It’s been one year since the U.S. Food and Drug Administration approved the first over-the-counter birth control pill, Opill, and less than two months since it hit store shelves. Advocates celebrate its availability but say access is still lacking in terms of cost barriers and insurance coverage. (Justin Sullivan/Getty Images)

Policy, politics and progressive commentary

Sriha Srinivasan remembers how surprised her mom was two years ago when she learned that birth control pills weren’t sold in stores without a prescription in the United States.

“My parents are immigrants from India, and it’s been over the counter there since my mom can remember,” said Srinivasan, a recent graduate of University of California Los Angeles.

More than 100 countries were already selling birth control without a prescription before the U.S. Food and Drug Administration — one year ago as of Thursday — approved Opill. Though the hormonal, over-the-counter birth control pill was approved in May 2023, it didn’t reach online retailers or the shelves of major drug stores across the country until a couple of months ago.

Opill is a progestin-only birth control pill, which is slightly different from the typical prescription of a progestin and estrogen combination pill. Dr. Kristin Lyerly, an OB-GYN in Green Bay, Wisconsin, said that means the oral contraceptive is still very safe and 98% effective, but the user has to be more diligent about making sure it’s taken at the same time every day. If the time window is missed by three hours or more, there is a higher chance of unintended pregnancy, so she recommends that people use a backup form of protection for the next 48 hours while they get back on schedule.

Srinivasan, 21, gets health care coverage through her parents’ private insurance, but she said when she called clinics to see if she could get a birth control prescription last year, the first appointment that was available was six months out.

She happened to be working with Free the Pill, a group of reproductive health advocates and health care providers, on getting Opill approved by the FDA, so she decided to hold off.

“Almost out of spite, I was like, ‘I’m going to wait and get this over the counter.’”

On March 22, just after Opill hit the U.S. market, Srinivasan drove with a friend to a nearby Walgreens to buy their first packs, which cost about $20 each. The two recorded a TikTok of themselves taking their first doses.

“It was a very joyous and empowering moment to be able to take that for the first time,” Srinivasan said.

Contraception access is key post-Dobbs, researcher says

Dr. Daniel Grossman, director of the Advancing New Standards in Reproductive Health program at the University of California San Francisco, has been at the forefront of the effort to get FDA approval for an over-the-counter birth control pill since 2004, and is part of the steering committee of Free the Pill. His research efforts included a study showing that women who had direct access to the pill in areas like Texas border towns where people could cross into Mexico to get it directly stayed on it longer than those who needed a prescription. His research also found that people generally didn’t support age restrictions, and the FDA approval for Opill does not have an age restriction.

Grossman said more access to contraception is important for overall reproductive health, but it’s especially important in the wake of the Dobbs decision in 2022 that overturned Roe v. Wade and led 14 states to enact near-total abortion bans.

“Improved access to contraception isn’t going to solve the crisis of abortion access that we’re currently facing, but that said, in this moment — when people in half of the states have very limited options for abortion care and there are growing threats on access to contraception — I think it’s important that we do everything we can to expand access to all methods of birth control where that’s possible,” Grossman said.

Aside from a few expected and manageable side effects, including headaches and light bleeding, Srinivasan said she’s had a good experience with the pills and their availability so far. But there’s room for improvement, she said, and Free the Pill is advocating for more cost assistance support and coverage from national private insurance companies.

Free the Pill launched an online petition this week to pressure President Joe Biden and his administration to require insurance plans to include coverage for Opill. It had 35,000 signatures as of Thursday afternoon.

Srinivasan said she tried to apply for assistance but wasn’t able to because she has insurance, and only those without any form of private or public insurance can apply. Qualifying applicants also have to have a household income at or below 200% of the federal poverty line, which is $15,060 for a single person. A 2022 survey from Advocates for Youth found that 1 in 3 of those surveyed cited affordability as one of the biggest barriers to accessing contraception.

“At a $20 price point, it’s something I can afford because I have a job and I live in California, where the minimum wage is over $17 an hour, but it’s definitely not something my peers in other states can afford that easily,” Srinivasan said. “I hope they adjust that, because it’s definitely not reaching the people that it should be reaching right now.”

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Demonstrators at the “Jewish Rally for Abortion Justice” at Union Square near the U.S. Capitol in May 2022. (Anna Moneymaker/Getty Images)

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Lawmakers who oppose abortion often invoke their faith — many identify as Christian — while debating policy.

The anti-abortion movement’s use of Christianity in arguments might create the impression that broad swaths of religious Americans don’t support abortion rights. But a recent report shows that Americans of various faiths and denominations believe abortion should be legal in all or most cases.

According to a Public Religion Research Institute survey of some 22,000 U.S. adults released last week, 93% of Unitarian Universalists, 81% of Jews, 79% of Buddhists and 60% of Muslims also hold that view.

Researchers also found that most people who adhere to the two major branches of Christianity — Catholicism and Protestantism — also believe abortion should be mostly legal, save for three groups: white evangelical Protestants, Latter-day Saints and Jehovah’s Witnesses.

Historically, the Catholic Church has opposed abortion. But the poll found that 73% of Catholics of color — PRRI defines this group as Black, Asian, Native American and multiracial — support the right to have an abortion, followed by 62% of white Catholics and 57% of Hispanic Catholics.

The findings show that interfaith views on abortion may not be as simple as they appear during political debate, where the voices of white evangelical legislators and advocates can be the loudest.

States Newsroom spoke with Abrahamic religious scholars — specifically, experts in Catholicism, Islam and Judaism — and reproductive rights advocates about varying perspectives on abortion and their history.

Abortion views in America before Roe v. Wade

The Moral Majority — a voting bloc of white, conservative evangelicals who rose to prominence after the U.S. Supreme Court Roe v. Wade ruling in 1973 — is often associated with spearheading legislation to restrict abortion.

Gillian Frank is a historian specializing in religion, gender and sexuality who teaches at the Stevens Institute of Technology in New Jersey. Frank said evangelical views on abortion were actually more ambivalent before the early ’70s Roe decision established the federal right to terminate a pregnancy. (The Supreme Court upended that precedent about two years ago.)

“What we have to understand is that evangelicals, alongside mainline Protestants and Jews of various denominations, supported what was called therapeutic abortion, which is to say abortion for certain exceptional causes,” Frank said, including saving the life or health of the mother, fetal abnormalities, rape, incest and the pregnancy of a minor. Religious bodies like the Southern Baptist Convention and the National Association of Evangelicals said abortion was OK in certain circumstances, he added.

Evangelical Protestants before Roe did not endorse “elective abortions,” Frank said, or what they called “abortion on demand,” a phrase invoked by abortion-rights opponents today that he said entered the American lexicon around 1962.

The 1973 ruling was seismic and led organizations opposing abortion, such as the National Right to Life Committee — formed by the Conference of Catholic Bishops — to sprout across the country, according to an article published four years later in Southern Exposure. Catholic leaders often lobbied other religious groups — evangelicals, Mormons, orthodox Jews — to join their movement and likened abortion to murder in their newspapers.

After Roe, “abortion is increasingly associated with women’s liberation in popular rhetoric in popular culture, because of the activism of the women’s movement but also because of the ways in which the anti-abortion movement is associating abortion with familial decline,” Frank said. Those sentiments, he said, were spread by conservative figures like Phyllis Schlafly, a Catholic opposed to feminism and abortion, who campaigned against and managed to block the Equal Rights Amendment in the 1970s.

Polls suggest the views of Catholic clergy and laypeople diverge

Catholicism is generally synonymous with opposition to abortion. According to the United States Conference of Catholic Bishops, the church has stood against abortion since the first century. The conference points to Jeremiah 1:5 in the Bible to back up arguments that pregnancy termination is “contrary to the moral law.”

But nearly 6 in 10 American Catholics believe abortion should be mostly legal, according to a Pew Research Center report released last month.

Catholics for Choice spokesperson Ashley Wilson said that there’s a disconnect between the church as an institution and its laity. “We recognize that part of the problem is that the Catholic clergy, and the people who write the official teaching of the church, are all or mostly white male — my boss likes to say ostensibly celibate men — who don’t have wives,” Wilson said. “They don’t have daughters. They have no inroads into the lives of laypeople.”

Her group plans on going to Vatican City in Rome this fall to lift up stories of Catholics who’ve had abortions. The organization is also actively involved in efforts to restore abortion access — 14 states have near-total bans — through direct ballot measures in Colorado, Florida and Missouri this year.

Catholic dioceses and fraternities are often behind counter-efforts to proposed ballot questions. They poured millions into campaigns in Kansas and Kentucky in 2022 to push anti-abortion amendments, and also in Ohio last year to defeat a reproductive rights ballot measure but they failed in each state.

Ensoulment and mercy in Islam

Tenets of Islam — the second largest faith in the world — often make references to how far along a person’s pregnancy is and whether there are complications. University of Colorado Law professor Rabea Benhalim, an expert of Islamic and Judaic law, said there’s a common belief that at 40 days’ gestation, the embryo is akin to a drop of fluid. After 120 days, the fetus gains a soul, she said.

While the Quran doesn’t specifically speak to abortion, Benhalim said Chapter 23: 12-14 is considered a description of a fetus in a womb. The verses are deeply “important in the development of abortion jurisprudence within Islamic law, because there’s an understanding that life is something that is emerging over a period of stages.”

In some restrictive interpretations of Islam, there’s a limit on abortion after 40 days, or seven weeks after implantation, Benhalim said. In other interpretations, because ensoulment doesn’t occur until 120 days of gestation, abortion is generally permitted in some Muslim communities for various reasons, she said. After ensoulment, abortion is allowed if the mother’s life is in danger, according to religious doctrine.

Sahar Pirzada, the director of movement building at HEART, a reproductive justice organization focused on sexual health and education in Muslim American communities, confirmed that some Muslims believe in the 40-day mark, while others adhere to the 120-day mark when weighing abortion.

“How can you make a black-and-white ruling on something that is going to be applied across the board when everyone’s situation is different?” she asked. “There’s a lot of compassion and mercy with how we’re supposed to approach matters of the womb.”

The issue is personal for Pirzada, who had an abortion in 2018 after her fetus received a fatal diagnosis of trisomy 18 when she was 12 weeks pregnant. “I wanted to terminate within the 120-day mark, which gave me a few more weeks,” she said.

She consulted scholars and Islamic teachings before making the decision to end her pregnancy, she said, and mentioned the importance of rahma — mercy — in Islam. “I tried to embody that spirit of compassion for myself,” she said.

Pirzada, who is now a mother of two, had the procedure at exactly 14 weeks on a day six years ago that was both Ash Wednesday and Valentine’s Day. She said she felt loved and surrounded by people of faith at the hospital, where some health care workers had crosses marked in ash on their foreheads. “I felt very appreciative that they were offering me care on a day that was spiritual for them,” she said.

Seeing the stories of people with pregnancy complications in the period since the Supreme Court overturned the federal right to an abortion has left her grief stricken. For instance, Kate Cox, a Texas woman whose fetus had the same diagnosis as Pirzada’s, was denied an abortion by the state Supreme Court in December. Cox had to travel elsewhere for care, Texas Tribune reported.

Benhalim, the University of Colorado expert, said teachings in Islam and Judaism offer solace to followers who are considering abortion, as they can provide guidance during difficult decisions.

No fetal personhood in Judaism 

In Jewish texts, the embryo is referred to as water before 40 days of gestation, according to the National Council of Jewish Women. Exodus: 21:22-23 in the Torah mentions a hypothetical situation where two men are fighting and injure a pregnant woman. If she has a miscarriage, the men are only fined. But if she is seriously injured and dies, “the penalty shall be a life for a life.”

This part of the Torah is interpreted to mean that a fetus does not have personhood, and the men didn’t commit murder, according to the council. But this may not be a catchall belief — Benhalim noted that denominations of Judaism have different opinions on abortion.

Today, Jewish Americans have been at the forefront of legal challenges to abortion bans based on religious freedom in Florida, Indiana and Kentucky. Many of the lawsuits have interfaith groups of plaintiffs and argue that restrictions on termination infringe on their religion.

The legal challenge in Indiana has been the most successful. Hoosier Jews for Choice and five anonymous plaintiffs sued members of the state medical licensing board in summer 2022, when Indiana’s near-total abortion ban initially took effect.

Plaintiffs argued that the ban violated the state’s Religious Freedom Restoration Act, and the court later let the claim receive class-action status. Several Jewish Hoosiers said they believe life begins after a baby’s first breath, and that abortion is required to protect the mother’s health and life, according to court documents.

Last month, the Indiana Court of Appeals ruled that the plaintiffs have the right to sue the state but sent the request for a temporary halt on the ban back to a lower court.

While the decision was unanimous, Judge Mark Bailey issued a separate concurring opinion explaining his reasoning and criticizing lawmakers — “an overwhelming majority of whom have not experienced childbirth” — who assert they are protectors of life from the point of conception.

“In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers,” he wrote. “The least that can be expected is that remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.”

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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)

Policy, politics and progressive commentary

U.S. Supreme Court justices spent two hours Wednesday 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 to decide 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.

If the court decides it 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, the number of transfers out of state for pregnancy complications that may require termination has increased from one in 2023 to six over the course of four months.

The arguments began with aggressive questioning of Idaho Deputy Attorney General Josh Turner by the court’s more liberal justices, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Their questions revolved around what EMTALA, which was signed into law in 1986 by President Ronald Reagan, 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, even with medical intervention.

Turner argued that Idaho’s law should supersede federal law in the case of abortion procedures because if a treatment isn’t available based on a state law, then it is in conflict with EMTALA and the federal law doesn’t apply, 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.

Conscience objections, expansion of ‘emergency’ definition 

The more conservative justices offered mixed questions to U.S. Solicitor General Elizabeth 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 Justice Amy Coney Barrett asked about whether conscience exceptions exist for doctors who don’t feel comfortable terminating a pregnancy even in emergency situations. Or if a hospital in general 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.”

The court is expected to rule in the case by the close of its current term, which typically occurs toward the end of June.

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The right to an abortion is currently protected in Nevada through state law, which voters approved via a 1990 referendum. Changing that law, which mirrors the protections maintained by Roe, would require a direct vote of Nevadans. However, abortion rights are not protected in the state constitution. (Photo by Astrid Riecken/Getty Images)

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An initiative petition circulated by Nevadans for Reproductive Freedom, an organization working to enshrine abortion rights in the Nevada Constitution, can proceed, thanks to the Nevada Supreme Court’s affirmation Thursday of the petition’s language, which focuses on reproductive rights, including contraception, vasectomies, tubal ligation, and infertility treatment.  

Donna Washington and the Coalition for Parents and Children challenged the petition, alleging it violated the single subject rule, the description was misleading, and the measure does not include funding to achieve its objectives. 

A lower court ruled in Washington’s favor and enjoined the Secretary of State from placing it on the ballot.  

The Supreme Court, in an opinion written by Justice Lidia Stiglich, disagreed, saying the petition has a single subject – reproductive rights – and that the description is “straightforward, succinct, and non-argumentative…” 

But the group circulating the petition is focused on another initiative that is more narrowly focused on abortion rights. It says it’s gathered more than 160,000 signatures on a second version of the initiative which is narrowly focused on abortion rights, and plans to submit it to qualify for the 2024 ballot. 

“Today’s decision is a resounding victory for our movement that builds on our momentum as we fight to lock the right to reproductive freedom into our state constitution,” Denise Lopez, director of Reproductive Freedom for All Nevada, said in a release following the court’s ruling. “As anti-abortion extremists continue to attack our fundamental rights — from abortion to birth control to fertility treatments — this decision recognizes that reproductive freedom includes all reproductive health care.”   

The right to an abortion is currently protected in Nevada through state law, which voters approved via a 1990 referendum. Changing that law, which mirrors the protections maintained by Roe, would require a direct vote of Nevadans. However, abortion rights are not protected in the state constitution.

Proposals for a national abortion ban by Republicans in Congress coupled with Donald Trump indicating a willingness to support a national ban have sparked fears of a ban in Nevada. During a campaign visit earlier this week, Vice president Kamala Harris warned voters that a second-Trump term would put reproductive health care at greater risk, and lead to a national abortion ban.

“Let’s not forget, Donald Trump made clear his intention to select three members of the United States Supreme Court so that they could overturn the protections of Roe v. Wade. It was his stated intention and they did as he intended,” Harris said in Las Vegas Monday.

Constitutional amendments proposed through an initiative petition must be passed by voters twice, meaning if voters approve one or both measures later this year, they will need to approve it again in 2026 before it can go into effect.

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“Let’s not forget, Donald Trump made clear his intention to select three members of the United States Supreme Court so that they could overturn the protections of Roe v. Wade," Vice President Kamala Harris said in Las Vegas Monday. (Photo: Jeniffer Solis/Nevada Current)

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Vice President Kamala Harris urged Nevadans to deny Donald Trump a second term in order to protect access to abortion and birth control via the ballot box in November.

Harris’s visit to Las Vegas Monday follows a decision by the Arizona Supreme Court last week to reinstate a Civil War-era law banning all abortions, except those needed to save a patient’s life. At the time the 1864 law passed, Arizona was still not a state. 

“This is not a partisan issue,” Harris said Monday. “There is a consensus among the American people that it is wrong to take rights from the people of our country. So momentum is on our side.”

Abortion is protected in Nevada under state law, which voters approved via a 1990 referendum. But proposals for a national abortion ban by Republicans in Congress and by former President Donald Trump have sparked fears of a ban in Nevada. Trump previously indicated support for a national 15-week ban and has repeatedly bragged about his role in overturning Roe v. Wade in the past.

During her remarks, Harris highlighted past comments by Trump vowing to further restrict abortion and reproductive health care in the United States. The vice president made it clear she believes Trump is largely responsible for the dissolution of Roe v. Wade and laid the groundwork for the many state abortion bans that have followed since.

“Let’s not forget, Donald Trump made clear his intention to select three members of the United States Supreme Court so that they could overturn the protections of Roe v. Wade. It was his stated intention and they did as he intended,” Harris said. 

Harris warned voters that a second-Trump term would put reproductive health care at greater risk, and lead to a national abortion ban.

Trump recently backpedaled on a national abortion ban, however. The former president and presumptive Republican presidential nominee released a video last week advocating for state legislatures and state courts to regulate abortion, not Congress. 

“The states will determine by vote, or legislation, or perhaps both, and whatever they decide must be the law of the land. In this case, the law of the state,” Trump said in a nearly five-minute video he posted to social media last week.

The next day the Arizona Supreme Court banned abortions in that state, prompting Trump to urge the Arizona legislature to “remedy” the court’s ruling. 

Trump didn’t say in the video if he would veto a national ban or work to prevent it from reaching his desk, in the event he is reelected president and has a Republican-controlled Congress. Trump also didn’t comment specifically in the video about whether he would seek to enforce an 1873 anti-obscenity law that many anti-abortion advocates say could ban the mailing of medication abortion.

Harris on Monday also promoted a Nevada ballot initiative that would further secure abortion access in the state by enshrining abortion access in the state constitution. The rally doubled as a signature-gathering event, as volunteers in bright orange vests carried clipboards and collected signatures for the ballot initiative. If enough signatures are obtained, Nevadans will get to vote on the ballot question during the general election.

“Democracy is only as strong as our willingness to fight for it,” Harris said.

Harris made her case for reelecting Democrats down the ballot alongside Arizona state Senator Eva Burch, Representative for Nevada’s 1st congressional district Dina Titus, Nevada Assemblywoman Daniele Monroe-Moreno, and Nevada Attorney General Aaron Ford.

Titus said it’s clear from conversations among Republicans in Congress that Republican lawmakers “want a nationwide ban on abortion.”

“I don’t care what Donald Trump says now to dance around the issue. He will be right there leading that effort, you can count on it,” Titus said. 

“Trust me, next it’s going to be birth control. There’s no end to it. And that is coming down the pike.”

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Reproductive rights advocates gather on the steps of the Arizona Supreme Court to speak out against a near-total abortion ban from 1864 being considered by the judges on Tuesday, Dec. 12, 2023. The ban includes no exceptions for rape or incest and allows only abortions performed to save the patient’s life. (Photo by Gloria Rebecca Gomez/Arizona Mirror)

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The Arizona Supreme Court ruled to make abortion largely illegal in the Grand Canyon State, reinstating a 160-year-old law that forbids all procedures except those to save a woman’s life.

Justice John R. Lopez IV, writing for the court in a 4-2 split decision, said that a 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion. And since the U.S. Supreme Court eliminated that right in the Dobbs v. Jackson Women’s Health Organization ruling two years ago, that law can’t overrule one first passed in 1864, when Arizona was a territory.

“Absent the federal constitutional abortion right, and because (the 15-week abortion law)  does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 law’s) operation. Accordingly, (the 1864 law) is now enforceable,” Lopez wrote.

And that means abortions are illegal in every case except to save a woman’s life.

“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal…,” Lopez wrote.

Arizona Attorney General Kris Mayes called the ruling “unconscionable” and “and affront to freedom.”

“Make no mistake, by effectively striking down a law passed this century and replacing it with one from 160 years ago, the Court has risked the health and lives of Arizonans,” Mayes said in a written statement. “Today’s decision to reimpose a law from a time when Arizona wasn’t a state, the Civil War was raging, and women couldn’t even vote will go down in history as a stain on our state.”

The ban will go into effect in 14 days.

The dilemma arose in the summer of 2022, after the U.S. Supreme Court eliminated the constitutional right to abortion and sent the power to regulate the procedure back to the states. Then-Arizona Attorney General Mark Brnovich went to court to reinstate the 1864 abortion ban, and convinced a trial court judge that the Civil War-era law should be enforced instead of the 15-week ban passed just months earlier.

The consequences for reproductive health care in Arizona were instantaneous: An uncertain legal landscape led the majority of the state’s nine abortion clinics to provide intermittent services for months. The 1864 law carries with it a 2- to 5-year mandatory prison sentence for doctors who perform abortions for any reason other than saving a patient’s life, and the 2022 law punishes doctors with a class 6 felony and a revoked license.

Women were cut off from potentially life-saving care as the abortion rate saw record lows that year. Whereas abortions in Arizona have consistently exceeded 13,000 since 2011, in 2022 that number plummeted to just 11,407 procedures.

With two conflicting statutes on the books, uncertain doctors shutting their doors rather than risk prison time, and state officials vying over which ban to implement, Arizona courts were tasked with figuring out how to make the laws coexist.

Proponents of the near-total ban argued that the 2022 law included a provision that stated it wasn’t meant to repeal any laws that came before it, signifying that the 1864 law should reign supreme. But reproductive rights advocates pushed back, pointing out that if the 1864 law wasn’t overruled by the 15-week law based on that interpretation, then neither were the numerous abortion law restrictions enacted in Arizona in the 50 years since Roe v. Wade was decided. And keeping in place laws that mandate an ultrasound, a 24-hour waiting period and an informational consultation, among other requirements, meant that abortion must be preserved to some extent.

The near-total ban was brought back into play by a Pima County judge who nullified an injunction holding it at bay that was erected in 1973, under the auspices of Roe.

But the Arizona Court of Appeals later ruled that the 15-week ban should supersede its predecessor, with the judges noting that if the GOP-majority legislature had intended to completely outlaw abortion, it should have been done so explicitly instead of passing what amounted to a gestational limit.

Less than two months later, Alliance Defending Freedom, an anti-abortion legal firm, filed an appeal with the Arizona Supreme Court on behalf of Dr. Eric Hazelrigg, the medical director of a chain of Valley-wide anti-abortion pregnancy centers. Hazelrigg was admitted into the case to fill the role of “guardian ad litem”, representing the interests of the unborn in Arizona. The position was added in 1973 when the near-total ban was first challenged.

In a December hearing, Alliance Defending Freedom attorney Jake Warner urged the justices to reverse the appellate court’s decision, saying that the lower court erred when it ruled to permit elective abortions up to 15 weeks under the 2022 law.

Warner argued that both the 1864 near-total ban and the 15-week gestational ban outlaw all but the most life-threatening procedures. Instead, the way to harmonize the two laws is by allowing the exception baked into the 15-week law for “immediately” life-threatening situations to modify the requirements of the 1864 law, he said.

Until 15 weeks, Warner explained, all abortions would be prohibited unless the mother’s life is in danger, as the 1864 law mandates. After the 15-week point, the threshold for obtaining an abortion would be raised, so that only “immediately” life-threatening emergencies would merit a procedure. A cancer patient, Warner said, is facing a life-threatening situation, but not an “immediately” dangerous prognosis, and so they would not be permitted to obtain an abortion to begin treatment.

Planned Parenthood Arizona attorney Andy Gaona, meanwhile, rebutted that if the Arizona legislature truly meant to outlaw virtually all abortions, it should have made its intention clearer. GOP lawmakers in Arizona modeled the state’s 15-week ban after the Mississippi law in Dobbs v. Jackson Women’s Health Organization, under the assumption that the U.S. Supreme Court would uphold that law and the Arizona copy could stand.

But Arizona lawmakers left out a key provision from the Mississippi law: a clause which stated that any abortion that complied with Mississippi’s 15-week law but violated any other abortion law was nonetheless illegal. Gaona pointed to that as proof that Arizona lawmakers never intended to completely ban abortion.

While the courts worked through the legal parameters of abortion in Arizona, the election of pro-choice Democrats to statewide offices two years ago dampened the threat of a state ban to some degree.

Gov. Katie Hobbs, who ran on a promise to protect abortion access, issued an executive order in July concentrating the prosecutorial authority for abortion law violations in the Arizona Attorney General’s office. Doing so preemptively barred any of the state’s 15 county attorneys from using Arizona’s abortion laws to take a doctor to court. At least one county attorney, Yavapai’s Dennis McGrane, who joined Hazelrigg in advocating for the 1864 law, has indicated an interest in pursuing abortion law violations. AG Kris Mayes, meanwhile, has vowed never to prosecute a single case.

But the legal strength of Hobbs’ executive order has yet to be tested in court. Shortly after she issued it, county attorneys threatened to mount a legal challenge against it, though none has since materialized.

Reproductive rights groups are aiming to stave off threats from the court rulings and GOP-backed laws by enshrining abortion access in the state constitution this November. The Arizona Abortion Access Act would guarantee the procedure as a right up to 24 weeks of gestation, in a mirror of the standard in Roe. The act would also include an exception for procedures performed after that time if the doctor considers it necessary to safeguard the life, physical or mental health of their patient.

Because it is a constitutional amendment, the initiative needs to collect 383,923 signatures to qualify for the ballot and be considered by Arizona voters. Earlier this month, the campaign announced it has gathered 500,000 signatures, and it plans to continue collecting more to ensure a buffer against signatures that are eventually thrown out during the verification process.

Democrats in Arizona and across the country are counting on the abortion issue to mobilize voters and deliver wins for party candidates. Abortion access has proven to be a highly motivating concern, even in red states like Kansas, where a record number of voters showed up to reject a legislatively referred ballot measure that would have given lawmakers the power to eliminate abortion protections, and in Virgina, where voters awarded Democrats a legislative majority to defend against the anti-abortion policies of the state’s Republican governor.

In a joint statement, Arizona Democratic Party Chairwoman Yolanda Bejarano and state Senator Eva Burch, who has recently become the face of abortion access in Arizona after sharing the difficulties she faced obtaining an abortion, denounced anti-abortion Republicans and vowed to back reproductive rights efforts in November.

“The decision to choose when and how to start a family belongs to each of us as individuals. Donald Trump and extremist Republicans at every level of government have been undermining these rights for years, and we have had enough,” the two said in an emailed statement. “Arizona Democrats are ready to do whatever it takes to protect the people of Arizona from these out-of-touch extremist policies, and take it to the ballot in November.”

This story was originally published in Arizona Mirror, which like Nevada Current is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity.

The post Abortions are banned in Arizona after the Supreme Court upholds an 1864 law appeared first on Nevada Current.

(Screengrab of Trump video on social media Monday)

Policy, politics and progressive commentary

WASHINGTON — Republican presidential candidate Donald Trump announced a shift in his views on abortion laws Monday, releasing a video advocating for state legislatures to make those decisions, not Congress — and was immediately met with strong criticism from an influential anti-abortion group that said it should remain a national debate.

“My view is now that we have abortion where everybody wanted it from a legal standpoint, the states will determine by vote, or legislation, or perhaps both, and whatever they decide must be the law of the land. In this case, the law of the state,” Trump said in a nearly five-minute video he posted to social media.

“Many states will be different, many will have a different number of weeks, or some will have more conservative than others, and that’s what they will be,” he added. “At the end of the day, this is all about the will of the people. You must follow your heart, or in many cases your religion or your faith.”

Trump said he supports exceptions to abortion bans to allow pregnancy terminations in cases of rape, incest and the life of the pregnant patient.

Trump’s video is a departure from comments he’s made on the campaign trail that he would support a 16-week nationwide ban.

The shift in his policy platform less than seven months before Election Day could be viewed as an effort by Trump to appeal to centrist Republicans and swing voters, especially women, as Democrats have sought to rally supporters behind reproductive rights.

In the last two years, voters in a number of states have approved ballot questions that bolstered support for abortion access, including those in Kansas, Kentucky, Michigan and Ohio.

Several other states, including Nevada, are likely to have abortion access questions on this November’s ballot, alongside the choice for president and representation in both chambers of Congress.

President Joe Biden wrote in a statement released by his reelection campaign that “Trump once said women must be punished for seeking reproductive health care — and he’s gotten his wish.”

“Women are being turned away from emergency rooms, forced to go to court to seek permission for the medical attention they need, and left to travel hundreds of miles for health care,” Biden wrote.

“Because of Donald Trump, one in three women in America already live under extreme and dangerous bans that put their lives at risk and threaten doctors with prosecution for doing their jobs,” Biden added. “And that is only going to get worse.”

‘Deeply disappointed’

Anti-abortion organizations immediately expressed frustration with Trump’s most recent campaign stance, while reproductive rights organizations questioned its truthfulness.

Susan B. Anthony Pro-Life America President Marjorie Dannenfelser wrote in a statement the organization is “deeply disappointed in President Trump’s position” and reiterated the Supreme Court’s “Dobbs decision clearly allows both states and Congress to act.”

South Carolina Republican U.S. Sen. Lindsey Graham also broke with Trump on the issue, writing in a statement that “the pro-life movement has always been about the wellbeing of the unborn child — not geography.”

Graham, ranking member on the U.S. Senate Judiciary Committee, said he would continue to press for a 15-week nationwide abortion ban with exceptions for rape, incest and the life of the pregnant patient.

Abortion rights supporters were highly critical. Reproductive Freedom for All President and CEO Mini Timmaraju wrote in a statement that she didn’t believe Trump’s comments in the video, calling him a “liar.”

“He knows that publicly supporting bans loses voters, so he deployed dangerous disinformation about abortion in order to distract from the truth about what he will do if elected,” Timmaraju wrote.

“He’s responsible for the harm and chaos caused by Republicans’ abortion bans in the states, and all he is saying is that he wants more of it,” Timmaraju added. “The stakes couldn’t be higher, and we need to elect reproductive freedom majorities in Congress and send President Biden and Vice President Harris back to the White House to restore the federal right to abortion and expand access.”

Senate Majority Leader Chuck Schumer, a New York Democrat, cast doubt that Trump would hold the stance for any length of time, writing in a statement, “Let’s wait a few weeks and see what his new position will be.”

​​Biden-Harris 2024 Campaign Manager Julie Chavez Rodriguez said on a call with reporters Monday afternoon that Trump’s video shows “his support for those extreme bans and made clear he will support these bans in all 50 states.”

“Make no mistake, leaving it to the states is an endorsement of the cruel and dangerous abortion bans across the country made possible only by Donald Trump,” Rodriguez said.

The abortion bans currently in place in Republican states sometimes exclude exceptions for rape and incest, and can take effect before a woman knows she’s pregnant, Rodriguez said.

Taking credit for overturning Roe

Trump was president before the U.S. Supreme Court in 2022 overturned the constitutional right to abortion it established in the 1973 Roe v. Wade case and reaffirmed in the 1992 Planned Parenthood v. Casey ruling.

The Republican-appointed justices on the court wrote in their ruling ending nationwide protections that “the authority to regulate abortion is returned to the people and their elected representatives.”

That would include Congress, should lawmakers choose to pursue a nationwide law. Trump didn’t say in the video if he would veto such a bill or work to prevent it from reaching his desk, in the event he is reelected president and has a Republican-controlled Congress.

In the video, Trump personally thanked the justices on the Supreme Court who ended the right to an abortion and commented that he was “proudly the person who was responsible” for that ruling.

Trump didn’t comment specifically in the video about whether he would seek to enforce an 1873 anti-obscenity law that many anti-abortion advocates say could ban the mailing of medication abortion.

The Comstock Act, as it’s called, came up at the U.S. Supreme Court in late March when the justices heard oral arguments over access to mifepristone, one of two pharmaceuticals used in medication abortions.

That law hasn’t been enforced in decades but it bars the mailing of “Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.”

The post Trump backpedals on support for national ban, says states will decide abortion rights appeared first on Nevada Current.

Erin Hawley, a Missouri attorney representing the Alliance for Hippocratic Medicine, speaks to the media as she departs the Supreme Court following oral arguments in the case of the U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine on March 26, 2024, in Washington, DC. The case bears on access to mifepristone, a commonly used abortion medication. (Photo by Anna Rose Layden/Getty Images)

Policy, politics and progressive commentary

WASHINGTON — An anti-obscenity law enacted in 1873 that hasn’t been enforced in decades shot to the forefront of the nation’s abortion debate in the past week thanks to two U.S. Supreme Court justices, amid expectations a future Republican president would use the law to order a nationwide ban on medication abortion.

The Comstock Act, which prohibited the mailing of anatomy textbooks and boxing photographs as well as contraceptives, drew fresh attention after Justices Samuel Alito and Clarence Thomas during March 26 oral arguments seemed to suggest the law would block the mailing of mifepristone.

Legal experts and a medical historian interviewed by States Newsroom said enforcing the law would be possible since it’s still on the books. But one legal expert noted it may be challenging to prosecute only the sections on abortion while ignoring those that bar sending anything deemed to have an “indecent or immoral use.”

The law, they said, also stems from a time when medical understanding and terminology around pregnancy was vastly different than today, though that’s unlikely to deter those who see the Comstock Act as a path to curtailing or ending abortion access.

Trying to fend off any possibility, a few Democrats in Congress hope to repeal the statute ahead of another Republican presidency — a difficult task amid divided government.

Sarah​​​​ Perry, senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation, said a future Republican attorney general could prosecute any manufacturer that ships mifepristone through the U.S. Postal Service — or a private company contracting with USPS.

“The reason we don’t see more involvement with Comstock in federal litigation is simply because you have to have a Department of Justice with the political will to actually go out and to enforce it, and to charge people with those types of violations,” Perry said.

Abortion medication suit

Mifepristone is one of two pharmaceuticals used in medication abortions, which are currently FDA-approved for use up to 10 weeks gestation. The two-drug regimen accounts for about 63% of abortions nationwide, according to a report from the Guttmacher Institute.

The pharmaceutical is at the center of a case before the U.S. Supreme Court. Months of litigation began when anti-abortion medical organizations filed a lawsuit in November 2022 asking the federal courts to either severely restrict or end access to the drug.

The Comstock Act bars more than just sending abortion pharmaceuticals and reigniting enforcement of its various provisions could be complicated, according to Mary Ziegler, Martin Luther King Jr. professor of law at UC Davis School of Law.

“If you look at the statute, very few words in it are about abortion. Almost all of it is about stuff having to do with sex,” Ziegler said. “So if you’re going to revive the Comstock Act, that’s part of the Pandora’s Box you’re opening.”

The first line of the law, for example, bans mailing “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.”

One of the lines addressing abortion says the statute bans mailing “Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use.”

Ziegler said she wasn’t sure how a court today would interpret what would be “for any indecent or immoral use.”

The lawmakers in Congress who voted to approve the Comstock Act, which was enacted less than a decade after the end of the Civil War, weren’t especially concerned with “protecting fetal life or rights,” Ziegler said.

“It was really about sex, and abortion came into it the same way contraception did,” she said. “And the people who passed the law didn’t really distinguish the two.”

Anthony Comstock, who advocated for the law, used to call “people who sold contraceptives, abortionists, even though they didn’t perform abortions, because to him there really wasn’t much of a difference,” Ziegler said.

The law’s full title is “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.”

Differences in legal interpretations

While the Biden administration has issued a legal opinion saying the Comstock Act doesn’t apply when the “sender lacks the intent that the recipient of the drugs will use them unlawfully,” a future GOP president and the legal teams within that administration could feel quite differently. Former President Donald Trump has clinched the Republican presidential nomination.

The Biden administration’s legal interpretation of the Comstock Act, Perry said, “doesn’t really pass the straight face test, particularly the plain reading of the text itself for which ‘intent’ does not appear.”

Perry and Thomas Jipping, a fellow Heritage Foundation senior legal fellow, wrote in a February 2023 report that the Biden Administration’s Office of Legal Counsel’s opinion “wants Americans to believe that a law enacted as part of the national pro-life legislative movement and championed by an aggressive and uncompromising anti-vice crusader is today, with no change in its language, entirely unenforceable for its intended purpose.”

“The OLC wants Americans to ignore what they can read for themselves, that the statute has clear and unqualified language, and that Congress repeatedly demonstrated its intention to keep it that way,” the two wrote. “The OLC wants Americans to believe that while enacting the Comstock Act required Congress to act, rendering it inert and unenforceable could be accomplished by Congress failing to act at all.”

A Republican-controlled Justice Department could bring charges against the manufacturers of mifepristone unless those companies used entirely private transportation companies, Perry said.

“If they were seeking a private driver to deliver or a private delivery service to deliver, that’s legally permissible, but they cannot use the U.S. Postal Service or any common carrier that contracts with the U.S. Postal Service,” Perry said.

Some legal experts or judges could interpret the law as having a wider reach, Ziegler said.

“The statute’s written to be really broad,” she said. “So it’s not obvious to me that if you used a private carrier that it would be exempted. Again, if you assume the interpretation of the law that they have, which I don’t, but if you do, I don’t think it makes a difference if you have a private carrier.”

In that case, the law could mean no medication abortion at all as well as enforcement of the Comstock Act’s other provisions, Ziegler said.

The law was used in federal prosecution as recently as 2002, but that was for “obscene or lewd materials,” not for the mailing of anything having to do with abortions, Perry said.

Enforcement of the abortion sections of the law wasn’t allowed after the Supreme Court ruled that abortion was a constitutional right in the 1973 Roe v. Wade case, but that all changed two years ago when the court overturned that opinion, Perry said.

“The law essentially laid dormant for many years because of course in 1971 the birth control prohibition was eliminated and then in 1973 we were given Roe,” Perry said.

“So for all intents and purposes, the Supreme Court finding a right to abortion superseded what the Comstock Act actually said, because if there was an unfettered right to abortion, then there could not be congressional restriction on any tool, medication, or implement used to facilitate abortion,” said Perry.

The court’s ruling in Dobbs v. Jackson Women’s Health Organization could lead to “renewed interest” in enforcing the Comstock Act, including comments made just last week by the two Supreme Court justices, she said.

What the justices said

Thomas and Alito brought up the Comstock Act during a case that will determine whether access to mifepristone stays the way it is now or reverts to what was in place before 2016.

Thomas asked the attorney representing Danco Laboratories LLC, manufacturer of the brand name of mifepristone called Mifeprex, if the Comstock Act applied to the company.

“The government, the solicitor general points out, would not be susceptible to a Comstock Act problem,” Thomas said. “But in your case, you would be, so how do you respond to an argument that mailing your product and advertising it, would violate the Comstock Act?”

Thomas said that his “problem” with aspects of the case was that Danco Laboratories is “private, and the statute doesn’t have the sort of safe harbor that you’re suggesting.”

“It is fairly broad and it specifically covers drugs such as yours,” Thomas said.

Danco lawyer Jessica Ellsworth responded that she disagreed that was “the correct interpretation of the statute.”

“We think that in order to address the correct interpretation, there would need to be a situation in which that issue was actually teed up,” Ellsworth said. “I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute.”

Alito appeared to argue that the U.S. Food and Drug Administration should have considered the Comstock Act before relaxing previous restrictions on use, allowing mifepristone to be prescribed via telehealth and sent to patients through the mail.

“It didn’t say anything about it. And this is a prominent provision,” Alito said. “It’s not some obscure subsection of a complicated obscure law. They knew about it. Everybody in this field knew about it.”

Calls for repeal by Congress

Following the comments by the two justices, U.S. Rep. Cori Bush, D-Mo., immediately called on Congress to repeal the law, a scenario that’s unlikely to happen given that Republicans control the U.S. House and Democrats the Senate.

“Enacted in 1873, it is a zombie statute, a dead law that the far-right is trying to reanimate,” Bush wrote on social media. “The anti-abortion movement wants to weaponize the Comstock Act as a quick route to a nationwide medication abortion ban. Not on our watch.”

Minnesota Democratic Sen. Tina Smith wrote in an op-ed published by The New York Times on April 2 that she would work with her colleagues to repeal the law, saying that neither the Supreme Court nor another Trump administration should be allowed to rely on it to ban access to medication abortion.

“Very few Republicans will admit to wanting to see a total, no-exceptions ban on abortion in all 50 states, but the Comstock Act could allow them to achieve that in effect, if not in so many words,” Smith wrote. “Americans deserve better. The Constitution demands better. And common sense dictates that we stop this outrageous backdoor ploy to eliminate abortion access in its tracks.”

Comstock Act origins

Ziegler said that “the Comstock Act passed at a time when the meaning of obscene was up for grabs” and that its namesake, Anthony Comstock, “was really anxious about people’s exposure to what he saw as pornography.”

Some of the prohibited items under the anti-obscenity law were things people today would still think of as pornography, but Comstock also didn’t approve of nudity in medical textbooks or art, literature with “risque humor,” or newspaper articles about people who died as the result of illegal abortions.

“He thought all of that was encouraging people to have sex they shouldn’t be having, either by being arousing or in the case of abortion or contraception, convincing them that they could have sex without pregnancy,” Ziegler said.

At various points in the law’s history, Ziegler said, it was used to target people discussing LGBTQ rights and against opponents of the law in a way that basically silenced political speech.

Even though it hasn’t been used in quite some time, Ziegler said, “it’s a very real possibility” a future Republican DOJ could seek to enforce the law with respect to abortion access.

“The only caveat, of course, is if that happened, the person being prosecuted would be right back in federal court saying, ‘Number one, this is not what the Comstock Act means and number two, the Comstock Act is unconstitutional,’” Ziegler said. “So the U.S. Supreme Court would eventually have to settle those questions.”

One question for the justices will have to be what the word abortion meant in the late 19th century.

“If you look at what the law in general said at the time, procuring abortion was only a problem if it was done intentionally, and if it was done with basically criminal intent, which excluded cases where someone’s life was at risk or health was at risk,” Ziegler said.

19th-century terminology

Mary Fissell, inaugural J. Mario Molina professor in the history of medicine at Johns Hopkins University and vice president of the American Association for the History of Medicine, said during the 19th century around the time the law was written the terms abortion and miscarriage were often used interchangeably and typically meant the same thing.

“Both of those terms describe a pregnancy that ended sooner than it should have done and did not result in what we would call a live birth,” Fissell said.

People and organizations that wanted to outlaw pregnancy termination often used the term “feticide,” as in fetal homicide, to advocate for laws banning or significantly restricting the practice, Fissell said.

“Doctors start calling it criminal abortion, to distinguish it from everyday abortion, which is just fetal loss,” she said. “And so it’s over time that these terms come to mean, sort of separate things. At that point, they are very much just used interchangeably.”

The way women and most doctors understood pregnancy more than 150 years ago was before and after “quickening,” the first time a woman felt the fetus move, which is typically sometime in the middle of the second trimester, Fissell said.

“Before quickening, ending a pregnancy was not a big deal. It was not even fully always understood as ending a pregnancy,” Fissell said. “I think sometimes that’s what a woman knew she was doing. Other times she was getting back a lost menstrual cycle.”

In the late 19th century many physicians practiced what’s now referred to as humoral medicine, in which they believed the body contained four humors or fluids that needed to be kept in balance in order for a person to stay healthy.

They believed the body contained black bile, yellow bile, blood and phlegm and that those four substances corresponded to being either hot or cold as well as wet or dry.

“Women’s bodies were cooler and wetter than men’s,” Fissell said of medical beliefs around that time. “That’s good because, they thought of it as analogous to agriculture, and a seed was planted in the womb. And we all know what happens if you plant a seed somewhere that’s too hot and dry. It doesn’t go well.”

“So it was good that women were cooler and wetter, but it meant they didn’t fully process their food in the same way,” she added, again referring to beliefs at the time. “And the excess, the leftover, had to be gotten rid of from the body and that was what menstruation was.”

Doctors and others at the time often sold products that were designed to help women get a regular period, including herbal combinations. But there are significant differences between how that was thought of around 1873 and now, Fissell said.

“From a long time before that, there had been a blurring between what we call contraception and abortion,” Fissell said. “It doesn’t make sense to us, but in their worldview, they were more connected in part because the same kind of plant that you might take to get your cycle back, you could also be ending a pregnancy.”

“So, you can imagine some of those same preparations that women were advised to take every month, and you won’t get pregnant,” she added. “We would biochemically analyze it very differently than the way they were understanding it.”

Fissell said that around the time the Comstock Act was written, women and doctors — not typically male lawmakers — held the knowledge about menstrual cycles and pregnancy. “I think the extent of ignorance cannot be overestimated.”

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Protesters take to the streets outside the U.S. Supreme Court on Tuesday, March 26, 2024, where justices questioned attorneys about broad changes in access to mifepristone. (Sofia Resnick/States Newsroom)

Policy, politics and progressive commentary

WASHINGTON—As the enormous yellow banner unfurled in front of the steps of the U.S. Supreme Court Tuesday morning, Laura Clime-Coates turned to her 9-year-old daughter and said, “Those are the names of people who agree with us.”

On the sign, titled “We the People Support Medication Abortion,” were what activists estimated to be half-a-million signatures from people across the U.S. asking the Supreme Court not to restrict mifepristone, a commonly used drug for abortions and miscarriage management. And for Clime-Coates, who said she signed several petitions in support of medication abortion, mifepristone is the reason her oldest child was standing beside her, and the reason she has a little sister at home in Baltimore.

Back in 2009, Clime-Coates said she experienced what she referred to as a missed miscarriage.

“There was no heartbeat, and it was risking my future ability to have children, and I really wanted children,” she told States Newsroom. “The tissue was not developing and threatening my uterus. My choice was to wait around and damage my body or take mifepristone.”

Clime-Coates and her daughter were among hundreds of abortion rights supporters holding signs and chanting, while inside, the justices heard oral arguments in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, their first major reproductive rights case since overturning Roe v. Wade almost two years ago.

In the absence of a legal precedent protecting the right to terminate a pregnancy, the implications for abortion access in this case are as high as they have ever been. More than a dozen states have banned or heavily restricted abortion since 2022’s Dobbs v. Jackson Women’s Health Organization decision, but abortion rates have risen rather than fallen. The Guttmacher Institute recently published data estimating more than 1 million abortions in 2023, of which about 63% were via medication, and that only includes abortions in the formal medical system. Many reproductive rights researchers and providers credit the rise in part to the FDA lifting certain restrictions on abortion medication after more than two decades of consistent safety and efficacy data. Beginning in 2016, the FDA increased the gestational window women could terminate pregnancies using medication, adjusted the dosages, removed in-clinic requirements, and made medication abortion available via telemedicine and directly at pharmacies.

Initially filed in 2022 by anti-abortion doctors and medical groups a few months after Roe was overturned, the case has incurred criticism from throughout the medical and scientific community because of its flawed scientific claims that mifepristone is dangerous and should not have been approved by the FDA. At issue now in the FDA’s appeal to the Supreme Court is whether to uphold the 5th U.S. Circuit Court of Appeals’ opinion that the FDA must reapply older restrictions against the agency’s own scientific determination. The coalition of anti-abortion medical groups have largely relied on anecdotes from longtime anti-abortion activists, as well as a handful of studies produced by some of the main medical groups connected to the lawsuits, two of which were recently retracted by academic publisher Sage for methodological flaws and undisclosed conflicts of interest.

In anticipation of the oral arguments in this case, those in the pharmaceutical industry have expressed anxiety that a ruling against the FDA could stifle future drug development, by allowing anyone with an ideological opposition to a medication to try to force a drug-policy change.

“This case isn’t about mifepristone,” said Elizabeth Jeffords, the CEO of a small biotech company called Iolyx Therapeutics, on a webinar organized by reproductive health researchers last week. “This is about whether or not the FDA is allowed to be the scientific arbiter of what is good and safe for patients. …. It’s critical for our ecosystem that we continue to have investors, and investors will only come to our ecosystem if they have some certainty. If I had to believe that I would have to stand up to multiple litigations from parties without standing over the course of any drug that we’re working on developing, I wouldn’t have enough money to exist, and all of the little biotech companies would be out of existence as well.”

Pharmaceutical sciences professor Chris Adkins – who sparked the investigation into those studies and has co-authored a new academic paper in the journal Contraception breaking down what he says are significant methodological flaws – said it has been difficult to watch this case advance all the way to the Supreme Court.

“I just hope moving forward that we’ve got more public awareness that our federal courts have not always been the best evaluators of scientific evidence,” Adkins told States Newsroom. “I really hope that the public can really put some pressure on the courts to do a better job at evaluating the scientific and the medical literature, because I think this all impacts each one of us, our families, our futures. … This type of case could threaten regulatory approval or the processes they’re involved with, not just for mifepristone, but for others.”

But for both abortion opponents and supporters outside the Supreme Court Tuesday, the issue is personal.

“I was really glad I had that choice,” Clime-Coates said. “It’s health care! And I would hate for any of my children or any woman or anyone who’s capable of reproduction to not have that choice in the future.”

Alethea Shapiro, a protester from Florida, told States Newsroom she needed mifepristone years ago to terminate a pregnancy for medical reasons. “Hands off our mifepristone!” she yelled in a small circle of activists organized by the Women’s March and the Center for Popular Democracy. Some of the activists had prepared for arrests, but they eventually dispersed while law enforcement officers surveilled the crowd.

Robin Ross, an anti-abortion activist from Amarillo, Texas – home of the conservative federal district court where the case was originally filed, told States Newsroom she had secretly attended abortion rights demonstrators’ planning session the night before but said she learned little beyond logistics. The 57-year-old Navy veteran said she recently became an activist after learning that her teenage mother had attempted to abort her in the 1960s, before abortion was legal throughout the country. Ross said that she has had many health problems, including the inability to have children, because of the abortion attempt (she did not give specifics, but she said it was not the medication abortion method authorized by the FDA, at issue in this lawsuit). She is currently working to make Amarillo a so-called sanctuary city for the unborn.

“As soon as I heard about the ability to put my faith into action and me as an abortion survivor, I instantly wanted to start [anti-abortion activism].

Some anti-abortion activists proudly displayed their pregnant bellies in protest of medication abortion.

“I’m here because I’m 34 weeks’ pregnant. I’m advocating for the rights of my child, my baby in the womb,” said Savannah Evans from Tampa, Florida, who does marketing for the national anti-abortion group Live Action. “ I don’t want her to grow up in a world that sees an abortion as an acceptable option for women.”

At 22, Evans said her pregnancy was unplanned and that she was initially “terrified,” but she and her now-husband chose to parent.

Among the speakers in the largely outnumbered anti-abortion crowd, messages focused heavily on alleged high risks of medication abortion and called on the Supreme Court to order the FDA to reapply the since-lifted restrictions that have made it possible for women to have medication abortions via telemedicine and in their homes.

“FDA, do your job!” shouted Marjorie Dannefelser, the president of Susan B. Anthony Pro Life America. “We certainly do not have complete agreement upon the fact that there are two patients in every pregnancy, but we can at least pledge ourselves to one patient: the woman receiving abortion drugs in the mail in her home alone. … She has become her own abortionist in an unsafe home abortion.”

Recent research on telemedicine abortions, co-authored by University of California San Francisco epidemiologist Ushma Upadhyay, finds a low rate of serious adverse risks. And reproductive rights activists working to expand medication access around the nation said in interviews that abortion drugs are here to stay, even if the Supreme Court sides with the anti-abortion activists, which as States Newsroom reported Tuesday, is far from a sure thing.

“We know that people, no matter what happens with this case, are going to continue to access pills outside of the formal health care system,” said Bethany Van Kampen Saravia, senior legal and policy advisor at Ipas, which for decades has worked in countries with restrictive laws to train providers and help expand access to abortion care. Since the overturning of Roe, she said Ipas has refocused their efforts throughout the U.S., where at least half the states have near-total bans or heavy restrictions. As States Newsroom recently reported, new data shows a rise in self-managed abortions since the Dobbs decision.

“People will continue to get medication abortion through online access, through telehealth service, through online pharmacies, through your community network,” Van Kampen Saravia said. “Self-managed abortion is a WHO-recommended method of care. What Ipas knows from decades of working outside of the U.S. is that abortion with medication is safe and effective. And that’s not going to stop no matter what happens.”

Abortion providers who work in and outside of the formal medical system told States Newsroom they should be able to prescribe the current medication abortion regimen off label, if the FDA is ordered to change its protocol.

“We’re continuing to work because the pills are still on the market, they’re still registered, so they will be available and the doctors have the freedom to prescribe them off label,” said Dutch physician Dr. Rebecca Gomperts, founder of the online clinic Aid Access, which she said has been working with states with shield laws to ship abortion drugs to women in states with abortion bans. She was in front of the court handing out, for free, a small amount of boxes of the abortion-medication regimen. She said Aid Access will continue helping women self-manage their abortions.

“No matter what the Supreme Court is going to do, we’ll be there,” Gomperts said.

The post Hundreds protest outside the U.S. Supreme Court to keep abortion medication accessible appeared first on Nevada Current.

Opposing protesters outside of the U.S. Supreme Court on Tuesday, March 26, 2024, are kept separated by fencing as U.S. Capitol Police and Supreme Court Police observe. The demonstrators held signs and chanted as the justices heard oral arguments over access to mifepristone, one of two pharmaceuticals used in medication abortion. (Photo by Ashley Murray/States Newsroom)

Policy, politics and progressive commentary

WASHINGTON — The future of medication abortion access in the United States went in front of the U.S. Supreme Court justices on Tuesday, where several justices appeared somewhat skeptical as anti-abortion organizations argued use of the pharmaceutical should be moved back to what was in place before 2016.

Solicitor General Elizabeth Prelogar, speaking on behalf of the federal government, told the court that those restrictions would be unnecessary due to the numerous reputable studies that have shown mifepristone to be safe and effective.

Prelogar also argued that conscience protections already in place at the federal level protect doctors and other health care providers who don’t want to participate in elective abortion or in treating complications that can sometimes arise from medication abortion.

“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.”

Prelogar said there was no way to trace those two anti-abortion doctors’ concerns — cited in the case argued by Alliance Defending Freedom — about treating patients with complications from medication abortion to the changes the Food and Drug Administration approved in 2016 and 2021, which were at the center of the case before the Supreme Court.

Prelogar also said the anti-abortion legal organization that filed the original lawsuit hadn’t identified a situation where a doctor or health care provider opposed to abortion raised a conscience protection and then had that violated.

Medication abortion includes mifepristone as the first pharmaceutical and misoprostol as the second. The two-drug regimen accounted for about 63% of abortions within the United States in 2023, according to a report from the Guttmacher Institute.

Questions about broad changes in access

Justices Amy Coney Barrett and Neil Gorsuch — appointed to the court by former President Donald Trump — and Ketanji Brown Jackson, appointed by President Joe Biden — were among the members of the court who specifically asked about why conscience protections would or would not be an appropriate remedy to the anti-abortion doctors’ concerns about medication abortion.

“I’m worried that there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought,” Jackson said. “The obvious, common-sense remedy would be to provide them with an exemption that they don’t have to participate in this procedure.”

But, Jackson noted, the anti-abortion doctors were seeking changes in access to mifepristone for everyone in the United States.

“And I guess I’m just trying to understand how they could possibly be entitled to that, given the injury that they have alleged,” Jackson said.

Gorsuch appeared to express some criticism of the anti-abortion case as well, saying, “We have before us a handful of individuals who have asserted a conscience objection.”

“Normally, we would allow equitable relief to address them,” Gorsuch said. “Recently — and I think what Justice Jackson is alluding to — we’ve had, what one might call, a rash of universal injunctions or vacatures.”

“And this case seems 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,” Gorsuch said.

Prelogar agreed there was a “profound mismatch,” though Erin Morrow Hawley argued on behalf of Alliance Defending Freedom and the anti-abortion doctors that conscience protections don’t go far enough.

“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.”

Doctors, Hawley said, “can’t waste precious moments” in those circumstances.

Ruling coming later this year

The Supreme Court’s opinion on the case, Food and Drug Administration v. Alliance for Hippocratic Medicine, will likely arrive sometime early this summer in the middle of a bitter campaign for control of the White House and Congress in which the issue of reproductive rights is being stressed by Democrats.

The ruling will come about two years after the Supreme Court overturned the constitutional right to an abortion that it first recognized in the 1973 Roe v. Wade ruling and reasserted in the 1992 Casey v. Planned Parenthood decision.

Reverting use of mifepristone, one of two pharmaceuticals used in medication abortions, back to what was in place before the FDA began making changes in 2016 would lead to significant changes for doctors and patients:

• Mifepristone would be approved for up to seven weeks gestation, down from the current 10-week ceiling for use.
• Patients would go back to attending three, in-person doctor’s office appointments to complete the medication abortion process.
• The pharmaceutical could no longer be sent to patients through the mail.
• Only doctors would be able to prescribe mifepristone, removing the option for qualified healthcare providers like physician’s assistants and nurse practitioners to prescribe it.

The FDA originally approved mifepristone in 2000, later updating prescribing guidelines in 2016 and again during the COVID-19 pandemic.

Several major medical organizations — including the American College of Obstetricians and Gynecologists, the American Medical Association and the Society for Maternal-Fetal Medicine — wrote in a brief to the Supreme Court ahead of oral arguments that “(f)ocus on the use of mifepristone for induced abortion disregards how similarly essential it is to the safe and effective treatment of miscarriage or early pregnancy loss.”

“Miscarriage is common,” the medical organizations wrote. “Of the roughly 5.5 million pregnancies estimated to occur in the United States each year, between 10% and 26% end in miscarriage. For the million or more patients who experience early pregnancy loss annually, mifepristone is often a critical component of care.”

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