Republicans’ “Beef” with Women: State and Federal Developments Create a Confusing Patchwork of Laws and Regulation

Opinion Contributed by Kate Aufses and Meg Sanborn-Lowing

In the wake of the Supreme Court’s 2022 Dobbs decision overturning Roe v. Wade, the Unites States has become a patchwork of inconsistent abortion laws. Two state-court decisions, as well as new federal regulations, issued over the past two weeks demonstrate a wide, confusing, and complicated divergence in abortion jurisprudence—and the regulation of pregnant people’s bodies—among the states and between the states and the federal government.

We’ll start with the bad news. Last week, Idaho’s Supreme Court dismissed a series of cases filed by Planned Parenthood and a local family physician that attempted to block the state’s newly enacted, draconian abortion laws. Signed by Idaho’s Republican governor in March 2022, Idaho’s abortion laws allow certain individuals to sue anyone who performs an abortion when a so-called fetal heartbeat is present; criminalize abortion after the detection of a “heartbeat”; and ban abortion after six weeks of pregnancy but allow medical professionals to argue that the abortion was performed to save the patient’s life. Although Idaho’s governor expressed some concern that the law’s (grotesque) enforcement mechanism might pose constitutional—not to mention humanitarian—problems for the state, he signed it anyway. (In a separate proceeding, the federal government sued Idaho to block enforcement of the laws, arguing that the state’s complete ban on abortion, even in cases in which a pregnant person’s life is at risk, violates a federal law requiring Medicare-funded hospitals to provide “stabilizing treatment” to patients experiencing medical emergencies.)

Planned Parenthood argued that Idaho’s law conflicted with the state constitution, which enshrines Idahoans’ rights to privacy and due process. Idaho’s Supreme Court held, however, that the plaintiffs failed to prove that abortion was “deeply rooted” in Idaho’s history and tradition and that, in fact, the state has consistently treated the practice as immoral and a crime. The majority held that the Idaho Constitution “as it currently stands, does not include a fundamental right to abortion.”

Now, the relatively good news. In Iowa, a state court judge upheld a 2019 decision permanently enjoining a new state law banning abortions once cardiac activity can be detected. Iowa’s Republican governor Kim Reynolds, who supports outlawing abortions, will need to either appeal the decision to the Iowa Supreme Court or undertake a legislative process to change current Iowa law, which bans abortions after twenty weeks of pregnancy.

Additionally, the highest court of South Carolina—another ruby-red state that severely restricted access to abortion after Dobbs—came to the opposite conclusion from Idaho. There, South Carolina’s legislature passed a law banning all abortions after six weeks of pregnancy, with exceptions only for rape, incest, or pregnancies that threaten the mother’s life. In response, Planned Parenthood and other abortion rights groups argued that South Carolina’s abortion ban violated the state constitution’s right to privacy—specifically, “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy . . . .”

The South Carolina Supreme Court held that the right to privacy must include a right to abortion because, among other things, “the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable.” The South Carolina justices writing for the majority held that,

while the state’s constitution does not explicitly mention the word abortion, the right could, based on history and legal precedent, reasonably be extended to include abortion and did not, as the state argued, protect against “searches and seizures” alone.

The plaintiffs’ decision to locate a right to abortion in the state’s explicit protection of privacy rights paid off. Because several other state constitutions contain similar provisions protecting the right to privacy, the South Carolina case could provide a promising avenue to expand, rather than further contract, reproductive rights in the United States.

The federal government is also taking small steps outside the court system towards making abortion accessible. Last week, the FDA announced updated regulations allowing pharmacies to dispense mifepristone, a drug used in medication abortions. In theory, this new rule means that a person seeking a medication abortion must no longer go to a clinic or other healthcare facility to obtain mifepristone. However, the patient must still obtain a prescription, and only pharmacies deemed “certified” after a burdensome process may dispense the drug. Many abortion rights advocates have applauded the new rule, which, in conjunction with expanded telemedicine services and mail delivery of the pills, may increase access to abortion; on the other hand, some abortion rights defenders have criticized the change, asserting that it will not help patients get pills in states that have banned abortion. Some abortion rights experts have criticized the FDA’s new rule on the basis that it provides anti-abortion activists an avenue to get mifepristone removed from the market nationwide and to force virtual clinics to shut down.

As of November 2022, sixteen states that permit some abortions have laws restricting mifepristone. Courts have not yet addressed whether the new federal rules should override these state laws, although such a test seems inevitable. And anti-abortion groups such as the conservative Alliance Defending Freedom have already challenged the FDA’s approval of mifepristone for abortion. The Trump-appointed judge overseeing the case has been friendly to conservative causes, having ruled against the Biden administration in one case concerning healthcare coverage for transgender people and another involving a Trump-era immigration policy requiring asylum seekers to wait in Mexico.

In fact, officials in states where abortion is banned have promised to take action against pregnant people who obtain abortion pills at a local pharmacy (or through the mail). For example, Alabama’s attorney general has threatened to prosecute pregnant people in Alabama who take abortion pills, claiming that, although Alabama’s abortion ban does not trigger criminal liability for a person obtaining an abortion, the patient could still be prosecuted under the state’s “chemical endangerment of a child” statute. Alabama claims, however, that its “beef is with illegal providers, not women.”

Simultaneously, the Justice Department issued an opinion that the U.S. Postal Service could deliver abortion pills to people in states where the procedure is restricted or banned altogether, noting that the drugs commonly used to end pregnancies are also used for other purposes like managing miscarriages or treating gastric ulcers. The opinion, however, would not protect a person who obtains pills through the mail and uses them to end a pregnancy in a state where abortion is outlawed.

And, needless to say, the newly-Republican-controlled House of Representatives has fired a warning shot at federal abortion rights, despite the party’s claims that abortion should be an issue left to the states. In the first week in session, Republicans pushed a bill through the House that requires doctors to perform lifesaving resuscitation measures on babies that are “born alive” after an “attempted

abortion”—a vanishingly rare occurrence (that is already covered by federal law). Abortion rights activists argue that the new bill serves no purpose other than to intimidate pregnant people out of seeking an abortion. Gratefully, the law taking aim at a common conservative bogeyman has no chance of passing in the Senate.

Despite this patchwork of federal and state law, what remains clear is that abortion rights advocates must continue pushing for expanded abortion access at both the state and federal level.

The views expressed here are those of the author, and do not necessarily represent or reflect the views of NYCLA, its affiliates, its officers or its Board.