San Francisco Chronicle - (Sunday)
Consequential week for abortion rights
This was the most consequential week for abortion rights since Roe v. Wade fell — and it was a bad one for women. It showed that in this new era, there is no middle ground or nuance on abortion — even when a pregnant person’s health is in danger.
Conservatives promised that the 2022 Dobbs v. Jackson Women’s Health Organization decision that rescinded the constitutional right to obtain the procedure would leave regulation up to individual states, and ultimately, voters.
But this week drove home how Dobbs works in practice: Who can get an abortion is really in the hands of judges and politicians. And they are siding against women.
The world saw that happen in real time when the Texas Supreme Court denied one resident’s request to terminate her pregnancy under the state’s “medical emergency” exception to its strict abortion laws. It is illegal to perform an abortion in Texas after fertilization.
Days later, the Supreme Court agreed to review a case that could sharply curtail the availability of mifepristone, a medication which is used in more than half of abortions. More than 5 million people have used mifepristone since it was approved in 2000.
Both moves showed how little power people with unwanted pregnancies have in this new era where half the states ban or sharply limit the procedure.
“What Republicans were saying was that the middle ground is people in tragic, exceptional circumstances get to have abortions, and other people don’t,” said Mary Ziegler, a professor of law at UC Davis and leading scholar on abortion rights. “And I think that compromise isn’t a real compromise. It’s not clear that women and other pregnant people really are protected after all.”
Ziegler is talking about the case of Texas resident Kate Cox.
Cox, who is 21 weeks pregnant, is carrying a fetus that has trisomy 18, a fatal genetic condition. In 95% of cases, the fetus doesn’t survive full term, according to the Cleveland Clinic. She traveled to another state to get an abortion.
Cox’s case is an illustration of one of the problems that occurs when “these laws are written using political terminology and by politicians and government actors,” said Cathren Cohen, a staff attorney with the UCLA Law Center on Reproductive Health, Law and Policy.
“They’re often not reflective of medical standards, medical terminology and understanding about how pregnancy works,” Cohen said. “And because of that, they end up chilling people’s health care in ways that people might not have originally thought when they read the language of the law.”
Judges and anti-abortion rights political leaders decided Cox’s fate, not medical professionals. After a lower court said she could obtain an abortion, Texas Attorney General Ken Paxton threatened to criminally prosecute any hospital or physician who helped Cox obtain an abortion.
That highlighted the fear that doctors practicing in states with strict abortion bans are feeling. Many worry about being jailed for performing the procedure that is medically sound, even in cases like Cox’s in which a court had initially signed off. Among OB/GYNs working in states where abortion is banned, 61% were concerned about their legal risk when making decisions about patient care and the necessity for abortion, according to a June survey by KFF, an independent health policy and research organization.
“The main takeaway here is that these exceptions are really meaningless in practice, especially when you have political actors who are dedicated to going after abortion,” Cohen said.
Jennifer Kerns, a practicing OB/GYN and professor of medicine at UC San Francisco, said, “We’re talking about a case of somebody with basically a lethal fetal anomaly who’s being restricted now from termination of that pregnancy.”
“There’s no benefit to extending the pregnancy and exposing the woman to all of the risks that pregnancy entails, which are manifold,” Kerns said. “In the context of this lethal fetal anomaly, there’s really no grounds for continuing to expose this person to risks.”
What happened to Cox, Kerns said, “really underscores the point that there really is no demonstrable role for compromise on the part of people who are trying to restrict or ban abortion.”
Many of the conservative politicians who praised the Dobbs decision are now fearful of talking about its real world impacts. Like Texas Republican Sen. Ted Cruz.
After the decision was announced, Cruz said, “and while the left manically argues that the Dobbs decision makes abortion illegal throughout the country, that is false. What this decision does is leave abortion policy up to the states and returns power to the American people — which is exactly how questions of abortion were handled before Roe.” He called the Texas abortion ban “a massive victory” when talking to the conservative choir on Fox News.
But Cruz, rarely one to hold his tongue, had little to say about how the Texas law affected one of his own constituents, dodging Capitol Hill reporters asking for his reaction. “Call our press office,” he told reporters trailing him.
Donald Trump often boasts that as president, he nominated three conservative judges to the Supreme Court who delivered the Dobbs decision. But Trump, too, has had nothing to say on the Cox case.
Of the other GOP presidential candidates, only former
New Jersey Gov. Chris Christie said that Texas judges “got it wrong.”
“Now, look, I’m pro-life and I believe that we should try to save every life that we can, because I believe every life is a precious gift from God, but there was no saving this life,” Christie told an audience during a campaign stop in New Hampshire.
The reason these anti-abortion-rights Republicans are staying quiet is that every time voters have had an abortion access question put before them since Dobbs, they’ve supported abortion rights — including red states like Ohio and Kansas and battleground Michigan.
Abortion was already going to be a major factor in the 2024 elections. But the issue’s importance could be supercharged by the Supreme Court’s announcement this week that it would hear a case that could affect the availability of mifepristone. The court’s decision could land in late June, right in the middle of what promises to be an intense political campaign season.
The court could decide to sharply curtail its availability via telemedicine, a practice that has grown substantially since the pandemic.
“If telehealth medication abortion got overturned by the court, it would be a real detriment, especially for people in banned states, which at this point is about half of the country,”
Cohen said.
Limiting the availability of mifepristone or curbing telemedicine would also be felt in California, especially among low-income residents, people of color and those living in rural communities, experts said. Even though the state has the strongest abortion rights protections in the country, 40% of California counties have no clinics providing abortions.
Ziegler said this is why next year’s elections will be so critical to abortion rights.
“The chances of a second Biden administration prioritizing going after people for mifepristone are, like, precisely zero,” Ziegler said. “Whereas if a Republican is in the White House, you would see a lot more energy and effort going into prosecuting people who aren’t following whatever comes out in the Supreme Court by the letter.”
The mifepristone case was the kicker to a week that Cohen said showed how the Dobbs decision “did not get the courts out of the decision-making of abortion.”
“Rolling back abortion rights actually makes it so that judges and politicians have more deciding power,” Cohen said. “And you see that playing out now.”