “expectant management” — waiting for the body to complete the process on its own. Since 2018, the American College of Obstetricians and Gynecologists has recommended a two-drug protocol of mifepristone and misoprostol for patients who elect the medication route. Mifepristone is taken first, to “loosen” pregnancy tissue from the uterine wall. This is followed by misoprostol to expel the tissue.

A study published in July in the Journal of the American Medical Association found that
between 2016 and 2020, just 1% of more than 22,000 patients nationwide?who took medicine to help pass their miscarriages?received the recommended two-drug protocol.

That leaves tens of thousands of patients like Lulu to face longer miscarriage processes and potential medical complications, doctors say. While misoprostol also is a safe and effective treatment on its own, physicians stress, it is markedly less effective than the two-drug combination — requiring follow-up surgery to complete the miscarriage in roughly 1 in 4 cases.

“It felt like that was the reason my miscarriage was dragging on and the reason I bled for so long,” Lulu said in private messages with Stateline on the discussion site Reddit, where she has chronicled her experience with miscarriage. “Of course, (it’s) hard to know … but I’m convinced I would have healed much faster” with mifepristone.

Policy, stigma limit care

Doctors and reproductive health advocates blame a thicket of overlapping cultural, political and regulatory factors for limiting patient access to mifepristone.

Decades of federal data show that the drug only rarely causes serious side effects and is responsible for fewer deaths than Tylenol. The two-drug combination is just as safe as misoprostol alone.

More than 90 countries have approved mifepristone since the late 1980s — including Canada, which since 2017 has permitted any physician or nurse practitioner to prescribe mifepristone and any pharmacist to dispense it.

In the United States, however, mifepristone is typically only available at hospitals, health clinics and doctors’ offices that routinely provide abortions or that employ specialists in “complex family planning,” a branch of gynecology focused on abortion, contraception and miscarriage management.

Some retail pharmacies also have begun to stock the drug since January of this year, when the Food and Drug Administration loosened some long-standing restrictions, said Abby Long, a spokesperson for Danco Laboratories, which manufactures mifepristone under the name brand Mifeprex.

But the names of those pharmacies are confidential, and few have chosen to publicize the fact that they carry the drug, Long said. Both CVS and Walgreens, the country’s largest pharmacy chains, have applied for permission to dispense mifepristone, but neither has been certified yet.

Clinics that stock mifepristone also represent a small and seldom advertised subset of health care providers, said Dr. Michael Belmonte, a practicing OB-GYN in Washington, D.C., and a fellow at the American College of Obstetricians and Gynecologists. Such facilities may be inaccessible to patients living in rural or low-income communities. There also is no publicly available list of clinics, offices or pharmacies that provide mifepristone, said Belmonte.

“Typically, it’s on the individual physician to understand their community,” Belmonte said. “Even for me as a complex family planning specialist, I understand how complicated that is — and it’s only more complicated, unnecessarily so, for a general OB-GYN or someone in family practice.”

Some miscarriage patients also may balk at turning to a clinic or health center better known for performing abortions. Federal law further requires that all patients who receive mifepristone sign a form acknowledging their desire to end their pregnancy, even if they’ve experienced a miscarriage.

“It did feel kind of cruel to send me to what was effectively an abortion clinic for care of the loss of my wanted pregnancy,” said Erika, a Pennsylvania woman whose OB-GYN referred her to a complex family planning clinic for a mifepristone prescription.

For more than a decade, the FDA has regulated mifepristone under a special framework — called a “Risk Evaluation and Mitigation Strategy,” or REMS — used for drugs that the FDA maintains could pose extra risks to patients. The framework requires providers to register with a drug’s manufacturer before prescribing or dispensing it.

While not complicated,?especially?for independent clinics and pharmacies, the certification process can dissuade providers who don’t frequently dispense mifepristone, particularly those who don’t provide abortions, Belmonte said. Obtaining certification has also proved time-consuming for the major pharmacy chains, which face additional hurdles related to their large geographic footprints and companywide databases.

At least 15 states place additional restrictions on prescribing and dispensing mifepristone, according to the nonprofit health care policy research organization KFF.

Typically, these restrictions bar nurse practitioners or physician assistants from prescribing abortion medications or require that patients receive mifepristone directly from a physician. Such rules will prevent pharmacies from supplying the medication in much of the country, Long said, even after the change to federal regulations.

State abortion bans also impede miscarriage care, medical groups have said. Since the Supreme Court overturned Roe v. Wade last year, 14 states have banned abortion, some with explicit allowances for treatment that saves the life of the person giving birth or that eases miscarriage. But not all state laws make that distinction, said Alina Salganicoff, the director for women’s health policy at KFF, and many are written in confusing, nonmedical language that doctors struggle to interpret in real-life situations.

In Louisiana, for instance, doctors asked the state Department of Health to clarify whether the state’s near-total abortion ban extends to the treatment of miscarriages, ectopic pregnancies and other pregnancy complications. As currently written, state law requires physicians to confirm a miscarriage by ultrasound before beginning treatment. Republican legislators voted down a proposed bill in May that would have granted physicians more discretion when making care decisions.

“There’s a difference between the legal status of mifepristone for miscarriage care in states that are extremely hostile to abortion and the understandable concerns that providers might have given the hostility of that climate,” said Julia Kaye, a senior staff attorney with the American Civil Liberty Union’s Reproductive Freedom Project.

Kaye points, in particular, to letters that more than 20 Republican state attorneys general sent to major pharmacy chains?earlier this year, threatening legal action against providers that dispensed or administered mifepristone, with no allowances for miscarriage care.

Legislation proposed in Alabama, Arizona and Iowa would have made it a felony to “manufacture, distribute, prescribe, dispense, sell or transfer” mifepristone for any reason.

In this political climate, stigma prevents many clinicians from prescribing mifepristone — even absent other legal or regulatory hurdles, said Dr. Debra Stulberg, the chair of the Department of Family Medicine at the University of Chicago. Stulberg leads a demonstration project aimed at helping community hospitals, federally qualified health centers and other primary care providers adopt mifepristone, which she called “the gold standard” for medically managing miscarriage.

“We see these vicious, reinforcing cycles where the culture at the local level is really responsive to policy and politics,” Stulberg said. “We’re both combating the stigma associated with abortion and overcoming unfounded but understandable fears about what it means to provide this medication.”

A lack of ‘empathy’

Abortion opponents dispute the notion that mifepristone restrictions disrupt or worsen care for early pregnancy loss. The American Association of Pro-Life Obstetricians and Gynecologists, a professional group, has argued that the adoption of mifepristone for miscarriage care is part of a larger campaign to make the drug more available for elective abortion.

Rules that require in-person appointments or bar pharmacies from shipping mifepristone in the mail help guarantee that patients receive adequate screening and follow-up care, said Dr. Kathleen Raviele, a retired OB-GYN and the former president of the Catholic Medical Association.

Misoprostol is also effective on its own, said Raviele, who argues that the two-drug regimen only serves to add cost and complication to the miscarriage management process and “confuse women” who associate mifepristone with elective abortion.

In her former practice, Raviele counseled patients to wait for their bodies to pass pregnancy tissue naturally, a process that can take up to eight weeks. She would later prescribe misoprostol or schedule a surgical procedure if the patient didn’t pass the miscarriage or related pregnancy tissue — an approach that she said requires a longer, more intensive engagement between provider and patient.

“I think that, because abortion is legal in this country, doctors and other health care workers don’t treat women having miscarriages with the empathy and sympathy they should,” Raviele said. “There’s this attitude of, ‘Well it’s early — you can always get pregnant again.’”

But physicians and reproductive health advocates say that approach ignores both the preferences and economic realities of many patients, who may lack the time, transportation or financial resources to undergo weeks of follow-up appointments. Patients who manage their pregnancy loss with medication may also have emotional reasons for making that choice: a desire to gain control, for instance, or to shorten the duration of a painful experience.

One 33-year-old woman in West Virginia, who asked to remain anonymous, told Stateline that she chose expectant management for a recent miscarriage because a clotting disorder makes surgery riskier for her — and her doctor never told her medication was an option.

For more than seven weeks, she wrote in a message on Reddit, she passed “golf ball-size clots” and reported for “agonizing” weekly follow-up appointments at her doctor’s office.

“I see all the happy pregnant women and hear babies’ heartbeats from the ultrasound room,” she said. “I would have given anything to not go through such a long process.”

Some lawmakers and advocates are seeking to make mifepristone more available to miscarriage patients — though their efforts run up against parallel, opposing campaigns from anti-abortion groups.

One such anti-abortion group, the Alliance for Hippocratic Medicine, sued the FDA last November to challenge the agency’s initial approval of mifepristone. In August, the 5th U.S. Circuit Court of Appeals ruled the FDA should place further restrictions on the drug — a decision that the Supreme Court has stayed and is expected to take up on appeal next term.

Elsewhere in the country, the ACLU and attorneys general in 12 states sued the FDA to overturn its existing restrictions on mifepristone, arguing that they conflict with the drug’s well-documented safety record. Those cases are ongoing in federal court.

Since October 2022, a coalition of almost 50 leading medical associations and health advocacy groups and eight Democratic senators have also petitioned the FDA and Danco Laboratories to make miscarriage management an official indication for mifepristone.

While drugs are routinely used for off-label purposes in the United States, adding the new indication could further legitimize the use of mifepristone in miscarriage care, advocates argue, and potentially keep the drug available in the face of abortion bans or restrictions.

Long, the Danco spokesperson, said the company is considering a future update to the mifepristone label, but has not started the process of revising it.

In the meantime, many doctors and researchers say they are working to further document and publicize the role of mifepristone in miscarriage care. Vanderbilt’s Dr. Boos, who has researched trends in the treatment of early pregnancy loss, said providers have a responsibility to educate patients and policymakers alike about the science behind different care options.

“These fights are being litigated by lawyers, not clinicians,” Boos said of mifepristone prescriptions and abortion bans. “They don’t seem to understand that if we lose mifepristone, we lose it for medication abortions, yes — but we also lose it for all these other patients.”

This story is republished from Stateline, a sister publication to the Kentucky Lantern and part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: [email protected]. Follow Stateline on Facebook and Twitter.

A demonstration for abortion rights outside the U.S. Supreme Court. (Getty Images)

A group of more than 600 Democratic legislators from 49 states have signed an amicus brief to the U.S. Supreme Court urging the justices to overturn an appellate court decision that would roll back access to mifepristone, one of two drugs used to safely terminate early pregnancies and treat miscarriages.

The amicus brief, also called a “friend of the court” brief, was organized by State Innovation Exchange’s Reproductive Freedom Leadership Council and assembled over the past week, said Jennifer Driver, the group’s senior director of reproductive rights. Driver said State Innovation Exchange, also known as SiX, provides tools and resources for state legislators to advocate for progressive public policies after being elected to office.

Driver said SiX did ask Republican legislators to sign on as well, but didn’t manage to garner any bipartisan support.

Every state, with the exception of Mississippi, had Democratic legislators who signed their names to the brief, with the highest number of participants from Illinois, followed by North Carolina, New York and Colorado. Driver said 13 state representatives from Arkansas also signed on.

“This statement should say that across the country, in almost every state, there are legislators that are saying their ability to protect their community should not be interfered with,” Driver said. “Even in ruby red states, there are legislators who are still fighting for abortion access, and they understand the ramifications of what happened in Dobbs and what could happen in this case.”

Upholding 5th Circuit would mean reinstating prior restrictions on pill ?

The Supreme Court has not yet accepted the Alliance for Hippocratic Medicine’s case against the U.S. Food and Drug Administration, but the court already involved itself in April by temporarily blocking the 5th Circuit Court of Appeals’ decision. If the high court declines to hear the case or upholds the appellate court’s ruling, the FDA’s rules that allowed expanded access of mifepristone would be struck down.

That would include the ability for providers to prescribe the medication via telehealth or send the medication in the mail, and it would decrease the time limit from 10 weeks of pregnancy to seven weeks. The results of most at-home pregnancy tests are not reliable until after an individual has already missed a period at four weeks of pregnancy.

It would also require patients to see providers at three separate clinic appointments in person, which would be especially difficult for those traveling from one of the 14 states with abortion bans to access care.

The Alliance for Hippocratic Medicine is a group of four anti-abortion organizations and four doctors that formed in 2022 and incorporated in Amarillo, Texas. U.S. District Judge Matthew Kacsmaryk, who is in Amarillo, made the initial ruling that would have revoked mifepristone’s approval in its entirety, leading some to conclude the plaintiffs chose to incorporate there for a favorable outcome in Kacsmaryk’s court.

The plaintiffs are represented by the Alliance Defending Freedom, a religious conservative group that recruits and trains attorneys to litigate cultural issue cases, including abortion, anti-LGBTQ legislation and what they consider violations of Christian religious freedom. The same organization was also involved in the U.S. Supreme Court’s Dobbs decision overturning the constitutional right to an abortion. The attorneys have argued the FDA illegally approved mifepristone in 2000, and have repeatedly contended that the drug is unsafe and responsible for many deaths — a claim that is not backed by credible sources. According to the FDA, 28 deaths out of an estimated 5.6 million people in 23 years have been associated with mifepristone’s regimen for terminating a pregnancy, which is a markedly lower rate than many common FDA-approved drugs, like Tylenol and Viagra. And as the FDA notes, that small number includes fatal cases “regardless of causal attribution to mifepristone,” including people who died from homicide, suicide, and pulmonary emphysema.

Legislators in Minnesota, North Carolina take the lead on brief?

In the Dobbs decision, authored by Justice Samuel Alito and issued in June 2022, the justices in favor of overturning Roe v. Wade said the regulation of abortion should be left to the states, “in accordance with the views of its citizens,” just as it was prior to the Roe ruling in 1973.

“It is time to heed the [U.S.] Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote.

That’s one of the reasons why the legislators decided to submit the brief, said Minnesota Democratic state Sen. Erin Maye Quade, one of two lawmakers leading the effort. While the legislators who signed on aren’t saying they agree with the Dobbs decision or the Supreme Court’s interpretation of the law, the justices’ own logic for the decision demonstrates that federal courts should not come between state laws on the issue of abortion.

“This [case] gives them an opportunity to decide whether abortion is really going to be up to states or not,” Maye Quade told States Newsroom on Tuesday.

The representatives and senators also argue that elected officials rely on the FDA’s authority to approve medications on the market, and allowing the 5th Circuit’s ruling to stand would undermine that authority. In a state like Minnesota, which is almost entirely surrounded by states with abortion bans, access to mifepristone is vital, Maye Quade said. Following Texas’ implementation of its abortion ban prior to the Dobbs ruling in 2022, Minnesota started to see an increase in patients seeking care. Maye Quade said there was a 20% increase in the state in 2022, and in 2023, the numbers continue to increase.

The other lawmaker leading the case is Rep. Julie von Haefen, a Democrat in North Carolina’s General Assembly. The legislature in North Carolina passed Senate Bill 20 earlier this year, banning abortions after 12 weeks of pregnancy and requiring patients to receive counseling at least 72 hours before the termination is scheduled to take place. A report issued Wednesday by the Guttmacher Institute showed between June and July, when the law went into effect, abortions decreased by 31%. North Carolina was an access point for many people in surrounding states, von Haefen said, and that drop was jarring.

“We just believe that the Supreme Court made this decision in Dobbs, and they have to step in and say, ‘No more, we have to leave these decisions to state legislators,’” von Haefen said.

According to the U.S. Supreme Court’s docket, attorneys for the plaintiffs are scheduled to file their brief in opposition to the court taking the case by Nov. 9.

Russell Coleman

Russell Coleman, the Republican candidate for attorney general, in an interview this week said he supports adding exceptions to Kentucky’s near-total abortion ban in cases of rape and incest.

Coleman, who is a former U.S. attorney for the Western District of Kentucky, has been endorsed by advocacy groups who support Kentucky’s current abortion law, which bans abortions after six weeks of pregnancy. Coleman’s comments come after Democratic Gov. Andy Beshear’s campaign has put Republicans on the defensive on the abortion issue.

“While I will enforce the law as passed by the General Assembly, that’s the job, I am pro-life, but I support the exceptions for rape and for incest, to not re-traumatize these women, and I would ask — call on the General Assembly to take a hard look at that issue,” Coleman said in a Spectrum News 1 interview published Wednesday.?

Advocates for abortion rights in Kentucky were skeptical that Coleman’s proposed exceptions would be helpful, pointing out that the Kentucky law has closed all the state’s abortion clinics, which means victims, including young victims of incest, would have to seek abortions in other states. Exceptions to abortion bans in cases of rape and incest are reportedly rarely granted.

Tamarra Wieder, Kentucky state director for Planned Parenthood Alliance Advocates, said, “Russell Coleman, just like (GOP candidate for governor) Daniel Cameron, is talking out of both sides of his mouth.”

In a statement to the Kentucky Lantern, Coleman said he “had never stated nor been specifically asked whether the General Assembly should amend our pro-life laws” before the interview with Spectrum. If elected this fall, Coleman vowed to be an attorney general who is “both pro-life and pro-victim” — which “are not in opposition to each other,” he said before adding: “Part of being pro-life is being compassionate to crime victims.”

“After listening to prosecutors, crime victims and my family, I made a statement that I believe the law should be amended to include exceptions for rape and incest in addition to the existing exception for life and health of the mother,” Coleman said. “What does it mean to me to be 100% pro-life? I said it for the record for all to hear: limit abortions and protect victims of rape and incest. That’s my definition. It’s a mainstream position consistent with my faith that I believe most Kentuckians share, including so many who consider themselves pro-life.”

Coleman’s public comments on his support for exceptions in cases of rape and incest echo recent remarks from Republican gubernatorial candidate Cameron — the current attorney general, who is defending the Kentucky ban in court, and is a personal friend of Coleman’s.?

Last month, Cameron for the first time publicly said as governor, he would sign legislation adding exceptions to Kentucky’s abortion law in cases of rape and incest if the General Assembly would pass it, but he continues to support the law as it is. The Beshear campaign has released two ads criticizing Cameron for supporting the law.?

Republican House Whip Jason Nemes proposed a bill in the last legislative session that would allow exceptions in case of rape and incest but the bill did not advance at all.?

Both Coleman and Cameron have been endorsed by advocacy group Kentucky Right to Life in their respective elections. KRTL’s website said both candidates provided “100% ProLife Responses” to its candidate questionnaire.?

Northern Kentucky Right to Life said Coleman responded to its May 2023 candidate questionnaire but did not answer it. The group did endorse Cameron and published his responses.?

Both KRTL and NKYRTL did not immediately return a request for comment Thursday morning.?

Angela Cooper, a spokesperson for the American Civil Liberties Union of Kentucky, said in a statement that perpetrators of rape and incest “are already rarely reported, rarely caught, and rarely convicted. And that’s WITHOUT an unwanted pregnancy to compound the victim’s trauma.” She added that the government “does not have the right or the expertise to intervene” and such medical decisions should be between patients and their providers.?

“There certainly seems to be a recent trend where those who have historically presented themselves as 100% anti-choice suddenly agree that comprehensive reproductive care must include access to abortion, if only in certain cases,” Cooper said. “But these changes in sentiment present more questions than answers.”?

Cooper said reproductive care is “a complex area of medicine,” and pregnancy in itself “a particularly complicated and time-sensitive medical state.”?

“Abortion bans, even those with exceptions, are blatantly harmful to pregnant people. Let’s say an exceptions bill is signed into law in Kentucky,” she continued. “Where does the burden of proof lie when it comes to determining the cause of an unwanted pregnancy? Does a rape victim have to get a conviction before being allowed to terminate their pregnancy? Does a 12-year-old victim of incest stand a chance when it is a family member who is raping them in the first place? Does a physician have to get the attorney general’s approval before performing an abortion? Who is going to perform these abortions, with no clinics left in the state?”?

Coleman’s opponent, Democratic state Rep. Pam Stevenson, has been endorsed by Planned Parenthood Alliance Advocates. In a statement, Stevenson said she was “committed to protecting the reproductive rights and healthcare choices of Kentuckians.”?

“We will refuse to prosecute patients or doctors under state law (if elected). It is essential that individuals have the freedom to make their own healthcare decisions without fear of legal repercussions,” she said. “I will use the office’s bully pulpit to vigorously defend the rights of patients and doctors, advocating for access to safe and legal healthcare options without interference from politicians.”

Wieder, Kentucky state director for PPAA, expressed the group’s support for Stevenson in a statement to the Lantern.?

“Russell Coleman, just like Daniel Cameron, is talking out of both sides of his mouth. Here are the facts: Coleman answered ‘yes’ to every question the Kentucky Right to Life Victory PAC put out in order to receive their endorsement, and he backed the 2022 Constitutional Amendment that Kentucky voters defeated – neither include exceptions for rape and incest survivors,” Wieder said. “Coleman has the rubber stamp approval of several extreme anti-abortion organizations, because he, too, is extreme and out of touch with Kentuckians. With Coleman and Cameron leading our Commonwealth, sex offenders will have more freedom than their survivors. It’s atrocious.”

Hadley Duvall in a Beshear campaign ad.

Hadley Duvall, a 21-year-old from Owensboro, said speaking about her experience with sexual abuse amid debates on abortion rights is a calling for her.?

That’s why Duvall is appearing in an ad for Democratic Gov. Andy Beshear’s reelection campaign. After the U.S. Supreme Court overturned Roe v. Wade in 2022, Duvall began publicly sharing her story about the sexual abuse she experienced as a child.?

In the campaign ad, Duvall speaks directly to the camera and slams Republican Attorney General Daniel Cameron for his support of Kentucky’s near-total abortion ban.?

“This is to you, Daniel Cameron,” she says. “To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable.”

Previous news stories reported that Duvall’s stepfather raped her when she was 12 and she became pregnant, but miscarried. Her stepfather pleaded guilty?to raping her and is in prison.

The ad with Duvall is the Beshear campaign’s second taking Cameron to task on abortion. The first ad, released earlier this month, features a Jefferson County prosecutor who claims that Cameron believes 9-year-old rape victims “should be forced to give birth.”

In a Wednesday telephone interview with the Kentucky Lantern, Duvall said someone from her hometown asked her if she would share her story with the team who made the campaign ad, which was filmed in July. It was an easy decision, she said.?

While she would not have been in a place to share her story as a child, Duvall said now she can handle it, even if it is difficult to be vulnerable.?

“It’s not just a statistic that people want to throw out there,” Duvall said. “I’m a real person, and it’s a real story.”?

Cameron, who has a history of highlighting his opposition to abortion, has defended Kentucky’s abortion ban in court. The law only allows abortions up to six weeks of pregnancy and does not include exceptions in cases of rape and incest.?

Duvall said that she first discussed the abuse as a freshman in high school. When the Supreme Court overturned Roe v. Wade, she made a social media post publicly sharing her experience.?

“Once I found my voice, I’ve never really lost it,” she said. “I’m really passionate about helping other survivors and other victims and just doing what I can to help the people who go through what I went through.”

Kentucky’s abortion ban was a trigger law, meaning it went into effect after Roe v. Wade was overturned. Duvall said that she felt anger that day. Duvall said she grew angry hearing people she knew saying they agreed with the court’s decision.

“It just made me really angry, and I just kept thinking about the little girl that I used to be when I was sitting there staring at a positive pregnancy test at 12 years old,” Duvall said. “Because I mean as soon as you see that you instantly think, ‘OK, what am I going to do?’ You start thinking about your options. And right now, if a girl or a woman is going through that, they don’t really have options.”

Since first speaking publicly about the abuse, Duvall said she has gotten a lot of support, especially from other survivors of sexual abuse. As for the reaction to the ad over the last week, Duvall said that the most meaningful part has been hearing from women and girls thanking her for helping them find their voices and strength.?

When it comes to negative reactions online, Duvall said she had tried to not look at them.?

“What I’m doing is for the women and the girls, so the people that speak negative on it don’t really deserve any of my attention,” she said. “But overall, I’ve just seen a lot of people talk about how important it is to bring this up into the light.”

Days before the ad featuring Duvall aired, Cameron said in a radio interview that if elected he would sign legislation adding exceptions of rape and incest to Kentucky’s abortion law if the General Assembly passed it. A spokesperson for his campaign said when asked for clarification that he continues to support the law as it is now but “if the situation in Kentucky were to change and the legislature brought him a bill to add exceptions for rape and incest, he would, of course, sign it.”

The Lexington Herald-Leader reported Wednesday that Cameron indicated he would only add the exceptions “if the courts made us change that law” during a recent campaign stop.?

Hadley said she did not find Cameron’s change of position “genuine,” given his past support of the current law and with only weeks left ahead of the general election in November.?

After the ad with Duvall aired, David Walls, the executive director of conservative public policy organization The Family Foundation, told LEX 18 in an interview about the ad that the organization believes “the value of a human being is never determined by how the child is conceived, however tragic it might be.” When asked about the interview, Duvall said that victims still deserve a choice.?

“How can anybody tell a child what they’re capable of doing when they’re not the ones standing in their shoes?” she said. “So, I think that it’s your choice because the trauma itself alone, of going through the rape and the sexual abuse, that’s lifelong trauma in itself.”

Duvall said she does not believe abortion is a “make or break issue” for most Kentucky voters, but “it is more important than it has been in the past because of the trigger law.”?

Now, Duvall is studying psychology, has plans to attend graduate school and wants a career working with trauma victims.

If the law never changes, Hadley said there will continue to be anger in the commonwealth.?

“I keep thinking about all the little girls who aren’t speaking up, who are hiding this, and if the law doesn’t change, then they don’t have any choice,” Duvall said. “And that in itself is a nightmare.”

Hadley Duvall in a Beshear campaign ad.

LOUISVILLE — Democratic Gov. Andy Beshear’s reelection campaign on Wednesday dropped a second ad slamming Republican Daniel Cameron’s stance on abortion, eliciting an accusation from Cameron that? Beshear is “running the most despicable campaign in Kentucky history.”

Hours later, the candidates did not? directly address the clash during a business forum held in downtown Louisville.?

The Beshear’s campaign’s TV spot features a rape victim identified in the ad as Hadley of Owensoboro who says she was sexually abused as a child by her stepfather.?

“This is to you, Daniel Cameron,” she says, speaking to the camera. “To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable.”??

The Associated Press reports that Hadley Duvall chose to be identified and has spoken out publicly about what she experienced and its connection to the debate over abortion. Her stepfather pleaded guilty to raping her and was sentenced to prison.

It’s the second ad from the Beshear campaign pressing Cameron on abortion. The first ad, released early this month, features a Jefferson County prosecutor who claims that Cameron believes nine-year-old rape victims “should be forced to give birth.”

Kentucky’s near total ban on abortion, which took effect after the U.S. Supreme Court overturned the constitutional right to abortion last year, has no exceptions for rape, incest or fetal anomalies and allows a pregnancy to be terminated only when the pregnant person’s life is at risk.

On Monday, Cameron — the state’s attorney general and a staunch defender of the abortion ban in court and during the Republican primary — for the first time publicly expressed support for exceptions in cases of rape and incest. In a radio interview, Cameron said that he would sign legislation creating exceptions if enacted by the General Assembly. In the past, he’s said he supports the law as it is.

In response to the new ad Wednesday, Cameron quickly responded in a social media video and statement. He called the new ad false and said the governor is “running the most despicable campaign in Kentucky history.”?

Last fall, Kentucky voters rejected an amendment that would have specified there’s no right to an abortion in Kentucky’s Constitution. Republican House Whip Jason Nemes proposed a bill in this year’s legislative session to add exceptions for rape and incest, but it did not advance.?

During the Kentucky Chamber of Commerce’s Annual Meeting at the Omni Louisville Hotel in Louisville, Cameron briefly referenced the ad when he was asked to say one nice thing about Beshear, saying that he would have had more to say until “he ran that ad against me today.” Both did recall their time working together at law firm Stites & Harbison in their respective answers..?

With only 48 days left before the general election on Nov. 7, the forum marked the first of several upcoming debate and forum appearances both candidates have agreed to over the next few weeks.?

The candidates received questions about their economic stances during the forum. Each had 30-minutes to take questions from a moderator and respond. Both reiterated talking points they’ve highlighted on the campaign trail.?

Cameron emphasized his support for lowering the state income tax, his good relationship with the Republican supermajority in the General Assembly and likened his opponent to national Democratic figures like President Joe Biden and California Gov. Gavin Newsom.?

“Our current governor has been silent because he cannot speak out against the Biden administration or the far-left within his party,” Cameron said when discussing his support for Kentucky’s coal and fossil fuel industries. “I’m willing to do that. I’m willing to speak out and stand up for those signature industries, because it is important that we hold on to those and we maintain those jobs.”?

But Beshear insisted that he has stood up for Kentucky’s coal industry as governor and attorney general. He added that he supports a mix of traditional and future sources of energy.?

Beshear also defended his previous vetoes of two bill cutting the state income tax. The governor said the first bill he rejected lowered the income tax while increasing sales taxes and the second was an “extreme reduction.” Earlier this year, he signed legislation lowering the state income tax.?

Beshear also stressed some of his campaign themes, including bringing new businesses and infrastructure to the state, public education and leading Kentuckians through natural disasters and the coronavirus pandemic.?

“The way we catch up a kid in math is to make sure there’s a math teacher there every day,” Beshear said when he was asked about how he would make up for learning loss experienced by students during the coronavirus pandemic.?

Cameron’s education plan is called the “Cameron Catch-up” plan.?

Gubernatorial candidate Daniel Cameron and his wife Makenze Cameron greet the crowd during the Graves County Republican Party Breakfast on Saturday, Aug. 5, 2023. (Kentucky Lantern photo by Austin Anthony)

Republican gubernatorial candidate Daniel Cameron on Monday said he would sign legislation allowing exceptions to Kentucky’s near-total abortion ban in cases of rape and incest — signaling a departure from his past comments on the law.?

Cameron, Kentucky’s attorney general, said in an? interview on the Tony & Dwight show on NewsRadio 840 WHAS that he would sign legislation that provided exceptions in cases of rape and incest if the General Assembly approved? it.?

“If our legislature was to bring legislation before me that provided exceptions for rape and incest, I would sign that legislation,” Cameron said. “There’s no question about that.”

It’s the first time Cameron has publicly expressed support for changing the Kentucky abortion ban by adding any exceptions.

During a Republican primary debate held in Louisville earlier this year, Cameron was among candidates who signaled support for Kentucky’s current law, which bans abortions up to six weeks of pregnancy. His office has also defended the law in court.?

The Kentucky attorney general’s website says: “General Cameron is a fearless advocate for the unborn because every life is worth protecting. Inside the courtroom and outside of it, Daniel Cameron is the tip of the spear in the fight to preserve a pro-life Kentucky.”

The trigger law, also called the Human Life Protection Act, went into effect after the U.S. Supreme Court overturned Roe v. Wade last year. The law makes no exception for pregnancies resulting from rape, incest or in cases of serious fetal abnormality. It does require doctors to “make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn child ‘in a manner consistent with reasonable practice,’” a 2022 advisory opinion from the Cameron’s office said.

Last November Kentucky voters defeated an anti-abortion constitutional amendment.?

When asked for clarification of Cameron’s latest comments and if he continued to support the law as it is, his campaign provided a statement calling Cameron “the pro-life candidate” in the race and saying that he “supports the Human Life Protection Act.”?

“But if the situation in Kentucky were to change and the legislature brought him a bill to add exceptions for rape and incest, he would, of course, sign it,” the statement said.??

The Cameron campaign called Democratic Gov. Andy Beshear “an extremist” on abortion but? did not indicate if Cameron would urge Republican lawmakers to add exceptions.

A spokesperson for the Beshear campaign, Alex Floyd, issued this statement: “Throughout his time in office, even before this campaign began, Daniel Cameron has made it clear that he supports Kentucky’s extreme abortion ban with no exceptions for survivors of rape or incest. He has repeated that position in public statements, questionnaires, press interviews, and debates. As attorney general, Cameron repeatedly defended this extreme law with its lack of exceptions in front of multiple courts, including the Kentucky Supreme Court. Either recent polling numbers have changed Cameron’s core beliefs, or he is lying to Kentuckians now that he is seven weeks from an election.”

Also on the radio show, Cameron pushed back at an attack ad from Beshear’s campaign, criticizing Cameron’s stance on abortion. The ad, released two weeks ago, features a Jefferson County prosecutor who claims that Cameron believes nine-year-old rape victims “should be forced to give birth.”?

Nine was the age of the two youngest abortion recipients in Kentucky in 2021 and last year before the procedure was all but outlawed, Deborah Yetter reported, based on state records. In 2021 in Kentucky, 34 girls ages 15 or younger received abortions,?

Cameron chalked the Beshear ad up to a “smear campaign,” but reiterated that he supports “a culture of life.”?

Beshear has said Kentucky’s abortion ban should be amended to include expections for rape and incest. In a December interview with the Kentucky Lantern, he said the Republican-dominated General Assembly had “given rapists more rights than their victims.”?

Republican House Whip Jason Nemes proposed a bill in the last legislative session that would allow exceptions in case of rape and incest but the bill did not advance at all.?

“Either recent polling numbers have changed Cameron’s core beliefs, or he is lying to Kentuckians now that he is seven weeks from an election,” a spokesperson for the Beshear campaign said in a statement about Cameron’s Monday comments.

The WHAS interview also touched on another area that has brought on social media criticism of Cameron — whether or not he wants to ban birth control and other contraceptives. Cameron said on the radio he supports birth control and contraception and wrote off the idea of him not supporting either as “completely absurd.”?

However, in response to a questionnaire from anti-abortion group Northern Kentucky Right to Life earlier this year, Cameron’s campaign responded “yes” to all questions including the following: “Will you actively support (and if in a position to do so, sponsor and vote for) legislation which prohibits all use of local, state, federal, and/or Medicare or Medicaid funds for abortion (including chemical abortions, such as RU-486, or the so-called “morning after pill,” Norplant, Depo Provera, or the so-called “standard birth control pill”)?”

Cameron’s campaign also responded yes to another question regarding funding birth control: “If there should come before you the question of appointment or confirmation of an individual to any board, agency, or committee, etc., which does or could perform, counsel, refer, or fund abortion (including chemical abortions, such as RU-486, and the so-called “morning after pill,” Norplant, Depo Provera, and the so-called “standard birth control pill”), will you nominate or confirm only individuals (1) who refuse to perform, counsel, refer, or fund any surgical or chemical abortion and (2) who refuse to support, vote for, or fund any government or private agency that would perform, counsel, refer, or fund any surgical or chemical abortion?”

This story has been updated with a response from the Beshear campaign.

The men of Operation Save America close out the group’s weeklong anti-abortion protest in front of the Nathan Deal Judicial Center in Atlanta, Georgia, on July 22, 2023. (John McCosh/Georgia Recorder)

Wendell Shrock doesn’t believe in condoms. “We should leave the uterus to God,” the street preacher from Tennessee tells States Newsroom, in front of an abortion clinic outside of Atlanta, mid-morning in late July. Sweat drips from his cowboy hat into his salt-and-pepper beard that stretches halfway down his red-plaid shirt. The retired police officer is running security for the conservative Christian group Operation Save America’s annual national event. Their followers interpret the Bible literally. Some believe constant procreation is God’s will.

Shrock surveilles the crowd while his wife, Dawn, cares for six of their 11 children on the opposite end of a sidewalk crowded with warring abortion messages. One of their daughters walks over, and Shrock explains she will wed soon. He’s been praying God will give her 20 children. (For privacy reasons, he doesn’t share her age.) One of his sons got married about six years ago at 18 and has had a child every year since. Shrock says with pride that Dawn, who wears a hair covering and a long dress, has never held a public job.

“God created a woman, not only to have a baby and a baby to grow inside of her, but to nurture a baby,” says Shrock, who is not a spokesperson or leader for the group. “I could never have the closeness to my children that my wife has. That’s because God created her that way. He created her different from me. And I know that goes against some of today’s norms. ‘We’re all the same’— that’s not what my Bible says.”

Overwhelmingly, men are driving the quest to restrict and remove women’s reproductive rights in as many states as possible. Women leaders are and have always been involved in this decades-long fight. But in the post-Roe era, when more mainstream anti-abortion groups are trying to navigate increased bipartisan support for reproductive rights, a more extremist male-dominated faction has risen up. Groups like Operation Save America want to put women on trial for abortion. They want to eliminate all abortion exceptions and certain forms of birth control and fertility treatments. And they are finding support for these messages across the U.S. — in conservative churches and among conservative Christian lawmakers.

But even beyond the militant corner of the anti-abortion movement lies a male-dominated network of academics, attorneys, judges, lawmakers and lobbyists working on legal arguments that position fertilized eggs as constitutionally protected persons. And now that federal abortion rights no longer exist, these men are able to say the quiet part out loud: that somewhere between conception and the first few weeks of pregnancy, the rights of the zygote, embryo, or fetus trump those of the pregnant person.

South Carolina Supreme Court Justice John Kittredge recently argued as much in his opinion upholding the state’s so-called “heartbeat” ban, which was approved by the majority on what recently became the only all-male state supreme court in the nation.

“To be sure, the 2023 Act infringes on a woman’s right of privacy and bodily autonomy,” Kittredge wrote. “The legislature has made a policy determination that, at a certain point in the pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live.”

For South Carolina right now, that point is approximately four weeks of pregnancy.

Protecting and punishing women

Shrock recently texted States Newsroom about the gender roles he’s laid out for his daughters.

“As my daughters were growing up, I would from time to time ask them what they wanted to be when they grow up. Regardless of their answers, I would take them to this scripture and tell them that this is what God has said they should do when they grow up,” Shrock wrote, then quoted from the second chapter in the New Testament’s book of Titus, his version varying slightly from other translations:

Older women likewise are to be reverent in their behavior, not malicious gossips nor enslaved to much wine, teaching what is good, so that they may instruct the young women in sensibility: to love their husbands, to love their children, to be sensible, pure, workers at home, kind, being subject to their own husbands, SO THAT THE WORD OF GOD WILL NOT BE BLASPHEMED.

Asked to explain the verse on the phone, Shrock warned, “You won’t like it.”

“God in the Bible, in Genesis, God created a man to provide, protect,” he said. “And he gave the man a mission. And he created the woman; he said he needs a helper. God gave me a mission, and it’s my wife’s job to come alongside me and help me with that mission. And I know that goes against the world’s grain. They’ll say, ‘Wait a minute, what if she wants a career and what if she wants recognition? What if she wants to climb the corporate ladder?’ Well, God created my wife to have babies, to — literally what it says in Titus.”

Operation Save America’s pervading message is about empowering men and boys to adopt an old, punitive Christian worldview, one more widely embraced when women had few rights and power. But they also take their roles as provider and protector seriously.

For its national director Jason Storms and his father-in-law, longtime anti-abortion radical Matthew Trewhella, that partly means buying guns and building militias. Trewhella has shared his 2013 manifesto calling for government defiance with many interested state lawmakers.

“We live in a culture of so many weak and pathetic Christian men who couldn’t fight their way out of a paper bag if their life depended on it,” Storms said in August 2022, from the pulpit at Mercy Seat Christian Church in Brookfield, Wisconsin, where he is the minister of evangelism and Trewhella is the lead pastor. “It’s not being a protector to your family that God has called you to be. Get yourself in shape. Cultivate some physical strength. Buy guns. If you need to, buy a lot of guns. It’s no limit on gun purchases; you have my blessing. … And if you buy a gun and you buy ammunition, train with it, and get around a group of men that you can train with. Get around a group of courageous men who will fight, bleed, and die with you, for you, and for your families and for your liberties.”

A 2021 YouTube video that was posted on Operation Save America’s website featured suggestive and violent imagery involving scenes of a man with an assault rifle, then cutting to a Planned Parenthood facility, while reciting the biblical verse that begins, “To everything there is a season” and includes the line, “a time to kill.” That video “was removed by the uploader” Tuesday afternoon after the initial national publication of this States Newsroom report.

Storms, in an interview Tuesday afternoon, said his organization doesn’t advocate for violence against abortion providers and believes in advancing its causes through peaceful persuasion. He said the film was produced by a friend for a Christian film festival and is not an endorsement by OSA to commit any violence against Planned Parenthood or abortion providers. When asked why the video was on OSA’s website, Storms said ?that he’d been meaning to take it down because of its “mixed messaging.” It was removed a short time later.

Storms said, under his leadership these past few years, he is trying “to teach our boys to be hardworking, responsible, sacrificial, caring, thoughtful.”

This year Operation Save America hosted its first Manhood Restored Bootcamp for boys and young men in Frankfort, Indiana, which involved hand-to-hand combat training and an event referred to in the schedule as “shooting range.” “Aborting your own child is a betrayal of every godly masculine virtue,” reads an OSA Facebook post leading up to the bootcamp. “Making alllowance [sic] for others to abort their own children emasculates society, decimating its soul and conscience. Abortion will end in America when Men become Men again.”

Storms said this bootcamp is also about teaching men to be responsible and good to women, including when it comes to sex and reproduction. He said he’s against “toxic masculinity” and noted that women participate in his organization.

“We do have a lot of very active women, and women that have jobs outside the home, like, all my kids.”

In addition to claiming to protect women, OSA approves of penalizing them for their reproductive decisions. They call what they support “abolitionism,” and use language from anti-slavery and civil rights movements.

“Thirteen states have banned abortion,” Storms said during the last protest of OSA’s summer event in front of the Nathan Deal Judicial Center in Atlanta, on July 22 (at the time it was actually 14 states that banned abortion at all stages; now it’s 15). “In all those states they’ve given immunity to mothers, and mothers are still killing their children with immunity. That is a problem. We must pursue equal protection, equal justice, equal weights and measures.”

In a follow-up interview post-publication, Storms said the purpose of including criminal penalties for women is as a deterrent.

“I don’t want any woman to go to jail,” Storms said. “The bigger debate is more about the humanity of the preborn child than it is about the punishment for the moms. The whole reason why pro-life organizations exempt the mothers from punishment is because they think that that’s going to help them politically, with public opinion, to make it more palatable. But that’s actually not true. Now 15 states have banned abortion, right? Every single one of those exempt the mothers from punishment, so moms can still legally do self-managed abortion in every one of those states.”

Storms acknowledged there is a difference of opinion among members and leaders about how harsh penalties should be.

“We readily acknowledge the place for various mitigating circumstances which would cause a massively reduced sentence if a woman did procure an abortion under an equal protection law. We certainly do not want to pursue the harshest of penalties. … Our heart is not to see women executed or anything like that,” Storms said in an interview.

OSA sees Georgia as a key battleground state, because, like South Carolina, it still allows abortion for the first few weeks of pregnancy, when electrical activity can be detected on an ultrasound. This law, whose constitutionality the state Supreme Court will determine this fall, does something legally strategic. It defines personhood with potentially future-history-making clauses:

“‘Natural person’ means any human being including an unborn child.”?

‘“Unborn child’ means a member of the species Homo sapiens at any stage of development who is carried in the womb.”?

But this near-total ban doesn’t go far enough for OSA and its partner groups like End Abortion Now, who’ve been lobbying for a much more extreme bill that was introduced earlier this year but has not advanced out of the state House. Under the “Georgia Prenatal Equal Protection Act,” doctors could be convicted under homicide charges unless they could prove the abortion was necessary to prevent “imminent death or great bodily injury.” Pregnant people suspected of having abortions could also be convicted under homicide charges, unless they could prove they were coerced into having the abortion. The bill says nothing about pregnant teenagers and children accused of this crime. Georgia is among 27 states where capital punishment is a possible sentence for homicide.

“In keeping with our oaths of office, the God-given right to life shall be secured and the impartial and equal protection of the laws shall be provided to all unborn persons from the moment of fertilization and at every stage of development, and abortion shall be abolished in this state, so help us God,” reads the bill.

OSA and its partners have lobbied for similar bills, many of them crafted by the Foundation to Abolish Abortion and advanced by sympathetic lawmakers, in more than a dozen states, including Alabama, Arizona, Kentucky, Missouri, and Oklahoma.

Men’s laws

The largest uterus in Washington, D.C., is made of reflective stainless steel. It’s embedded within a nearly 4,000 pound, 10-foot-tall bronze statue of a serenely pregnant Virgin Mary that now sits on the lawn in front of the Catholic University of America’s Theological College. Curled up inside what looks like a giant bowl is a bronze unborn Jesus.

Canadian sculptor Timothy Paul Schmalz says he believes it’s the first representation of Jesus as a fetus. Schmalz, whose work has been commissioned by the Vatican, opposes abortion. He toured the globe with this“Advent” statue before bringing it to its permanent home in May, in D.C., where it is now known as the National Life Monument. Schmalz’s goal is to get one in every U.S. state Capitol building. There’s a bill to erect “Advent” in Texas. One could end up in Arkansas, whose secretary of state is actively seeking design submissions for an anti-abortion monument.

It’s an appropriate representation in a statue of what many state legislatures are trying to do in statute: separate a woman from her womb.

This past spring, Washington Archbishop Wilton Cardinal Gregory blessed D.C.’s new giant uterus while surrounded by other male Catholic leaders. After the ceremony Schmalz told Catholic News Agency that he sculpted Mary’s uterus like a halo, one made of “mystical material.”

But in real life, the uterus is shaped more like a pear than a halo, located between a woman’s bladder and her rectum. Pregnancy begins when a fertilized egg implants in the uterus, which will nourish the egg until it develops into an embryo, then a fetus, and then a full-term baby. As the uterus expands, the woman’s other organs start to work exponentially harder to sustain this new life. Nearly every part of the human body changes during pregnancy and impacts the pregnant person’s comfort and mobility. Pregnancy for some causes temporary or permanent health conditions of varying severity. In the U.S., many people die during or soon after pregnancy or birth, especially pregnant people who are Black and Indigenous.

In 1973’s Roe v. Wade decision, the U.S. Supreme Court prioritized the rights of the pregnant person over the fetus until it reached a later stage of development. Even then, the court allowed states to give discretion to medical providers to weigh the physical and mental health risks women face against those of the fetus. A half-century later, in 2022’s Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito described each stage of the unborn’s development, but wrote not a word about the bodily developments of the person gestating that life.

The Court did not expressly address personhood in this ruling, but it’s expected to in a future case. That’s why anti-abortion legal architects are now toiling away at the legal definitions that they hope will crack the federal personhood code.

Some states are testing the constitutionality of so-called “heartbeat” bills that ban abortion around six weeks’ gestation, about two to four weeks after a missed period. According to the American College of Obstetricians and Gynecologists, an actual heart is not detectable by ultrasound until roughly 17 to 20 weeks’ gestation. What exists now is electrical pulses. At this gestational point, pregnant people often begin to feel extremely tired or dizzy or short of breath as their hearts begin pumping what will eventually be a 40 to 45% percent increase in blood volume.

South Carolina recently became the second state, after Georgia, with a six-week ban, and Florida could be next, which would make abortion virtually inaccessible in the South. The South Carolina Supreme Court made national headlines after its lone female justice retired, and the country’s only all-male high court promptly reversed her majority-approved opinion that a nearly identical six-week ban was unconstitutional.

Helping Republican lawmakers advance increasingly restrictive anti-abortion laws are longtime legal strategists like Robert P. George and Harold Cassidy, who live-streamedtheir recent strategy chat at Our Lady of Perpetual Help-St. Agnes Parish in Atlantic Highlands, New Jersey. George says he became an anti-abortion activist as a young teenager in West Virginia, shortly before the Supreme Court made abortion a federal right. The Princeton University law professor has spent his entire academic career trying to overturn Roe and block LGBTQ rights. He has advised several Republican presidents and founded many influential political groups.

For decades, the professor and co-author of the 2008 book “Embryo: A Defense of Human Life,” has been refining his legal personhood argument, which he submitted in a co-authored “friend of the court” brief in Dobbs, that the U.S. Constitution’s 14th Amendment already guarantees the right to life for unborn human beings. During his conversation with Cassidy, George said that abortion should not be allowed at any stage, because embryos’ unique DNA make them fully separate humans from the moment the sperm fertilizes the egg.

“Harold is the same guy who was the embryonic Harold, the fetal Harold, the infant Harold, the adolescent Harold,” George said, gesturing to Cassidy. “All of our lives begin from the earliest embryonic stage. And at all stages, and in all conditions, human life is valuable. So the first thing we’re up against is that people have been mis-instructed by the law itself.”

Universities across the country have begun to reproduce the conservative legal training ground George created at Princeton University’s James Madison Program in American Ideals and Institutions. He and his peers have been influencing young anti-abortion legal scholars with their brand of intellectual rather than overtly religious-based anti-abortion reasoning,

Cassidy’s legal career has centered around the so-called woman-protective argument, which the mainstream anti-abortion movement pivoted to during the Roe years in order to pass onerous legislative restrictions. Cassidy has represented women who claim to be victims of abortion, including Norma McCorvey and Sandra Cano, the anonymous plaintiffs in Roe v. Wade and its companion case, who would eventually oppose abortion. Cassidy asserts all women suffer mental traumas after having abortions. In a major legal victory, he drafted a provision in South Dakota’s law (which was upheld by an appellate court in 2008) stating that abortion terminates “the life of a whole, separate, unique, living human being.” Abortion is currently banned in South Dakota, but Cassidy is trying to advance this language in future federal abortion challenges. He twists up the rights argument, saying allowing abortion violates a woman’s right to parent.

“We have to protect the real rights of pregnant mothers: their right to give birth to their child, their right to keep and maintain the relationship with their children, their right to enjoin the equal protection of the laws that say it’s a homicide to kill their child, and their right to an interest in their child’s welfare and life,” Cassidy said.

Cassidy and George and many of their legal peers have long claimed to oppose abortion laws that would penalize women. But their arguments have helped spawn bills that do create criminal penalties for the pregnant person. And mainly men are advancing them.

Personhood laws will diminish the rights of pregnant people, says Khiara M. Bridges, a law professor at the University of California, Berkeley.

“It’s kind of like a zero sum type of game in the sense that the more rights you give to fetuses, the fewer rights you give to the people that actually gestate them,” Bridges told States Newsroom in a phone interview. “We have to acknowledge the conflict as opposed to obscuring it, which I think George and Cassidy participate in that. They need to say with a straight face, like looking people dead in the eye, that the fetus’ well-being is much more important to them than the well being of the person who gestates it. Otherwise they’re just lying and trying to win by obscuring this truth.”

Pregnant people are already facing the legal and medical consequences of abortion bans and onerous restrictions, including bans on information-sharing and attempts from anti-abortion activists and lawmakers to prevent minors and women from traveling out of state for legal abortions in Alabama, Idaho, and Texas.

Determining personhood from conception has terrifying implications for pregnant people, legal experts say. But it would affect more than abortion. If applied broadly, it could affect population counts and tax benefits. Many lawmakers advocating for personhood are unable to fully articulate the full implications or even how to enforce these laws. But even aggressively anti-abortion state governments like Texas’s have indicated personhood laws might only be used to prevent abortion rather than in ways that could benefit the pregnant person or fetus. The Texas attorney general’s office recently rejected a personhood argument in a lawsuit brought by a former prison guard who partially blames the state for her stillbirth.

That Texas’s government was suddenly uninterested in calling fetal life a person when it was unrelated to an abortion law wouldn’t surprise writer Gabrielle Blair, who believes most anti-abortion politicians are disingenuous. The Mormon mom of six behind the popular DesignMom blog has injected a new framework in the reproductive rights debate: Men are disproportionately responsible for unwanted pregnancies, and they should not leave pregnancy prevention exclusively to women, or criminalize women’s pregnancy decisions.

“We’ve put the burden of pregnancy prevention on the person who is fertile for 24 hours a month, instead of the person who is fertile 24 hours a day, every day of their life,” Blair wrote in the 2022 book adaptation of her viral 2018 X (formerly Twitter) thread, titled “Ejaculate Responsibly: A Whole New Way to Think About Abortion.”

Blair’s manifesto, like Matthew Trewhella’s, is also finding an audience among lawmakers, many of them women. She told States Newsroom that she’s heard from lawmakers receiving the book in Ohio, South Carolina, and Utah. South Carolina Republican Sen. Katrina Shealy read it into the legislative record. Blair said she’s also had encouraging conversations with men about making reproductive rights their issue too — working with rather than against women.

“For almost fifty years, a lot of men were focused on what it would take to overturn Roe v. Wade, claiming they wanted to reduce abortions,” Blair wrote in her book. “At any point, men could have eliminated elective abortions … without ever touching an abortion law, without legislating about women’s bodies, without even mentioning women. All men had to do was ejaculate responsibly. They chose not to. Today, they continue to choose not to.”

Jennifer Adkins of Idaho, who said she faced a complicated pregnancy, is suing the state over its near-total abortion ban. (Center for Reproductive Rights)

Women and physicians in Idaho and Tennessee have sued their home states after they say they were denied abortion care despite being diagnosed with serious, life-threatening medical conditions while pregnant.

The lawsuits are led by the Center for Reproductive Rights, an advocacy organization based in Washington, D.C., which also helped a patient in Oklahoma file a complaint against a hospital that denied her abortion care.

The filings come after 13 women sued the state of Texas for similar reasons and a judge in that case ruled that all the women should have been given abortions. That ruling has been appealed by the state and is now on hold, according to the Center for Reproductive Rights.

“It is clear that in filing that lawsuit in Texas, we hit the tip of a very large iceberg,” said Nancy Northup, president and CEO of the Center, on Tuesday. “Today, (plaintiffs) are holding their states accountable for the suffering they have caused.”

Idaho plaintiffs ask court to clarify medical exceptions

In Idaho, four patient plaintiffs, two physicians and the Idaho Academy of Family Physicians are suing the state over its near-total abortion ban, asking a court in Ada County to clarify when an abortion is acceptable under the law.

Idaho’s abortion ban applies to any stage of pregnancy, and narrow exceptions are provided for cases of rape and incest in the first trimester with an accompanying police report, and when an abortion is necessary to prevent a pregnant person’s death. Health care providers who violate the statute put their medical licenses at risk and face between two and five years in prison, along with civil penalties of at least $20,000 against individual providers if family members decide to sue.

“… Pervasive fear and uncertainty throughout the medical community regarding the scope of the exceptions to abortion bans have put patients’ lives and physicians’ liberty at grave risk,” the court document states.

One of the plaintiffs in Idaho is Jennifer Adkins, whose story was first reported by States Newsroom in May. At her 12-week ultrasound appointment, Adkins’ fetus was diagnosed with conditions that are almost always fatal, including a collection of fluid called a cystic hygroma and hydrops fetalis, and a missing chromosome. In 99% of cases, such a pregnancy ends in miscarriage by 12 weeks, but Adkins was still pregnant. As a result, she was at risk for developing high blood pressure that could lead to seizures, stroke and organ damage.

Knowing the prognosis and health risks, and with a toddler at home to care for, Adkins made the decision to travel to Portland for an abortion.

“It isn’t safe to be pregnant in Idaho,” Adkins said during the press conference Tuesday. “People in Idaho must be able to make informed decisions with their doctors without intrusion from politicians.”

Other plaintiffs like Adkins are Jillaine St.Michel, Kayla Smith and Rebecca Vincen-Brown. According to court documents, St.Michel learned at her 20-week ultrasound appointment that her fetus’ organ systems showed “severe developmental conditions.” Smith learned her fetus had a severe congenital heart condition that made survival after birth very unlikely and increased her risks of developing preeclampsia, a condition she experienced during her first pregnancy. Both women traveled out of state to receive abortion care.

Vincen-Brown found out at 16 weeks that her fetus had a serious genetic condition that made it unlikely to survive at birth, court documents said, and risked her health as well. She drove seven hours with her husband and child to a clinic in Oregon and ultimately “passed the pregnancy in the hotel bathroom as her daughter slept on the other side of the door.”

Idaho’s ban, the lawsuit contends, endangers pregnant Idahoans and risks their fertility and potential for injury or death.

Two doctors in Idaho’s case include Drs. Emily Corrigan, an OBGYN, and Julie Lyons, a family physician. Corrigan said Tuesday that there is widespread confusion in the medical community in Idaho about when the law allows an abortion to be performed, even a full year after it went into effect. Many physicians have already left the state over the law, she said, particularly after the Idaho Legislature failed to pass a bill in the 2023 legislative session that would have allowed abortions to be performed to preserve a pregnant person’s health, not just to save their life.

The final plaintiff in the case, the Idaho Academy of Family Physicians, represents 656 physicians, residents and medical students across the state.

“All of the above-described impacts on Idaho’s already strained medical system are likely to worsen if the abortion bans, in their current form, remain in effect,” the court document says. “A collapse of the system seems inevitable and will result in grave danger to all Idahoans needing any form of health care—not only those who may need abortion care in the future.”

Oklahoma woman was told to wait in the parking lot while health deteriorated

In Oklahoma, Jaci Statton filed a complaint with the U.S. Department of Health and Human Services under the Emergency Medical Treatment and Active Labor Act, a federal law that requires medical facilities that accept Medicare funding to provide emergency stabilizing treatment to patients. According to the complaint, Statton learned she was pregnant early in the year, but began experiencing pain, dizziness and severe nausea mere weeks into the pregnancy. She then learned she had a partial molar pregnancy, a non-viable pregnancy that can cause hemorrhaging, infection and death if left untreated.

Statton went to the University of Oklahoma Medical Center in March in severe pain, the complaint says, but the staff would not provide abortion care and instead moved her to the Oklahoma Children’s Hospital.

“Jaci and her husband begged staff at Oklahoma Children’s Hospital to perform an abortion, even asking to speak to a hospital ethics board and explain why Jaci should be permitted to access life-saving care,” the document says. The staff instead told her she could not receive an abortion “until she was actively crashing in front of them or on the verge of a heart attack.”

Until then, according to the complaint, they told Statton to sit in the parking lot, so she was close to the hospital as her condition worsened.

“As her condition grew more dire, Jaci fled the state to receive an abortion, traveling three hours by car during a medical emergency,” the complaint says.

Attorneys for Statton argue there was no legal basis for the children’s hospital to deny her medical care, since Oklahoma’s existing ban had exceptions for active medical emergencies. The complaint asks the Oklahoma region of the Medicare and Medicaid Services division to investigate the incident and find that the hospital violated EMTALA by failing to provide Statton with stabilizing care.

“The investigation and finding are necessary to safeguard access to emergency medical treatment for all pregnant Oklahomans who remain at risk that hospitals will deny them care in the event that they experience a pregnancy complication,” the complaint said.

Financial barriers forced Tennessee woman to give birth to stillborn

Three women and two physicians in Tennessee are suing the state in Davidson County court to clarify the state’s medical condition exception and issue a ruling blocking enforcement of the law “to protect the health and lives of pregnant Tennesseans with emergent medical conditions.”

The individuals are Nicole Blackmon, Allie Phillips and Katy Dulong. Blackmon discussed her experience during the Tuesday conference call, saying the Tennessee law forced her to carry a non-viable pregnancy that posed serious risks to her health.

Blackmon learned she was pregnant in July 2022, just five months after losing her 14-year-old son in a drive-by shooting in Alabama. Although it was unintentional, Blackmon said she and her fiancé were excited about the possibility of having another child. But she already had medical issues that could be exacerbated by pregnancy.

“We were excited, but worried at the same time, and at 15 weeks we learned there was an issue with the baby’s stomach,” Blackmon said. “Then at 24 weeks, a specialist confirmed our baby’s organs were not forming as expected or in the right places. … Doctors told us certainly that this pregnancy would not result in a living baby.”

At that gestational age, Blackmon’s only options were to wait and risk her health and life or travel to Washington, D.C., for an abortion. But even with financial assistance, the trip would have cost thousands of dollars that she couldn’t afford, especially as her health deteriorated and she was unable to keep working.

“Waiting to lose another child in the same year was bad enough, but then my health started to get worse,” Blackmon said. “My water broke in my seventh month, and after 32 hours laboring, I delivered our baby stillborn. Why won’t Tennessee politicians allow people to have abortions in terrible situations like mine? Something good must come out of my pain, that’s why I joined this case. What we went through was torture that no one else should ever have to face.”

Phillips was told at 15 weeks of pregnancy that her fetus’ kidneys, bladder, stomach and heart were improperly developed, and the brain had not developed into separate hemispheres, a congenital defect. All of those complications together made it extremely unlikely that the pregnancy was viable, according to court documents.

Phillips started a GoFundMe to raise enough money to obtain an abortion in New York City, but shortly after arriving at the clinic, the fetus’ heart had stopped beating.

“I went into surgery alone, and I sat in recovery alone,” Phillips said Tuesday. “The doctors were kind and compassionate, but I’d never met them before. I had to grieve the loss of my daughter in a city I’d never been to.”

Dulong experienced issues with her cervix and placenta that eventually led to serious medical complications, including the beginning of sepsis, an internal infection that can quickly become fatal. Her doctor spent two hours asking various legal and ethical personnel at the hospital for support to provide her with medication to induce an abortion, the court document said.

“(Dulong) was told that prior to Tennessee’s enactment of an abortion ban, even the Catholic hospital where her abortion was performed would have given her (abortion medication) when she was first diagnosed with an incompetent cervix, instead of risking septicemia or hemorrhaging at home,” the lawsuit said.

Drs. Heather Maune and Laura Andreson joined the lawsuit in Tennessee, saying they have seen widespread fear and confusion about the abortion ban and alleging it has had a chilling effect on obstetric care in general.

“Dr. Maune and her peers fear that prosecutors and politicians will target them personally if they provide abortion care to pregnant people with emergent conditions,” the court document states.

Andreson said in the lawsuit that many of her patients live in rural areas and drive more than an hour to see her, and sending those patients to clinics out of state could result in life-threatening situations.

CORRECTION: Jaci Statton in Oklahoma filed a complaint — not a lawsuit — about the Oklahoma Children’s Hospital with the U.S. Department of Health and Human Services, requesting an investigation. The complaint was incorrectly reported in a States Newsroom story on Tuesday.

The Department of Justice is asking the Supreme Court to weigh in on conflicting lower court decisions on access to a popular abortion medication. (Peter Dazeley/Getty Images)

WASHINGTON — The U.S. Department of Justice on Friday asked the Supreme Court to decide whether the abortion pill should remain on the market after two lower courts issued differing opinions about its use.

The case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, will likely be the second time the conservative-leaning Supreme Court rules on access to abortion since former President Donald Trump nominated three new justices, shifting the balance of power.

“The loss of access to mifepristone would be damaging for women and healthcare providers around the Nation,” the DOJ wrote in the 42-page document. “For many patients, mifepristone is the best method to lawfully terminate their early pregnancies. They may choose mifepristone over surgical abortion because of medical necessity, a desire for privacy, or past trauma.”

“Surgical abortion is an invasive medical procedure that can have greater health risks for some patients, such as those who are allergic to anesthesia,” DOJ added.

The DOJ called on the Supreme Court to take up the case by arguing that lower courts erred in several ways, including by making “serious legal errors.”

“The court scarcely acknowledged FDA’s detailed analysis of the available scientific evidence,” DOJ wrote. “Instead, it faulted FDA for failing to cite studies that do not exist and for failing to explicitly respond to unfounded objections that were not raised during the administrative process.”

Alliance Defending Freedom, an anti-abortion legal organization, filed the lawsuit in November on behalf of four anti-abortion medical organizations and four anti-abortion doctors.

The case argued the U.S. District Court for the Northern District of Texas should overturn the U.S. Food and Drug Administration’s 2000 approval of mifepristone, the first of two drugs used in medication abortion.

The original filing in the case said that if the judge didn’t end legal access to mifepristone, the court should revert prescribing and dosage to what was approved before 2016.

District Court Judge Matthew Joseph Kacsmaryk issued a ruling in April that essentially overturned the FDA’s 2000 approval of mifepristone, which is also commonly used in miscarriage treatment.

The U.S. Supreme Court later issued a temporary stay of that ruling, keeping mifepristone on the market until the justices decide whether to take up the case as part of the appeals process.

The district court ruling from Kacsmaryk was appealed to the 5th Circuit Court of Appeals in New Orleans, which heard oral arguments in May and issued its ruling in August.

The three-judge panel, made up of Republican-nominated judges, rejected the district judge’s decision to overturn the FDA’s 2000 approval of mifepristone. But the appeals court ruled the FDA should revert prescribing and dosage to what was in place before 2016.

The 5th Circuit wrote in its opinion that in “loosening mifepristone’s safety restrictions, FDA failed to address several important concerns about whether the drug would be safe for the women who use it.”

“It failed to consider the cumulative effect of removing several important safeguards at the same time. It failed to consider whether those ‘major’ and ‘interrelated’ changes might alter the risk profile, such that the agency should continue to mandate reporting of non-fatal adverse events,” the appeals judges wrote. “And it failed to gather evidence that affirmatively showed that mifepristone could be used safely without being prescribed and dispensed in person.”

That ruling remains on hold until the Supreme Court issues its own opinion, or refuses to hear the case. That means mifepristone remains an FDA-approved drug that health care providers can continue prescribing in line with current standards.

If the Supreme Court orders the FDA to revert to pre-2016 use and dosage of mifepristone, it would lead to several changes.

Mifepristone could only be used to end a pregnancy in patients up to seven weeks gestation, not the current 10-week benchmark.

Only doctors, not other healthcare providers with the authority to prescribe medications, would be able to administer mifepristone.

Patients would need to attend three in-person doctor’s office visits, removing the option to prescribe the drug via telehealth and send it to patients through the mail.

The dosage of mifepristone would revert to what was used before 2016, as would the timing of when patients take a second medication known as misoprostol.

A Department of Justice spokesperson said following the appeals court’s ruling in August that the “Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA and will be seeking Supreme Court review of that decision.”

In the writ of certiorari the Department of Justice sent to the Supreme Court on Friday asking the justices to hear the case, its attorneys argued that the 5th Circuit decision could have “especially disruptive implications for the pharmaceutical industry and those who depend upon the drugs it supplies.”

“Indeed, a wide range of industry participants have warned that the lower courts’ approach would ‘result in a seismic shift in the clinical development and drug approval processes, erecting unnecessary and unscientific barriers to the approval of lifesaving medicines, chilling drug development and investment, threatening patient access, and destabilizing the rigorous, well-established, and long-standing drug approval process.’”

The Department of Justice lawyers also wrote the 5th Circuit decision “did not conclude that mifepristone is unsafe.”

“Instead, the court held that FDA did not adequately explain its 2016 and 2021 actions,” DOJ attorneys wrote. “Even if that were true, those asserted failures of explanation would at most have justified a direction to FDA to further consider the relevant issues, without additional relief that would bar distribution of mifepristone as presently approved.”

If the U.S. Supreme Court decides to take up the case, the justices could issue a ruling as soon as next summer, just months before the 2024 presidential election.

The Supreme Court ruled in June 2022 that Americans no longer had the constitutional right to abortion that was established nearly 50 years before in the landmark Roe v. Wade case.

The Supreme Court wrote that “the authority to regulate abortion is returned to the people and their elected representatives.”

Anti-abortion protesters gather outside A Preferred Women’s Health Center of Atlanta. (Ross Williams/Georgia Recorder)

The first time Tina Marshall heard anti-abortion protesters call themselves “abolitionists,’” she said she burst out laughing.

Marshall, a Black woman who lives in Charlotte, North Carolina, was counter protesting at an abortion clinic when a mostly white group — save one Black woman — surrounded her and told her they were abolitionists.

“I rolled my eyes and said, ‘Can’t you people ever think of anything original? Do you guys have to steal everything?’” Marshall said.

Anti-abortion demonstrators have told her she hates her own people. She’s seen the mostly white men and women put their fists in the air and say, “Black Lives Matter.”

Marshall started volunteering as a clinic defender, as abortion rights groups call it, about two years ago, and she was unfamiliar with some of the rhetoric around abortion until recently. Much like the rest of America, in her view.

“They’ve been doing this for years, and nobody cared, and it’s only because of Roe now that everybody’s antennas are up,” she said of last year’s U.S. Supreme Court decision that ended the federal right to abortion. “Even before that, I’ve been out here over two years, and nobody cared about all the jeering and heckling of Black women.”

The co-opting of imagery from slavery, the Civil Rights Movement and other Black experiences to argue against abortion goes back more than a century, depending on who you ask, but the so-called “abolitionist” sect of anti-abortion groups has gained more momentum in political circles and state legislatures in recent years. With statistics showing higher rates of abortion by Black people in some states and the Black community’s reverence to culture and religion, it’s easy to see why such anti-abortion groups are focusing on African Americans.

William Hart, a professor of religious studies at Macalester University in Minnesota, told States Newsroom in an email that from his research, most Black Christians and non-Christians tend toward cultural conservatism, but they don’t typically have strong feelings against abortion. Those who do think abortion should be illegal are often viewing it from the historical belief that family planning and abortion were forms of Black genocide, Hart said.

“The anti-abortion religious right is appealing to Blacks on religious grounds because they understand that Blacks are susceptible to the argument even if their reasons diverge,” he said.

Activists have also argued over how civil rights icon the Rev. Dr. Martin Luther King Jr. would feel about abortion if he was alive today. King’s niece, Alveda, has said she thinks he would be anti-abortion. Others point to his quotes about the importance of family planning to say he was an advocate of reproductive rights.

The slavery comparison has historically been used by both sides of the abortion debate, according to research published in 1994 by Professor Debora Threedy, who is now retired. While anti-abortion groups use the comparison as a civil rights argument, harkening back to the days when slaves were widely viewed as less valuable human lives, abortion rights activists point to the implied slavery of not having a choice whether or not to give birth to a child, sometimes referring to it today as “involuntary servitude” and invoking “Black Lives Matter” to argue for bodily autonomy.

Threedy said the comparison to slavery in particular allows people to argue from the side of moral certainty, because nearly everyone today would agree that slavery was wrong then and wrong now.

“From where we stand now, on the slavery debate, we’re all on the side of the angels,” Threedy said. “By co-opting that rhetoric, what you’re saying is, ‘I’m on the side of the angels. They’re not on the right side of history, they’re not occupying the moral high ground — I am.’”

While the terminology is invoked on both sides of abortion politics, the anti-abortion activists who call themselves abolitionists have adopted it more as an identity over the past decade, and it has caused rifts among groups with similar goals.

Abortion abolitionists draw comparisons to history

At a recent conference hosted by Operation Save America, an extreme anti-abortion and anti-LGBTQ organization with a history of physically blockading abortion clinics around the country, those rifts were openly discussed. The group’s director, Jason Storms, opened the conference on July 17 at Pray’s Mill Baptist Church in Douglasville, Georgia, by stating his organization would no longer associate with T. Russell Hunter, the leader of Abolish Human Abortion.

Hunter has frequently taken to Facebook, YouTube and other video platforms to imply or directly state that groups like Operation Save America, Students for Life of America, Live Action and others don’t always advocate from an exclusively “abolitionist” standpoint and are not as committed to ending abortion as he is.

Those who call themselves abortion abolitionists, such as Hunter, see that as an example of the difference between their views and that of the “pro-life” groups, which generally oppose criminal penalties for the pregnant person.

On a recent episode of a podcast called The Serrated Edge, Hunter said he researched abolition in the context of slavery when he was in graduate school, and he saw parallels between the immediate abolitionists and those who opposed slavery but were in favor of more gradual, incremental approaches to ending it. To him, the abolitionists took a more biblical stance by calling the practice a sin and calling on the nation to repent.

“I thought, these (abolitionists) are amazing, what they’re doing,” Hunter said. “They could’ve been anything, and instead, they saw the plight of their neighbors on these transatlantic vessels … and they decided to give themselves to that because they saw those men as their neighbors.”

The two sides of the anti-abortion movement have clashed more in recent years over legislation that would eliminate abortion entirely without any exceptions, including to save the life of the pregnant person, and would attach criminal penalties for the person who sought the abortion, which in some states would include the death penalty.

An “abolish abortion” bill introduced in the Louisiana legislature crafted in partnership with the Foundation to Abolish Abortion in 2022 did not advance after opposition from abortion rights groups as well as anti-abortion organizations, including the Louisiana Family Forum and Louisiana Right to Life. In Idaho, Rep. Heather Scott has introduced a similar bill for three years in a row, but it has not advanced to the House State Affairs Committee. Rep. Brent Crane, who is chairman of the committee, said in 2022 that he would not give a hearing to an “extreme” bill that would put a pregnant person on trial for murder.

During a panel discussion at Operation Save America’s conference in July, Storms was joined by six other men to talk about abolition versus incrementalism in approaches to ending abortion, and said his group staunchly believes in criminal penalties for those who seek out the procedure but shied away from labeling the group as abolitionist or “pro-life.”

Zach Conover, communications director of the national organization End Abortion Now, was also a panelist, and he described the failure of a similar bill his group sponsored in 2019 in Arizona as a result of the National Right to Life group’s opposition to it in a letter signed by more than 70 of its chapter members. He also referenced the Louisiana bill.

“What happened in Louisiana should’ve been national news,” Conover said to the panelists. “It was really the first time that the pro-life establishment had shown their cards to that extent.”

Gabriel Rench, a member of the extremist Christ Church in Moscow, Idaho, also compared abortion to slavery, saying if churches in America had taken a stand against slavery, the Civil War would never have happened.

“We ended slavery through the blood of people instead of through the blood of Christ. When you have a massive cultural sin like slavery in America, you end it through the gospel, you don’t end it through a war,” Rench said during the discussion. “We need to end abortion, which is awful — way worse than slavery, by the way. The slave trade had four, five million slaves max in America? And 600,000 people died. How much has abortion killed?”

According to historians, at least 12.5 million men, women and children were captured and enslaved from Europe and Africa between 1526 and 1857, and 10.7 million were taken to North and South America. That doesn’t include the unknown numbers of people who did not survive the journey on tightly packed ships across the ocean.

Historians say a little more than 300,000 slaves were brought to the United States.

The Centers for Disease Control and Prevention reported about 1.3 million abortions per year between 1980 and 1997, after which the numbers dropped to less than 650,000 per year since 2013.

‘They’re trying to hitch them together’

Amanda Roberti, an assistant professor of political science at San Francisco State University, has researched the rhetoric of abortion politics for more than a decade. She said the civil rights language is often invoked as one of many strategies to capture more audiences, as any cultural advocacy movement would do. But it doesn’t mean every group will take the same approach at the local, state and national levels.

“There is a widespread and widely cast approach going on here, but that is something that social movements can do, especially when they’re multi-faceted like the anti-abortion movement is,” Roberti said. “They have an overarching goal of the end of abortion, but I think there are other groups that have slightly different tactics and what they want to pursue.”

Anti-abortion groups have also used the names of feminist leaders from history along with the names of Black activists. In 2011, U.S. Congressional representatives considered a bill titled the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act,” to impose criminal penalties for abortions that were performed based on the sex or race of the child. It’s unclear to historians whether Anthony, an early feminist leader, or Douglass, a slavery abolitionist, were against abortion.

“There’s a whole psychology behind it, because they’re trying to usurp a tragic historical fact and rise abortion to that level, they’re trying to hitch them together,” Roberti said.

‘Black women are the most marginalized’

Mandisa Thomas, a Black woman who lives in Atlanta and volunteers with an organization called We Engage, went to counterprotest at a local abortion clinic when Operation Save America held its conference in July. Abortion is banned after six weeks of pregnancy in Georgia, but members of the anti-abortion group gathered outside A Preferred Women’s Health Center just outside Atlanta during the morning hours that week and attempted to stop individuals from going into the clinic, using microphones with amplified speakers to shout religious messages encouraging the patients not to go through with their appointments. Many of the patients who came to the clinic one morning were Black women.

Thomas said she has often heard the abolitionist language from anti-abortion protesters, and she finds it insulting.

“The fact that they think they are being abolitionists is offensive, because they’re not being liberating at all,” Thomas said. “It really undermines the movements of people who did sacrifice their lives to make sure that all of us do have the freedom of choice, especially when it comes to reproductive choice and reproductive health.”

Marshall, who founded the Black Abortion Defense League in North Carolina, was also at the Atlanta clinic in July. Marshall said she started her organization because she didn’t see many Black people on the abortion rights side.

“I just thought, being a Black woman who had an abortion so many years ago, there’s a common language that we can speak, Black person to Black person,” Marshall said. “Black women are the most marginalized if you ask me. Nobody loves Black women except for other Black women, and sometimes we hate each other too. We’re an easy target because nobody wants to jump up to really save us.”

According to data from the Centers for Disease Control and Prevention, as of 2020, 39% of abortions in the United States were among non-Hispanic Black people, while 33% were among non-Hispanic whites, and 21% were Hispanic. In states across the South, such as Alabama, Mississippi and Georgia, more than twice as many abortions occurred among Black people in 2020 than among white people. In all three states, the poverty rate among Black people is also two to three times higher than among whites, and maternal mortality rates among Black women are higher than anywhere else in the country. Anti-abortion groups often target clinics in communities where a majority of the population is Black, typically in the South, for protests.

The disproportionate rates of abortion by race in some states are often cited on websites and in the literature of anti-abortion groups as a crisis to be addressed. Right to Life of Michigan has an entire page on its website titled “Black Abortions By the Numbers.” Focus on the Family cites the rate of abortions among Black women on its website as well.

But a 2022 poll by the Pew Research Center found that 59% of white respondents and 68% of Black respondents supported abortion to be legal in most or all cases.

That disparity in support could be one reason for trying to persuade communities of color to turn against abortion rights, said Grace Howard, an assistant professor of political science at San Jose State University. But on the other hand, Howard said tactics like the billboard could also be directed at white people like herself, to motivate her to action.

Some groups have paid for billboard advertisements that make race-based arguments around abortion, such as one in New York City in 2011 with a picture of a young Black girl that said, “The most dangerous place for an African American is in the womb.”

The billboard was paid for by an anti-abortion group in Texas called Life Always and approved by the group’s founding board member Stephen Broden, a Black pastor in Dallas. Broden said at the time in a statement that, “Our future is in jeopardy as a genocidal plot is carried out through abortion.”

The billboard was placed in a largely white community to garner the most attention, Broden said.

For some, reproductive justice is the answer

Roberti said the history of violence against Black women should also be considered when people use language related to slavery and civil rights. Research shows women who were enslaved were often raped and forced to bear children that could then be sold to other slaveowners. They were also subject to forced sterilization and other reproductive control measures.

“Black women have been subject to a lot of reproductive violence, so in a way they’re (anti-abortion activists) tapping into an argument that is real, but then applying it to a policy output that’s not going to provide any kind of justice,” Roberti said.

Howard is also a scholar of the reproductive justice movement, a social justice concept formed by a group of Black women in 1994 that looks beyond the statistics and demographics of abortion and works to strengthen the infrastructure of social supports around marginalized communities. That includes increasing access to contraception, adequate health care during and after pregnancy, reducing poverty rates and other measures that would increase quality of life and provide real choice, according to Sister Song. Howard said it’s a solution that could lower the number of abortions obtained in the U.S. each year, including among communities of color.

“For some people, they are having abortions because they know they won’t be able to raise this child the way they want to,” Howard said. “If you want fewer abortions, then a social safety net might change things, if someone knows they might be able to care for their child with dignity.”

“Gavel,” a sculpture by Andrew F. Scott, outside the Supreme Court of Ohio in Columbus. Sam Howzit/Creative Commons

The group supporting a constitutional amendment on reproductive rights will take its arguments against a “deceptive” summary approved and written by the Ohio Ballot Board to the state’s highest court.

Ohioans United for Reproductive Rights announced Monday afternoon that it plans to file a lawsuit Monday asking the Ohio Supreme Court either to order the ballot board to use the full text of the amendment on ballots this November, or to “correct blatant inaccuracies.”

“The summary that was adopted by the Ballot Board is intentionally misleading and fails to meet the standards required by Ohio law,” said OURR’s Lauren Blauvelt in a statement announcing the move.

The board met on Aug. 24 to consider what language would show up on the ballot with regard to Issue 1, the reproductive rights amendment, and Issue 2, with regard to recreational marijuana.

During the meeting, no testimony was presented on the reproductive rights amendment, but the board spent some time debating a summary written by “staff,” according to Ohio Secretary of State Frank LaRose (also the chair of the ballot board), though he also said he “worked extensively on drafting this.”

The summary makes changes abortions rights advocates say alter the language in a biased way, such as using “unborn child” rather than the medically accurate term “fetus,” and changing “pregnant patient” to “pregnant woman.”

It also removes a list of procedures and medical conditions, like miscarriages and fertility treatments, in which abortion and reproductive care is used.

The two Democrats on the ballot board, state Sen. Paula Hicks-Hudson, D-Toledo, and state Rep. Elliot Forhan, D-South Euclid, stood in opposition to the summary language, pushing for the use of the full text, as had been requested by the abortion rights groups prior to the meeting.

However, state Sen. Theresa Gavarone, R-Bowling Green, spoke out against the amendment as she conceded that the ballot board was not present to debate the merits of the amendment.

She called the amendment “dangerous” and pledged to fight “tirelessly” against it.

The summary language passed on a vote of 3-2.

“The Ballot Board’s members adopted politicized, distorted language for the amendment, exploiting their authority in a last ditch effort to deceive and confuse Ohio voters ahead of the November vote on reproductive freedom,” Blauvelt said in the lawsuit statement.

Ohio Right to Life head Mike Gonidakis, who supported the ballot board summary when it was adopted, said he expects the court to reject the legal challenge.

“Planned Parenthood is obviously worried that Ohioans are realizing that the language is dangerous and a bridge (too) far for even pro-choice women,” Gonidakis said, mirroring comments Gavarone gave during the ballot board meeting.

Photo by Peter Dazeley/Getty Images

In Mount Vernon, Ohio, a yard sign against Issue 1 which would have made it harder to get voter initiatives on the ballot. (Photo by Graham Stokes for Ohio Capital Journal)

Ohio voters have rejected state Issue 1, which sought to make it harder for voters to pass constitutional amendments, the Associated Press has projected.

The full counting of unofficial results is ongoing, but the AP has officially projected that the “No” side has won.

As of 9 p.m., 1,262,555 votes had been counted, and the No side was winning 60% to 40%.

Results will remain unofficial until they are certified by county boards of elections later this month. Issue 1 was the only question on the ballot Aug. 8.

Issue 1 proposed to raise the threshold for passing amendments to the Ohio Constitution from a simple majority of 50% plus one to 60%. It also proposed to require citizen amendment initiatives gather signatures from all 88 Ohio counties instead of the current 44, and sought to eliminate a 10-day curing period to correct invalidated signatures.

The controversial measure was first introduced by Republican Ohio Secretary of State Frank LaRose and Ashville Republican state Rep. Brian Stewart late last year. After failing to place it on the May primary ballot, Ohio Republican lawmakers brought back a special August election for the proposal this summer, after eliminating most August elections with legislation in December 2022.

Ohio voters are deciding if it’s too easy to pass ballot measures. Other states are watching.

LaRose originally denied that the effort to make it more difficult for voters to pass constitutional amendments was tied to an abortion rights amendment proposal that will be considered by Ohio voters in November. However, in a letter to fellow Republican lawmakers shortly after introducing the proposal, Stewart said they should support the effort to stop both the abortion rights amendment as well as any further anti-gerrymandering reform voters might bring.

On May 22, LaRose told a Seneca County Republican Party dinner that Issue 1 was “100% about keeping a radical pro-abortion amendment out of our constitution.”

LaRose campaigned vigorously to try to convince voters to pass the proposal, making campaign appearances with an anti-abortion lobbyist named Mike Gonidakis, and sharing a debate stage with Gonidakis on television to argue for the Yes side.

An opinion poll conducted in July showed 59% of Ohioans support placing abortion rights in the state constitution.

Issue 1 was opposed by a coalition of more than 240 bipartisan groups across Ohio, four bipartisan former governors, five bipartisan former attorneys general, the Libertarian Party of Ohio, the Ohio Green Party, the Ohio Forward Party, and a wide variety of union groups,?as well as good-government groups such as the League of Women Voters of Ohio and Common Cause Ohio.

The Issue 1 amendment change was brought to the ballot with the votes of all 26 Ohio Senate Republicans including Senate President Matt Huffman, and 62 out of 67 Ohio House Republicans including House Speaker Jason Stephens.

Issue 1 was endorsed by LaRose as well as Ohio Gov. Mike DeWine, Lt. Gov. Jon Husted, Attorney General Dave Yost, Ohio Auditor Keith Faber, Ohio Treasurer Robert Sprague, Ohio U.S. Sen. J.D. Vance, and groups including Ohio Right to Life, the Ohio Chamber of Commerce, the Ohio Restaurant Association, the Ohio Farm Bureau, and the Center for Christian Virtue.

Ohio Capital Journal is sister newsroom of Kentucky Lantern as part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity.?

Pharmaceutical sciences professor Chris Adkins, who has questioned the accuracy and data used in a 2021 study authored by anti-abortion doctors about the key abortion drug mifepristone, says U.S.-based academic publisher Sage Publishing is reviewing the paper. (Courtesy Chris Adkins)

Pharmaceutical sciences professor Chris Adkins was perusing news on his computer in December when he came across an item that fascinated him: Anti-abortion groups had sued the U.S. Food and Drug Administration to force a recall on a commonly used abortion drug.

Adkins teaches future pharmacists at South University School of Pharmacy in Savannah, Georgia. His early-career research focused on cancer drugs, but mifepristone is among the many drugs he’s familiar with. Adkins understood from the medical literature that the FDA-approved two-drug abortion regimen has a high safety and efficacy record. So, it surprised him to read plaintiffs arguing this medication is so unsafe it needs to be pulled from the market. But what he still can’t get over is the research U.S. District Judge Matthew Kacsmaryk cited liberally to order a suspension of mifepristone’s FDA approval earlier this year.

That ultimately blocked April 7 ruling in Alliance for Hippocratic Medicine v. FDA relied on a handful of studies authored by many of the same anti-abortion activists directly involved in suing the FDA. Kacsmaryk leaned hard on a 2021 study that was designed, funded and produced by the research arm of one of the most powerful anti-abortion political groups in the U.S. The judge cited this paper — which looked at Medicaid patients’ visits to the emergency room within 30 days of having an abortion — to justify that a group of anti-abortion doctors and medical groups have legal standing to force the FDA to recall mifepristone.

“Here, the [plaintiff medical] associations’ members have standing because they allege adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress’ on doctors during emergencies and complications,” Kacsmaryk wrote.

But U.S.-based global academic publisher Sage Publishing, which publishes thousands of journals including “Health Services Research and Managerial Epidemiology,” is now investigating this study and the peer review process it went through after Adkins contacted the journal in April with a pile of red flags. Last week Sage published an “expression of concern” about the paper.

“As part of the investigation, we are looking into Dr. Adkins’ concerns as well as any concerns related to conflict of interest,” Sage spokesperson Camille Gamboa told States Newsroom in an email. The lead author of the paper, James Studnicki, who works for the anti-abortion think tank Charlotte Lozier Institute, is also on the editorial board of “Health Services Research and Managerial Epidemiology.” Gamboa said that Studnicki, in accordance with his journal’s ethics guidelines, was “not involved in the decision-making process for this article.”

Adkins dissected this paper the way he used to as a onetime peer reviewer. He told States Newsroom that the authors exaggerated their findings and visually misrepresented them in ways that are “grossly misleading.” And that’s led to legal consequences. Except, he said, their study doesn’t actually show what Kacsmaryk said it does: that medication abortion leads to significantly high rates of complications.

“I can’t prove that there was intent to deceive, but I struggled to find an alternative reason to present your data in such a way that exaggerates the magnitude,” Adkins said. “They’re misrepresenting its conclusions to begin with. That’s my frustration with this whole process.”

For now, mifepristone remains legal (except in the 14 states with total abortion bans). But this high-stakes federal lawsuit is ongoing, awaiting a decision from the conservative 5th U.S. Circuit Court of Appeals. And while Sage determines whether this study should have been published in the first place, plaintiffs continue wielding it as one of their best defenses against a safe drug protocol that is now the most common method of terminating a pregnancy (and managing miscarriages) post-Roe v. Wade.

Wading into politically charged science fights is new territory for Adkins. So is advocating for abortion rights, something he says he didn’t believe in when he was growing up in Amarillo, Texas, where the lawsuit was coincidentally filed. He said his views on abortion (and gender and climate science) radically shifted when he left his conservative hometown for graduate school and then became a scientist.

“I have significant concerns about the merits, legality, and use of shoddy studies and personal anecdotes to upend national healthcare policies essential to women’s reproductive health and bodily autonomy,” Adkins told States Newsroom. “To go out and say this drug needs to be, you know, removed from the market, it’s not honestly paying tribute to what the true science really is saying.”

Roe v. Wade was overturned on Adkins’ birthday last year — about a year before he would meet his first child. Living in South Carolina, where laws about pregnancy termination have toggled throughout the year, Adkins has been thinking often about the consequences of ending federal abortion rights. He’s grateful his wife didn’t have any pregnancy complications, but he worries about her reproductive freedom going forward, and that of their weeks-old daughter.

“I now have a daughter that is born in a world where there is no Roe v. Wade, no federal recognition that women have the right of bodily autonomy,” Adkins said. “And just, I don’t know. … I’m going to support her in whatever way I can.”

Studnicki et al.

This lawsuit ultimately hinges on scientific questions: Was the science strong enough to justify the FDA’s approval of abortion drugs more than 20 years ago and then its relaxing of certain restrictions? And does the data predominantly show that medication abortion is safe and effective? Evidence in the affirmative, presented by the FDA’s defense team, outweighs that of plaintiffs in volume and medical journal prestige.

Most drugs approved by the FDA come with some risk of side effects, but mifepristone’s risk level is significantly lower than many commonly used over-the-counter drugs. In 23 years, 28 out of more than 5 million medication-abortion patients have died, but not all necessarily because of mifepristone. Some died of sepsis, ectopic pregnancies, homicide and drug overdoses.

Still, plaintiffs who sued the FDA to revoke mifepristone’s approval rely on studies that have been criticized — and on speculation about a potential spike in future adverse events.

Many U.S. scientists and mainstream national medical institutions like the American Medical Association have asked the courts not to overturn FDA approval of mifepristone, and have called out the misuse of science in the lawsuit. And yet, the conservative federal judges assigned to the case have been nodding along to plaintiffs’ hyperbolic arguments that abortion via medication leads to overwhelmed emergency rooms and blood supply shortages.

One study that appears to have convinced Kacsmaryk that mifepristone causes high amounts of severe adverse events was authored by a half-dozen longtime anti-abortion activists. The study, “A Longitudinal Cohort Study of Emergency Room Utilization Following Mifepristone Chemical and Surgical Abortions, 1999–2015,” was funded by the Charlotte Lozier Institute, the research arm of the influential Susan B. Anthony Pro-Life America, which works to elect federal and state anti-abortion lawmakers. The study was published in November 2021, exactly one year before plaintiffs filed in the Amarillo court. Charlotte Lozier filed a “friend of the court brief,” citing its research.

All but one of the eight authors are affiliated with the Charlotte Lozier Institute, including principal author James Studnicki, who is the institute’s vice president and director of data analytics. Currently everyone on the editorial board of “Health Services Research and Managerial Epidemiology” works for a university except for Studnicki, who until 2016 was a university professor focused on health policy and management for most of his career. Now he works for an anti-abortion think tank and in recent years has served as a paid expert witness that defends anti-abortion laws in federal court.

Dr. Donna Harrison, another co-author, was until recently the CEO of the American Association of Pro-Life Obstetricians and Gynecologists, one of the plaintiff medical groups suing the FDA over mifepristone. Another author is longtime anti-abortion activist David Reardon, who has a record of criticized research that tries to directly link abortion to depression and suicide.

The Studnicki et al. 2021 longitudinal study looked at people who had a surgical or medication abortion between 1999 and 2015. The researchers used data from 17 states that allow state Medicaid funding of abortion, and identified more than 400,000 abortion patients. Of those they found that more than one-quarter visited an emergency department within 30 days of having the abortion. Over the 16 years, they found that there were progressively more emergency room visits following a medication abortion than a surgical procedure. The authors claim that between 2002 and 2015, there was a 500% increase in emergency room visits from people who had had a medication abortion within 30 days.

Following the study’s release in 2021, Studnicki penned an opinion piece in Newsweek, calling the study’s findings “clear and alarming.” “Post-abortion emergency room visits are increasing following any type of abortion, but visits following a chemical abortion are growing faster,” Studnicki wrote.

But Adkins and other researchers told States Newsroom that some of these findings are missing important context, and that the study’s major flaws are related to methodology and in how they communicate their findings:

• The study captures emergency room visits broadly and does not distinguish between routine medical care and adverse events. The codes they use lump in issues like ectopic and molar pregnancies, which are medical emergencies not necessarily related to having taken abortion drugs. University of California San Francisco reproductive health researcher Ushma Upadhyay led a similar study in 2015 and found that less than 1% of medication abortion patients have major complications. Upadhyay told States Newsroom that just looking broadly at emergency department visits among people on Medicaid does not give the most accurate picture of the abortion drug protocol’s safety, as many of the visits are observation-only. A medication abortion is an induced miscarriage and necessarily involves bleeding. First-time medication abortion patients often go to the ER because they don’t know what is normal. And that’s especially true if they don’t have a regular medical provider, like many people on Medicaid, Upadhyay said.

• Adkins said the study’s findings appear in line with increased use of the FDA’s medication abortion protocol between its approval in 2000 and 2015. The amount of patients on Medicaid also grew toward the end of that time frame, reflecting Medicaid expansion following the Affordable Care Act in 2014. “What they find is exactly what you would expect to find when you expand coverage and expand care,” Adkins told States Newsroom. “And so, you know, that really made me wonder, what degree of scrutiny was provided during the peer review process?”

• The researchers do not offer an estimated total of emergency department visits among Medicaid patients to contextualize the estimated abortion-related visits. “Nowhere in the article do the authors provide estimates of the total number of ER visits during 2015 among Medicaid patients in these 17 states,” Johns Hopkins Bloomberg School of Public Health professor Suzanne Bell told State Newsroom in an email. “I imagine the 790 ER visits they identified as associated with a recent medication abortion is a very small percentage of the total number of ER visits and in no way would risk overwhelming the medical system as Judge Kascmaryk suggests.”

Studnicki did not respond to a request for comment. He continues to defend the study, and recently told the Washington Post that abortion rights groups are discounting ER visits as serious matters and underplaying potential complications from abortions involving mifepristone. He blames academic and media bias for the criticism the Charlotte Lozier Institute’s work has received.

“We have a very biased media,” Studnicki said on the Canadian podcast Pro-Life Guys earlier this year. “Our media outlets are largely pro-abortion in their ideological posture. And we fight against that every day. But we’re just going to keep pounding on the rock basically.”

‘Dishonest science’

Adkins argues there is bias within Charlotte Lozier’s science and within the conservative courts hearing the Alliance for Hippocratic Medicine v. FDA lawsuit. Federal Judge Kacsmaryk used this paper (and a follow-up 2022 analysis published in the same journal, by the same researchers) to argue that mifepristone leads to high complication rates. This summer the Charlotte Lozier team produced yet another study using Medicaid data, this time published in the International Journal of Women’s Health, which concludes that a first pregnancy abortion compared with birth is associated with “significantly higher subsequent mental health services utilization.”

“The fact that, you know, the judge really gives a lot of credit to a very niche, a very small pocket of doctors that don’t fully represent consensus, that’s one of my big problems,” Adkins said.

In his April 7 ruling, Kacsmaryk also echoed plaintiffs’ arguments that the FDA has been undercounting adverse events related to mifepristone and cited the other big finding in the Studnicki paper, which is that some patients who have taken abortion drugs but come to the emergency room for observation or treatment are miscoded as miscarriage patients.

“Consequently, the treating physician may not know the adverse event is due to mifepristone,” Kacsmaryk wrote. “Studies support this conclusion by finding over sixty percent of women and girls’ emergency room visits after chemical abortions are miscoded as ‘miscarriages’ rather than adverse effects to mifepristone. Simply put, FDA’s data are incomplete and potentially misleading, as are the statistics touted by mifepristone advocates.”

The 5th Circuit Court of Appeals in its ultimately blocked April ruling to temporarily reinstate old restrictions on medication abortion, referenced many of the same studies as Kascmaryk to justify the plaintiff doctors’ position, writing: “the risk of severe bleeding with chemical abortion is five times higher than from surgical abortion.”

Adkins said he believes that how the Charlotte Lozier team presented their data visually lends for judges to be misled about the significance of the paper’s findings. For example, Figure 3 showed about 800 emergency room visits in 2015 within 30 days of a medication abortion, out of more than 5,000 abortion-related visits, but the authors inexplicably used two different y axes to plot these numbers, making it possible to conclude that medication-abortion-related visits were numbered in the thousands.

“Scientific communication is something I deeply value, and I think this is an example of one way that misuse of science through improper communication can influence how public policy manifests itself, through a result of dishonest science,” Adkins said. “It really makes the likelihood of someone misreading that and then, for instance, Kacsmaryk coming back and saying the alleged adverse events from chemical abortion drugs can overwhelm the medical system. Well, maybe he didn’t scrutinize these figures if he read this paper. That’s a highly plausible outcome here because he’s basically thinking, ‘Oh, my gosh, look at these numbers. They’re skyrocketing.’ When they’re really kind of not.”

For now, Adkins impatiently awaits the results of Sage’s probe into this study. A few months ago, he wrote a letter to Georgia U.S. Rep. Earl L. “Buddy” Carter, one of the few licensed pharmacists in Congress, who joined other Republicans in supporting the plaintiffs’ lawsuit against the FDA. Carter is outspokenly anti-abortion, but Adkins tried to appeal to the congressman’s inner pharmacist.

“All practicing US pharmacists publicly recite an oath which affirms pharmacists’ embracement and advocacy for ‘changes that improve patient care,’” Adkins wrote in the letter, which he says the congressman never answered. “The case rendered in Amarillo only deteriorates patient care and sows unnecessary distrust of scientific and medical institutions in the United States.”

Operation Save America Director Jason Storms told a gathering of religious, anti-abortion attendees that the church must take the lead to end abortion, which could happen with civil war. (John McCosh/Georgia Recorder)

An all-male panel of anti-abortion religious leaders from around the country met Friday night to discuss the strategies that should be used to end abortion in every state at any stage of pregnancy, without exceptions for rape and incest, and with criminal punishment for the pregnant person in line with existing criminal penalties for murder, which includes the death penalty.

The panel was part of a week-long series of events hosted by Operation Save America, an anti-abortion, anti-LGBTQ and anti-Muslim religious group that wants all Americans to follow “God’s law” and their interpretation of the Christian gospel. Many of the?events were held?in Douglasville, Georgia, at Pray’s Mill Baptist Church, which?broke away?from the Southern Baptist Convention for supposed acceptance of liberal social justice views regarding race and gender. Tuesday through Friday, the group started its mornings by?protesting outside?of A Preferred Women’s Health Center, an abortion clinic near Atlanta.

Friday’s speakers included Wisconsin-based Operation Save America Director Jason Storms and former OSA director Rusty Thomas, along with Arizona-based?End Abortion Now?communications director Zachary Conover, Georgia Right to Life President Ricardo Davis, and Gabriel Rench, a member of the extremist?Christ Church?in Moscow, Idaho.

Speakers focused on equal protection bills in state legislatures?

The theme of OSA’s national event was unity, and highlighted divisions within anti-abortion circles over what they described as the proper approach and response to legislation that seeks to limit or entirely restrict abortion procedures. The moderator of the panel, Derin Stidd, opened by asking, “Why do you all hate women?” to which the men laughed.

Rench then joked about not giving the microphone to Conover and said, “We don’t give him a voice like women,” then added, “Bad joke.”

The comments were in jest, but in line with remarks from OSA speakers throughout the week, including another comment from Rench, who said the church was wrong to allow women to be preachers.

On Thursday, anti-Islam speaker Raymond Ibrahim said, “If you look at a country, and the best they can come up with for a president is a woman, there’s something wrong about that. That doesn’t mean women aren’t smart or capable, I believe that, but if the very best — the crème de la crème — is a woman, that tells me something about the men when it comes to positions of authority and leadership.”

The panel focused on legislation they call “equal protection” bills, such as Georgia’s House Bill 496, also called the?Georgia Prenatal Equal Protection Act, which was introduced in February but did not advance in the state’s House of Representatives. An “equal protection” bill, by their definition, is one that adds criminal penalties to a pregnant person for the intentional termination of a pregnancy at any stage, with no exceptions for rape or incest. The law would make an exception if the abortion was performed to prevent the pregnant person’s “imminent death or great bodily injury.”

Storms said OSA has advocated for similar bills in?more than a dozen states, including Alabama, Arizona, Missouri, Kentucky and Oklahoma. So far, no states have passed an “equal protection” bill, but several, including Georgia, did pass what anti-abortion advocates call “heartbeat bills” that ban abortion after six weeks of pregnancy, before many people know they are pregnant. Those who advocate for “equal protection” bills call themselves “abolitionists,” co-opting language from the movement to abolish slavery, while the “pro-life” community has advocated for more politically expedient bills like six-week bans. Storms and other panelists called the six-week bans weak, even though they expressed understanding of political environments that make “equal protection” bills unlikely to become reality.

Rench said that is the case in Idaho, where many members of the state legislature are part of the Church of Jesus Christ of Latter-Day Saints. The church has taken an?official position?that rape and incest exceptions are acceptable, and bills that have not included those exceptions, such as?one introduced?by OSA-endorsed?Sen. Scott Herndon of Sandpoint, have gone nowhere in the Idaho Legislature. Christ Church and its followers have taken an approach they dubbed?“smashmouth incrementalism,”?which acknowledges that change can be achieved through gradual reformation and repentance in the country’s culture.

But Rench said he intends to keep working with Herndon and others to bring equal protection bills back in the next legislative session to keep pushing for it. Davis, president of Georgia Right to Life, said his organization will push for their bill again in the next session as well, and said he’s confident they’ll get it done the next time around.

How is abortion going to end? Maybe with civil war, speaker says?

Thomas, who was a longtime director of Operation Save America before Storms, said incremental steps like heartbeat bills were “a lie from the pit of hell” from the very beginning, but the organization didn’t used to be politically involved because there was too much compromise and too much that needed to be changed.

Thomas said it wasn’t until pastor Matthew Trewhella, who co-founded the Milwaukee-based group Missionaries to the Preborn and is?Storms’ father-in-law, wrote “The Doctrine of the Lesser Magistrates” that he felt like there could be progress. The book references history and biblical theology to argue that governments deemed “tyrannical” and ungodly can and should be defied. Trewhella has said he has spoken to at least 11 state legislatures across the country about the book.

“That was the first time in my life I knew we had solid rock to stand on to fight this battle politically,” he said. “That was the game changer.”

Conover’s organization, End Abortion Now, creates model legislation that grants legal personhood to fertilized eggs, which would limit in-vitro fertilization procedures, and assigns penalties to people who have abortions in addition to doctors who provide them. Some of his legislative efforts have been defeated by organizations that are against criminal penalties for pregnant people.

“It’s a dirty little secret of the pro-life industry: Their heretical teaching that has informed the types of laws they’ve supported for five decades, the lie that women should be allowed to kill their own children with immunity and impunity because they themselves are victims of abortion,” Conover said. “It is a lie that says that they are never legally culpable, however willfully or intentionally they carry out the act of taking the life.”

Regardless of the legislative strategy, the panelists agreed changing the culture of America to take on a Christian biblical worldview, which will require all pastors to take the same position on abortion as their own.

“We must see that the church plays that role culturally, to create that social tension. That’s the standard, that’s the ideology,” Storms said. “But that’s when we have to say, ‘Well, how does that flesh out in the real world?’ It doesn’t always look so pretty when we actually see that applied. How is abortion going to end? I don’t know, maybe it’s going to be a civil war, maybe it’s going to be a whole variety of other means.”

States Newsroom reproductive rights reporter Sofia Resnick contributed to this report.

For the past four years, at least one lawmaker has annually tried to reform Kentucky’s certificate of need (CON) laws. (Getty Images)

Nearly 50 Democratic and independent members of Congress are appealing to the U.S. Department of Health and Human Services to tighten regulations protecting the privacy of health information.

In a July 18 letter to Secretary Xavier Becerra, they asked that the department enact more precautions to ensure that law officers obtain a warrant before seeking the release of any medical records, prohibit law enforcement agencies from sharing records and require that the person involved is informed of the warrant.

Sens. Ron Wyden of Oregon and Patty Murray of Washington and Rep. Sara Jacobs of California spearheaded the letter. Seventeen senators, including Washington’s Maria Cantwell, as well as 27 representatives, including Oregon Democrats Suzanne Bonamici, Earl Blumenauer, Val Hoyle and Andrea Salinas and Washington’s Pramila Jayapal. The only non-Democrat who signed the letter was an independent, Sen. Bernie Sanders of Vermont.

Their letter came a month after 20 conservative attorneys general, including Kentucky’s Daniel Cameron, called on the Health and Human Services secretary to drop a proposal to protect reproductive health records.

In April, the department issued its proposal for tightening federal privacy regulations for reproductive health care and other medical records under the Health Insurance Portability and Accountability Act, or HIPAA. The department said in its proposal that changes were necessary following the U.S. Supreme Court decision last year in Dobbs v. Jackson Women’s Health Organization to overturn abortion rights nationwide.

“Following the Dobbs decision in 2022, laws enacted or effective in a number of states raised the prospect that highly sensitive (public health information) would be disclosed under circumstances that did not exist before the Supreme Court’s decision, generating significant confusion for individuals, health care providers, family, friends and caregivers regarding their ability to privately seek, obtain, provide or facilitate health care,” the agency said.

The changes added extra protection for providers, insurers, patients and others to safeguard private medical information in investigations or prosecutions. But the Congress members who signed the letter said they didn’t go far enough, noting that while doctors cannot be forced to testify,? law enforcement agencies can subpoena records without showing probable cause of a crime or without the oversight of a judge.

“The ability of law enforcement agencies to subpoena these records undermines patients’ legal protections, particularly in an era of digital health records, where every patient interaction is carefully documented,” the letter said. “HHS should ensure that Americans’ (public health records) receive the greatest degree of protection under federal law.”

They want law enforcement agencies to obtain a warrant from a judge to seek records from doctors, pharmacists or other health care providers.

“This change would align federal health privacy regulations with the protections for Americans’ medical records under the Fourth Amendment and is consistent with the protections afforded to other sensitive data under federal law and the Fourth Amendment,” the letter said, pointing out that police need warrants to tap phone calls or obtain emails or text messages.

They also said that informing patients when their health information is disclosed to law enforcement would be consistent with procedures for wiretaps and bank subpoenas.

“Americans expect their (health records) to be at least as private as their email and text messages, phone calls and location data. While federal and state courts around the country have recognized the importance of protecting Americans’ medical privacy, HHS’ regulations have lagged behind,” the lawmakers wrote.

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: [email protected]. Follow Oregon Capital Chronicle on Facebook and Twitter.

U.S. Health and Human Services officials say it is necessary to specify increased protections for the private health information of patients who seek care including abortions in states where such procedures are legal. (Getty Images)

Calling it “a disgusting overreach of government authority,” Planned Parenthood officials in Kentucky are denouncing an effort by Republican attorneys general to block a federal expansion of medical privacy protections for patients who seek reproductive care.

The rule change proposed by the U.S. Health and Human Services Department would enhance protections for patients who seek services out of state if abortion or other reproductive care is illegal in their own state.

Kentucky Attorney General Daniel Cameron and Indiana Attorney General Todd Rokita are among the 19 GOP attorneys general — led by Mississippi’s Lynn Fitch — who sent the June 16 letter to Xavier Becerra, secretary of the federal agency, objecting to the change.

“Why would Cameron, Rokita or any attorney general be seeking private medical information related to abortion patients if not to prosecute them for obtaining care?” asked Tamarra Wieder, Kentucky state director for the Planned Parenthood Alliance Advocates. “Anti-abortion lawmakers like Cameron and Rokita seem willing to go to any extent to scare patients out of obtaining abortions.”

Planned Parenthood stressed there is no prohibition against a patient seeking care in another state.

“Let’s be perfectly clear,” it said in a news release. “It is legal for anyone in the United States, no matter what state they are from, to access abortion care in a state where that care is legal.”

Kentucky is among 16 states with a near total ban on abortion since the U.S. Supreme Court struck down the 1973 Roe v. Wade decision that had established it as a federal constitutional right. Indiana is poised to ban abortions following a recent state Supreme Court ruling.

Cameron, in a June 19 news release, called the proposed federal rule change to health privacy law an “intrusion on state sovereignty,” adding it could “incentivize providers to break state laws on everything from protecting unborn life to gender-altering surgeries.”

Rokita said the change would put “many of Indiana’s laws at risk.”

In their letter, the GOP attorneys general said the change “would unlawfully interfere with states’ authority to enforce their laws and does not serve any legitimate need.”

But in a discussion that accompanies the proposed rule change published April 14 in the Federal Register, the agency noted that since the U.S. Supreme Court ruling, known as Dobbs, some states have outlawed abortion and added or discussed increasingly stringent laws to restrict access to reproductive care.

For that reason, HHS officials said, it is necessary to specify increased protections for the private health information of patients who seek care including abortion, in states where such procedures are legal.

“After Dobbs, the department has heard concerns that civil, criminal, or administrative investigations or proceedings have been instituted or threatened on the basis of reproductive health care that is lawful under the circumstances in which it is provided,” the agency said.

Without such additional and more specific privacy protections, patients may be afraid of seeking care in another state or be reluctant to provide full medical histories to providers for fear of prosecution in their home state. And providers might be reluctant to provide care or fully document care for the same reason, it said.

“These proposed modifications would provide heightened protections for individuals’ health information privacy under the defined circumstances; foster an open and honest exchange of information between the individual and health care provider, who — with that information — could employ evidence-based clinical practice guidelines; and increase access to high-quality, lawful health care,” the agency said.

A group of Democratic attorneys general, in a June 16 letter to the agency, agreed that more privacy protections are needed to protect patients seeking care outside their states.

Citing a “drastically shifting legal landscape,” the 23 Democratic state attorneys general led by New York Attorney General Letitia James, forcefully endorsed the proposed changes.

The letter notes that one state, Idaho, already has enacted a “trafficking law” aimed at restricting access of some patients to out of state care and Texas and Oklahoma have enacted “vigilante laws” allowing civil lawsuits against those aiding an individual in obtaining an abortion.?

Increased medical privacy protections could shield patient information from those seeking to prosecute or sue individuals, the letter said.

“The hostile and fragmented reproductive health care landscape heavily burdens patients in need of health care,” their letter said. “Reports continue to emerge — even in states with abortion bans that include exceptions for the health or life of the pregnant person — of patients with serious pregnancy complications being denied care or forced to wait until they are ‘sick enough,’ and often enduring unnecessary pain and life-threatening complications, to justify pregnancy termination.”

The Democratic attorneys general urged HHS to move “expeditiously” to adopt a final rule and enforce it within the standard 180 days afterwards.

Abortion rights advocates march up Capitol Avenue to surround the Indiana Statehouse on July 25, 2022. (Whitney Downard / Indiana Capital Chronicle)

Indiana’s near-total abortion ban, which prohibits the procedure with only narrow exceptions, will go back into effect after the Indiana Supreme Court upheld the law last week. But justices left open the possibility for other challenges in the future.

Plaintiffs have 30 days to seek a rehearing before the decision is certified, meaning the ban won’t be effective until Aug. 1, according to the ACLU of Indiana, which challenged the law. Rehearings are rarely granted.

In a split, 4-1 decision, the high court nixed a preliminary injunction that has kept the ban on hold since September. An injunction issued in a separate religious freedom challenge to the ban only applies to the plaintiffs in that case.

Justices opined that Planned Parenthood and other health care providers unsuccessfully brought a “facial” challenge to the entire law, which alleged that the abortion ban is always unconstitutional and should therefore be voided.

In the ruling, the state Supreme Court, however, said the providers “cannot show a reasonable likelihood of success” with that challenge because there are cases in which the ban could be constitutionally enforced.

” … we hold that Article 1, Section 1 (of the Indiana Constitution) protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions,” Justice Derek Molter wrote in the ruling.

Molter is the newest member of the court, appointed by Republican Gov. Eric Holcomb in June 2022.

The five Indiana justices heard oral arguments over the constitutionality of the new law in January.

The court challenge was originally filed in Monroe County Circuit Court in August by the American Civil Liberties Union (ACLU) of Indiana on behalf of health care providers and a pregnancy resource center.

A special judge in Owen County later ruled that the ban likely violates the Indiana Constitution. An injunction issued by Judge Kelsey Blake Hanlon, a Republican, halted the state’s new abortion law one week after it took effect. Under the injunction, the state’s previous abortion law stood — allowing abortions up to 20 weeks.

A joint statement from leaders of Planned Parenthood Federation of America, Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky, ACLU of Indiana, Whole Woman’s Health Alliance, All-Options, the Lawyering Project, and Women’s Med Center bemoaned the ruling.?

In particular, the group decried the disparate impact the decision would have on nonwhite people, LGBTQ+ people and low-income Hoosiers who can’t afford to travel elsewhere.

“Now, patients will be forced either to flee the state to access abortion if they have the means, seek abortion outside of the health care system, or carry pregnancies against their will with profound medical risk and life-altering consequences,” the statement said. “Despite this setback, we’ll keep fighting to restore reproductive rights in Indiana and to help Hooisers get access to the services they need. Today’s decision is not the end of our fight for equitable, compassionate care in Indiana, or the patients in surrounding states who rely on Indiana for access to abortion.”

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session last August.

That action made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization. It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.

“We celebrate this day – one long in coming, but morally justified,” Indiana Attorney General Todd Rokita’s office said in a statement. “Thank you to all the warriors who have fought for this day that upholds LIFE.”

Justices weigh the case

Molter, along with concurring Chief Justice Loretta Rush and Justice Mark Massa, emphasized that — even when the Indiana General Assembly revised the state’s abortion laws in response to U.S. Supreme Court decision overturning Roe v. Wade —? abortion continued to remain available “to save the life of the mother.”

That keeps in line with Indiana’s Constitution, which protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. It also protects a fundamental right to “liberty.”

Plaintiffs in the case contended that right includes “a bundle of liberty rights” — like inferred rights to privacy, bodily autonomy, and self-determination — which coalesce to allow abortions up to fetal viability outside the womb: about 23 or 24 weeks.

But justices said that’s not how the framers and ratifiers of Indiana’s Constitution understood that language.

“We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest — informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy,” Molter wrote. “Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances.”

“By saying Senate Bill 1 is not unconstitutional in its entirety in all circumstances, we do not say the opposite either — that every single part of the law can be applied consistent with our Constitution in every conceivable set of circumstances,” the ruling continues. “We do not prejudge those questions.”

Even so, the court held that the plaintiffs have standing to challenge the abortion ban “because the law criminalizes their work and the injunction they seek would protect them from the law’s criminal and regulatory penalties.”

Justices maintained that others could still be successful if they challenge “a particular part of the statute,” or with a challenge that focuses on the law’s application “in a particular set of circumstances” where a pregnancy endangers a woman’s life or health.

But in this lawsuit, the court contended that the plaintiffs’ claim for a preliminary injunction failed to outline the specific limits on life or health exceptions and when those limits needed to be broader.

Justice Geoffrey Slaughter joined the majority but said in a separate opinion that he would have ruled the health care providers who sought the injunction lacked a standing to sue in the first place, rather than ruling on the merits of the overall lawsuit.

“Despite our differences, I ultimately agree with the Court that the disputed injunction must be vacated, and so I concur in its judgment. But unlike the Court, I would reach that result based on the lack of standing and not on the merits,” Slaughter wrote. “… the Court today dives into the constitutional scrum, pronouncing its views of myriad issues not squarely before us and not necessary to today’s disposition. I would limit our decision today to Plaintiff’s lack of standing.”

Justice Christopher M. Goff dissented, in part, writing that medical providers have standing to contest the constitutionality of Senate Bill 1 because the statute criminalizes their work. He also disagreed with his colleagues’ decision to terminate the trial court’s injunction “in its entirety.”

“Many of the liberties Hoosiers take for granted — the right to vote, to travel, to marry, to educate one’s children as one sees fit, or to refuse medical treatment — stand on federal precedents that are also now vulnerable to reversal. Within this ‘bundle of liberty rights’ stands the fundamental ‘right to be let alone,’” he wrote. “In my view, even those who abhor abortion in all circumstances should be wary of unfettered government power over the most personal, private aspects of a person’s life.”

Goff instead urged the General Assembly to put the question of bodily autonomy directly to Hoosier voters.

“In my view, there is a reasonable likelihood that (Indiana’s Constitution)’s guarantee of ‘liberty’ includes a qualified right to bodily autonomy, one which the General Assembly must accord some weight in the legislative balance,” he wrote. “More importantly, I believe that the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana.”

Other case still ongoing

Appeals in a second case that seeks to strike down Indiana’s abortion ban on the basis of the state’s controversial religious freedom law are still playing out in court.

That underlying lawsuit was filed in August by the ACLU of Indiana on behalf of Hoosier Jews for Choice, as well as four anonymous women who represent a variety of faiths. The lawsuit argues that the new abortion law violates Indiana’s Religious Freedom Restoration Act (RFRA).

The lawsuit prompted a Marion Superior Court judge to grant a second preliminary injunction against the state’s abortion ban in December. Despite the Indiana Supreme Court ruling, the injunction will remain in the RFRA case.

However, that injunction only applies to the plaintiffs in the case. ACLU of Indiana Legal Director Ken Falk contends it also applies to the class that the Marion County trial court has certified. The class includes all Hoosiers whose religious beliefs “direct them to obtain abortions in situations” prohibited by Senate Enrolled Act 1 — the near-total abortion ban — and “who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion because of the Act.”

Rokita’s office is appealing the injunction and the class action certification.

Both parties have since asked for a pause on the underlying lawsuit. The Marion County Superior Court granted the motion in a brief ruling earlier this month.

That separate appeal of the preliminary injunction is set for oral argument in the Indiana Court of Appeals on Sept. 12.

This article is republished from the?Indiana Capital Chronicle, part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: [email protected]. Follow Indiana Capital Chronicle on Facebook and Twitter.

Protesters and clinic escorts gathered outside EMW Women's Surgical Center in Louisville last year before abortion was banned in Kentucky. (Photo by Deborah Yetter)

LOUISVILLE — A judge has dismissed a lawsuit challenging the constitutionality of two Kentucky laws that together ban nearly all abortions, a week after the state’s two licensed abortion providers signaled they planned to drop the case — for now.

Jefferson Circuit Judge Mitch Perry on Tuesday signed an order the parties submitted agreeing to dismiss the case.

EMW Women’s Surgical Center and Planned Parenthood said in a June 20 filing that they would drop the case in light of a state Supreme Court ruling earlier this year that to pursue it, they must find a patient to serve as a plaintiff.

But they have not given up, Amber Duke, executive director of the American Civil Liberties Union of Kentucky, said at a news conference Saturday.

“It’s very difficult to find someone to come forward,” Duke said. “We stand ready to file and immediately go back in court when we have someone who is in a position to take on the lawsuit.”

The ACLU represents EMW, and Duke was speaking at a news conference called to commemorate the one-year anniversary of the U.S. Supreme Court decision that struck down the federal right to abortion.

Access to abortion ended immediately in Kentucky after the June 24, 2022, ruling because of a “trigger law” on the books to ban the procedure should the high court overturn Roe v. Wade, the landmark 1973 case establishing it as a federal constitutional right.

EMW and Planned Parenthood had challenged that law in state court, arguing Kentucky’s Constitution provides a right to abortion. They also had challenged a second law, a ban on abortion once cardiac impulses are detected in an embryo, at about six weeks and often before most women know they are pregnant.

But the state Supreme Court curtailed their right to challenge the laws, ruling that the clinics lacked “standing,” or the right to sue without a patient as a plaintiff who had been affected by the laws, even though providers have often been granted standing to pursue such cases by the courts.

Kentucky Attorney General Daniel Cameron, an anti-abortion Republican who is defending the two laws, signed off on Tuesday’s agreed order.

Cameron is running in this year’s gubernatorial race against Gov. Andy Beshear, the Democratic incumbent who supports abortion rights. Cameron previously had praised news the clinics had agreed to drop the case.

“My office will always defend and enforce Kentucky’s pro-life laws passed by our General Assembly,” he said in a statement.

Kentucky Right to Life, which had supported the laws, celebrated the decision of the plaintiffs to end litigation.

“They have walked away from their own case,” said Addia Wuchner, executive director, in a post on the organization’s website. “Today, every word of every pro-life law is intact.”

However, abortion rights supporters vowed to continue the fight, speaking at Saturday’s news conference held at Planned Parenthood’s clinic in Louisville.

U.S. Rep Morgan McGarvey, who represents Kentucky’s 3rd Congressional District based in Louisville, said he is among a group of House Democrats pushing a measure called the Women’s Health Protection Act to restore abortion as a federal right.

“Right now, no woman in Kentucky can receive an abortion even in cases of rape or incest,” McGarvey said. “Abortion is health care. We must make sure that that health care continues to be available in a safe and legal way.”

Kentucky laws make no exception for pregnancies resulting from rape, incest or in cases of serious fetal abnormality. Nor do they make allowances for the age of the patient where, in Kentucky, the two youngest patients in the last two years abortion was legal were age 9.

Meanwhile, abortion rights advocates say they will remain active in Kentucky and keep fighting for women seeking abortions in other states. Both EMW and Planned Parenthood are taking calls and providing information to such patients.

“We aren’t going anywhere,” said Tamarra Wieder, Kentucky state director of Planned Parenthood Alliance Advocates. “These doors stay open. Through thick and thin, we’ll be fighting for the future we know is possible.”

Elevated Access has recruited more than 1,200 volunteer pilots to privately fly those in need of an abortion to states where it is accessible. (Isiah Holmes/Wisconsin Examiner)

Editor’s note: This report is part of a special States Newsroom series on abortion access one year after the U.S. Supreme Court decision struck down the federal right to abortion.

When the U.S. Supreme Court issued its Dobbs decision one year ago, people of childbearing age in states across the country suddenly faced what seemed like a new prospect — having to travel hundreds or even thousands of miles from home to get an abortion.

But historians say it is merely continuing a long tradition of pregnant people seeking out the sometimes lifesaving care they need wherever it can be found, and other people helping them along the way.

In the Midwest, Dr. Josephine Gabler operated an abortion clinic that served tens of thousands of people in Illinois, Indiana, Michigan and Wisconsin between 1930 and 1940.?Patricia Maginnis?kept a list of trusted physicians in Mexico, Japan and Sweden through the 1950s and ‘60s where people could be?referred from California?for safe abortion care.

The Clergy Consultation Service, made up of 3,000 religious figures across 38 states, helped 7,500 women find abortions from 1967 until 1973, when the U.S. Supreme Court ruled in favor of Roe and legalized the procedure nationwide.

Today, with 14 states that have implemented near-total bans on abortion, one organization called Elevated Access has recruited more than 1,200 volunteer pilots to privately fly those in need of an abortion to states where it is accessible.

Since the Dobbs ruling, states with abortion access have experienced an increase in out-of-state patient volume. In Illinois,?nearly one-third?of Planned Parenthood patients came from other states, compared to an average 6% prior to Dobbs. Similarly, clinics in Colorado reported out-of-state patients doubled from 14% in 2021 to 28% in 2022, with a large share coming from Texas, which has a strict abortion ban. At least one state, Idaho, has passed legislation aimed at restricting out-of-state travel for an abortion for minors who don’t have parental permission, but it’s unclear how that law will be enforced. Other states with bans have not successfully implemented any laws aimed at restricting travel.

“This is part of a long history of people seeking out ways to end their pregnancies and to get abortions, or ‘get their menstruation back,’ as they called it then, that often included travel,” said Leslie Reagan, a historian who wrote?“When Abortion Was a Crime”?and scholarly articles about women traveling for abortion throughout the 19th and 20th centuries. “They could be coming by train, driving, or taking a bus, depending on what time period we’re talking about and their circumstances.”

Groups across America ran underground networks that kept organized lists of trusted physicians who would provide abortion care. Sometimes those physicians operated covertly in communities within the U.S., but often they were located across the border in Mexico, or across oceans in Puerto Rico, Europe and Japan.

Overseas, people have also traveled where abortion was illegal. Irish citizens?traveled to the United Kingdom?for abortion care for many decades, and still do for pregnancies beyond 12 weeks’ gestation. Canadians traveled to U.S. cities like New York City and Chicago and Washington state prior to legalization in 1988. Between 2001 and 2017, Dutch Dr. Rebecca Gomperts used ships to ferry women from cities in Ireland, Poland, Portugal, Spain, Morocco, Guatemala and Mexico to international waters, where they could terminate their pregnancies legally aboard the ship and then return home.

“Sometimes people can’t control when they’re going to get pregnant, or if the timing is right, or you’re going to get kicked out of school,” Reagan said. “And really what I saw was not only were women doing it, they had a lot of support. There’s really a lot of moral support for this even though the laws might say it’s illegal.”

Volunteer pilot raised $15,000 to buy small seaplane?

A Midwestern pilot who goes by Mike Bonanza?started Elevated Access three days before the leaked draft opinion overturning Roe was released on May 1, 2022. He volunteered for the?Midwest Access Coalition, an abortion access fund in Chicago, and his background as a pilot led him to put the two together to help more people. The organization also flies those who need gender-affirming care, which is quickly becoming a larger need. As of June 1,?21 states?have banned gender-affirming care for minors, including all 14 states with abortion bans.

One of Elevated Access’ volunteer pilots is Adrian, who asked only to be identified by his first name, as all Elevated Access volunteers and staffers do to protect themselves from harassment and potential legal scrutiny. But he is one of the most outspoken individuals affiliated with the organization, and one of the only people who willingly shows his face on social media — his TikTok account has more than 115,000 followers.

“I stopped counting donations (to Elevated Access) once we crossed over $150,000,” he said.

When asked why he volunteers, Adrian speaks plainly about his mother, who was raped by an older man when she was 13 years old. Her parents, he said, were members of the Church of Jesus Christ of Latter-Day Saints in Utah and did not allow her to seek an abortion. She was forced to give birth to Adrian and his identical twin brother at the age of 14.

For the first eight years of their lives, Adrian and his brother lived with his grandparents, until his mother returned and took the boys to Georgia to live on a military base with her and a man she was dating. From that time until he left home, Adrian and his brother frequently experienced food insecurity and other abuse.

Now that he is married and living in Wisconsin, Adrian said he doesn’t have a relationship with his mother, stepfather or his brother, who has also struggled with substance abuse.

“A lot of people will say, ‘Oh well, my god, he’s doing so much for his mom,’” he said. “No, it’s not about my mom. Yes, my mom is an individual that perfectly embodies the individual that should have access to reproductive health care. It doesn’t mean I like her.”

His plane is a model from the 1980s, and one of less than 50 left in operation around the country. He opted for an amphibious plane for its versatility, especially after rumors that states with strict abortion laws such as Texas might try to interfere with people trying to leave the state for the procedure. According to the National Oceanic and Atmospheric Administration, about 2.1 million of Wisconsin’s 5.7 million people live in coastal areas of the state, or nearly 37%, and he could taxi through the water right up to their docks if needed.

Although Elevated Access has many volunteer pilots, Adrian said they need more who own their own planes.

“That’s our biggest hurdle, is actually pilots with planes,” he said.

Word of mouth spreads easily in the internet age

Some of the circumstances surrounding abortion access today are easier to navigate now than they were prior to 1973, according to historians. Katrina Kimport, a researcher at the Bixby Center for Global Reproductive Health at the University of California, San Francisco, said travel has historically been limited to those with the means and resources to do it. Wealthier people had the financial backing as well as more connections who could help lead them to the right people. In the internet age, information is readily available to many more people, she said, and there is often more financial support for those who can’t afford it.

Christabelle Sethna, a professor at the University of Ottawa who wrote a book called “Abortion Across Borders,” said the information network that exists today is an essential difference from history.

“In the past it was sort of underground, whispered information; you’d have to ask a whole number of people and maybe one would come through for you with the name of a doctor,” Sethna said. “It was much more disparate in the past, and now it’s much more organized because of the internet and the vast reach of the internet.”

That includes being able to access abortion medication through websites, Sethna said, which is another option that wasn’t available in the past. Another significant difference is that the procedure is legal at various stages of pregnancy in 36 states rather than banned nationwide, as it was between the late 1890s and 1973.

Despite those changes, Kimport said her research shows there are still many?logistical, emotional and financial burdens?placed on those forced to travel because of a lack of access in their own state. She pointed out that prior to the Dobbs ruling, abortion after 24 weeks was still heavily restricted, which provided a preview of what pregnant people are experiencing now at a much broader scale.

“Putting aside the cost of the procedure, travel itself is an additional cost,” Kimport said. “There’s also the logistical burden of having to seek out child care or pet care, time off work, getting reservations. Some people don’t have credit cards, some don’t have a car. This is a time and resource and organizational burden.”

Emotional costs are difficult to measure, she said, but are some of the most heightened effects, especially for someone leaving a rural area and traveling to an urban area if they have never traveled before.

“Even for people who have experience in travel, going to an unknown place can be extremely stressful and unsettling,” Kimport said.

Abortion access funds rely on each other to cobble together funds for travel

While Elevated Access is responsible for the pilots and the actual flights, it is partner organizations large and small that refer clients to them and help arrange lodging and other logistics, often providing additional financial support for meals and other expenses.

One of those partners is?New River Abortion Access Fund, which started in 2019 in rural Virginia, where it can take hours to drive to the nearest clinic. Sophie Drew, interim director of the fund, said barriers to access already existed prior to the Dobbs ruling, but at a much smaller scale. The initial budget for the fund was about $600 per week, she said, with maybe five calls for help during that week.

Now, the fund averages $20,000 per week with 60 to 70 calls on average in one week.

Gianna G., an intake coordinator for New River, said that might sound like enough funding, but with an average cost of $300 to $500 for first-trimester abortion care and as much as $20,000 for abortions later in pregnancy, abortion funds around the country rely on each other to cobble together enough dollars from donations each week to help all of their callers.

“Right now, we just don’t have the money we need in order to make this sustainable,” they said. “I think a lot of people support abortion care, but they don’t know the monetary need behind it.”

The vast majority of those who call New River seeking help can travel by car where they need to go, Drew said, but there are still instances when a flight is the best option.

Gianna G. said much of their job is identifying barriers, like someone who doesn’t have a car or driver’s license, or doesn’t have a support person who can come with them for a long car ride.

Both commended Elevated Access, and said the fact that the flights don’t come at additional cost, including for a support person, is incredibly helpful.

“We’ve gotten feedback from some callers about their experience and it’s been exclusively positive,” Drew said. “Even if someone was nervous about flying. Elevated Access has been a great support both logistically and emotionally.”

Pilots use their own funds to gas up their planes, which Adrian said typically burn 10 to 25 gallons per hour. With the typical average cost of fuel, it can range from $60 to $120 per hour in gas alone. Sometimes Elevated Access can help offset those costs, but that funding is limited.

“Any of these pilots actually volunteering their time and resources, they’re losing money,” Adrian said.

Most patients who need flights come from the South and Midwest

Elevated Access has a policy of not asking many questions about the patient or their circumstances to respect their privacy as much as possible, especially because the situations can be complicated and emotionally difficult. Some flights have even been one-way trips, for those fleeing abusive situations or other dire circumstances.

“By the time they get to Elevated Access, they have tried many, many approaches,” said Fiona, who acts as a volunteer media relations coordinator. Elevated Access volunteers and staffers go by their first names only to protect themselves from harassment and potential legal scrutiny. “We are often the end of a long road for them. They are often very desperate at that point. They know that they can’t carry the pregnancy to term for many reasons.”

The organization does not disclose how many flights it has completed through volunteers over the past year to avoid becoming a target of anti-abortion advocates. But it now has three full-time staff members, including the executive director and two flight coordinators, and nearly 2,500 people have donated in the past year, even without active fundraising campaigns.

The requests for flights come from all states with abortion bans, Fiona said, but the largest share come from the South and the Midwest, where 13 of the 14 states with abortion bans at any stage of pregnancy are located.

“There are states where we will get requests where technically there is access, but it’s eight weeks out to get an appointment, or it’s a very specialized need for care,” Fiona said. “That’s more the exception.”

Researchers: Stigma from community adds to stress

The stigma surrounding abortion remains, presenting an added burden, according to Kimport’s research. She interviewed 30 women who traveled for abortion prior to the Dobbs decision about their experiences and said many of them felt forced to disclose their situation to people before they were ready or lied because they had to explain their absences.

Being away from support networks, including children, family, pets, neighbors and friends is another difficulty, she said.

Those who have to travel for an abortion, especially if it is by plane, are often in more advanced stages of pregnancy, Kimport said. Sometimes that is because a lethal fetal anomaly was discovered and sometimes it’s because the person did not know of the pregnancy until it was advanced — or, in today’s environment, an appointment could take weeks to obtain, depending on the demand at available clinics.

Whatever the reason, Kimport said those late-term abortion seekers face added emotional, physical and logistical burdens, since the procedure itself is more intense and requires more time to recover.

“People with third-trimester abortions had to travel because their state said that care was not allowed, and they talked about how that particular fact made things additionally emotionally stressful,” Kimport said. “One woman said she felt cast out from her community, that the law was saying what she was doing was deviant and she felt stigmatized.”

One benefit of Elevated Access and its volunteer pilots, according to the organization’s leadership, is that it offers a private method of flying to a destination. Kimport said those who have traveled for later-term abortions are more visibly pregnant and have to interact with strangers who will compliment and congratulate them and offer unsolicited advice. For someone whose wanted pregnancy went wrong, she said, that can be devastating.

‘We shouldn’t get used to it being complicated’

At the moment, as is in the case in so many states, the reproductive rights landscape in Wisconsin is complicated. The state is currently operating under a criminal abortion ban that went into effect in 1849, banning all abortions except to save the pregnant person’s life. But it’s unknown if a law that dated can still be enforced, particularly since Roe was in effect for 50 years in between. The law passed to comply with Roe allowed abortions at any stage of pregnancy.

The question of enforceability is currently under consideration in one of Wisconsin’s circuit courts, after Democratic Attorney General Josh Kaul filed a lawsuit against the three district attorneys who would prosecute cases in the counties with abortion clinics.

“Whichever party loses, I anticipate they would file a notice of appeal to the court of appeals and then it would go up to the (Wisconsin) Supreme Court,” said Michelle Velasquez, director of legal advocacy and services for Planned Parenthood of Wisconsin. “But the circuit court’s decision is an important first step to potentially restoring abortion access.”

The state’s governor is also a Democrat, but Republicans have a majority in both chambers of the legislature, creating a split, stalemated government. Unlike other states that are using citizen ballot initiatives to try to codify abortion access, Wisconsin only allows the legislature to propose ballot referendums.

Even before Roe fell, access to abortion was restrictive. Only three of the state’s 72 counties had a health center that offered abortion care, and using telehealth for abortion medication was prohibited by law. To obtain mifepristone and misoprostol, the two-drug regimen used to terminate early pregnancies, an individual is required to complete two in-person visits with the same physician present.

But Wisconsin is an island in the upper Midwest in terms of access — its border states, including Minnesota, Michigan, Illinois and Iowa all continue to allow abortions.

By plane, Adrian can fly from Wisconsin’s eastern peninsula to a Minnesota clinic in about 45 minutes, but it would take someone living on the peninsula four hours to make the drive.

“That’s kind of how ridiculous this is,” he said. “I couldn’t imagine what it feels like to be told, ‘No, you can’t get the care you need.’ It’s also going to permanently rearrange your body, and you’re never going to be the same all because some a— h—- assaulted you or some tech bro didn’t want to wear a condom.”

Although the people working to connect pregnant people with abortion care are passionate about the work, New River’s Interim Director Sophie Drew said she hopes having to drive for hours or take a private flight to get an abortion doesn’t become normalized. In her ideal world, none of these resources would need to exist.

“People should be able to access abortion in their communities without all these hoops to jump through,” she said. “That’s the main thing I wish people knew, is that it can be a complicated process, and we shouldn’t get used to it being complicated.”

When Roe was overturned, Adrian posted a video to promote Elevated Access and recruit more pilots. His presence as “cheesepilot” on TikTok is how the leadership at Elevated Access found him and asked for his help in May 2022. The organization had barely started in April, and only had a few volunteers. He made a quick video on a break from his job as a pilot for a regional airline and came back several hours later to nearly 500,000 views and hundreds of people asking how to donate. The seaplane he bought last year was made possible with a $15,000 down payment raised by his TikTok followers.

Abortion providers and support groups are reporting delays in seeing patients and higher demand for help. (Gloria Rebecca Gomez/States Newsroom)

Editors’ note: This report is part of a special States Newsroom series on abortion access one year after the U.S. Supreme Court decision struck down the federal right to abortion.

In April, a Reddit user in Alabama posted a breathless message to the abortion subreddit the morning after learning she was pregnant. She guessed she was early, two or three weeks maybe.

“there’s a clinic in GA about 3 hours away. They said they will do it as long as no heartbeat is found on the ultrasound. If they find a heartbeat what do I do then??”

Alabama, where abortion is a crime, is surrounded by states with abortion bans. But nearby Georgia currently allows a tiny window, which shuts once the embryo’s cardiac activity registers on an ultrasound. This happens generally by six weeks’ gestation, and the user was running out of time. In reality, she had to have been farther along, as pregnancy is counted from the first day of one’s last period. And now she was sick to her stomach and passing gelatinous blood clots.

This very active subreddit is moderated around the clock by the Online Abortion Resource Squad, a group of mostly volunteers that debunk abortion misinformation and help users navigate a labyrinth of abortion bans and restrictions. The end of federal abortion rights changed access nationwide. Even ending a wanted pregnancy is now more difficult based on your income, how far along you are, and your state’s ever-changing abortion laws.

In a plot twist for the user in Alabama, it turned out she had likely miscarried. “UPDATE!!!!! My uterus is empty,” she wrote. “Basically alabama politicians made me drive across state lines and pay $250 because I was too scared to go to my regular doctor .”

But then there’s the Reddit user who described weeping in a Planned Parenthood clinic because her pregnancy measured just a few days beyond its 19.6-week cutoff. Staff helped her make an appointment at another clinic. “I really want this to be over with,” she wrote. “Now to just figure out transportation for next Saturday. Easy enough. *fingers crossed*”

It’s been a year since the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that states could criminalize all or most abortions, and now 15 states?fully or mostly ban the procedure, while others have begun enacting gestational limits and other restrictions. That’s left the?hundreds of thousands?of U.S. women and minors who annually seek abortions forced to travel if they can, overwhelming the abortion clinics in states where it’s legal. This has led to astronomical patient costs and major care delays.

As a result, abortions in the second and third trimester of pregnancy appear to be on the rise, abortion providers, public health researchers, and patient advocates told States Newsroom. Many patients, they say, are experiencing the higher risks of complication, anxiety, and trauma that sometimes come with abortion later in pregnancy. And advocates say this situation is likely to get worse, with an abortion-provider shortage and states continuing to throw up new legislative barriers.

“Right now, in any state, there’s just no scenario where people aren’t getting delayed because of wait times for appointments,” said Ariella Messing, who founded OARS.

Messing told States Newsroom she spends about 80 hours a week managing the abortion subreddit and helping connect people to abortion providers and financial and practical support. OARS has been monitoring the subreddit since 2019, but activity spiked after Texas outlawed most abortions in 2021. Since Dobbs, it’s exploded. Messing said OARS decided to keep r/abortion open during the Reddit blackout protest.

Some of the abortion cases are so complicated and medically necessary that Messing, who previously worked as a case manager for the Baltimore Abortion Fund, personally gets involved, sometimes spending a whole day trying to help someone desperate to terminate a pregnancy under a ticking clock.

The woman for whom it took eight weeks to terminate a pregnancy that had become dangerous? kept Messing up at night, until that person terminated, finally, at 27 weeks.

“This wasn’t how they should be getting care – by a random stranger on Reddit,” Messing said.

Overwhelmed abortion providers and assistance groups

While the true extent to which Dobbs has prevented people from getting abortions remains to be seen,?emerging research?suggests that women and minors are increasingly unable to end a pregnancy, especially people of color and people living in poverty.

The Society of Family Planning has been measuring the number of abortions reported by abortion clinics and hospitals. In the nine months after the Dobbs decision, the rate of medication abortion jumped, but overall, providers reported more than 25,000 fewer abortions nationwide.

The Society’s latest?#WeCount report?did not capture how many people self-managed outside the formal health care system, or how far along patients were. But University of California San Francisco professor Ushma Upadhyay, who co-chairs the #WeCount project, said it would be logical for gestational ages to be rising, given the increased obstacles in accessing care quickly.

Additionally, brand-new research from the university’s Advancing New Standards in Reproductive Health program finds a nationwide increase in providers?offering abortion later in gestation?than they were previously due to rising demand, as well as more clinics?offering telehealth medication abortion. But the demand is still overshadowing the need, especially later in pregnancy.

“The states where there are bans now, there were very few clinics in those states, because there were so many restrictions,” Upadhyay said. “But those clinics that were open did offer abortion care till later, usually midway of the second trimester. … So, right now there’s huge swaths of the country where later abortion is simply unavailable.”

Part of the problem is that so few clinics in the U.S., especially post Dobbs, go beyond 20 weeks’ gestation. The vast majority are independent clinics not part of the Planned Parenthood network, which has?more resources and political clout?than the independents.

There is a tiny cluster of clinics that provide abortions in the third trimester, on a case-by-case basis. One is in Boulder, Colorado, and the others are concentrated in and around Washington D.C., which has become a major national abortion destination.

Abortion providers say they are scheduling visits weeks out.

“Anecdotally, we are seeing in some places, people are being pushed, or people are having to delay their care, and it has resulted in people having procedures one to two weeks later than they then we saw the previous year,” said Melissa Fowler, chief program officer of the National Abortion Federation, which provides resources for abortion clinics and funds some patient costs. “And of course, we’re also seeing a delay with people who need later care as well.”

Dr. Sarah Traxler, the chief medical officer for Planned Parenthood North Central States,?testified?before the Minnesota lawmakers back in March about a 40% rise in second-trimester cases since Dobbs. The region encompasses Iowa, Minnesota, Nebraska, North Dakota, and South Dakota, with the bulk of patients going to Minnesota.

“Since June, I have cared for patients from everywhere,” Traxler testified. “I’ve seen patients who’ve flown from Louisiana, only to find that their complex pregnancy condition kept them from being seen in a freestanding clinic like mine, forcing them to continue a dangerous pregnancy because hospital-based care was not available to them.”

Astronomical costs

A first-trimester abortion can range from $500-$1,000 to tens of thousands in the second trimester, and up to $25,000 in the third, said Jade Hurley, communications manager for the DC Abortion Fund, one of more than 100 mutual aid organizations to crop up during the?past two decades?to help cover these steep costs, which are compounded by travel, transportation, and child care costs.

Financial and logistical barriers to abortion are not new, but Dobbs has exacerbated them. Shortly after the Supreme Court originally enshrined federal abortion rights in 1973, anti-abortion lawmakers began passing public-insurance bans on abortion, as a way to at least prevent part of the population from accessing this medical procedure.

“I would certainly like to prevent, if I could legally, anybody having an abortion – a rich woman, a middle class woman, or a poor woman,” said the late U.S. Rep. Henry Hyde (R-Ill.)?during a floor debate in 1976?to defend a ban on the use of Medicaid insurance for abortion. “Unfortunately, the only vehicle available is the [Medicaid appropriations] bill.”

Just over a dozen states allow Medicaid to cover abortion using state-only funding. And as costs rise, abortion and practical-support funds around the country report receiving more higher dollar requests. These days funds typically have to work together, pooling grants from multiple funds just to serve one patient. Representatives from multiple abortion funds told States Newsroom they are also receiving more donations than at any other time, but they say the need is still overwhelming demand.

Hurley told States Newsroom in an email that since Dobbs, the fund has pledged nearly $2.3 million to more than 3,000 callers seeking abortions in the D.C. area. Their average pledge has jumped from $260 to $710, a 173% increase. Last month the highest gap they filled was $4,500, Hurley said.

“We’re seeing a huge amount of people coming from all over the country,” Hurley said during a?recent webinar?hosted by the abortion-rights activist group Reproaction. “We had a person come from California very recently, which is honestly, you know, it’s shocking, because that’s so far away. … We’re dealing with funding gaps that we didn’t even know existed. And I think overall we don’t even know the true need that’s out there, from D.C. to across the country.”

Medication abortions are getting later, too

Two months ago, a 40-year-old woman in Arizona delivered a lifeless 13-week-old fetus into a plastic food storage container. The woman, who asked not to be named out of fear of criminal prosecution, told States Newsroom that the fetus had obvious deformities. She was a much wanted rainbow baby, the term given to a baby born after a pregnancy loss.

Until recently this mother of seven was “1,000% against abortion.” One stillbirth separates two sets of three kids. Her eighth pregnancy, last year, resulted in a twinless twin. But this pregnancy was even grimmer: What started out as triplets became one surviving embryo. At 13 weeks, the remaining living fetus was diagnosed with trisomy 18, a fatal genetic condition.

She voraciously read the literature on trisomy 18 and learned that the vast majority of babies born with this disease die before their first birthday, within months, days, or hours. For her the decision to terminate was simple. “Imagine bringing this baby home and all my kids love her and get attached, and then she died at 3 months or something?” she said.

But getting timely, legal care was a different story.

Her state currently allows abortion up to 15 weeks’ gestation, while an 1864 total abortion ban works its way through the courts. However, Arizona criminalizes something only?a handful states?do: Terminating a pregnancy?because of fetal genetic abnormalities. Her doctor said she couldn’t terminate the pregnancy but suggested she go to an abortion clinic and not disclose she’d had genetic testing done. But the nearest clinics were booked out until May and June. A clinic in Nevada could see her, but she didn’t have the money or ability to travel.

Because she’s had so many kids and two stillbirths, the Arizona woman decided to go outside the medical system. She had her stepdad get her misoprostol over the border in Mexico. This medication is typically used to treat ulcers but is also an abortifacient, and it’s available over the counter for around $30 in Mexico. The typical two-drug regimen approved by the U.S. Food and Drug Administration two decades ago comprises the hormone-blocker mifepristone followed by misoprostol, which causes the uterus to contract and expel the embryonic or fetal remains.

Medication abortion – whether obtained at a clinic or via legal telemedicine, or by?ordering pills from abroad?– has helped fill an access gap since Dobbs. Most often women are terminating with the same two-drug regimen approved by the FDA. However, that protocol is approved only for?up to 10 weeks’ gestation, while the World Health Organization?okays the protocol for 12 weeks.

But many women are taking the medication as soon as they get them, even if that means well into the second trimester, because of travel and shipping delays, which fundamentally changes the experience. Rather than experiencing what may describe as moderate to heavy bleeding and moderate to excruciating cramps, second-trimester medication abortions involve delivering a more developed fetus, with its umbilical cord and placenta.

It took the Arizona woman about seven hours to deliver the fetus and placenta using the misoprostol-only regime, followed by weeks of bleeding. This method is considered safe and effective, but is associated with higher rates of incomplete abortion, and pain. Days later, the woman’s doctor found retained placenta inside her. She says she couldn’t imagine having done this without her birthing experience or guidance from her regular medical providers.

“Being like my basically ninth delivery, I knew what to do,” she said, “I would never just give the pills to somebody that has never had a baby. … I understood delivering the baby and then delivering the placenta, and my water breaking. But if you’re like a first-time mom, and you had to go through the pills at the gestation I did, they would freak out.”

And that’s exactly what’s happening, says family physician Linda Prine, who co-founded the Miscarriage and Abortion Hotline to help guide pregnant people seeking information on where to get abortion drugs and how to self-manage their abortions safely. She said at least once a day now the hotline is hearing from women who took the medication in the second trimester and were unprepared to deliver an intact fetus.

“Prior to the fall of Roe, we probably only had two calls per year of anyone using pills past 13 weeks. Now we have several every week and sometimes daily,” Prine told States Newsroom a few months ago, for a?previous story. “The issues we see are the psychological trauma if they are not prepared for the experience, and the potential legal risks.”

Abortion access advocates note that all of this will be compounded if the U.S. Supreme Court ultimately orders a recall or severely restricts the abortion drug mifepristone in a?high stakes lawsuit?currently making its way to the high court.

‘End of the line’

For the many years that Roe v. Wade protected abortion rights, the vast majority of abortions happened in the earliest stages of embryonic and fetal development. In 2020, the?Centers for Disease Control and Prevention reported?that 93% of abortions took place before 13 weeks, less than 6% performed between 14 and 20 weeks, and less than 1% after 21 weeks’ gestation.

That 1% represents the most expensive, complex, and controversial abortion cases. They are multi-day procedures that involve on-call care and are performed by a vanishingly small number of providers. A physician well known for this work, Dr. George Tiller, was villainized by Fox News years before an anti-abortion activist assassinated him in 2009.

At 84, Dr. Warren Hern, a former colleague of Tiller’s, is the oldest doctor doing this work, in Colorado. Another Tiller colleague, Dr. LeRoy Carhart, who provided later abortions in Maryland,?died this past April?at 81.

Shortly after Dobbs, Hern said his Boulder Abortion Clinic was seeing an uptick of 50% more patients but has been unable to sustain the demand. Hern told States Newsroom that his small clinic sees a weekly average of six to 12 cases from around the country, which is still more than before Dobbs. Whereas before his clinic would coordinate aftercare with patients’ regular doctors, now Hern said he rarely communicates with OB-GYNs in banned states and sends patients with generic letters hoping they will receive necessary aftercare.

“This is a national catastrophe,” Hern said. “The details are in our face every single day, every week. It has unfolding complications and consequences across the country for women, many of whom are not wanting an abortion, but they can’t get medical care for the pregnancy because the doctors are afraid.”

Slowly a younger crop of third-trimester abortion providers is emerging. Morgan Nuzzo, an advanced practice clinician nurse-midwife, started an all-trimester abortion clinic Partners in Abortion Care in College Park, Maryland, seven months ago with her partner Dr. Diane Horvath, an OB-GYN who specializes in complex family planning and has provided abortion for almost two decades.

Nuzzo says colleagues refer to clinics like hers as the “end of the line,” one of the last?places?in the country they can go for a safe and legal abortion. They see people on the spectrum of disability, from the very rich to the very poor. The oldest patient Nuzzo has seen is 53; the youngest is 10. Children over-represent Partners in Abortion Care’s patient population, Nuzzo said. As research shows, many people seek abortions into the later stages of pregnancy because they found out new information about the pregnancy (such as a fatal fetal anomaly or a new health risk) or their life circumstances, or because they didn’t know they were pregnant.

What her patients and their parents do share in common these days is confusion and anger, Nuzzo said.

“Even people who are dismayed by grief, by this horrible fetal diagnosis they might have received later in pregnancy, are still angry and frustrated at the chaos that they have to navigate in their times of greatest need,” Nuzzo told States Newsroom. “It is confusing, it is constantly changing, and it is chaotic. And sometimes you start to believe that that’s on purpose.”

Partners in Abortion Care treats an average of 10 to 12 patients weekly, Nuzzo said, prioritizing abortions after 20 weeks, with growing wait lists. They have to turn away at least one patient a week, she said, often because the patient is too far along, or has complicating health factors. Then it’s time to talk to patients about other options: carrying to term, or adoption. Partners requires patients to secure an ultrasound in advance to confirm how far along they are, but she said patients in states with bans are often too scared or unable to obtain an ultrasound outside of religious anti-abortion pregnancy centers, which are typically unregulated and offer non-diagnostic ultrasounds.

“The number of fetal genital pictures that people are given with no accurate dating associated with it has been astronomical since we opened,” Nuzzo said. “So, ‘I’m a girl,’ ‘I’m a boy,’ and a picture of a penis or a vagina. And a lot of times, that’s the only picture they’ll give to a patient. And I’m like, What am I supposed to do with this? This gives me no information.”

Consequential compromises on later abortion

In 2015, North Carolina Rep. Tricia Cotham made national headlines when she told her colleagues on the House floor about the painful and heartbreaking “induced miscarriage” she once had for a wanted but doomed and dangerous pregnancy. “This decision was up to me, my husband, my doctor, and my God,”?she testified. “It was not up to any of you in this chamber.”

Then a Democrat, Cotham was testifying against a 72-hour abortion waiting period, which opponents argued would exacerbate abortion delays and which ultimately became law. Cotham?told Time magazineshe’d wanted to quell later-abortion stigma.

But in April, Cotham, who campaigned on abortion rights,?switched parties. Soon after, she helped state Republicans?override the governor’s veto of a new 12-week abortion ban, which has limited exceptions for fetal anomalies. She also switched her own abortion narrative, now calling it a spontaneous miscarriage, contradicting her?own words.

More GOP-led states (and presidential candidates) are leaning away from radioactive total abortion bans, and into these so-called gestational compromises. Like North Carolina, Nebraska recently prohibited abortions after 12 weeks. Florida’s new 6-week ban is on hold while courts litigate the state’s 15-week abortion ban.

A few Democratic-led states, meanwhile, are working on efforts to lift or relax their third-trimester gestational limits,?like in Maine?and?Minnesota. But many others?still ban abortion by or before 24 weeks’ gestation, with some exceptions. And many of the state abortion-rights amendment initiatives underway also maintain this Roe-era standard.

Like Cotham, Erika Christensen is a white woman with enough privilege to have accessed a later abortion because of fetal anomalies. Because even in 2016, the abortion-access landscape and policies already made it incredibly difficult to access and,?for her, emotionally harrowing. But Christensen’s pregnancy experience took her in a different professional direction than Cotham.

“We were radicalized by the plane,” said Christensen, who was turned away in New York City and flew to Colorado for a multi-day procedure that cost thousands of dollars out of pocket. She and her husband soon after started Patient Forward, a later abortion advocacy group that successfully lobbied New York to relax its abortion law. Christensen said Roe-era gestational limits are too restrictive for this current landscape, and she criticizes Democratic-led initiatives that attempt to compromise on later abortion.

“There used to be a path where you could care for your patients up to a point, and then you sent them out of state,” Christensen said. “And you wouldn’t really have to put yourself out on the limb because there was somebody else who would take care of your patient. That path is gone. It’s dead, and it’s never coming back, not while we have what we have. So when we compromise on this population, we are really condemning them to forced pregnancy and birth.”

Planned Parenthood's Louisville health clinic. (Kentucky Lantern photo by Deborah Yetter)

In a surprise move, Kentucky’s two licensed abortion providers have asked a judge to dismiss their case seeking to overturn the state’s near-total ban on abortion.

The joint motion on behalf of Planned Parenthood and EMW Women’s Surgical Center comes on the eve of the first anniversary of the June 24, 2022, U.S. Supreme Court decision to strike down Roe v. Wade, the landmark 1973 decision establishing abortion as a federal constitutional right.

Their motion, if granted by Jefferson Circuit Judge Mitch Perry, would for now bring an end to the clinics’ efforts to restore abortion rights in Kentucky. It was filed by Planned Parenthood and the American Civil Liberties Union, which represents EMW.

Still, “the fight is far from over,” a Planned Parenthood official said Tuesday.

The clinics are seeking to reserve the right to pursue the case, when appropriate.

“It’s unfortunate that it falls upon the anniversary of Roe v. Wade,” said Tamarra Wieder, public affairs and policy director for the Planned Parenthood region that includes Kentucky. “That hurts a little bit more.”

Attorney General Daniel Cameron, an anti-abortion Republican who has been defending the two state laws under challenge, said in a statement that his office was “gratified” by the abortion providers’ motion to dismiss and added that “the elective abortion industry is out of business” in the state.

“A society is judged by how it treats its most vulnerable — especially the unborn,” he said. “Today is a reminder that every life deserves to live. My office will always defend and enforce Kentucky’s pro-life laws passed by our General Assembly.”

The parties in the case had been scheduled to return to court June 28 to update Perry on their progress.

The U.S. Supreme Court decision last year ended access to almost all abortion services in Kentucky, where a “trigger law” took effect banning the procedure in the event of such a ruling. A second state law banning abortion after about six weeks also took effect.

EMW and Planned Parenthood filed a lawsuit last June in state court arguing that the state constitution provides reproductive rights to women including to terminate a pregnancy.

But a state Supreme Court ruling earlier this year sharply limited the providers’ right to pursue the case, finding they lack “standing” to purse some of their claims, a finding that meant they had to find a patient affected by the law and willing to sue.

In a news release Tuesday, EMW and Planned Parenthood said they asked the court to dismiss their challenge to the two laws restricting abortion because of that ruling.

“We moved to dismiss this case because earlier this year, the Kentucky Supreme Court issued an extraordinary ruling that took away health care providers ability to defend the rights of their patients, upending decades of precedent,” the two health providers said in a statement.

The state Supreme Court decision that the plaintiffs lacked standing left them searching for a patient who had been adversely affected and who was willing to join the lawsuit challenging Kentucky’s abortion laws.

In previous litigation, courts generally have allowed abortion providers to bring cases on behalf of patients.

In a joint statement, Planned Parenthood and EMW said they have not given up and will continue seeking such a patient willing to come forward, allowing them to file a new challenge to the laws.

“We remain open to hearing from patients who are in Kentucky and need access to abortion,” the statement said.

It added that “our phone lines are open” and urged potential plaintiffs to call or text 617-297-7012.

Kentucky’s two abortion laws permit no exceptions for pregnancies from rape or incest or severe fetal anomalies in which a fetus is unlikely to survive. They allow abortion only to save the life of the pregnant patient or prevent disabling injury.

Last year, Perry agreed Kentucky’s constitution appears to protect a woman’s right to abortion and agreed to temporarily block enforcement of the two laws while the lawsuit was pending.

However, an appeals court judge reversed the decision and the case moved to the state Supreme Court, which in February declined to block enforcement of the two laws. The high court sent the case back to Perry for further action.

ACLU lawyer Heather Gatnarek told Perry at a hearing in April the plaintiffs were having difficulty finding a patient willing to join the case.

The Kentucky Supreme Court ruling on standing left the providers in the difficult spot of finding a patient seeking to end a pregnancy and willing to join a major lawsuit even while seeking abortion care in another state, Wieder said.

“They are in a medical crisis and trying to get care,” Wieder said. “It is outrageous.”

While dismissal of the case would end, for now, Planned Parenthood and EMW’s challenge to the law, another remains pending in Jefferson Circuit Court.

Three Jewish women from Louisville have filed a lawsuit challenging Kentucky’s abortion ban, which states life begins at conception, arguing it violates their religious freedom under state law.

In the lawsuit, they argue that the abortion laws — one of which defines life as beginning at conception — clash with Jewish teaching that life begins at birth. They also argue it limits their right to other care, such as in-vitro fertilization.

Prior to the abortion ban, volunteer escorts in orange vests waited outside EMW Women's Surgical Center to help patients get past anti-abortion protesters who regularly gathered at the clinic. (Photo by Deborah Yetter)

After more than four decades of providing abortion and contraceptive services, EMW Women’s Surgical Center is selling its downtown Louisville building.

The move by EMW comes nearly a year after the U.S. Supreme Court struck down abortion as a federal constitutional right and it became virtually illegal in Kentucky under existing state laws.

At the time of the court ruling, EMW was one of only two abortion providers in Kentucky. The other was Planned Parenthood, which suspended abortion care but has remained open for other health services at its downtown Louisville clinic.

EMW co-owner Ona Marshall said in an email the owners are not commenting on the sale of the building. She owns the clinic with her husband, Dr. Ernest Marshall, one of the physicians who founded it in 1981.?

“However, EMW and the Kentucky Reproductive Freedom Fund remain committed and engaged in restoring access to abortion and contraceptives in Kentucky and nationally,” her email said.

The Marshalls founded the Reproductive Freedom Fund, a volunteer organization that supports reproductive rights.

EMW remains a plaintiff along with Planned Parenthood in a lawsuit in Jefferson Circuit Court challenging two state laws that together ban almost all abortions in Kentucky except to save the life of a patient or prevent disabling injury.

A milestone

While no abortion services have been available in Kentucky for the past 11 months, the sale of the EMW building marks a milestone for opponents of abortion rights who fought to enact the laws.

“For years Kentucky Right to Life and our members, faithful pro-life advocates and prayer warriors have stormed Heaven for those who had no voice,” Addia Wuchner, Right to Life executive director, said in a post on the organization’s website. “We waited, trusted, and advocated that one day we would see EMW shut down. Well, that day has come!”

“Yes, we know that Planned Parenthood still stands, but optimism is in the air,” she added. “Let’s continue to pray and stand against abortion.”

The sale of EMW is a sad occasion for abortion rights supporters, including Ashley Jacobs, who served for eight years as a clinic escort.

As an escort, she joined dozens of volunteers who would stand outside EMW in orange vests to help people get safely into the facility past anti-abortion protesters — who often shouted at and swarmed around patients, trying to discourage them from entering.

Jacobs said she valued her work assisting patients.

“It was definitely rewarding,” she said. “If someone got into the clinic and wanted to be there, you felt like you helped someone get access to care they wanted.”

Her volunteer work “made me a better person,” Jacobs said. “I met some of the best and worst people in the world.”

EMW’s 14,124-square-foot building on West Market Street is listed for sale for $3.5 million by a commercial real estate agency. The listing describes it as a “free standing medical building” in a prime downtown Louisville location, suitable for a health clinic or outpatient surgical center.

The site is close to the Kentucky International Convention Center, several hotels and a nearby medical complex anchored by University of Louisville Health.

Court fight continues

Meanwhile, a court fight continues in Jefferson Circuit Court in which EMW and Planned Parenthood are challenging the current laws that block abortion in Kentucky.?

Assisted by lawyers for the American Civil Liberties Union, they argue that the Kentucky Constitution provides a right to abortion and have asked a judge to strike down two laws.

One, the “trigger law,” banned abortion should the U.S. Supreme Court overturn Roe v. Wade, the landmark 1973 decision establishing it as a federal constitutional right. It took effect immediately after the high court’s June 24, 2022 decision.

Another law prohibits abortion once cardiac activity is detected in an embryo, generally at about six weeks of pregnancy and often before a woman realizes she is pregnant.

Neither law permits any exceptions for rape, incest or fetal anomalies nor makes any allowance for the age of the individual who is pregnant.

In Kentucky, in the two years before abortion was banned, the two youngest patients were age 9 which would classify them as rape victims under state law.

Kentucky Attorney General Daniel Cameron is defending the two laws and is asking the court to uphold them.

Judge Mitch Perry has scheduled a hearing June 28 to determine how the case will proceed.

Meanwhile, a separate lawsuit challenging the laws is pending in Jefferson Circuit Court. Filed by three Jewish women. It argues the laws violate their rights under Kentucky’s Religious Freedom Restoration Act.

They argue that Kentucky’s abortion laws are based on Christian orthodoxy and conflict with Jewish teachings that generally uphold abortion rights and prioritize the pregnant patient’s life over that of the fetus.

Cameron also is defending the laws in that lawsuit which has been submitted to Judge Brian Edwards for a decision.

The U.S. Food and Drug Administration approved mifepristone in 2000 as part of a two-drug regimen that’s currently used up to 10 weeks in a pregnancy. (Photo illustration by Anna Moneymaker/Getty Images)

America’s major medical institutions and drug policy scholars have roundly denounced as “pseudoscience” many of the claims brought by anti-abortion groups in a high-profile federal lawsuit asking the Food and Drug Administration to revoke its 23-year-old approval of mifepristone, one half of a two-drug regimen that has become the most common form of pregnancy termination post-Roe v. Wade.

But the three-judge panel of the 5th U.S. Circuit Court of Appeals that heard oral arguments Wednesday appeared to be persuaded not by the medical consensus in this case, but by some of the evidence brought forward by plaintiffs that consists largely of anecdotes, speculation, and cherry-picked studies brought by a handful of anti-abortion medical groups and doctors.??

Medical and public health societies led by the American Medical Association submitted a “friend of the court” brief before the 5th U.S. Circuit Court of Appeals, stating that the lower court’s ruling “relies on pseudoscience and on speculation, and adopts wholesale and without appropriate judicial inquiry the assertions of a small group of declarants who are ideologically opposed to abortion care and at odds with the overwhelming majority of the medical community and the FDA.”

While asking a question of U.S. Deputy Assistant Attorney General Sarah Harrington, Judge Jennifer Walker Elrod referred to mifepristone cutting off “nutrition” to the fetus, which is a false claim cited in the initial ruling written by Texas federal Judge Matthew Kacsmaryk in April. Kacsmaryk referred to mifepristone as a “synthetic steroid that blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death.”

According to Johns Hopkins Medicine, the progesterone hormone is produced in early pregnancy to help thicken the lining of the uterus to support implantation of a fertilized egg. Without that hormone stimulation, which mifepristone blocks, the lining breaks down and the pregnancy cannot continue. It is then followed by doses of misoprostol to induce contractions and expel the pregnancy.??

Former President George W. Bush appointee Elrod – like her fellow Donald Trump appointee Judges James C. Ho and Cory T. Wilson – shares ideological views on abortion with the plaintiffs’ anti-abortion coalition, which is represented by the Alliance Defending Freedom. So does Kacsmaryk, whose since-blocked decision to suspend FDA approval of mifepristone cites anecdotal evidence from plaintiffs.?

Mifepristone remains legal and on the market as the case winds its way through the legal system, and data from the FDA since the drug’s initial approval in 2000 shows it is overwhelmingly safe to use. Out of an estimated 5.6 million people in 23 years, 28 deaths have been associated with the FDA’s abortion medication regimen, which is a markedly lower rate than many common FDA-approved drugs, like Tylenol and Viagra. And as the FDA has noted, that number includes fatal cases “regardless of causal attribution to mifepristone,” such as people who died from homicide, suicide, and pulmonary emphysema.?

If the plaintiffs prevail, health care providers, medical institutions and pharmaceutical industry organizations have warned of its potentially catastrophic consequences. In addition to radically reducing access to abortion nationwide, removing mifepristone from the market would reduce access for miscarriage treatment, public health experts say, and have far-reaching consequences beyond abortion.

“The implications of this case are extraordinary, and they include the potential termination of access to mifepristone, a precedent for court interference in the FDA’s rigorous and science-based testing and approval process not just for mifepristone, but for any drug,” said Joanne Rosen, a senior lecturer in the departments of Health Policy and Management and Population, Family and Reproductive Health at the Johns Hopkins Bloomberg School of Public Health, during a media briefing hosted by the university Thursday. “This would be the first time in history that a court has abrogated the FDA’s approval of a drug over the objections of the FDA.”

Sympathetic, cynical and combative exchanges

The appeals court judges seemed sympathetic to the narrative brought by the plaintiffs that mifepristone is a dangerous drug, as they were in their previous opinion blocked by the Supreme Court, which would have restricted the use of mifepristone. A big question in this case has been whether the coalition of anti-abortion medical groups and four doctors, including Indiana state Sen. Dr. Tyler Johnson, have standing to sue. Plaintiffs have argued their doctors would suffer direct harm if mifepristone remains on the market.

Like medical and legal scholars following this case, Rosen said plaintiffs’ arguments for standing are weak, and if accepted would open the door to any group that wants to challenge the FDA’s approval of a drug for any reason.??

Plaintiff groups argue that their member doctors could be overwhelmed with a potential future influx of emergency room visits from mifepristone patients, or forced to treat an abortion patient against their will. These claims are based not on robust data but largely on the testimony of handful of plaintiff doctors, three of whom give mostly non-specific anecdotes about treatment they performed for women who allegedly had taken some form of medication abortion, but it’s not clear when the procedures took place and whether it was the FDA’s regimen.?

Harrington argued on behalf of the federal government that plaintiffs had not made claims of being forced to treat abortion patients against their will.?

“They claim injury from speculative downstream effects of choices made by a chain of other people who are not parties to this lawsuit,” Harrington said.

But Wilson pushed back.

“The declarants here said they’ve seen these patients, they’ve cared for them,” he said. “I take that to mean that they treated them and that they expect to see more in the future. How’s that not enough for standing if the doctor also has a conscience objection to doing so?”

The judges made a series of sometimes snarky and combative comments and questions aimed at the attorneys for the U.S. Department of Justice, representing the FDA, and the mifepristone manufacturer Danco Laboratories, and called into question trust in the FDA’s expertise and judgment.?

Echoing plaintiffs’ criticism of the FDA approving mifepristone as part of a particular category of drugs for serious illnesses, Ho said pregnancy is not a serious illness, quipping, “When we celebrated Mother’s Day, were we celebrating illness?”

A question of evidence

And they misstated non-scientific assertions by plaintiffs, such as claiming that non-fatal adverse reporting is no longer required by the FDA. Mifepristone manufacturers (but no longer medical providers) are still required to report non-fatal adverse reactions.

Much of the anti-abortion evidence submitted in this case was authored by researchers who work for the anti-abortion Charlotte Lozier Institute, whose role is to defend abortion bans and restrictions with research. Regarding mifepristone, Charlotte Lozier’s researchers have published articles that mostly speculate large amounts of under-reporting when it comes to abortion complications, and argue the true risk of mifepristone is unknown.?

Another anti-abortion organization, the Family Research Council, also submitted a 125-page amicus brief with false claims that the drug approval was expedited by former President Bill Clinton. It also cites research from the Charlotte Lozier Institute to back claims that the drug is unsafe.?

Judges echoed this sentiment and speculated on the safety of telemedicine abortion and questioned the FDA’s process of loosening restrictions over time. Elrod asked Harrington if a medical provider could examine someone via email rather than video, and if people could use telemedicine as an “intermediary” to send the medication to a state with an abortion ban. Elrod referenced amicus briefs that alleged individuals were engaging in those tactics to skirt state laws.?

Harrington said the statements referenced by Elrod in the briefs are unsupported and irrelevant to the central issue.

“None of that is dictated by the FDA, and none of that is relevant to whether the FDA’s determination that this drug is safe and effective with these conditions in place,” Harrington said.

Elrod pushed back, asking if it was a relevant factor to consider in issuing an injunction that would limit access to the drug.?

“If it’s violating other law, which we have to determine, perhaps, then we have to decide whether or not it’s appropriate to enter an injunction or not and that’s one of the factors we would consider,” Elrod said.

Public health experts say the appeals court’s attitudes toward the science in this case are deeply concerning.?

“Judges and lawmakers should not be substituting their own opinion for the experience, expertise, and authority of the U.S. Food and Drug Administration. Nor should they ignore the substantial weight of scientific evidence from hundreds of studies and millions of patients confirming the safety and effectiveness of mifepristone, which has been used for decades in both medication abortion and miscarriage management,” said AMA President Dr. Jack Resneck Jr. in a recent statement.?

Even if the appeals court rules to restrict or revoke approval of mifepristone, the federal government will most likely appeal the case to the U.S. Supreme Court. Regardless, the 5th Circuit Court judges’ reasoning could prove influential to the Supreme Court’s eventual decision.?

Dr. Christina Francis, an OB-GYN from Fort Wayne, Indiana, and chair of the board of the American Association of Pro-Life Obstetricians and Gynecologists, speaks in front of the 5th Circuit courthouse in New Orleans on May 17, 2023, following arguments on a case challenging FDA approval of the abortion pill. Greg LaRose/Louisiana Illuminator.

NEW ORLEANS — A federal appeals court panel quizzed lawyers during oral arguments Wednesday over a Texas judge’s decision that could end access to the abortion pill nationwide.

Observers see the 5th Circuit Court of Appeals as a legal way station for the case, in which anti-abortion groups sued the U.S. Food and Drug Administration, arguing its approval of mifepristone in 2000 was improper and subsequent changes to its use didn’t rely on solid science.?

The three-judge panel’s ruling, which could come anytime after oral arguments, will likely be put on hold as the case moves up to the U.S. Supreme Court.?

In the meantime, access to mifepristone, one of two drugs used in medication abortions, remains legal under a temporary order from the U.S. Supreme Court.?

U.S. Deputy Assistant Attorney General Sarah Harrington called U.S. District Court for the Northern District of Texas Judge Matthew Kacsmaryk’s ruling to overturn mifepristone’s approval an “unjustified attack on FDA scientific expertise.”?

Physicians who brought the lawsuit failed to demonstrate “imminent risk” of being forced to perform a medical procedure that goes against their conscience as a result of complications from mifepristone, Harrington said.?

Physicians aren’t required to perform procedures to which they hold a religious or moral objection, under the federal Emergency Medical Treatment and Labor Act, Harrington said.?

Jessica Ellsworth, the lawyer representing Danco Laboratories, which manufactures the name brand version of mifepristone known as Mifeprex, questioned the claims of the anti-abortion physicians who brought the suit and were referenced in court records.

“The declarants offer nonspecific statements that are untethered to actual facts about what drug a patient took,” Ellsworth said. “They often say, ‘The patients can’t tell me what they took,’ so we don’t know even that it was FDA-approved mifepristone.”

One example Ellsworth cited involved a patient who took an unidentified abortion drug from India, which wasn’t FDA-approved, and another instance where a pregnant woman took mifepristone while on blood thinners, after being told she wasn’t eligible for medication abortion. Neither case supports the anti-abortion groups’ contention that mifepristone is an untested, riskier medication, she said.?

Alliance Defending Freedom Senior Counsel Erin Morrow Hawley argued the appeal for the anti-abortion legal organization that filed the lawsuit on behalf of four medical organizations and four doctors.

Hawley rejected the notion that mifepristone should be left on the market to aid in miscarriage care, saying that not all doctors prescribe it to treat pregnancy loss and that an “off-label” use shouldn’t be used to uphold the approval.

“I don’t think that that would be an appropriate basis or an appropriate consideration to uphold FDA approval here,” Hawley said.?

Questions for Danco lawyer

The three-judge appeals panel included Jennifer Walker Elrod, who was appointed by former President George W. Bush, as well as James C. Ho and Cory T. Wilson, who were both appointed by former President Donald Trump.

The panel had pointed questions for the appellants’ counsel on whether the FDA’s role in health policy extended past review and approval of medication. Elrod specifically took exception with language in Danco’s briefs, calling it a personal attack on Kacsmaryk, the Texas judge.???

“This is much more the kind of remarks towards district court that we normally don’t see from learned counsel,” Elrod told Ellsworth, “and I’m wondering if you would have had more time and not been under a rush and probably exhausted from this whole process, would those have been statements that would have been included in your brief?”?

“I don’t think that those remarks, any of them, were intended as any sort of personal attack,” Ellsworth responded. “They were an attack on the analysis and reasoning.”

The judges asked the appellants what repercussions FDA approval — and its possible reversal — might have on telemedicine. In 2021, the agency removed the requirement for an in-person doctor’s visit to prescribe mifepristone and misoprostol, the second prescription used in medication abortion.

Elrod questioned how physicians could accurately confirm how far along a pregnancy is without an in-person exam. Harrington said doctors can ask specific questions that inform their decisions on prescribing the abortion drug.

Answering a similar question, Ellsworth told the judges the FDA doesn’t regulate the practice of medicine, to which Elrod responded the agency does have a stake in the negative outcomes of the medication it approves.?

Questions from the judges for Hawley largely involved the FDA’s approval and updates for mifepristone use.??

“The FDA acknowledges that emergency room doctors are going to be part of the solution in cleaning up the messes left for women suffering consequences of chemical abortion,” Hawley said, referencing the agency’s original approval of mifepristone.?

She also cited figures from an FDA medication guide published in January that say between 2.9% and 4.6% of women who take mifepristone “will present to the emergency room,” although Hawley acknowledged after a probe from Elrod that not all instances involve an actual emergency.?

Lawsuit challenged FDA approval

Alliance Defending Freedom filed the lawsuit in November, arguing the FDA erred in how it approved mifepristone in 2000 while also contending that it’s not safe and effective.??

The lawsuit called on the federal district court to overturn the 2000 approval, but said that if the judge didn’t do that, he should revert prescribing and use pre-2016 instructions.?

Changes that year increased when mifepristone could be used from seven to 10 weeks gestation, reduced the number of in-person visits from three to one and changed the dosage and timing of the two-drug regimen.?

The FDA broadened who could prescribe the medications from only doctors to health care providers with the ability to prescribe pharmaceuticals.?

In 2021, the FDA removed the in-person dispensing requirement allowing qualified health care providers to prescribe mifepristone and the second drug, misoprostol, via telehealth and send the medication through the mail.?

Kacsmaryk agreed with the claims the anti-abortion organizations made, releasing an opinion in early April revoking the FDA’s 2000 approval of mifepristone.?

Mifepristone remains available under a ruling the U.S. Supreme Court issued April 21 that blocked enforcement of that ruling.

That likely means whatever action the 5th Circuit Court of Appeals takes following Wednesday’s oral arguments would be paused until the nine justices on the Supreme Court decide whether to hear the case.???

If the Supreme Court does take the case and issues a ruling on the approval and use of mifepristone it would apply to every state in the country, including those that have protected abortion access up to 10 weeks, the cap on the medication’s use.?

Drugmakers file brief

Pharmaceutical companies have raised concerns about the ability of a judge to alter the use and administration of an FDA-approved medication, or overturn that decision altogether.?

The Pharmaceutical Research and Manufacturers of America, or PhRMA, and others filed a 40-page brief with the appeals court arguing against overturning or altering the FDA’s judgment.?

They argued the federal district judge “erred by replacing FDA’s scientific judgments with its own views on what information should be considered and how it should be assessed.”?

They also wrote the ruling “risks stifling pharmaceutical innovation by disrupting industry’s reasonable investment-backed expectations.”

And major medical organizations, including the American College of Obstetricians and Gynecologists, the Society for Maternal-Fetal Medicine and the American Society for Reproductive Medicine, have urged the court to keep mifepristone legal.?

They contend the district court’s ruling “disregards decades of unambiguous analysis supporting the use of mifepristone in miscarriage and abortion care.”

“It relies on pseudoscience and on speculation, and adopts wholesale and without appropriate judicial inquiry the assertions of a small group of declarants who are ideologically opposed to abortion care and at odds with the overwhelming majority of the medical community and the FDA,” a group of 13 medical organization wrote in a brief to the appeals court.?

U.S. House gets involved

Not everyone, however, agrees with leaving the medical and scientific approval process to the FDA.?

U.S. House Republicans sought to change access to medication abortion Wednesday, introducing a funding bill?that would nullify changes the FDA made in January.?

Those changes allowed brick-and-mortar and mail-order pharmacies to apply to dispense mifepristone to patients after they received a prescription. The FDA also solidified changes made during the pandemic that ended the in-person dispensing requirement.?

A summary of the agriculture appropriations bill from House Republicans says the measure includes a “provision that ends mail-order chemical abortion drugs.”?

The legislation, one of the dozen annual appropriations bills, funds the Agriculture Department and the FDA as well as the Commodity Futures Trading Commission and the Farm Credit Administration.

Maryland Republican Rep. Andy Harris chairs the subcommittee tasked with drafting the legislation.

Medical abortions make up more than half of abortions in the U.S. (Photo illustration by Anna Moneymaker/Getty Images)

Receiving the Jewish Voice for Choice award in March from the Louisville Section of the National Council of Jewish Women, from left, Jessica Kalb, Lisa Sobel and Sarah Baron. At the lectern is Linda Engel, a council member who presented the awards. (Photo courtesy of National Council fo Jewish Women, Louisville Section)

LOUISVILLE — Enacted in 2013, Kentucky’s “Religious Freedom Restoration Act,” has been used to champion conservative causes ranging from tax incentives for a Noah’s Ark theme park in Grant County to the right of churches to stay open during the pandemic shutdown.

Now, three Jewish women from Louisville argue that same law protects their reproductive rights as they seek to overturn two state laws that together essentially ban abortion in Kentucky.

In the lawsuit, they argue that the abortion laws — one of which defines life as beginning at conception — clash with Jewish teaching that life begins at birth.

“Jews do not consider life to begin at conception; this religious belief is forced on them by the government,” their lawyers said in a recent court filing. “Kentucky’s laws are Christian in origin and design and impugn the faith of Jewish? Kentuckians.”

But Republican Kentucky Attorney General Daniel Cameron, who is defending the abortion laws — and who has invoked the religious freedom act in other cases including to challenge pandemic restrictions on churches and Christian schools — argues it doesn’t apply in this case.

“Kentucky’s abortion laws are not specifically directed at religious practice,” said a recent court filing on behalf of Cameron, who is a GOP candidate for governor.? “Even if abortion is allowed by some religious denominations, abortion is not a religious practice.”

The three women, all mothers, say they would like to have more children but fear the potential impact of Kentucky’s laws on needed fertility treatments or prenatal care in case of complications that could disrupt a pregnancy or force them to carry to birth a malformed fetus at personal risk.

“Kentucky law forces a mother to give birth to a child who will immediately die, perhaps painfully, instead of allowing the fetus to be medically removed,” said the court filing on behalf of Lisa Sobel, Jessica Kalb and Sarah Baron.

One of the laws known as the “trigger law,” banned abortion once the U.S. Supreme Court overturned the federal constitutional right to abortion, which it did last year in striking down the 1973 Roe v. Wade decision. The other bans abortion after about six weeks of pregnancy, once cardiac activity is detected in an embryo.

The laws permit abortion only to save the life of a pregnant patient or prevent disabling injury.

Jewish teaching “prioritizes the mother’s life over the potential life of a fetus,” said the women’s lawsuit.

A separate challenge to the two abortion laws is nearing its 12th month in Jefferson Circuit Court, with no immediate resolution. In that case, Kentucky’s two former abortion providers, EMW Women’s Surgical Center and Planned Parenthood, argue abortion rights are protected by the state constitution and seek to overturn the trigger law and six-week ban.

The state Supreme Court in February sent that case back to circuit court after refusing to block enforcement of the abortion laws and also, narrowing grounds on which EMW and Planned Parenthood may challenge them.

Meanwhile, the Jewish plaintiffs are proceeding on a separate track based on claims of religious freedom though their lawsuit also argues Kentucky’s “slapdash” compilation of abortion laws created in recent years is vague and contradictory.

That case was filed in October and recently picked up steam amid a flurry of motions from both sides asking Jefferson Circuit Judge Brian Edwards to rule in their favor. The judge has given parties until May 17 to submit further pleadings.

Cameron has cited the religious freedom act in challenges to pandemic orders of Gov. Andy Beshear, a Democrat, that temporarily closed churches and Christian schools, as well as other legal actions including a Louisville photographer seeking the right to refuse to take photos at same-sex weddings.

In a recent court filing, lawyers for Cameron said the purpose of the abortion laws is to “protect human life.”

A spokeswoman for Cameron’s office declined to comment on the case, other than to say “our filing speaks for itself.”

Lawyers for the women who filed the lawsuit have asked the judge to rule in their favor, arguing state abortion laws are problematic for reasons beyond religious freedom.

The more than a dozen state laws meant to ban or limit abortion “contain multiple contradictions, omissions and ambiguities” that make them impossible to understand or follow, said the filing by lawyers Aaron Kemper and Benjamin Potash.

Beth Salamon, state policy advocate for the Louisville chapter of the National Council of Jewish Women, said religious freedom should apply to reproductive rights.

“The faith-based narrative has been monopolized by Kentucky Right to Life,”? Salamon said. “There’s a different narrative out there.”

Her organization supports the women who filed the lawsuit — and recently awarded them the “Jewish Voice for Choice Award” for stepping forward as plaintiffs.

“They are putting a name on this case and I think that’s incredibly brave,” she said.

Samuel Marcosson, a constitutional law professor at the University of Louisville Brandeis School of Law, said the challenge based on religious freedom raises interesting issues.

“It’s clever,” he said of the legal strategy. “It flips the burden on the state to justify its law.”

But first, he said, the plaintiffs must establish “standing,” the legal right to pursue the lawsuit.

That has become an obstacle in the other lawsuit by Planned Parenthood and EMW after the state Supreme Court found they lacked standing as clinics to challenge the six-week ban on abortion without adding a client who had been affected by the law.

Cameron’s office, in its recent motion, argued in the case based on religious freedom, that the three women lack such standing and therefore, the judge should rule against them through a summary judgment.

“None of the plaintiffs have constitutional standing,” it said. “Their only alleged injuries are hypothetical.”

Their lawyers disagree.

“Plaintiffs’ injuries are that they are prevented from having more children,” their filing said. “No rule of law requires plaintiffs to undergo an abortion for religious reasons, or be jailed or sued, before bringing this action.”

May 2 marks a year since an early draft of the Dobbs decision was leaked, a precursor to the U.S. Supreme Court decision in June that overturned the federal right to abortion, a victory for anti-abortion protesters, above. (Getty Images)

Anti-abortion leaders could not stop paraphrasing Winston Churchill last June after the U.S. Supreme Court overturned Roe v. Wade, a victory that took 50 years to realize.?

“While we celebrate the momentous ruling in Dobbs, we must remember that overturning Roe was not the beginning of the end, but it was the end of the beginning,” said Kristen Waggoner, CEO of the leading anti-abortion law firm Alliance Defending Freedom, on a webcast days after the Supreme Court overturned federal abortion rights in Dobbs v. Jackson Women’s Health Organization.

Waggoner was one of several leaders on the “Life Beyond Roe” webcast to echo the late British prime minister after a pivotal World War II victory for Western Allies in November 1942. Defeating Roe was far from the end of the war on abortion rights, but it opened wide the frontier to diminish access for as many people as possible, she said.?

“We are Christ’s hands and feet. He has used us in this victory, but he still desires to use us to help women and children and to promote human flourishing. And to do that, we need … to use the influence that God has given us to promote sound policy,” she said. “We now have 50 different battles.”?

As it turns out, abortion foes’ post-Dobbs strategy has been even more sprawling than state-level bans and restrictions. Today (May 2) marks one year since an early draft of the Dobbs decision was leaked to Politico, and in that time anti-abortion activists have flooded state legislatures and city governments with proposals to criminalize pregnancy termination or to add burdensome regulations, and are defending many of them in state and federal court.

Activists managed to return to the Supreme Court with a controversial lawsuit – brought by an anti-abortion coalition represented by Alliance Defending Freedom – that is trying to ban medication abortion nationwide. The high court has, for now, preserved access to abortion-inducing drugs while the lawsuit folds. Legal and FDA experts say the plaintiffs in the case likely lack standing to sue and their claims that medication abortion is unsafe are deeply flawed. But this case is just the beginning of bold and ambitious efforts to restrict abortion as much as possible.

The consequences thus far have been sweeping. In addition to creating confusion and fear of jail time for health care providers and patients, state abortion bans have led to women and girls being denied emergency medical care in states like Kansas and Missouri, to maternity wards shuttering in Idaho, and to an increasing shortage of OB-GYNs in Tennessee.?

But anti-abortion activists are far from finished in their quest. Because many of the more than a dozen state abortion bans are currently being litigated, activists continue to introduce new anti-abortion regulations just in case those bans are ultimately struck down. Here are a few of their legislative and legal strategies.

Reviving Victorian era laws

Of the 14 states with active total abortion bans, three of those states – Oklahoma, Texas, and Wisconsin – are operating under laws passed in the mid-1800s to early 1900s with other hundred-year-old state bans currently blocked in court.?

But the entire country could soon be transported back to 1873, if anti-abortion activists are successful at getting the U.S. Supreme Court to uphold an anti-obscenity law known as the Comstock Act, which bans abortion drugs and medical equipment from being sent in the mail. The law was intended to prevent the mailing of anything that promoted non-procreative sex. It has long-remained dormant in the U.S., and narrowed by federal courts and Congress, which in the 1970s removed from the statute mailing contraceptives.

However, Congress never officially repealed the law, and anti-abortion activists have invoked the Comstock Act in the Alliance for Hippocratic Medicine? v. FDA case, to receptive ears, and in a lawsuit involving a city abortion ban in New Mexico. Additionally, attorneys general in 20 Republican-led states cited Comstock to stop national pharmacy chains from shipping abortion pills to their states.?

Legal and historical experts have told States Newsroom this law is destined to receive a hearing from the Supreme Court. But reviving Comstock could once again have devastating consequences for the same people who lacked rights when this law was passed: people of color and women. For many women and girls across the U.S., medication abortion has become the only available option. And this medication regimen is used not just for abortion, but to treat miscarriages, as well.?

?Environmental laws

For two decades, anti-abortion activists have focused on federal drug policy as a way to curtail access to medication abortion. Now their focus has shifted to exploring environmental regulations, an atypical avenue for their allied conservative lawmakers who typically oppose environmental regulations.?

Though it had already banned abortion, this year West Virginia introduced the West Virginia Chemical Abortion Prohibition Act, which restricts how medication abortion can be prescribed, administered – and disposed of. Many women experience medication abortion – like those who experience miscarriage – in their homes or in a private space; some miscarry over the toilet. This bill would require women – many of whom are traveling long distances to get abortions – to dispose of embryonic and fetal tissue in a special medical waste bag and return the remains to the health care provider. The law would not, however, apply to women taking the abortion drugs for a serious health condition. Providers would face up to a $1,000 fine and/or three years in prison for violating this regulation.?

The West Virginia bill also holds abortion drug manufacturers liable for the disposal of their drugs: “The manufacturer of any abortion drug is responsible for proper disposal of discarded abortion drugs. If abortion drugs are found in wastewater, the pill manufacturer company shall be responsible for cleanup, remediation, and further preventative measures.” The manufacturer would face a $20,000 fine per violation.

The bill did not move during this legislative session, but likely would in the event that the state’s abortion ban were blocked. Students for Life of America, the national anti-abortion group that drafted this wastewater language, is pushing these regulations and petitioning the FDA to study the environmental impacts of the abortion drug mifepristone, despite no present evidence of the drug having an adverse impact on the environment.?

Talking about the environment has also been a way for anti-abortion organizations to appeal to Gen Z.??

Restricting medication abortion at state level?

If the attempts to pass prohibitive federal regulations on medication abortion don’t work in the long run, more and more states might begin passing more restrictions or explicit bans on abortion-inducing drugs, including states with total or near-total bans, like Tennessee and Texas. Wyoming’s governor recently signed a ban on medication abortion, and similar laws have been introduced in Arkansas (died this week) and Iowa.

Meanwhile, attorneys general in Alabama and Idaho have simply asserted that their states’ respective chemical endangerment and abortion bans prohibit distribution or use of abortion-inducing drugs in their states. Alabama Attorney General Steve Marshall has since attempted to walk back claims that women in his state could be prosecuted for taking medication abortion.?

And Idaho Attorney General Raúl Labrador also attempted to walk back his interpretation of his state’s law, which was influenced by anti-abortion activists. Labrador’s legal analysis is now the subject of an ongoing lawsuit brought by Planned Parenthood and the American Civil Liberties Union, which also challenges the attorney general’s statement that merely giving information about how to access abortion in a state where it is legal would violate Idaho’s law.?

Restricting credit card purchases, and other financial restrictions?

Several states this year have introduced different bills regulating insurance coverage and public funding as it relates to abortion and abortion information, including in states where abortion is still legal. A bill in Indiana would prohibit the state from covering costs associated with an abortion, which includes allowing the use of hospitals or surgical facilities to perform abortions.

A lawmaker in Texas, which strictly bans abortion, proposed a bill that would prohibit credit card companies from processing transactions for the sale of abortion pills. Like other Texas abortion laws, this one would allow any citizen to sue a credit company over an abortion pill sale. Lawmakers in Texas have also proposed legislation that would censor abortion pill websites.?

?Fighting for abortion rights

These new laws and proposals merely scratch the surface. Utah, where abortion remains legal through 18 weeks’ gestation, is currently trying to ban abortion clinics. But abortion rights activists and lawmakers at the state and federal level have not backed down.?

They are fighting restrictions and bans in court, in addition to stockpiling abortion medication ?and trying to enshrine abortion rights in more states (something GOP lawmakers in Ohio are trying to defeat by making it harder for voters to amend the state constitution). The federal government, in addition to defending medication abortion access, has also continued to investigate hospitals – recently in Kansas and Missouri – that deny emergency care to pregnant women for fear of violating states’ abortion bans. (Kansas still allows abortion, but the law governing a state university hospital bans abortion on its property.)?

At a U.S. Senate Judiciary Committee hearing last week, Senate Democrats invited reproductive rights expert witnesses to explain the practical and legal impact of these new anti-abortion policies on U.S. residents.

“This period of time since Dobbs has unleashed criminal actions against women and their doctors — it has also unleashed civil surveillance,” said Michele Goodwin, chancellor’s professor of law at the University of California Irvine School of Law. “What we see is the dismantling, the vulnerability of constitutional principles that date back centuries, and abortion is being used as a proxy to dismantle fundamental constitutional principles, including the right to travel.”

Medical abortions make up more than half of abortions in the U.S. (Photo illustration by Anna Moneymaker/Getty Images)

WASHINGTON — More than 250 congressional Democrats have filed a brief urging an appeals court to reverse a Texas federal judge’s decision to suspend the U.S. Food and Drug Administration’s two-decade-old approval of the abortion pill.

In an emergency order, the U.S. Supreme Court in April issued a stay, meaning the abortion pill known as mifepristone will remain available throughout the United States while the lawsuit over its approval works its way through the appeals process.?

In the brief filed Monday with the 5th Circuit Court of Appeals in New Orleans, lawmakers argued that the decision by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas is not based in law and poses a health risk to pregnant patients if they are denied access to mifepristone.?

They added that it could also threaten access to other medications that have been approved by FDA’s drug process.?

“The consequences of the district court’s remedy could extend far beyond mifepristone, for it undermines the science-based, expert-driven process that Congress designed for determining whether drugs are safe and effective,” the 253 lawmakers — 50 senators and 203 House members — wrote.

Kacsmaryk in early April overturned the FDA’s approval of mifepristone dating back to 2000. Kacsmaryk is a nominee of former President Donald Trump.

Kacsmaryk’s opinion in the case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, is here.

“The district court’s order not only misapplies the law but also threatens to harm members of the public, many of whom rely on the availability of mifepristone for reproductive care — and many more of whom rely on the integrity of FDA’s drug approval process for continued access to life-improving and lifesaving drugs,” lawmakers wrote.

“Congress intended to — and did — vest authority in FDA to evaluate and ensure the safety and efficacy of drugs in the United States, and Amici call on this Court to give due weight to that intent,” they continued.?

Mifepristone blocks a hormone called progesterone that is needed for a pregnancy to continue, and it’s one of two drugs used in a medication abortion. Medical abortions make up more than half of abortions in the U.S., according to research by the Guttmacher Institute.

Oral arguments in the appeal are set for May 17 in New Orleans.

Several New Mexico towns are using an 1873 federal law to push back against a new state law to protect abortion access. (Getty Images)

When officials in a small New Mexico city sued the governor and attorney general over their ordinance placing restrictions on abortion clinics earlier this month, they argued that a late 19th century federal anti-obscenity law superseded state law. In March, Gov. Michelle Lujan Grisham signed into law a measure prohibiting public entities from interfering with reproductive and gender-affirming care access.

It was the latest legal challenge to abortion access to lean on the Comstock Act of 1873, federal statutes that ban the mailing of anything “obscene, lewd, lascivious” or considered morally impure, including abortifacients or abortion-related materials. The plaintiffs in the high-profile Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, challenging the U.S. Food and Drug Administration’s decades-old approval of the key abortion pill mifepristone, cited the act in legal arguments, asking the court to find the 150-year-old law makes it illegal to send abortion pills through the mail.?

But in December, the U.S. Department of Justice Office of Legal Counsel issued an opinion for the U.S. Postal Service stating that federal law does “not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.’’

The campaign launched by abortion opponents to revive the Comstock Act is working: Recent court rulings in the abortion pill case suggest the dormant law can be applied today.??

U.S. District Judge Matthew Kacsmaryk referenced the act earlier this month in revoking FDA approval of mifepristone, a decision immediately appealed to the U.S. Fifth Circuit Court of Appeals. “Defendants rely heavily on the OLC (Office of Legal Counsel) Memo that purports to establish this ‘consensus.’ But none of the cases cited in the OLC Memo support the view that the Comstock Act bars the mailing of abortion drugs only when the sender has the specific intent that the drugs be used unlawfully,” Kacsmaryk wrote. He found that the FDA’s decision to allow abortion pills to be mailed violated the act.?

The conservative-leaning appellate court in Louisiana also appeared skeptical of the federal government’s argument that the Gilded Age law is irrelevant. “The plain text does not require that a user of the mails or common interstate carriage intend that an abortion actually occur. Rather, a user of those shipping channels violates the plain text merely by knowingly making use of the mail for a prohibited abortion item,” the Fifth Circuit wrote. (The U.S. Supreme Court issued a stay on lower courts’ rulings last week while the appeals process plays out in court, leaving the ability to access the pill in place.)

Legal and historical experts told States Newsroom the statutes — named after the moral purist Anthony Comstock — could be the next major legal argument used by the anti-abortion movement in the courts to restrict abortion and reproductive health care. “No court has really determined what is the enforceability and scope of the Comstock Act,” said Rachel Rebouché, Temple University Beasley School of Law dean.?

“We’re going to see this head right back to the Supreme Court,” Rebouché said.?

Who was Anthony Comstock?

Anthony Comstock was a Connecticut native affiliated with Congregationalists, a devout sect of Christianity descended from the Puritans, according to Amy Werbel, a cultural historian and professor at the Fashion Institute of Technology who wrote the 2018 book Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock.?

“They were true believers in the sense that if one wasn’t saved properly as they thought, they would burn in hell. And I think that’s really important to understand — that the root of all of these laws is even Christianity, the desire to save the souls of Americans through the lens of their own religious framework. And that also then will be motivated by this idea of Christian nationalism,” Werbel said.

Comstock spent his life spreading his view of moral superiority. Congregationalists believed that sex was a sin and people should only have intercourse for procreation, Werbel said. After serving in the Civil War — many Northern fundamentalists were abolitionists —? Comstock and others turned to other tactics to sanctify the nation. “An abortion also wasn’t seen as a sin because it was the death of a person. It was seen as taking away the punishment for sex” because procreation was the sole purpose of intercourse, Werbel explained.

His crusade eventually influenced Congress, who named the 1873 anti-obscenity laws after him, she said. President Ulysses S. Grant signed the act into law in March 1873. First-time violators faced up to five years in prison. The federal government soon hired Comstock to serve as a Post Office special agent.???

“After 1873, Comstock goes all over the country,” Werbel said. “He goes to state capitals. He’s always bringing suitcases of contraceptives, abortifacients, sex toys, pornographic photographs. And [he] spread them out for people to look at, then they pass the legislation, express their horror.”?

The act was weakened in the 20th century after a pivotal U.S. Supreme Court ruling, 1965’s Griswold v. Connecticut, which found the state law banning contraception was unconstitutional and violated the right to privacy, according to legal experts. Six years later, Congress removed restrictions on contraception and birth-control information from the act, wrote Joanna L. Grossman, a Southern Methodist University law professor, and Lawrence M. Friedman, a Stanford Law School professor.?

But a version of the law is still on the books — Congress never repealed it.?

Culturally, the newfound interest in the late-19th century anti-obscenity codes revives a stunted view of sexual morality, said Priscilla Smith, a Yale Law School professor and director of the Information Society Project’s study of reproductive justice program. “They’re rooted in archaic views of women’s sexual expression and their subservient role in the family. They really were designed to control women’s sexual activity.”?

“All of these things go together,” Werbel said. “The suppression of teaching about LGBTQ history, the suppression of access to abortifacients. All of these things go to this belief that is also woven into this particular Christian evangelical idea: God creates Adam, woman is born from man, and I’m just going flat out say it —? a white man has dominion over all else in the world, including women.”

New Mexico ordinance cases cite Comstock?

The New Mexico lawsuit, filed on April 17 in the Fifth Judicial District Court County of Lea, stems from the city of Eunice’s recently enacted ordinance requiring abortion clinics to comply with Comstock.?

The ordinance is part of the so-called Sanctuary Cities for the Unborn campaign, started by Texas anti-abortion activist Mark Lee Dickson, whose mission has been to ban abortion across the nation city by city. The initiative started in Texas and has spread to other states.?

The New Mexico Supreme Court recently suspended similar ordinances in Hobbs and Clovis, Source NM reported. And the town of Edgewood just passed a parallel ordinance, according to the Albuquerque Journal.

“The problem that the New Mexico attorney general has really isn’t with these ordinances; it’s with these laws that were passed by Congress in 1873,” Dickson told States Newsroom. “Even if the New Mexico Supreme Court were to rule against us, that would actually be a great opportunity to take this before the Supreme Court of the United States. And I do not believe the Supreme Court of the United States would hold the same opinion as the Office of Legal Counsel opinion that the Biden administration put forth.”

Attorneys for Eunice – two local lawyers and former Texas solicitor general Jonathan Mitchell, the architect of a bounty-style six-week abortion ban –? argued that city ordinances and the Comstock Act take precedence over state laws, according to the complaint. “Federal law imposes criminal liability on every person who ships or receives abortion pills or abortion-related paraphernalia through the mail, an express service, a common carrier, or an interactive computer service,” they said.?

They also claim distributing abortion pills is a violation under the Racketeer Influenced and Corrupt Organizations (RICO) Act. Therefore, abortion providers such as Planned Parenthood, employees, volunteers and donors face civil and criminal penalties, the suit said.?

“I think the argument is that RICO provides a civil cause of action against people who are violating civil law,” Rebouché said. “RICO is a hook to prosecuting people under civil litigation for their conspiracy to violate federal law. It’s just another way to try to breathe life into Comstock.”?

Last week, New Mexico Attorney General Torrez argued that the local government ordinances exceed their authority and are unconstitutional, according to a brief filed to the state Supreme Court.??

“Our brief demonstrates that the counties and cities violated the state constitution and state law when they passed their ordinances to restrict abortion care and undermine women’s reproductive rights,” Torrez said in a statement. “Further, our briefing provides analysis into House Bill 7 which reinforces our argument that local governments cannot regulate abortion clinics and reproductive healthcare.”?

Eunice officials want a judgment that the act is fully enforceable, after the Dobbs decision? overturned the federal right to abortion. They urged the court to ban abortion pills and abortion-related paraphernalia through the mail.

Arguments referencing Comstock target early abortions, according to Smith, the Yale professor. Medication abortion is approved by the FDA for up to 10 weeks of pregnancy. Besides abortion pills, devices called tenaculums and vacuum aspiration equipment are needed in surgical abortions. Even though 14 states ban most abortions, there are still exceptions in some states to save the life of the mother or terminate an ectopic pregnancy, for example.

“It’s ridiculous to say that abortion remains legal in many states around the country, and yet you can’t deliver equipment and medications used to perform abortions through mail carriers,” Smith said. “How else are you going to get the equipment there? That’s like saying it’s legal to take Viagra, but nobody can send it to pharmacies or doctors around the country.”?

Sofia Resnick contributed to this report.

Protesters and safety escorts for patients gathered last year outside EMW Women's Surgical Center in Louisville. (Photo by Deborah Yetter)

LOUISVILLE —With Kentucky’s abortion ban now in its 10th month, advocates have returned to court to argue that abortion is a right under the state constitution after the U.S. Supreme Court last year struck it down as a federal constitutional right.

But a February ruling by the Kentucky Supreme Court curtailed the ability of abortion rights lawyers to make their case in state court.

“A very narrow opening for a very narrow claim,” is how Samuel Marcosson, a constitutional law professor at the University of Louisville, described prospects for the case brought by Kentucky’s two abortion providers, Planned Parenthood and EMW Women’s Surgical Center.

The state Supreme Court ruling cut off the right of providers to challenge a law banning abortions after about six weeks of pregnancy, once cardiac signals from an embryo are detected. It does allow them to challenge the state’s “trigger law,” a measure enacted in 2019 to ban all abortions in Kentucky should the Supreme Court end the federal constitutional right to abortion.

Lawyers for the American Civil Liberties Union, representing Kentucky’s abortion providers, say they are seeking ways to bolster their case, possibly by adding an individual affected by the ban. That would give them a new opening to challenge the six-week ban as well as the trigger law.

“We are working on it,” ACLU lawyer Heather Gatnarek told Jefferson Circuit Judge Mitch Perry at an April 24 hearing he scheduled to determine how to proceed in light of the state Supreme Court decision.

But it’s been difficult, Gatnarek said, “to find a plaintiff with standing who is willing to be involved in issues like this.”

Christopher Thacker, representing Kentucky Attorney General Daniel Cameron, who is defending the laws, said he would object to adding a plaintiff at this point and said the only issue left is whether to uphold the trigger law.

“This case is simply about the trigger ban,” he said.

Perry gave parties two months to work on the case and asked them to return to court June 28.

Abortion is now banned or restricted in roughly half the states, according to the Kaiser Family Foundation, following the June 2022 U.S. Supreme Court decision to strike down Roe v. Wade, the landmark 1973 case that established pregnancy termination as a constitutional right.

Kentucky’s laws allow abortion only when it is deemed medically necessary to save the life of or prevent disabling injury to the patient. The laws provide no exceptions for fetal defects or pregnancies from rape or incest.

Abortion providers filed an immediate challenge last year after the laws took effect in June upon the U.S. Supreme Court ruling. In July, Perry ruled in their favor, temporarily barring enforcement of the Kentucky laws while the challenge proceeded in state court.

That allowed abortion services to briefly resume for about a week until a state Court of Appeals judge overruled Perry. The case eventually made it to the state Supreme Court, which declined to block enforcement of the laws and sent the case back to Perry to decide within new limits it imposed.

Patients still call

Meanwhile, demand for the procedure continues.

Patients still regularly contact Kentucky’s two abortion providers, both in Louisville, in hopes of scheduling the procedure or finding out where abortion care is available. Not all realize abortion is banned in Kentucky, though that is changing.

“There is a diminishing number of people that know don’t know it’s illegal,” said Jessica Carpenter, manager of Planned Parenthood’s health center. “A lot of the confusion comes in as to where they can access abortion in states surrounding us.”

EMW continues to field calls from patients although it has been unable to provide care, said co-owner Ona Marshall.

“We are still answering the phone and we are still hearing from people,” Marshall said. “We get calls every week and every month.”

Based on EMW’s number of patients in the year prior to Kentucky’s abortion ban, Marshall estimates about 3,000 people have been denied abortion services in Kentucky, many likely seeking care in other states.

Marshall called the restrictions “an affront” to those seeking to end a pregnancy. “It’s causing a lot of harm to people,” she said.

Abortion opponents, who celebrated the end of Roe v. Wade, see it differently.

“It’s saving lives of the unborn children,” said Addia Wuchner, executive director of Kentucky Right to Life, adding her organization values “the life of the mother and the unborn child.”

‘Absolutist positions, they don’t work in medicine’

But Dr. Anna Feitelson, a Louisville obstetrician and gynecologist, said absolute bans on abortion don’t take into account complications that may arise in a pregnancy, including fetal abnormalities that mean little chance of the fetus surviving, or conditions that could threaten the health of the pregnant patient.

“Too many people see this as black or white, right or wrong,” she said. “Absolutist positions, they don’t work in medicine. There are always going to be areas of gray.”

For example, Feitelson said one of her patients had a fetus with severe abnormalities that could not survive. She had to leave the state to end the pregnancy because Kentucky’s law provides no exceptions for such conditions.

“She had to drive to Illinois,” Feitelson said. “It was a highly desired pregnancy but the fetus was not going to survive.”

Another dangerous condition is when the patient’s water breaks too early in a pregnancy, causing the loss of amniotic fluid that surrounds and protects the fetus, increasing the risk of infection.

Some years ago, Feitelson said she had a patient who experienced that condition but tried to continue the pregnancy. She experienced severe infection and died.

Several lawmakers in Kentucky’s General Assembly, controlled by a Republican supermajority, expressed concern about the laws’ lack of exceptions for fetal anomalies or pregnancies from rape or incest.

But measures including one filed by Rep. Jason Nemes, R-Louisville, to allow abortions in such cases got no attention in the 2023 legislative session and died without hearings.

Supreme Court stopped short of ruling on abortion bans’ constitutionality

Advocates for abortion rights still hope to prevail in state court.

But they will have to overcome the ruling from the state Supreme Court that found abortion providers who brought the case lack “standing,” or the right to challenge the six-week ban.

The majority opinion by Justice Debra Lambert gave the abortion rights advocates limited standing to challenge the trigger law on grounds that it is unconstitutional.

In doing so, the court stopped short of ruling on whether the laws themselves are constitutional.

“To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion,” it said.

By reaching that conclusion, it saved the majority from having to reach any decision about the laws, said Marcosson, the constitutional law professor.

“I’m not surprised the court was anxious to find a way not to rule on the merits,” he said.

Marshall had a more pointed take. “They took the easy way out, which is really an affront to women, decency and personal liberty,” she said.

The decision drew several sharply worded dissents including one from Justice Angela McCormick Bisig who argued the majority erred by failing to evaluate whether the laws may be unconstitutional, saying justices were “remiss for refusing to do so.”

She also said the majority erred in denying standing to the abortion providers to challenge the six-week ban.

Bisig noted that Kentucky voters in November rejected a ballot measure that would have changed the state constitution to specifically state it includes no right to abortion.

And Bisig said the abortion providers might resolve the lack of standing by adding a patient as plaintiff to the case to challenge the six-week ban.

Overturning the trigger law, which bans all abortions from the moment of fertilization, could restore some access to abortion in Kentucky.

About 40 percent of abortions are performed by six weeks of gestation, according to the Kaiser Family Foundation.

Marcosson said the only way he believes the abortion providers could strengthen their right to challenge the six-week ban on abortions is by adding to their lawsuit a patient who was affected in some way.

“If they don’t,” he said, “the six-week ban is off the table.”

African-american female patient touching belly and telling a mature worried doctor about stomachache at hospital appointment. Healthcare specialist showing concern about symptoms

These days Kylee Sunderlin is often the first person people will talk to about needing or wanting to terminate a pregnancy, even though she’s not a nurse or doctor or a loved one. She’s a lawyer.?

This is Sunderlin’s third year overseeing a national hotline dedicated to helping people navigate legal questions around abortion in their states. Calls have been at an all-time high, she said, as have callers’ fear and confusion.

“It’s just all really scary right now — I can hear it in people’s voices,” said Sunderlin, the legal support director for the nonprofit If/When/How. The organization is part of a nascent network of reproductive rights legal-assistance groups and law firms called the Abortion Defense Network, which formed in response to sustained legal uncertainty around abortion rights in the U.S.

“There’s a real sense that people are scared that if they share their pregnancy, or any information at all, that they are necessarily going to put someone else at legal risk, not just themselves. And so I’m just seeing and sensing a type of isolation that I hadn’t seen previously,” Sunderlin said. “People are navigating this alone.”

It’s been nearly one year since the U.S. Supreme Court overturned the federal right to terminate a pregnancy, followed by confusion and fear about contradictory state abortion laws and unresolved legal challenges. In this legal chaos emerged the Abortion Defense Network, which publicly launched in February and is trying to make providers and patients feel less alone. The network is a one-stop shop for patients and loved ones, and providers and practical support groups. Working together, the six reproductive rights groups in the network provide free legal advice, pro bono representation, and help paying legal expenses.?

“We believe this is a very robust system with serious legal and practical support that we are trying to get out to the community so that people who provide and support abortion care can continue to perform their vital services,” said Cassie Ehrenberg, senior counsel for pro bono initiatives for the Lawyering Project, which manages the intake calls and operations of the network. Its five partners are: the American Civil Liberties Union, the Center for Reproductive Rights, If/When/How, the National Women’s Law Center, and Resources for Abortion Delivery, in addition to seven anchor law firms.

The Supreme Court is once again about to make a consequential decision about medication abortion in the Texas-based Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration case, one of several federal cases related to the abortion drug mifepristone. And though nobody knows whether and in what states the most common form of abortion post-Roe will remain legal and available by the end of this week, abortion rights advocates told States Newsroom they are determined to find ways to help people access safe abortion care and understand their rights.

“These federal rulings, particularly from the judge in Texas, it’s creating even more chaos and confusion for people who are seeking abortions,” said Sunderlin, who along with a small team of trauma-informed attorneys field calls from people of various ages, races and backgrounds from around the country. “And every time this happens, we see an increase in calls.”

A more than 2,000% increase in abortion patient calls

Sunderlin said If/When/How transformed its Repro Legal Helpline in June 2020, from an informational helpline to one where people seeking abortions could be promptly connected to legal services. More staff were hired after Roe v. Wade fell in June 2022, when the helpline saw a whopping 2,460% increase in inquiries, Sunderlin said. She noted that the helpline has been consistently receiving hundreds of calls every month since then.

A lot of the questions that helpline attorneys are fielding these days are about the legal risks of seeing a health provider at all, Sunderlin said, whether it’s just to confirm the pregnancy or to seek care for complications of a self-managed medication abortion or to seek care for a medical emergency in a wanted pregnancy. Her group’s legal advice depends on each individual’s circumstances, including their geography and relationships.?

“You’re really responding to people’s legal questions, but also responding to their needs as whole humans coming to us in a really chaotic, difficult time,” Sunderlin said. “If there’s anything we can do to help alleviate people’s fear, that’s my primary goal and what I’m constantly thinking about.”

If/When/How, which has researched abortion-related criminalization in the U.S., published a report last year showing that people who go to jail for having or assisting with an abortion were often reported to law enforcement by health care providers or family members and acquaintances. If/When/How created a legal guide with Physicians for Reproductive Health, which says patients are within their legal rights not to disclose a medication abortion to an emergency room doctor or other health care provider. The guide notes that an abortion via medication presents like a natural pregnancy loss and usually requires the same care if complications arise.?

Right now only Nevada and South Carolina have laws on the books criminalizing self-induced abortions, Sunderlin said, though that hasn’t stopped states from charging pregnant people under various statutes. If/When/How found 61 cases between 2000 and 2020 across 26 states of people investigated or arrested for ending their own pregnancies or helping others to do so. And presently more states are floating policies to charge pregnant women who have abortions.?

Anti-abortion efforts to police health information and criminalize out-of-state abortion travel have only perpetuated the difficulty of accessing abortion for many Americans, especially those without the means to travel, Sunderlin said.?

“People have taken their health care into their own hands throughout the course of history,” Sunderlin said. “With all of this chaos and confusion, that is increasingly becoming the reality for people as access becomes more and more scarce. And with this increased need for people to end their own pregnancies, for people that take their medical care into their own hands, there’s a very real risk of being criminalized for doing that.”

Abortion providers are not going away

Abortion providers, meanwhile, are scrambling to figure out how to provide care, depending on which way the Supreme Court rules on Friday in the Texas federal case, which concerns mifepristone, part of the two-drug medication abortion regimen. The high court could uphold the appeals court’s decision that keeps mifepristone on the market while the lawsuit unfolds but also re-implements old, out-of-date restrictions, including shortening the timeline when people could access the drugs from 10 weeks to seven weeks’ gestation, and would potentially eliminate access to the generic version of the drug.?

Dr. Gabriela Aguilar, the regional medical director for Planned Parenthood of Greater New York, told States Newsroom that Planned Parenthood providers are determined to keep providing patients with abortion care no matter what happens. They have been planning for different scenarios that could come out of the Supreme Court’s ruling and are preparing to potentially provide only misoprostol, the other drug in the regimen. Providers say this is safe and effective, but still less effective and generally more pain-inducing than the current FDA two-medication regimen, which has a two-decade-long high safety and efficacy record.?

“We’re sitting in a holding pattern right now where we’re trying to stay optimistic – hope for the best, plan for the worst,” Aguilar said. “We’re going to continue providing medication abortion no matter what.”

Aguilar said patients are very confused right now, especially when they see constant news headlines of mifepristone being banned, even though that has not yet happened. She said she worries how a sudden change to medication abortion law will impact her patients.?

“What needs to be recognized is that mifepristone is not just used for abortion,” Aguilar said. “It’s also used for management and treatment of miscarriages. So this entire community of people who have early pregnancy losses are being left out of the conversation and potentially put in these scenarios where they’re not going to have as effective or patient-centered experience.”

On a press call organized by reproductive rights groups Tuesday, public health and FDA regulatory experts expressed frustration that the legal questions about mifepristone in this case are medically baseless and will likely lead to public health harm and massive confusion among health providers and public health departments nationwide.

Ushma Upadhyay, a professor and public health scientist at the University of California, San Francisco, said that if mifepristone is even temporarily taken off the market or if old out-of-date restrictions are returned, “that will send the abortion provider field into a little bit of chaos.”

“I think that was the intention of this, of these court cases in the first place,” Upadhyay said. “Providers will have to figure out what is the best course forward based on the state they’re in, based on their patient populations.”

But in all of the anxiety over what will happen next in the fight over abortion access, the Lawyering Project’s Ehrenberg said she’s been heartened to see the determination among providers to continue providing health care in a frightening legal landscape.

“What I wish other people could see is that the resolve and the commitment to continuing to bring this care forward to patients and community members is so steadfast and so strong, that it really is heartening in the midst of this,” Ehrenberg said. “[Providers] are looking to navigate this horrible new landscape, but they are resolved to do that.”

“Bans off our bodies” balloons decorated the Protect Kentucky Access election night watch party on Nov. 8, 2022, in Louisville. Kentuckians rejected an anti-abortion amendment to the state constitution. The state Supreme Court has allowed the near-total ban on abortion to remain in force. (Kentucky Lantern photo by Arden Barnes)

Though the U.S. Supreme Court has temporarily blocked an effective ban on medication abortion, anti-abortion groups are not giving up on trying to fast-track a national abortion ban. And that means continuing to try to squash nationwide access to the most common form of abortion post-Roe, by whatever means necessary.??

“Obviously, the pro life community is disappointed that there wasn’t an outright decision made concerning banning chemical abortions,” said the Rev. Patrick Mahoney, chief strategic officer for the Stanton Public Policy Center, the lobbying arm of a powerful Idaho-based network of crisis pregnancy centers which has heavily influenced Idaho’s attorney general. “But either way, for the pro life movement and Stanton Public Policy Center, this does not deter us. We have many, many avenues out there to try to ban chemical abortion.”

Legally challenging the U.S. Food and Drug Administration’s two-decades-old approval of the drug mifepristone despite its high safety and efficacy record in Alliance for Hippocratic Medicine v. FDA has been just one of the anti-abortion movement’s many strategies to further curb abortion access. As this case continues to wind its way through the courts, activists are testing other regulatory and legal avenues.

Just this week, anti-abortion activists once again petitioned the FDA to revoke the approval of mifepristone, but this time on (disputed) environmental grounds. The national anti-abortion group Students for Life of America is arguing that trace amounts of the hormone blocker mifepristone could be posing a risk to endangered or threatened species and is trying to compel the FDA to study these impacts if the agency is forced to restart the approval of mifepristone as a result of the Alliance case, according to Politico. The group has also floated state model legislation adding environmental restrictions to medication abortion, which has been introduced in West Virginia.??

But this is part of SFLA’s years-long campaign to curtail access to the abortion pill. SFLA also opposes contraception and fertility treatments, and its board co-chair is Federalist Society co-chairman Leonard Leo.

“When I launched Students for Life more than 16 years ago, we knew we were going to need a trained army, ground troops ready to go in states and communities around the country the moment Roe versus Wade was reversed. And we began looking at this issue of chemical abortion five years ago,” SFLA president Kristan Hawkins said on a webcast in February.

Anti-abortion legal activists are also currently leaning hard on the Victorian era anti-vice Comstock Act, which plaintiffs in the Alliance lawsuit argue legally prevents abortion pills from being sent in the mail, something the federal government disputes.

Meanwhile the Alliance case is far from over. Early this month, U.S. District Judge Matthew Kacsmaryk of Texas ruled to suspend the FDA’s approval of the abortion pill. That order never went into effect; neither did the Fifth Circuit Court of Appeals’ decision to keep medication abortion on the market but revive out-of-date restrictions lifted after 2016. Public health and legal experts have been warning that letting either decision stand would have severe public health and legal implications beyond abortion.

And though abortion rights advocates around the country count today’s decision as a victory, groups like the American College of Obstetricians and Gynecologists say the case has already caused damage.?

?“Although the Supreme Court has kept mifepristone available to patients for the duration of this legal battle, much of the damage of this process remains in place – and we know that the attacks on abortion care will not stop, no matter how many times medical professionals declare that abortion is essential, evidence-based health care and that interference in the patient-physician relationship must stop,” said ACOG president Dr. Iffath Abbasi Hoskins and ACOG CEO Dr. Maureen G. Phipps, in a statement. “We will continue to lead the medical community in providing the clear, strong evidence about mifepristone so that the Supreme Court can make the right decision in the end. ACOG remains steadfastly in opposition to interference in the patient-physician relationship.”

And meanwhile, the uncertainty and confusion over abortion rights in the U.S. marches forward, as are multiple lawsuits related to expanding medication abortion access. A recent order in the federal case out of Washington protects medication abortion in 17 states plus the District of Columbia. More states are trying to expand as abortion haven states. Oregon just joined Massachusetts, Maryland, and Washington in their efforts to begin stockpiling mifepristone. The governors of California and New York have announced plans to begin stock-piling misoprostol, the second drug in the FDA’s two-step regimen for abortion and miscarriage care.?

Providers in states not part of the Washington lawsuit have proposed pivoting to misoprostol-only protocols if mifepristone becomes unavailable. The method is said to be less effective and more painful.

Many legal experts have argued that were it not for a biased judge, this lawsuit would likely have already been dismissed for failing to meet certain legal standards. And its legal and medical arguments have been widely disputed. Kacsmaryk has been open about his anti-abortion and anti-contraceptive views but has recently come under fire for failing to disclose his part in a law-review article and radio interviews where he spouted off his anti-abortion and anti-LGBTQ ideology. In his ruling the judge adopted the same rhetoric as the anti-abortion political movement: using terms like “unborn human” to describe embryos and “abortionists” to describe health care providers.??

If plaintiffs in the case ultimately prevail, public health and regulatory experts worry about the public health and regulatory fallout. During a press call earlier this week organized by abortion rights groups, Dr. Joshua Sharfstein, a vice dean and professor at Johns Hopkins Bloomberg School of Public Health and a former principal deputy commissioner of the FDA, said that suspending or changing the medication abortion protocol to before 2016 is not based on scientific evidence and sets a dangerous precedent of separating the science from the reasons to regulate drugs.?

“These are the kinds of unfortunate questions you have to consider when you rip apart the evidence in public health from the legal framework, because they’re designed to go together,” Sharfstein said. “And you pull them apart, and you’re left with all these truly unique questions. Because, this is so unprecedented, like, what’s the state medical board to do? What’s the state health department to do? What’s the FDA to do under these circumstances? We rely on an alignment between evidence and the law. And when that’s broken, it’s, you know, it becomes a completely different scenario.”

Abortion access could see further decline if case is ultimately victorious

?Access to abortion has already significantly diminished since Roe v. Wade was overturned, with people having to travel and endure extended waits. But providers are determined to continue providing care to as many people as possible.

?Florida, a state with a challenged 15-week abortion ban (a newly signed six-week ban won’t go into effect before the 15-week ban challenge is resolved), and North Carolina, a state with a 20-week abortion ban, are critical access points in the Southeast. In the six months after the Dobbs decision, Florida saw the largest increase in clinician-provided abortions, followed by Illinois, North Carolina, Colorado and Michigan, according to a recent report released by the Society of Family Planning. Overall, there were more than 30,000 fewer abortions in the six months post Dobbs, though that figure does not include any self-managed abortions.

?The increased threats to medication abortion have created heightened fear of criminalization and uncertainty among patients and providers. Abortion rights attorneys who provide free legal services and advice to abortion providers and patients as part of the newly formed Abortion Defense Network have told States Newsroom that many patients have become scared to seek needed medical care related to their pregnancies or abortions.

In the face of abortion provider shortages, travel barriers, and highly restrictive state laws, more people have begun to rely on the two-drug medication abortion regimen of mifepristone and misoprostol. According to the Guttmacher Institute, an abortion rights research organization,10 states would be especially impacted if access to medication abortion is suspended, such as Maine, where the share of counties with an abortion provider would drop from 88% to as low as 19%.

A Woman’s Choice provides abortions at clinics in Jacksonville, Florida, and three cities in North Carolina, along with taking out-of-state patients from Alabama, Georgia, Louisiana, Mississippi, and Texas, according to Amber Gavin, vice president of advocacy and operations. The organization’s leadership is looking at the possibility of providing misoprostol-only abortions if mifepristone access is restricted, Gavin said.

?But Gavin noted that the fight to preserve access to abortion is far from over, regardless of the end result of this lawsuit.

“The goal of anti-abortion protesters has been to completely eliminate access to abortion care across the entire U.S.,” Gavin said, emphasizing that abortion rights opponents could also attack birth control next. “They’ll keep coming and finding ways to control our lives, our families and our futures,” she said.

?Elisha Brown and Kelcie Moseley-Morris contributed to this report.

Medical abortions make up more than half of abortions in the U.S. (Photo illustration by Anna Moneymaker/Getty Images)

Oregonians gather outside the Multnomah County Justice Center to protest the June 2022 U.S. Supreme Court decision that overturned Roe V. Wade. (Alex Baumhardt/Oregon Capital Chronicle)

Oregon Gov. Tina Kotek announced the state will secure a three-year supply of mifepristone, one of two drugs used to terminate a pregnancy and manage miscarriages, amid lawsuits and an expected U.S. Supreme Court ruling on access to the medication.

“By challenging the FDA’s authority over mifepristone, the lower court decisions set an alarming precedent of putting politics above established science, medical evidence, and a patient’s health, life, and well-being with potential implications beyond this one medication,” Kotek said in a news release.?

The state government intends to partner with Oregon Health & Science University to secure the supply of 22,500 doses. Kotek’s office and the Oregon Health Authority first asked health care providers in the state for their thoughts on the ongoing court battles and whether additional state support was necessary, according to the news release.?

The health authority told the Capital Chronicle on Monday that it was not yet stockpiling mifepristone and was exploring “all options” to ensure access to safe, legal and effective abortion care.

The move comes one day before the U.S. Supreme Court is scheduled to announce whether it will allow a Texas ruling to strike down the approval of mifepristone by the U.S. Food and Drug Administration. The ruling would have taken effect on April 14, but the U.S. Supreme Court paused its implementation pending its own opinion.

Kotek’s office said she will also direct Oregon’s licensing boards to issue guidance clarifying that the state supports providers continuing to prescribe, dispense and use mifepristone regardless of the decision issued by the U.S. Supreme Court. Kotek has also pledged that Oregon government officials will not extradite individuals for criminal prosecution for receiving, providing or supporting patients seeking reproductive health care in Oregon.

“To our providers, to the patients who live in Oregon or have been forced to come to our state for care, and to those who are helping people access the care they need, know that I have your back,” Kotek said.?

Oregon is a plaintiff in a competing lawsuit led by Washington Attorney General Bob Ferguson’s office calling on the FDA to lift the restrictions placed on mifepristone’s use. A federal judge in Washington has not yet ruled on the case, but ordered the FDA not to make any changes to the approval or accessibility of the drug in the meantime. Including Washington and Oregon, 15 other states and the District of Columbia joined the lawsuit as plaintiffs and are not expected to be affected by the outcome of the Texas case while the Washington judge’s order is in place.

Kotek joins Democratic governors of several states across the country who took similar action, including in Washington and Massachusetts. The governors of New York and California stockpiled misoprostol, the second drug in the two-step regimen for abortion and miscarriage care. If misoprostol becomes the only drug patients can access for medication abortion after the court’s decision, they might experience more side effects, such as cramping, nausea, vomiting and fever, health care professionals warn.

Lila Bonow, Alana Edmondson and Aiyana Knauer prepare to take abortion pill while demonstrating in front of the U.S. Supreme Court on Dec. 1, 2021. (Photo by Chip Somodevilla/Getty Images)

Idaho-based Stanton Healthcare parked its anti-abortion mobile clinic in front of the new Planned Parenthood clinic in Ontario, Oregon, on the same day that the new clinic opened, in response to Idaho’s abortion ban. (Courtesy of Brandi Swindell)

A fast-food restaurant was the last place she expected to have an abortion.

A month had gone by since the 26-year-old had found out she was about seven weeks pregnant. She’d gone to her closest Planned Parenthood, near Boise, Idaho, last August – the same week that abortion became a criminal act in her state. The woman, who asked not to be identified to protect her privacy, told States Newsroom that Planned Parenthood staff explained she could go across the border into Oregon for a legal telehealth medication abortion.?

She says the Idaho Planned Parenthood helped her set up the telehealth appointment with a provider in Oregon, where she would pick up the abortifacient mifepristone, which blocks progesterone from sustaining the pregnancy. She would need to take the mifepristone in Oregon before driving back home. And in one to two days, she would need to return to Oregon to take the misoprostol, which would cause her uterus to expel the pregnancy. For a surgical procedure, the nearest provider was at least 300 miles away.

“It was really crazy,” she says of all the legal and logistical questions she was trying to navigate, all the while feeling pressured by her boyfriend to have an abortion she wasn’t sure she wanted.?

Four weeks later she took the?mifepristone pill?and immediately felt regret. But, the next day,?after confiding in a relative who told her about an ad that the procedure could be reversed, she found hope at Stanton Healthcare, an international network of anti-abortion pregnancy centers headquartered in Meridian, Idaho, right by Planned Parenthood. In addition to counseling against abortion and limited health services, Stanton offers a controversial and unregulated treatment which has been?denounced by the American Medical Association?for its limited data and unproven claims.

To Stanton Healthcare founder and CEO Brandi Swindell, this woman’s story sounded like a potential legal case for the organization’s influential policy arm that is at the forefront of an emerging legal anti-abortion strategy: to push states with abortion bans to criminalize abortion-related assistance and information as a way to prevent patients from accessing abortion in abortion-rights states. Their strategy is a window into how the anti-abortion pregnancy center movement has gotten into the game of trying to find the magic legal key to banning abortion nationwide in the absence of a federal ban.

Organizations like Stanton present a public mission of trying to save the unborn and offer resources. Stanton also has been the driving force to test the boundaries of Idaho’s strict abortion ban. Months after lobbying, gathering intel on Planned Parenthood and abortion-rights activist groups in Idaho, and sharing its?client’s story, Stanton recently convinced its state’s most powerful prosecutor to adopt their extreme interpretation of what is already one of the nation’s strictest abortion laws. The Idaho attorney general has since rescinded his initial letter outlining his legal analysis, but it has added to chaos and uncertainty among Idahoans who need abortions and don’t know where to turn, reproductive rights advocates told the States Newsroom.

“Laws like the one in Idaho, you know, laws that ban abortion, have a chilling effect, not only on lawful conduct related to obtaining abortion care, but also other kinds of essential health care for pregnant people, like miscarriage management,” said Stephanie Toti, a reproductive rights lawyer who has argued major anti-abortion cases before the U.S. Supreme Court and whose organization the Lawyering Project is part of a new coalition of abortion-rights legal groups that offer mostly pro bono services to providers and patients. “It’s a terrible consequence of the Supreme Court’s decision to withdraw constitutional protection from abortion, and something that I think we’re going to see continue to play out in the courts in the coming months and years.”

AG opinion letter adds to confusion

Stanton Healthcare says it exists to help women experiencing crisis pregnancies, but it doesn’t want those same women to go to places that offer help accessing legal abortion care in other states. Shortly after Idaho’s abortion ban took effect, the organization started building its case, telling reporters that giving women information on how to access abortion in other states was “potentially criminal,” even though that is not explicitly stated in Idaho abortion law.?

“They were coaching her in essence to skirt the law,” Swindell told States Newsroom. “[T]here are entities that think that they can be above the law and are engaging in potentially criminal activity. And the reality is there is precedent for a lawsuit in this situation.”

In early March, Swindell, who dates Idaho Congressman Russ Fulcher, said her organization’s national lobbying arm, Stanton Public Policy Center, asked Idaho state Rep. Brent Crane, R-Nampa, to seek an opinion from state Attorney General Raúl Labrador on whether Idaho’s anti-abortion laws precludes the type of help Planned Parenthood gave to Stanton’s new client. Is that what the statute means, when it talks about “assist[ing] in performing or attempting to perform an abortion in violation of this subsection”??

Stanton – which has been campaigning against abortion drugs for years and has tried to unmask the secret headquarters of mifepristone distributor Danco Laboratories – also asked whether Idaho law specifically bans the provision and promotion of abortion drugs. She included in her letter to Crane pictures and video of a mobile billboard with instructions on accessing abortion pills produced by the abortion-rights group Mayday Health as it roamed Boise.?

The attorney general quietly clarified Stanton’s legal questions in a letter to Crane, which echoes Stanton’s belief that abortion assistance and referrals and information on medication abortion violate the law. Stanton published the attorney general’s letter in a press release warning abortion rights advocates and providers in the state not to talk to patients about where to go for a legal abortion.?

Planned Parenthood and the American Civil Liberties Union quickly sued the attorney general’s office, saying the opinion blatantly violates federal free speech and commerce laws.

“The Attorney General’s interpretation also demonstrates that he is taking the position that at least some abortions in other states are banned by Idaho criminal law—a truly novel, shocking and blatantly unconstitutional interpretation of Idaho’s Total Ban that risks further isolating Idaho patients by cutting them off from critical health care in other states that is legal in those states,” reads the complaint.

Labrador tried to backtrack, at least publicly. He wrote Crane a new letter, 11 days after the first, chastising the lawmaker for allowing the letter to become public, and telling him to consider his letter “withdrawn” and his analysis “void.” But the new letter attempted to delete itself without explicitly taking back the opinion that health providers in Idaho could lose their medical licenses for referring women to a provider in another state or calling in an abortion-drug prescription.

The attorney general’s office did not respond to a request for clarification on his opinion of Idaho’s abortion laws.?

Mack Smith, the communications director for Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky, said Planned Parenthood will keep fighting what she called “an extremely extreme legal opinion” in court until the attorney general further clarifies.?

For now, Planned Parenthood is declining people’s questions about where to access abortions legally. Smith noted that Labrador’s office has said it is not currently investigating Planned Parenthood, but his previous letter represents a real threat to providers.?

“[The Idaho attorney general] has not been explicit in what revoking the letter means for our providers on the ground, and obviously, we won’t be risking their licenses and safety,” Smith said. “So at this point, we’re not providing referrals until the judge returns.”

And Stanton is once again seeking clarification from the attorney general, and has asked for a meeting.?

“While it is profoundly disappointing and confusing that Idaho’s Attorney General Labrador has publicly rescinded his letter regarding important and valid legal analysis on chemical abortions in Idaho, Stanton Public Policy Center believes the information he provided in a letter to a state representative is still accurate and affirms the law,” Swindell told States Newsroom. “So while Attorney General Labrador has rescinded his letter, he has not ‘rescinded’ the facts and criminal sanctions detailed in the letter and those who violate them will face criminal violations.”

The quagmire over Idaho’s abortion laws coincides with legal uncertainty over the legality of the abortion pill nationwide and has intensified a political climate that threatens maternal health care throughout the state. As States Newsroom originally reported, two hospitals in rural Idaho are losing their entire maternity wards in part because of the stringent liability around pregnancy termination, even when it’s medically indicated.

“The people who bear the brunt of that are the patients in Idaho,” Smith said. “They’re the people who now don’t have an understanding of the medical options available to them, because their providers aren’t able to give them all of the medical options provided to them. And that simply cannot happen in any state in the country.”?

Labrador’s reading of his state’s abortion ban is further indication of his anti-abortion pursuit. Idaho has become an incubator for extreme anti-abortions laws, and recently became the first state in the nation to ban abortion travel for minors without parental permission. He has argued in an ongoing federal lawsuit against Idaho’s law that emergency room doctors do not need to be explicitly protected from prosecution, and he is among several state attorneys general interjecting in a Washington lawsuit trying to lift restrictions to medication abortion.

Labrador is among several attorneys general who have received campaign funding from major conservative legal influencer Leonard Leo, who co-chairs the conservative legal group the Federalist Society, which heavily backed judges and prosecutors with a history of anti-abortion views, including Texas Judge Matthew Kacsmaryk, who recently issued the controversial ruling to temporarily halt the approval of mifepristone. Leo donated approximately $2,000 to Labrador’s primary campaign in February 2022, according to a campaign funding report shared with States Newsroom by liberal watchdog group Accountable.US. During his campaign, Labrador vowed to be a more aggressive attorney general unafraid to sue the federal government.?

‘Abortion reversal’ as prosecutorial tool

Swindell founded the Stanton Health network almost two decades ago with a bold but yet-to-be-realized mission to replace Planned Parenthood with a network of clinics that offers reproductive health services except for abortion and birth control. Stanton’s flagship clinic in Meridian, Idaho, is licensed, unlike the typical anti-abortion pregnancy center. But like more traditional centers, Stanton leases buildings next to abortion clinics and advertises alternatives to abortion including reversal. They’ve even launched a new mobile clinic to follow a new Planned Parenthood clinic in Ontario, Oregon, and clinics with limited health services in California, Michigan, Ireland, and Scotland.?

Swindell says her mother regretted an abortion, and that inspired her to promote and offer an unregulated and disputed medical treatment called “abortion pill reversal.” Over the years her clinics have seen a handful of women like the 26-year-old who wanted to try the treatment after regretting their decision to have a medication abortion, sometimes because of outside pressure.?

Though people can experience regret for any medical decision, the mainstream scientific consensus is that women overwhelmingly do not regret their abortions. There is data, however, showing that risk factors for “negative emotions” following an abortion (at least initially, but not necessarily over time) include community and personal attitudes about abortion, something that is denounced as murder by many religious groups and lawmakers in the U.S.??

Stanton’s client told States Newsroom that she “grew up Christian, of course,” and that her mom, whom she’s very close to, never believed in abortion. She hadn’t planned on getting pregnant just yet, but it was her boyfriend who was adamant it was the wrong time to have a baby.?

“I just felt not confident in my decision if I wanted to keep it because he was putting a lot of fear in my head,’’ she said. “He was thinking that if I [had the baby], it would ruin our lives. And so I just decided to make somebody else happy.”

But after a sleepless night, she was eager to try the treatment, whose ultimate champion is also a plaintiff in the high-profile lawsuit asking the U.S. Food and Drug Administration to revoke its approval of mifepristone and the two-drug medication abortion regimen.?

California family doctor George Delgado’s protocol involves a woman interrupting that FDA-approved regimen he’s trying to outlaw. After she takes mifepristone, she must forgo the second drug, misoprostol. Then a provider – usually referred at anti-abortion pregnancy centers – floods her body with progesterone for a couple weeks.

The anti-abortion movement – and several state governments, including Kansas – have been promoting this medical intervention in the absence of any evidence that it works or robust data on potential health consequences of not completing the abortion. Their websites advertise that abortion is reversible, which the American College Of Obstetricians and Gynecologists says sends the problematic and unfounded message that an abortion decision can wait till midway through a medication regimen. An OB-GYN who tried to scientifically test the abortion pill reversal protocol canceled the study after three of the subjects experienced excessive and abnormal bleeding.

Stanton’s client acknowledges that maybe it wasn’t progesterone capsules she took for two weeks that “reversed” her abortion. She had found out she was farther along – around 12 weeks pregnant – when medication abortion generally becomes less effective. But in another way, she believes those capsules made her a brand-new mom. Stanton says its client gave birth to a healthy baby earlier this month.?

“I thought of that progesterone just entering life back into him,” she said. “I felt like life was kind of going back into my baby again. I don’t know if it was like a placebo thing maybe, or like a spirit thing.”

And for Stanton, their client’s story helped them learn exactly how Planned Parenthood was helping women access legal abortion elsewhere, as they consider legal avenues.?

Though more and more states are floating proposals to prosecute women who have abortions, Stanton is among many anti-abortion groups that oppose criminalizing women for obtaining abortions, including self-managed abortions. Swindell said they have seen two patients who self-managed since Roe v. Wade was overturned. But they do believe in criminalizing advocacy and volunteer-based organizations that help women access abortions.??

“Our approach is dealing with the organizations and the entities that we feel are being predatorial and preying on these women,” Swindell said. “We are very pro-woman, very life-affirming in our approach, and we would never consider reporting a woman for a self-abortion. And in fact, we have not.”

Activists in other states are playing the same strategy Stanton is: going after organizations that offer assistance as a way to enforce and expand state abortion restrictions. Activists in Texas found their plaintiff – an ex-husband suing his wife’s friends for giving her information about how to access abortion pills.?

And these types of challenges are likely to spread, with the help of national groups that float model legislation, like the National Right to Life Committee’s model bill, which recommends that states permit civil actions against people or entities that allegedly violate abortion laws.?

These lawsuits and threats of lawsuits for helping women have abortions add to the general growing fear of criminal prosecution and can deter people from seeking care, or help from support systems, said Toti, the reproductive rights attorney.?

“I can’t speak to what the attorney general of Idaho will or won’t do, but I know that there are politicians across the country who have made false threats for the purpose of scaring and intimidating people who want to obtain abortion care or provide abortion care or help others obtain abortion here,” Toti said.

And that is Stanton’s ultimate goal: to end support and access for abortion care beyond Idaho’s borders.?

“We believe in the humanity and human rights of the preborn child,” Swindell said. “And so we’re continuing to work with the AG here in Idaho, and encouraging people to do that in states across the nation,” Swindell said.

Stanton’s client said she wants people to know they could try abortion pill reversal if they regret abortion, but was reluctant to talk about the politics around abortion in her state and across the U.S.

“I’m not talking about anyone else’s experience but mine,” she said, and declined to say whether she would get involved in any related legal action.

At which point, Swindell, who organized the interview with States Newsroom, interjected, “Maybe another interview down the road.”

In addition to creating confusion and fear of jail time for health care providers and patients, state abortion bans have led to women and girls being denied emergency medical care to maternity wards closing to an increasing shortage of OB-GYNs. (Getty Images)

At the center of the federal anti-abortion lawsuit against the U.S. Food and Drug Administration is the abortion drug mifepristone and the regimen that reportedly accounts for the majority of abortions in post-Roe America. That’s why the whole country is bracing itself for a ruling from a notoriously anti-abortion judge in Amarillo, Texas.?

The attention and confusion around this case might end up being the most impactful aspects about it, as many legal scholars doubt the judge has the legal authority to do what plaintiffs are asking for, which boils down to forcing the FDA to essentially recall a drug that for two decades has maintained a record of efficacy and safety. But regardless of the lawsuit’s outcome, legal experts still think a ruling that even briefly or partially favors plaintiffs will likely have lasting consequences on U.S. abortion access and affect medication policy beyond abortion.

“What this case is doing is only increasing the politicization of mifepristone and abortion, as well as the entire FDA approval process, and [it’s] calling into question the impartiality and the legitimacy of our court system, as well as our FDA approval process,” Georgia State University law professor Allison M. Whelan told States Newsroom.

Last month Whelan along with 18 other FDA legal scholars co-signed a “friend of the court” brief on behalf of the FDA, arguing that U.S. District Judge Matthew Kacsmaryk doesn’t have the authority to force the FDA to immediately withdraw approval of mifepristone, which plaintiffs have asked him to do via preliminary injunction while the rest of the lawsuit unfolds.?

Theoretically, the judge could decline to order the total withdrawal of the drug but could grant some of plaintiffs’ other demands, which include ordering the FDA to reinstate regulations that were lifted within the last several years. In 2000 the FDA approved a medication abortion regimen involving the hormone blocker mifepristone followed by misoprostol to expel the pregnancy. Later the FDA extended the gestational age that this protocol could be used from seven weeks to 10, eliminated the in-person dispensing requirement, and most recently has allowed pharmacies to dispense the drug directly to patients under certain restrictions – though that policy is still being rolled out.?

The FDA scholars and other legal experts say the process to withdraw drug approval (or to undo decisions made around a drug) can take years, requires public input, and discretion ultimately falls to the FDA. And in the meantime, the agency could choose whether or how to enforce any order that the drug is unapproved, said Whelan, whose scholarship and teaching focus includes FDA law and reproductive justice.?

“(T)he FDA would issue this policy statement that signals for manufacturers that from the FDA’s perspective, the FDA is not going to bring any sort of a civil or criminal action against the company for continuing to sell their drug,” Whelan told States Newsroom. “The FDA has issued enforcement discretion policies many times, including recently with the infant formula crisis.”

Even Kacsmaryk questioned his own powers during last Wednesday’s injunction hearing.?

“(I)s it that you expect this Court to order the FDA to begin a suspension or withdrawal, almost like a writ-type scenario, or that the Court itself can withdraw or suspend on its own accord?” Kacsmaryk asked, according to the court transcript.

“The latter,” replied Erik Baptist, senior counsel for Alliance Defending Freedom, the conservative Christian legal shop representing plaintiffs. “We take the position that the Court, on its own accord, can order the FDA to withdraw or suspend the approval of the drug.”

“And explain to me your argument on why this Court has that sweeping authority,” Kacsmaryk replied.?

Baptist replied vaguely that the court has the power to “enjoin and take whatever action to prevent harm.”

Despite plaintiffs’ claims that medication abortion is dangerous, there is ample evidence of its efficacy and safety. In more than two decades, there have been 28 reported deaths associated with mifepristone and a generally low rate of adverse events, according to the FDA.

The issue of drug approval is just one among several reasons defendants (and legal analysts) argue the case should be thrown out. Others include that the statute of limitations on plaintiffs’ complaints has expired and that plaintiffs did not exhaust administrative remedies to challenge FDA’s approval of mifepristone.?

Attorneys for the government have argued that plaintiffs do not have standing to bring their claims and have not shown how they would be directly harmed by keeping mifepristone on the market. Plaintiffs have largely argued that doctors represented in the lawsuit might see an increase in workload in their emergency rooms if more medication abortion patients experience complications and seek medical treatment. Even if that were a viable argument, plaintiffs have not provided evidence that medication abortion is causing a large amount of adverse effects and problems – beyond speculation and minimal anecdotes.?

Plaintiffs have also asked the court to weigh in on a dormant federal law from the 1800s known as the Comstock Act, which anti-abortion advocates have been trying to argue legally prevents abortion pills from being sent in the mail, but the Biden administration contests this. Defendants have argued that whether a drug can be legally mailed has no bearing on this case about drug approvals.

A Trump appointee, Kacsmaryk previously served as deputy counsel for a Christian conservative legal group called First Liberty Institute, where he worked on cases fighting access to reproductive health care. “As a federal judge, Kacsmaryk has struck down protections for LGBTQ workers and trans youth and ruled that a federal family planning program’s policy of offering confidential birth control to teens violates federal law and Texas state law, potentially making it harder for Texas teens to access contraception (the ruling has been appealed).

But given all of the legal problems with the abortion pill case, legal journalist Chris Geidner suggests there are a lot of reasons why this case could fail, despite Kacsmaryk’s ideology and sympathies to some of the plaintiffs’ arguments.

“Anything could happen — and much has been made of Kacsmaryk’s background and rulings thus far on the bench — but DOJ and Danco’s lawyers made as strong a case as possible that Kacsmaryk would be going far afield of the law by doing anything about the 2000 approval of mifepristone, especially with these plaintiffs on these facts.”

This case is ongoing (as are several federal lawsuits about medication abortion), and Kacsmaryk’s preliminary injunction is likely to be appealed. Additionally, the ruling itself would only apply to the FDA and Danco Laboratories, one of the manufacturers of the abortion pill. Still, a decision that favors the coalition of national conservative Christian medical associations known as the Alliance for Hippocratic Medicine, and the four plaintiff doctors is sure to have far-reaching legal consequences, and could add more distress and confusion for manufacturers, pharmacists, and health care providers. Beyond abortion, Whelan said a favorable decision could open the door to lawsuits against politically controversial vaccines and hormone replacement therapies.?

A favorable decision could also embolden more states to try to ban mifepristone using the argument – if Kacsmaryk buys it – that the medication abortion regimen was not lawfully approved or properly vetted, which many legal and policy analysts say is patently false. A ruling that limits medication abortion in some way – even if it’s not enforceable – will add yet another confusing legal layer to the panoply of state anti-abortion laws that have led to pregnant women frantically traveling for abortion care outside their states, even for medical emergencies.

“It’s like there is no light at the end of the tunnel as to when this is going to end, and it’s just so problematic from a patient and provider perspective because of the uncertainty,” Whelan said. “I cannot imagine being a healthcare provider who does reproductive health care going to work every day thinking, ‘Can I do this today? I was allowed to do it yesterday. Can I do it today? Will I be able to do it tomorrow?’”

Since Roe v Wade was overturned last summer, abortion medication has been under fire as the abortion drug mifepristone is the subject of a federal lawsuit and some states are attempting to restrict access by threatening legal action against retail pharmacies and suppliers of the drug. (Adobe Stock)

The pills came in a dark salmon-colored envelope sealed with a plastic covering that traveled more than 7,000 miles, over a dozen time zones from Nagpur, India, in almost exactly one week.

They were placed partially under the doormat of a home in a state with one of the most restrictive abortion bans in the United States, where zero clinics or pharmacies dispense the medication and the closest option for an in-person procedure is at least an hour to four hours away.

It is, advocates say, one of the only options left for those seeking abortions in one of the 14 states with criminal penalties for health care providers who perform the procedure.?

The process of ordering the medication from Aid Access, a nonprofit organization founded by Dr. Rebecca Gomperts in 2018, is cobbled together in segments. From the organization’s headquarters in Austria, Gomperts acts as the prescribing gynecologist for the person ordering the pills on the Aid Access website. It’s one of the only services that allows people to order the medication as a “just in case” option, as the pills don’t expire for two years with proper storage.

Payment of $105 (about 98 euros) is made separately via PayPal, and once payment is complete, Gomperts sends her prescription to the pharmacy. There is also an option for financial assistance.?

Mifepristone and misoprostol are used in combination to end a pregnancy, typically before 12 weeks of gestation, and the drugs are used to help manage early miscarriages. Mifepristone is taken first to stop the production of the progesterone hormone, which is needed to continue a pregnancy. Misoprostol is then taken to induce contractions in the uterus to expel the pregnancy.

Mifepristone was approved by the U.S. Food and Drug Administration in 2000, but it is under legal challenges in court and legislatures across the country are attempting to restrict access to the drug. On Friday night, Wyoming’s governor signed into law a ban on medication-induced abortions. ?A lawsuit challenging the FDA’s approval process for mifepristone is ongoing in Texas, where a federal judge could order the agency to revoke its approval after more than two decades. Other states are attempting to restrict access by threatening legal action against retail pharmacies and any other suppliers of the drug.?

An email notification is sent when the package ships, with detailed instructions about how to take the medication, the potential risks involved, side effects and pain management and when to seek medical attention. The email also includes resources for hotlines with people available for emotional support or to provide answers to medical questions.

The package itself includes a box with one mifepristone pill and four misoprostol pills, and a separate package contains 12 misoprostol pills. The combination box is enough for pregnancies that are less than 12 weeks’ gestation, while the 12 pills are designed for pregnancies of more than 12 weeks.

By email, Gomperts told States Newsroom her organization is receiving more than 1,000 emails per day from individuals looking for help. Many of them also cannot afford the full price of the drugs. In February, Gomperts said 57% of those who paid for the drugs were able to pay less than 50 euros, or about $53.

“It is important to continue this work because the people we help cannot travel to other states to get a safe abortion,” Gomperts said.

Alabama has already threatened prosecution under different law for taking abortion pills?

Gomperts grew up in the Netherlands and became passionate about providing abortion care during her work for Greenpeace, according to the New York Times. She has worked to provide abortions for women in countries around the world, including Spain, Morocco, Guatemala and Ireland, when the country still had a strict abortion ban.

Christine Ryan, legal director of the Global Justice Center, is from Ireland and told States Newsroom she still lived there when the abortion ban was in place. It was repealed in 2018 after the high-profile case of a woman who died from a septic infection after she was denied abortion care during a miscarriage.

Ryan said witnessing those events and following Gomperts’ work is what made her decide to get involved in reproductive rights.

“Rebecca Gomperts has been like a guardian angel to women worldwide for decades,” Ryan said.

Gomperts used the same “workaround” to send the drugs to Irish women when it was banned, Ryan said, since she is based in another country.

Fourteen states across U.S. have abortion bans in place, nine of which do not include exceptions for cases of rape or incest. The bans do not have criminal penalties in place for the pregnant person, and while Texas, Oklahoma and Idaho have civil enforcement laws that allow family members or the pregnant person to sue medical providers for their role in an abortion, the suits cannot be brought against the pregnant person.

That has not stopped some states from threatening to prosecute individuals for taking abortion pills under different existing statutes. In January, Alabama Attorney General Steve Marshall said the state could prosecute people under a chemical endangerment law that has been used to prosecute women who use illegal substances during pregnancy. It’s unclear if that law would apply to mifepristone and misoprostol, which are legal drugs approved by the FDA. The U.S. Department of Justice also issued an opinion in December stating the mailing of the drugs to a particular jurisdiction is not sufficient basis for “concluding that the sender intends them to be used unlawfully.”??

The Wyoming Legislature also passed a ban on medication abortion in March, which Gov. Mark Gordon signed Friday.

Although Politico and the New York Times reported this month that Walgreens confirmed it would not sell the medication in up to 20 states where attorneys general had threatened legal repercussions for doing so, a Walgreens spokesman told States Newsroom in a statement, “We want to be very clear about what our position has always been: Walgreens plans to dispense Mifepristone in any jurisdiction where it is legally permissible to do so. Once we are certified by the FDA, we will dispense this medication consistent with federal and state laws.‘’

While that will make it difficult for individuals to receive mifepristone from a pharmacy, Ryan said it won’t be as easy to enforce bans on mailed pills.?“The authorities in (states with abortion bans) — who are they going to try to prosecute in terms of the mailing of these pills?” Ryan said.

Idaho anti-abortion activist: We need penalties for sending ‘human pesticide’ to women

Brandi Swindell, founder and president of anti-abortion clinic Stanton Healthcare, told States Newsroom she thinks the mailing of abortion pills is a major problem that she called “creepy” and said reminds her of a drug cartel.

“We have these — not only out-of-state — but out of country groups that are pimping a human pesticide that could have very serious ramifications on a woman physically and emotionally, can impact her mental health, her physical well-being,” Swindell said. “And they are coming into states where we have clear abortion laws, where we have gone through the legal process, the legislative process. … And they’re going to try to sell and pimp these drugs preying on women that are in a potential crisis or unexpected pregnancy situation, a vulnerable situation.”

Idaho has a near-total ban on abortions at any stage of pregnancy, with affirmative court defenses to save the pregnant person’s life and for rape and incest if a police report is provided. Swindell said she is working with state lawmakers in Idaho, where Stanton Healthcare is based, to seek an opinion from Idaho Attorney General Raúl Labrador’s office about whether the state’s abortion ban includes medication abortion.

“There needs to be clarification and enforcement that any organization or individual that is involved in promoting, selling or profiting from attempting to skirt Idaho’s law to dispense and sell and profit from the abortion pill, that those entities need to be held accountable,” Swindell said.

If Labrador’s office concludes the method is not included in Idaho’s law, Swindell said there needs to be legislation introduced as soon as possible to strengthen the existing law before the Idaho Legislature adjourns for the year, which could happen in the next few weeks.

“We’re passionately working to make sure that chemical abortions are banned,” Swindell said. “We want to make this a major issue in the 2024 presidential race.”

Self-managed abortions at home make pregnant people feel safer, legal advocate says?

The drug’s use has become much more common in abortions across the country in the past three years. According to the Guttmacher Institute, as of December, medication abortion made up about 54% of all abortions performed in the United States.

Part of that may be people taking advantage of those legal workarounds with the mail, but Ryan said some pregnant people find home management of an abortion to be empowering and it offers a stronger sense of safety.

“You’ve had clinics suffering so much violence in the clinic setting, and having to deal with protesters, and the difficulties in arranging transport and financing transport, whereas managing pregnancy in someone’s own home is a safe place,” Ryan said. “Also having access to a clinician over the phone and online is something that has shown to be quite powerful.”

While providers and patients across the United States wait on a ruling from a federal judge in Texas about the U.S. Food and Drug Administration’s approval of mifepristone, advocates want to stress that options like Aid Access will still be available no matter the outcome of the court case.

Dr. Jennifer Lincoln, an obstetrician-gynecologist who practices in Portland and the executive director of an advocacy organization called Mayday Health, said if state laws become more stringent around policing abortion medication, Aid Access and other internationally based options will become more important.

“The best thing you can do is inform yourself and pass the message along that you’ll still be able to get these medications,” Lincoln told States Newsroom. “It requires a few more hoops, but you’ll still be able to get it.”

Ryan doesn’t worry about organizations like Aid Access being affected by whatever happens in U.S. courts, but she is worried about state- and county-level prosecutors trying to target people who use the pills at home.

“What I do really see as a particularly challenging (fact) that activists and patients have to deal with in the U.S. that wasn’t as pertinent somewhere like Ireland, or even in Mexico and Argentina, is the level of surveillance that exists and the power and zeal of the criminal legal system,” Ryan said. “It is a phenomenon that is very much overlapping with the human rights crisis to create this extremely challenging environment for people to exist in.”

States Newsroom National Reproductive Rights Reporter Sofia Resnick contributed to this report.

Lila Bonow, Alana Edmondson and Aiyana Knauer prepare to take abortion pill while demonstrating in front of the U.S. Supreme Court on Dec. 1, 2021. (Photo by Chip Somodevilla/Getty Images)

JACKSON, Miss. — The Pink House — otherwise known as Jackson Women’s Health Organization — was the center of the U.S. Supreme Court case that overturned the federal right to abortion in June. Today, the clinic, the only abortion clinic to serve Mississippi and the greater area for years, is shuttered. On a hot day in February, there are no protests outside the clinic’s gates, the air is still and quiet, the iconic walls on the outside have been painted white, and the medical equipment has been removed. A new owner has moved in and has begun converting it into a consignment shop for luxury goods.?

“I worry about those women a lot, that they no longer have means to health care in the state of Mississippi,” said Diane Derzis, former owner of the Pink House.?

The Pink House is just one of dozens of organizations across the South that have closed or stopped offering abortion services in the face of trigger abortion bans that went into effect right after Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade.?

Derzis said selling the building that housed the clinic was a “business decision.” She said the Jackson clinic’s operations, medical equipment, and furniture have moved to Las Cruces, New Mexico, in the face of Mississippi’s 15 week abortion ban. She also has clinics in places like Columbus, Georgia, and Richmond, Virginia. Now, many people in the South are traveling out of state to seek an abortion — either in-clinic or via medication abortion, she said.?

Derzis says she’s getting ready to open a clinic in Chicago, Illinois.?

But all those clinics and others still operating could soon face new restrictions as a federal judge in Texas decides on a lawsuit filed by anti-abortion groups that directs the U.S. Food and Drug Administration (FDA) to withdraw its approval of mifepristone — a widely used drug used in medication abortion that’s been around for decades.?

“I think that women need to pick up their guns and take to the streets, and I’m serious. This is a crusade against women,” Derzis said.

A broad lawsuit that leaves room for questions

Medication abortions account for over half of all abortions in the United States, according to the research group Guttmacher Institute. A ruling in favor of the anti-abortion groups would not only make legal abortion more challenging, it would also erase some of the limited options left for people in states where there are strict abortion bans. These restrictions are most prominent across the southeastern United States, where maternal health care deserts are growing.?

The likely immediate impact would be that manufacturers would not be allowed to ship mifepristone anywhere in the United States, and providers would no longer be able to prescribe it. It’s still unclear what could happen with misoprostol, a drug that’s used in medication abortion as well as to treat ulcers.

The typical regimen used in medication abortion involves the use of mifepristone and misoprostol, and has been prescribed by doctors since the 2000s.?

Elizabeth Nash, principal policy associate at Guttmacher, says it’s likely that only misoprostol would be used for medication abortions — which Nash says has been done in other countries. But she says, the issue is that the lawsuit is broad in some areas, so there are still a lot of unknowns.?

“How many providers would switch to a misoprostol regimen? Not every provider would do that. Secondly, it’s unclear how patients would feel about using a misoprostol-only regimen especially because it has a higher dosage. They may be asking for more procedural abortions and that may make it harder because in-clinic abortion takes more time and resources for clinic staff,” Nash said.

Erik Baptist, senior counsel with the Alliance Defending Freedom, one of the groups that filed the lawsuit, said the lawsuit also asks the FDA to ban the use of misoprostol in medication abortion.?

“This lawsuit focused on the FDA’s approval of both mifepristone and misoprostol for its use in medication abortion. Whether a doctor could approve the use of these drugs off-label is not in the scope of this lawsuit,” he said. “I think it’s important to note that this lawsuit doesn’t target the use of [misoprostol] for benign issues such as Cushing’s disease or gastric ulcers.”?

The plaintiffs argue that the FDA did not follow protocol to evaluate whether these drugs were safe to be prescribed for medication abortion. Although, numerous studies have shown the regimen to be safe and effective.

“We will evaluate the court’s decision no matter how he may rule and determine what to do from there. We are currently focused on prevailing at the district court,” Baptist said.?

Clinics strapped to provide care, patients with fewer options

While it’s still unclear what could happen after the ruling, what is known is that people in abortion restricted states who used to go to clinics like the Pink House in Jackson are already having a tougher time seeking legal abortion.

“People are still needing and wanting abortion services. It’s just making it harder for Mississippians. It’s more expensive having to travel farther and take longer periods off of work. Some folks have had to fly to either Florida and New York. Some of these people are experiencing their first time being on a plane,” said Michelle Colón, executive director of Sisters Helping Every Woman Rise and Organize (SHERo), an abortion-rights organization that helps connect people of color to legal abortion services.?

In Florida, abortion is illegal after 15 weeks, although soon that could be reduced. In New York, that timeframe is through viability of a fetus, which is about 24 weeks of pregnancy.

Clinics in northern states are already feeling the pressure of the increased demand, said Mara Pliskin, patient navigation manager at Planned Parenthood in Illinois.?

“We’re in the trenches. We are doing the best we can and have systems in place to get scheduled as fast as we can and get them here,” Pliskin said. “We hear patients say, ‘I don’t know how to make this happen.’… We’ve definitely seen an increase in patients from the South — Louisiana, Mississippi, Tennessee, Florida, all of these states.”

Pliskin says many patients are facing dangerous situations, especially if they are in states where they have to be mindful of confidentiality or dealing with issues like intimate partner violence.?

Pliskin said that like many abortion clinics around the country, clinics in Illinois have long waitlists and resources are stretched. And, those waitlists will likely get longer if medication abortion becomes restricted, as more patients will opt for the surgical procedure.?

In fact, data from Planned Parenthood Illinois shows that for patients from Louisiana, Mississippi, Alabama, Georgia, and Florida, 38% had a medication abortion and 62% had an in-clinic procedure between Nov. 1, 2022? to Feb. 28, 2023. Meanwhile, for the overall abortion population at that clinic in the same time period, 54% had medication abortion and 46% had an in-clinic abortion for the same time period.

“We will continue to offer medication abortion with misoprostol. There is already a method for it. The only thing is that it will take longer — it’s more medication over a longer period of time and it just makes it that much more difficult for people who travel,” Pliskin said. “That means patients will have to stay in Illinois longer … before they can return home to a state where it’s illegal or restricted.”?

Even when it comes to telehealth, Pliskin says the patient still has to come to Illinois when they are actually taking the medication. That means patients will also have to spend more money and time, adding to the emotional toll and financial strain they may be experiencing, said Colón. In turn, that makes it more difficult for advocates too.?

“It’s put a burden on all of the abortion funds that are in partnership with supporting folks from Mississippi,” she said. “When somebody calls you and they need you at the drop of a hat … it’s hard and it’s just wrong and sad. This is torture and government sanctioned oppression. But we’re doing what we can.”?

A future of more health and legal safety risks around reproductive care?

Anti-abortion groups argue that medication abortion is unsafe. Terri Herring, leader of pro-life group Choose Life Mississippi, says womens’ lives are at risk.?

“Abortion pills without confirmation of gestational age and consultation with a physician are dangerous for women,” Herring said. “We need to continue to educate women about the dangers of abortion on both their physical and emotional health.”

Other groups say they’re prepared to help people who have no choice but to give birth.

“I think that the pro-life movement has shown that we are here for women and we will continue to support women whether they are pursuing abortion or not,” said Sarah Zagorski, a spokeswoman for Louisiana Right to Life. “Of course, there are improvements that can be made, but I think we’ve come a long way in supporting women in crisis.”?