Kentucky Gov. Andy Beshear walks onstage before speaking during the first night of the Democratic National Convention at the United Center in Chicago, Aug. 19, 2024. (Photo by Kevin Dietsch/Getty Images)

Kentucky Gov. Andy Beshear took the stage at the Democratic National Convention Monday night to speak on abortion rights, how to bridge the divide created by “anger politics” and back Vice President Kamala Harris for president.?

In a roughly five-minute speech, the 46-year-old governor repurposed some of the campaign trail for his 2023 re-election campaign for a country-wide audience. Beshear was introduced on stage by Hadley Duvall, an Owensboro abortion rights advocate who appeared in a pivotal ad for Beshear last year and has since gained national prominence in Democratic politics.?

Beshear began by praising Duvall as “one of the bravest people I’ve ever met.” She began sharing her story about the sexual abuse she experienced as a child after the U.S. Supreme Court overturned Roe v. Wade in 2022 and has spoken against Kentucky’s abortion ban. Beshear said Kentucky voters showed support for reproductive freedom last year when they re-elected him against former Republican Attorney General Daniel Cameron.

“In Kentucky, we put reproductive freedom on the ballot last November and I beat Donald Trump and Mitch McConnell’s handpicked candidate by more than five percentage points,” Beshear said to cheers from the crowd. “This November, we’re going to beat them again. Elect Kamala Harris and Tim Walz and protect reproductive freedom.”?

Beshear was among a shortlist of possible running mates for Harris, but she ultimately picked Minnesota Gov. Tim Walz ahead of the DNC.

In his speech, Beshear attacked the GOP ticket of former President Donald Trump and running mate U.S. Sen. J.D. Vance for their stand on abortion, saying they back policies that “give rapists more rights than their victims” —?a line he’s used to describe Kentucky’s abortion ban passed into by Kentucky Republican lawmakers.

The governor then shifted from having empathy for women who face difficult medical choices like abortion or lacking access to one to having empathy for all.?

“How we treat people transcends party lines. It goes right to the heart of who we are. My faith teaches me the golden rule — that I am to love my neighbor as myself. And the parable (of) the Good Samaritan says we are all each other’s neighbors,” Beshear said. “So I want anyone watching tonight, Republican, Independent, Democrat, to know that you are welcome here.”

Beshear regularly refers to the Good Samaritan, including during his State of the Commonwealth address earlier this year. Toward the end of his convention speech, Beshear also made a reference to another reelection message to overcome division by calling to “end anger politics once and for all.” The governor said Harris “knows we must move beyond anger, extremism and division, that everyone has dignity and deserves respect.”

“That’s how Joe Biden and Kamala Harris lead. They both called to ask how they could help Kentucky in recovering from natural disasters,” Beshear said. “They helped us improve our roads, our bridges, and invested in our people. They didn’t ask me who Kentuckians voted for. They asked me what Kentuckians needed —?and folks, they delivered.”?

Beshear’s remarks came during the convention’s opening evening in Chicago. The governor followed a joint-speech from Americans affected by abortion bans across the country, including Kentuckian Hadley Duvall. She appeared in a pivotal ad for Beshear during his 2023 re-election campaign and has been stumping for Democrats this election season.?

The governor also addressed the crowd ahead of notable Democratic Party leaders U.S. Sen. Raphael Warnock of Georgia, U.S. Sen. Chris Coons of Delaware, First Lady Jill Biden and President Joe Biden.?

Duvall appeared alongside Amanda and Josh Zurawski of Texas and Kaitlyn Joshua of Louisiana. They each spoke about how losing access to abortions in their states affected them. Duvall said Harris intends to sign a law to restore abortion rights if she is elected this fall.?

“She will fight for every woman and every girl, even those who are not fighting for her,” Duvall said of Harris.?Speaking at convention can be a pivotal moment for a politician’s national prospects later on. President Barack Obama addressed the DNC as an Illinois state senator in 2004. Some credit that address with putting him on the path to the presidency four years later. Harris herself addressed the DNC as California’s attorney general in 2012 before she accepted the vice presidential nomination in 2020.

Abortion fund directors nationwide have been raising the alarm for months about declining donations and their struggles to meet the needs of those seeking help with the financial burdens of finding abortion care, especially those who live in one of?22 states?with near-total bans or severely restrictive abortion laws. (Photo by Scott Olson/Getty Images)

Advocates for abortion access say compounding crises of abortion bans, rising economic costs and systemic health care issues are beginning to cause significant funding challenges and potential disruptions to reproductive care of all kinds.

Several people described it as a “perfect storm” of problems with the U.S. health care system, particularly post-pandemic, and the rise of abortion bans and other reproductive care restrictions in the wake of the Dobbs v. Jackson Women’s Health Organization decision in June 2022. Many individuals must now travel hundreds or thousands of miles to seek abortion care, and the consolidation of demand at a smaller number of clinics is increasing wait times, which means pregnancies progress to a more advanced stage and the costs balloon further. According to leaders of Planned Parenthood affiliates and abortion funds, there simply aren’t enough dollars right now to support the need at any level. A recent report from #WeCount showed the number of abortions nationwide started to increase in 2017 and has continued to increase post-Dobbs, with more than 102,000 abortions in January alone.

Abortion fund directors nationwide have been raising the alarm for months about declining donation revenue and their struggles to meet the needs of those seeking help with the financial burdens of finding abortion care, especially those who live in one of 22 states with near-total bans or severely restrictive abortion laws. That includes every state in the Southeast.

Planned Parenthood of Northern New England announced at the beginning of the month a projected funding shortfall of about $8.6 million over the next three years, and Planned Parenthood of Greater New York announced just a few days later that it would pause abortion care at or beyond 20 weeks because of financial struggles that began earlier this year. The National Abortion Federation runs America’s largest financial assistance program for abortion patients and said that just in the first half of this year it has partially funded more than 60,000 people’s abortions — a total of around $6 million per month — but has now had to reduce patient grants from 50% of the cost of care to 30%.

Even in areas with new abortion restrictions, such as Florida, donations have declined significantly. Stephanie Loraine Pi?eiro, executive director of Florida Access Network, said during a June press conference that the month after the Dobbs decision ended federal abortion rights, the fund received $200,000 in individual donations — but after the state supreme court decision in April 2024 reduced the state’s abortion ban from 15 gestational weeks to six weeks, the fund received just $40,000 in donations.

“That is a stark difference, and it has everything to do with donors feeling burnt out,” Loraine Pi?eiro said.

States with abortion access face hostile political winds?

Planned Parenthood Federation of America told States Newsroom it is meeting its fundraising goals, but the organization’s local health centers and regional affiliates are struggling to provide care in the current climate.

Nicole Clegg, interim CEO of Planned Parenthood of Northern New England, told States Newsroom the affiliate has always been under-resourced and under-reimbursed for the care it provides, which includes birth control, testing for sexually transmitted diseases and routine gynecological care in addition to abortion services. But now that the region, which includes Maine, Vermont and New Hampshire, is taking on more patients from states with abortion bans, it is reaching a tipping point.

“The services we provide are just not valued by the insurance industry, or Medicaid and Medicare — they have always been poorly reimbursed,” Clegg said. “Once costs really started to skyrocket, the margin we were operating with disappeared.”

According to an analysis of health care spending and costs by KFF, health spending tripled between the year 2000 and 2022, from $1.4 trillion to $4.5 trillion. The pandemic accelerated that spending, but the analysis also said the aging population of the U.S., rising rates of chronic conditions, inflation, and expansions of insurance coverage have also driven up costs.

A bill that would have provided nearly $3.4 million to Maine’s family planning centers got caught in legislative wrangling that affected many appropriations bills at the end of the session.

In New Hampshire, which allows abortions until 24 weeks of pregnancy, the affiliate had nearly secured a multi-year grant of more than $2 million total, with the support of Republican Gov. Chris Sununu. However, Clegg said that when the grant went before an executive council for final approval in 2023, the members struck it down, saying they didn’t want taxpayer dollars to fund abortions. Both led to the projected $8.6 million shortfall over the next three years.

“The executive council has become increasingly hostile to Planned Parenthood,” Clegg said.

Planned Parenthood Great Northwest, which includes northwestern states as well as Hawaii, Alaska, Indiana and Kentucky, also said it is facing financial challenges that put access to care at risk. Lisa Humes-Schulz, vice president of policy and communications for Planned Parenthood Alliance Advocates, said in a statement that the affiliate is facing the same health care cost challenges, an underfunded federal family planning program, workforce shortages and rising labor costs. Great Northwest includes Idaho, where there is a near-total abortion ban and which was at the center of a recent U.S. Supreme Court case over whether emergency room physicians could be prosecuted under the state law for providing an abortion in the case of a medical emergency. The affiliate’s clinics in Washington have seen an influx of patients from Idaho as a result of the abortion ban over the past two years, including some emergency patients that were airlifted out of Idaho.

“Unlike other safety net providers, we are trying to navigate these business challenges on top of the unprecedented political attacks focused on providers of abortion care and gender-affirming care,” Humes-Schulz said.

For Planned Parenthood of Greater New York, financial struggles have already prompted a change in care. After the state legislature failed to increase Medicaid reimbursement rates for medication abortion, the affiliate said it implemented executive pay cuts, consolidated job functions and closed small health centers to make up deficits. More than half of the patients that visit Planned Parenthood centers rely on Medicaid.

But it took another step in temporarily stopping abortions at 20 or more weeks starting Sept. 3 because it can’t afford to cover the vendor costs for anesthesia. Only one Planned Parenthood location in New York City will offer deep sedation and abortions at 20 or more weeks for now.

‘Unprecedented is not even the word anymore’

The struggles also extend to organizations that provide more basic infrastructure for abortion clinics, such as the Abortion Care Network, which started a campaign called Keep Our Clinics to raise funds for independent abortion clinics. Independent clinics make up 55% of abortion providers, according to the network, while Planned Parenthood comprises 41%, and the remaining 4% occur at physicians’ offices and hospitals. The vast majority of clinics offering abortion care after 22 weeks — about 86% — are also independent.

Erin Grant, co-executive director of the Abortion Care Network, told States Newsroom the organization’s mission is to provide grant funding for independent clinics to support infrastructure needs — such as supplies, equipment, building repair, security, and litigation support — rather than patient care. The network has supported 32 clinics, and gave out $700,000 to providers in recent months.

But for the network too, donations are down by one-third. The full amount of donations to the Keep Our Clinics campaign goes to clinic members, and the organization granted nearly $5 million to clinics in 2022, but only $3.4 million in 2023. The requests for support did not go down during that time, but donations did.

Grant said it’s important to support the infrastructure of independent abortion clinics because once they close, it is extremely difficult to work through the bureaucratic process again to reopen them. In areas with newly instituted six-week abortion bans, such as Florida, Iowa and South Carolina, more clinics have closed their doors.

“We are in times where ‘unprecedented’ is not even the word anymore, and there is so much happening that calls for our attention. … There’s a need in this moment for us to hold multiple crises across communities,” Grant said. “… This isn’t something we get to say we did as an immediate need, because there’s decades of work ahead to build the actual infrastructure to have health care access, let alone abortion access in this country.”

During a June press call, several leaders of state abortion funds discussed funding struggles. Oriaku Njoku, executive director of the National Network of Abortion Funds, said the funds provided more than $36 million in abortion funding and $10 million in logistical support in 2023.

“This is not the same movement that it was five years ago, let alone 50 years ago, and yet we’re still operating and funding as if it were the same issue as it was before,” Njoku said.

There are nine clinics in Ohio, where voters affirmed their desire to keep access to abortion in 2023, but it is surrounded by three states with near-total bans — Indiana, Kentucky and West Virginia. Lexis Dotson-Dufault, executive director of the Abortion Fund of Ohio, said during the press conference that her organization averaged about 100 patients per month in 2022, but now it averages more than 500.

“While abortion funds have a huge increase in need, we are not seeing a huge increase in money coming in to support this need,” Dotson-Dufault said.

National Abortion Federation: Without cutbacks, funding would run out by fall?

Planned Parenthood Federation of America, the national organization, did not directly address whether it would provide more support to the affiliates facing significant financial troubles.

“While issues around funding are a concern, it is important to note that the reproductive health care ecosystem is straining under the weight of the post-Dobbs crisis,” a Planned Parenthood spokesperson said in a statement. “PPFA is working to support affiliates as they take action to adapt and continue to provide care.”

The organization’s comments came a few days after 41 abortion funds from around the country signed on to an op-ed in The Nation saying there is a disconnect between the most visible national reproductive rights organizations, like Planned Parenthood and the National Abortion Federation, and grassroots groups working to directly support those who need care. The op-ed called out the National Abortion Federation for cutting back its financial assistance program in July, from 50% of the cost of seeking care to 30%. Signers included the Abortion Fund of Ohio and the Florida Access Network.

Brittany Fonteno, CEO and president of the National Abortion Federation, called the change an “incredibly heartbreaking and difficult” decision that had to be made despite an “incredible and generous budget” that is the largest it has ever been. She said that in the first half of this year, NAF was funding at $6 million per month for abortion care, and then upwards of $200,000 per month in patient assistance funds to help with associated travel costs. These patient assistance funds are completely funded by foundation and individual donors, Fonteno said, noting that individual donations dropped nearly 40% in 2023 from the previous year after the Dobbs decision leaked.

In 2023, NAF said it funded 106,865 people with an average amount of $519 per patient. So far in 2024, the hotline has funded 66,330 people at an average of $541 per patient.

“We’re truly in a public health emergency right now, and unfortunately, we just can’t keep pace with the patient need,” Fonteno told States Newsroom. “We had to make this decision in order to make sure that we could stretch our funds and make sure that we could help as many people as possible for the rest of this year. If we hadn’t made this decision, then we would have run out of funding in the fall.”

The changes include no longer making exceptions for those in later stages of pregnancy who face higher costs — sometimes as much as $10,000, Fonteno said — because the procedure costs more or they have to travel further to find a clinic that can provide it. That “exception budget,” which was also used for patients facing extreme circumstances like intimate partner violence, will not exist for the remainder of the year, according to Fonteno.

“Of course, we’re working incredibly hard to try to fundraise, to try to get the word out and bring awareness to this issue. And if we’re able to fundraise, we may be able to consider increasing the funding that we’re able to do,” she said.

Presidential election matters, director says?

Clegg, interim CEO of Planned Parenthood of Northern New England, said the problems will only get exponentially worse if the presidential election in November breaks for Republicans over Democrats. Project 2025, the blueprint document produced by the Heritage Foundation for the next Republican presidential administration to follow, calls for the federal government to prohibit Planned Parenthood from receiving any Medicaid funds (for non-abortion reproductive health services; federal funding of abortion is currently prohibited) and issue guidance to states that says they are free to defund Planned Parenthood in their state Medicaid plans as well.

Instead, it calls for the funding to be redirected to “health centers that provide real health care for women.” The anti-abortion organizations involved in crafting the document, such as Susan B. Anthony Pro-Life America, often promote funding for crisis pregnancy centers, which counsel pregnant patients against abortion and are known to spread misinformation about the procedure. A recent analysis from reproductive rights advocacy group Equity Forward showed nearly $490 million was allocated in 23 state budgets over the past two years for crisis pregnancy centers, most of which were in the same states that restrict abortion access.

“It’s not just making sure the public understands that we need them to engage and partner with us to make sure we can keep providing the care; it’s also having them connect the dots to the November election and understand that who they vote for, who they put in office is going to determine our future,” Clegg said.

Kentucky Rep. Lindsey Burke, D-Lexington, whose son was born through IVF, says she doesn’t believe the procedure is protected under current law.? “As long as fetal personhood is enshrined in Kentucky law, IVF is at risk,” she says. (Photo by LRC Public Information)

None of the bills to explicitly protect in vitro fertilization in Kentucky got a hearing this legislative session, making them effectively dead on arrival.?

With roughly eight months until the next session, some lawmakers and attorneys disagree on what protections exist for IVF under current Kentucky law.?

Republican Sen. Whitney Westerfield — who has children thanks to IVF — believes there is an appetite in the General Assembly to pass specific IVF protections.

The failure to do so this year, he said, was probably “a function of time.”?

Westerfield, of Fruit Hill, filed a bill to protect the process on the filing deadline for Senate bills. His House and Senate colleagues who filed similar bills also did so right before or on the filing deadlines.?

The issue, he pointed out, wasn’t on “anybody’s radar” until an Alabama Supreme Court decision — which came down right before the deadline to file Kentucky bills — seemingly complicated the treatment.?

‘They should always be preserved’?

Westerfield and his wife, Amanda, are expecting triplets this summer. The three, as well as their 6-year-old son, were adopted as embryos — the result of someone going through IVF and donating eggs. The Westerfields also have a daughter who joined their family as a “traditional domestic adoption.” They have another embryo they are paying around $500 annually to preserve.??

“I think they should always be preserved,” Westerfield said. “But I also understand not everybody holds that view. My son is one of those that was preserved, thankfully. These boys that are on the way were preserved.”??

The Westerfields chose to have children this way because, had they gone through IVF themselves, “we were worried that we might have more than we could try to transfer on our own,” Westerfield said.

“We didn’t want to have so many left over that we couldn’t … bring to full term birth ourselves and give a home to. And then you worry about making sure they end up in a home somewhere because we don’t want them destroyed. Not everybody wants to adopt an embryo and be pregnant. Some people do, thankfully.”??

Even though the legislature didn’t pass the IVF-specific bills this year, it did pass House Bill 159, which Democratic Gov. Andy Beshear then signed into law. The new law gives Kentucky health care providers criminal immunity for medical mistakes.?

On the day HB 159 passed the Senate, Westerfield said he believed it would protect IVF by default because it broadly protects “providers.”?

It states: “A health care provider providing health services shall be immune from criminal liability for any harm or damages alleged to arise from an act or omission relating to the provision of health services.”?

Westerfield, who is also a lawyer, said this is “more comprehensive” than what he proposed to specifically protect IVF.?

“It covered everything mine covered and then some,” Westerfield told the Lantern. He is not seeking reelection.?

Ben Potash, a lawyer representing three Jewish women who are suing over Kentucky’s abortion law, believes HB 159 does not protect IVF since discarding extra eggs in the IVF process is a willful act.?

HB 159 says “Nothing … limits any liability for gross negligence or wanton, willful, malicious, or intentional misconduct.”?

‘No one really knows what the law is’?

Potash believes the two topics — abortion and IVF — are too closely related to be separated. Going through IVF in Kentucky right now is “precarious,” he said. “No one really knows what the law is.”?

Kentucky Attorney General Russell Coleman has called IVF “an incredible blessing for so many seeking to become parents,” as the Lantern previously reported.?

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

In Potash’s view, “making it civil, secular law that life begins at conception introduces all kinds of complications to IVF, to motherhood in general, to parenthood in general.”?

Kentucky’s “Human Life Protection Act” — the trigger law that went into effect once the U.S. Supreme Court overturned Roe V. Wade in 2022 — states that an embryo is an “unborn human being” from egg fertilization to birth.?

The 1973 Roe V. Wade decision established abortion as a constitutional right. Once that federal protection was gone, Kentucky’s law updated to all but ban abortion entirely, except in rare and life-threatening situations.?

Judith Daar, the dean of Northern Kentucky University’s Chase College of Law, where she is also a professor, said that while “many states have language in their statutes regarding abortion that declare life begins at conception or fertilization,” those laws also link abortion to pregnancy, which “is defined as an attachment of the embryo inside the mom.”?

That is the case in Kentucky. The law states that “‘pregnant’ means the human female reproductive condition of having a living unborn human being within her body throughout the entire embryonic and fetal stages.”?

“To the extent that all the abortion laws tether and condition the conduct on the existence of a pregnancy, then IVF really does escape application of the abortion laws, at least in the preimplantation stage when the embryos are still in the laboratory,” explained Daar, a legal expert on reproductive assistance. “That is not, per se, a pregnancy because it doesn’t meet the definition of the attachment of the embryo into the uterus.”?

Because of this, Daar said, Kentucky doesn’t necessarily need to pass an explicit bill on IVF at this time.?

“There’s nothing that I’m aware of … in the commonwealth,” she said,? “that suggests that any aspect of IVF practice is illegal under Kentucky law.”?

The IVF process

Dr. Sigal Klipstein, chair of the Ethics Committee for the American Society for Reproductive Medicine, said people need IVF for many reasons. Some seek it because of infertility — a man has little to no sperm or a woman does not ovulate, for example. Same sex couples may undergo IVF as a way to have biological children, she said, or uncoupled people may seek that service for themselves.?

“In a typical IVF cycle, a woman might take about 10 days of injections,” Klipstein explained. These are “little, under the skin injections, kind of like insulin needles.”??

“They sort of bypass the system,” she said. “So instead of having enough hormone to release one egg, you might release five or 10 or 20 eggs.”?

A final shot at the end of those 10 days triggers ovulation, Klipstein said. The patient then undergoes anesthesia and eggs are removed with a needle that enters through the vagina under ultrasound guidance.??

Eggs are then mixed with sperm in a lab and grown for five to six days. The best one is then implanted into the uterus.?

Usually, there are extra eggs leftover, Klipstein said. They can be donated, stored, discarded, or be placed in the uterus during a time that won’t result in pregnancy. This is called “compassionate transfer,” Klipstein explained. In this process, “you’re sort of more physiologically, more naturally, allowing the embryos to reabsorb into the body.”??

Potash said the “routine” extra eggs make the process complicated if they are considered human beings by law. The Alabama Supreme Court set the precedent for that complication when it ruled in mid February that frozen embryos are children, as the Alabama Reflector reported.?

“It’s unrealistic and cost prohibitive, as well as I think a little cruel,” Potash said, “to make those mothers keep those fertilized ova on ice, essentially, forever.”?

Klipstein agrees. What happens if someone stops paying or a storage facility closes, she asked. “Do you require them to have more babies than they want? I mean, I don’t think you can compel someone to get pregnant against their will to prevent them from discarding those embryos.”? ?

“It would be nice if we had one embryo for one baby, and we could do it as a one to one ratio,” she added. “But, you know, medicine doesn’t work that way. And IVF doesn’t work that way.”??

Westerfield has a different perspective. “It’s hard for me to imagine someone going into that process without an awareness of the cost,” he said.?

IVF can cost between $15,000 and $30,000 per cycle, according to a 2023 article in Forbes. Storage can cost from $350 to $600 per year as well, the magazine reported.?

“I don’t think anybody goes into that without knowing whether or not they either can afford it, or have insurance to cover it, or what have you,” Westerfield said.?

He and his wife wouldn’t have adopted as many embryos as they did, he said, “if we thought we couldn’t afford to keep this one on ice, frozen.”?

“We wouldn’t have done more than what we could transfer at a time,” he said. “We wouldn’t have adopted three; we would have adopted one or maybe two.”?

Providers, parents in ‘limbo’

Sen. Cassie Chambers Armstrong, D-Louisville, filed one of several unsuccessful bills to protect IVF this session. She told the Lantern she is “disappointed” no specific protections passed.?

It might be plausible, she said, that HB 159 “does provide protection to IVF.” But, she said: “I don’t think that it’s decisive.”?

The new law deals with criminal and not civil prosecution. That makes it unlikely to be applied to IVF, NKU’s Daar said.?

“Instances of physicians acting in a criminal manner in the IVF setting is virtually non-existent,” Daar said. “I’m not saying it never happens, but it’s very, very rare.? So a bill that generalizes criminal immunity … would not have a tremendous impact, if any impact, on IVF because that conduct just doesn’t occur.”?

For now, Chambers Armstrong is particularly worried about how providers view the law. She wants to spend the interim talking to those people ahead of the next session.?

“If IVF providers feel as though they have protection and this bill gives that to them, they will continue to offer services,” she said. “If they are concerned that they’re going to be subject to criminal liability for just doing their jobs, I’m worried that we’re going to see a chilling of making those services available.”??

Meanwhile, she does think the state should “repeal … language that people believe could give embryos rights,” she said. But: “I don’t believe this General Assembly is going to do that anytime soon. I hope that people are correct when they say that we can provide some level of protection to IVF with those statutes on the books.”??

Rep. Daniel Grossberg, D-Louisville, said the legislature has left “women and medical professionals” in “limbo”. He filed one of the unsuccessful bills to protect the process, and the only one in the House.?

“The message that (this) sends,” he said, “is that women in Kentucky don’t have control over their reproductive choices.”??

‘Let’s be proactive’?

Rep. Lindsey Burke, D-Lexington, has openly discussed her journey with assault, infertility, IVF, miscarriage and abortion.?

She told the Lantern she doesn’t believe IVF is truly protected under current law.?

“As long as fetal personhood is enshrined in Kentucky law, IVF is at risk,” said Burke, who is an attorney and mother of a son whom she had after undergoing IVF.?

She is also paying $100 per month to store an embryo, as she hopes for another child someday.?

Burke would like to file legislation to get “better insurance coverage for reproductive care” next year. She went into debt around $60,000 to have her son, she said. And: “I don’t think that anybody should have to do that.”?

“I’m not sure that we’re going to get an answer as to whether this bill provides the type of protection for IVF that we’re hoping (for) unless and until it is challenged in court and we get a decision from the court,” said Chambers Armstrong, who is also a lawyer.?

But she doesn’t want to wait on litigation, she said.?

“Let’s be proactive. Let’s go ahead and pass a law that is very clear that it’s protecting IVF services and make sure that folks know that they can continue to receive the care that they have been seeking,” Chambers Armstrong said.??

That must wait until at least 2025.?

A pharmacy technician passes items to a nurse from within a sterile area at the James Graham Brown Cancer Center on April 2, 2021 in Louisville. (Photo by Jon Cherry/Getty Images)

A bill giving Kentucky’s health care providers criminal immunity for medical mistakes — which one lawmaker thinks will enshrine protections for in vitro fertilization by default — is on its way to Gov. Andy Beshear’s desk.

House Bill 159, which would decriminalize medical mistakes made by health care providers, passed the House in February unanimously. On Friday it cleared the Senate — also unanimously.?

Bill would give health care providers criminal immunity for medical mistakes

The bill follows a 2022 Tennessee case in which a nurse was found guilty after a patient died from a medical mistake. The conviction? led to protests and resignations within the health care community, KFF Health News has reported.?

The Kentucky Nurses Association says that if medical mistakes are criminalized, providers are less likely to report them.?

“I’m all for responsibility for medical errors,” said Sen. Phillip Wheeler, R-Pikeville, who carried the bill to the Senate floor on the 54th day of the 60-day legislative session. “I think that that is an appropriate domain for civil justice and not for the criminal justice system.”?

Fruit Hill Republican Sen. Whitney Westerfield, who in February filed a bill seeking to protect access to in vitro fertilization (IVF) in Kentucky, said he believes HB 159 will accomplish his goal by default. His colleague, Sen. Cassie Chambers Armstrong, D-Louisville, filed a similar bill to protect IVF.

“Neither of our bills have advanced,” Westerfield said while voting in favor of HB 159, which he said will cover IVF access because of its “broad” definition of the word “providers.”?

The criminal liability bill, sponsored by Rep. Patrick Flannery, R-Olive Hill, protects “a person providing health services” who is appropriately licensed and/or certified.??

Bills to protect access to IVF, which is used to treat infertility and can help other people trying to get pregnant to do so, came this session in? response to a ruling from the Alabama Supreme Court stating that frozen embryos are children.?

The ruling led to concerns that it could deter people in Alabama from attempting to conceive children via IVF, which sometimes involves freezing embryos for future attempts at insemination. Several clinics in Alabama, including the University of Alabama Birmingham, paused IVF treatments and embryo transfers in response to the ruling.

Louisville Democratic Rep. Daniel Grossberg filed a similar IVF protection in House Bill 757. His goes a step further than the Senate bills and states explicitly, “A fertilized human egg or human embryo that exists in any form outside of the uterus of a human body shall not be considered an unborn child, a minor child, a natural person, or any other term that connotes a human being for any purpose under state law.”?

Grossberg’s bill has not received a committee assignment.?

But House Bill 159, Westerfield said, will protect IVF.?

“I think this bill accomplishes that and does so without necessary amendments or changes,” Westerfield said. “And so as a proud father of now four IVF children, I’m proud to see this bill make final passage and head to the governor.”?

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

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

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

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

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

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

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

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

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

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

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

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

Democratic women protest

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

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

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

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

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

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

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

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

‘Duplication of services’?

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

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

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

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

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

‘Pregnancy is very complicated’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Claims ‘hypothetical’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawmakers scurry to save IVF

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

Three Kentucky lawmakers have filed such bills.

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

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

But he is an outspoken supporter of IVF.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Democrats in Congress are pushing to protect access to in vitro fertilization after the Alabama Supreme Court ruled that frozen embryos are children. Republicans say it's an issue for the states. (Getty Images)

WASHINGTON — U.S. Republican Sen. Cindy Hyde-Smith of Mississippi blocked a bill from passing Wednesday that would have preserved access to in vitro fertilization nationwide, stalling a push by Democrats following a landmark Alabama state Supreme Court decision.

The court ruled earlier this month that frozen embryos counted as children under state law and parents could collect damages for their destruction, putting IVF programs in the state on hold.

Illinois Democratic Sen. Tammy Duckworth asked for unanimous consent to pass the IVF bill, a process that allows any one senator to prevent it from moving to the House.

Duckworth has said she’ll press for a roll call vote on the bill at a later point to put every senator on record.

“My girls are my everything,” Duckworth said, referring to her two daughters. “They likely would have never been born if I had not had access to the basic reproductive rights that Americans, up until recently, had been depending on for nearly a half century.”

Duckworth said that after her service in Iraq, she struggled with infertility.

Hyde-Smith argued that the bill was “overreaching,” and contained provisions with which she disagreed.

“I support the ability for mothers and fathers to have total access to IVF and bring new life into the world, and I also believe that human life should be protected,” Hyde-Smith said.

She also argued that the Alabama case did not ban IVF. However, clinics in the state have paused treatments following the ruling.

Duckworth defended her bill, saying that it protects individuals who are seeking IVF technology without fear of being prosecuted, protects the rights of physicians to provide that treatment and allows insurance companies to cover reproductive technology.

“It simply says you have a statutory right, should you choose to pursue assisted reproductive technology, that you would be able to do so,” Duckworth said.

‘These women have had their dreams shattered’

Washington state Democratic Sen. Patty Murray slammed Republicans for blocking the unanimous consent request to pass the bill.

“These women have had their dreams shattered because Republicans believe a frozen embryo kept in storage at an IVF clinic is the same and should have the exact same rights as a living, breathing human person,” Murray said.

Sen. Tim Kaine, a Virginia Democrat, said that the first child born through IVF in the United States was in 1981, in Norfolk, Virginia. He added that it’s estimated that 12 million people were born through IVF.

“She’s raising her own family today,” Kaine said. “What could be more pro-life than in vitro fertilization?”

Oregon Democratic Sen. Ron Wyden said that the repeal of Roe v. Wade has led to an “onslaught of court rulings just like this one in Alabama.”

Nevada Democratic Sen. Catherine Cortez Masto said that when the Supreme Court overturned Roe v. Wade, “we could see from a mile away that IVF was in danger.”

“It will not stop with Alabama,” Cortez Masto said. “Attacking IVF was yet another chance for anti-choice Republicans to erode women’s rights in this country.”

Britt: Alabama taking action

Alabama Republican Sen. Katie Britt said in a brief interview with States Newsroom on Wednesday afternoon that her home state should be left to address the issue.

“So Alabama is, right now as we speak, working to protect IVF,” she said.

Alabama state lawmakers advanced three bills out of committee on Wednesday that would protect access to IVF in that state.

The U.S. Senate’s debate over access to IVF came just hours after the Senate Budget Committee held a hearing on “the economic harms of restricting reproductive freedom,” which included testimony on access to the procedure.

Caitlin Myers, John G. McCullough professor of economics at Middlebury College in Vermont, told the committee that access to “reproductive autonomy isn’t just about young people avoiding parenthood until they’re ready, it’s about all people being able to become parents when they want to.”

“The economic evidence suggests that it allows women to spend more time seeking the right partner, investing in education and investing in their careers,” she said. “And in a country and moment when we’re increasingly seeing people delay parenthood, a lack of access to IVF is very concerning from an economic perspective.”

44 co-sponsors with Duckworth

The Duckworth bill, dubbed the Access to Family Building Act, is nine pages long and aims to provide protections for patients and health care providers.

Duckworth introduced the bill in mid-January with Wisconsin Democratic Sen. Tammy Baldwin, Washington state’s Murray and New York Democratic Sen. Kirsten Gillibrand as original co-sponsors.

Support for the legislation began increasing this week, with the number of co-sponsors rising to 44 as of Wednesday.

The bill says that it would bar limitations on “assisted reproductive technology services” that are “more burdensome than limitations or requirements imposed on medically comparable procedures, do not significantly advance reproductive health or the safety of such services and unduly restrict access to such services.”

Assisted reproductive technology is defined in the legislation as what’s included in Section 8 of the Fertility Clinic Success Rate and Certification Act of 1992.

That law’s definition says it encompasses “all treatments or procedures which include the handling of human oocytes or embryos, including in vitro fertilization, gamete intrafallopian transfer, zygote intrafallopian transfer, and such other specific technologies as the Secretary may include in this definition, after making public any proposed definition in such manner as to facilitate comment from any person (including any Federal or other public agency).”

GOP senators reject congressional action

Republican senators, speaking briefly with States Newsroom on Tuesday, all rejected the idea of Congress stepping in now to set a nationwide policy on access to IVF. And some expressed concerns with how the bill was written.

Utah Republican Sen. Mitt Romney said he would need to look over Duckworth’s bill in detail, but said his “understanding is it’s just substantially broader than dealing with IVF.”

On IVF access generally, Romney said, he didn’t believe that federal lawmakers had “enough of a window on that at this stage in that it’s not been an issue for any state other than Alabama.”

“And the Alabama Legislature, as I understand it, is attempting to deal with this legislatively, so I don’t think it’s an issue elsewhere,” Romney said.

West Virginia Republican Sen. Shelley Moore Capito said that while she supports everyone having access to IVF, she’s not sure Congress should approve legislation.

“I think we need to preserve access to IVF for families and folks suffering from infertility,” she said. “But I think this is, right now, a state issue in Alabama. And I think they ought to fix it there first.”

Indiana Republican Sen. Todd Young said access to IVF “has to be protected” and that he would look into supporting legislation to do just that, though he said he hadn’t yet read Duckworth’s bill.

“I would consider any proposals that are put forward here,” Young said. “I have not read through the particulars on that. Some have characterized it as overbroad.”

“But I would entertain legislation to preserve that important prerogative for women and families,” Young said.

GOP senators say it is a state issue

Kansas Republican Sen. Roger Marshall said he believes the U.S. Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to an abortion, sent issues like IVF to state lawmakers.

“I think that the Dobbs decision clearly states that this should be a decision made at the state level,” Marshall said. “I encourage the state legislators to support IVF. It’s a beautiful thing, hundreds of babies are delivered every day across the country because of IVF.”

The U.S. Supreme Court’s ruling in Dobbs said the “Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” That includes Congress.

Marshall said that Republicans throughout the country should “all lean into it that we are the pro-family party, and we should celebrate IVF.”

“It’s an incredible technique, something that I’ve participated in… close to 100 or more cycles and just lots of beautiful children I know from IVF,” Marshall said.

Iowa Republican Sen. Joni Ernst said that it’s “not yet” time for Congress to step in with nationwide legislation on IVF, though she said it’s important that Americans have access to the process.

“I think the message that we have is that families should have access to IVF. That’s extremely important,” Ernst said. “I have a friend who has twin daughters because of IVF. So I hope we can work through this.”

Alabama Republican Sen. Tommy Tuberville said the issue should be left to state lawmakers.

“Let them do it, just like they’re doing abortion. Let everybody get a chance to vote on it,” Tuberville said. “I think it will work a lot better than people complaining up here. We need to get our act together and worry about all the things that we can control.”

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

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

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

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

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

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

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

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

Sen. Cassie Chambers-Armstrong, D-Louisville, sponsored a bill allowing more foster parents to qualify for child care assistance. (Photo by LRC Public Information)

FRANKFORT — A Louisville Democrat filed a bill Tuesday aimed at “safeguarding” access to in vitro fertilization in Kentucky.

Senate Bill 301, sponsored by Sen. Cassie Chambers Armstrong, D-Louisville, would protect from criminal liability medical providers who “engaged in assisted reproduction who meet the professional standard of care,” according to a copy provided to the Lantern. The bill is not yet available online.?

?“This bill has a clear objective: to protect IVF providers, enabling them to continue their vital work,” Chambers Armstrong said in a statement. “Kentuckians pursuing IVF treatments should not fear the abrupt cessation of these services. Every individual aspiring to start a family deserves the opportunity to do so.”

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

Chambers Armstrong’s bill has little chance of being debated in the Republican-controlled legislature. Few Democratic bills have moved this session – three? in the Senate and two in the House as of Tuesday evening.?

The Alabama ruling, which is supported by many in the anti-abortion movement, has put Republican politicians on the spot. Last week former President Donald Trump, the GOP frontrunner for president, called on the Alabama legislature to act to protect IVF in the state. Republicans in other races scrambled to voice their support for fertility related services such as in vitro fertilization. In the U.S. Senate, Democrats hope to force a vote on the issue Wednesday.

IVF is used to treat infertility, according to the Mayo Clinic, and can help other people trying to get pregnant to do so.?

Illinois Democratic Sen. Tammy Duckworth speaks during a press conference on IVF inside the U.S. Capitol on Tuesday, Feb. 27, 2024. Also pictured from left are Wisconsin Democratic Sen. Tammy Baldwin, Senate Democratic Leader Chuck Schumer of New York and Washington state Democratic Sen. Patty Murray. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — A group of Democrats will attempt to pass a bill in the U.S. Senate on Wednesday protecting access to in vitro fertilization, saying its availability should not be restricted.

Their push to quickly approve the health care legislation comes shortly after the Alabama Supreme Court ruled earlier this month that fertilized eggs are children under state law, leading several of the IVF clinics in that state to halt their work.

Illinois Sen. Tammy Duckworth, who had both of her daughters through IVF, said the bill is essential to maintain access to IVF for parents throughout the country who couldn’t start or grow their families any other way.

“After a decade of struggle with infertility post my service in Iraq, I was only able to get pregnant through IVF,” said Duckworth, a military veteran. “IVF is the reason that I’ve gotten to experience the chaos and beauty, the stress and the joy that is motherhood. IVF is the reason that my husband and I aren’t just Tammy and Bryan, we are mom and dad.”

Duckworth said she plans to ask for unanimous consent on Wednesday to pass her IVF bill, which as of Tuesday had 15 co-sponsors, all Democrats.

The process is the fastest way to approve legislation on the Senate floor, but it does allow any one senator to block the bill from moving forward. It would not require a roll call vote.

Duckworth said she isn’t open to calls to re-work the bill to include a requirement from some organizations, including Texas Right to Life, that all fertilized embryos be implanted in order for those groups to support the legislation.

“You’re going to force a woman to go through a miscarriage by implanting non-viable embryos,” Duckworth said of that proposal. “That’s what you want to do?”

“You’re going to punish women further? — women who are struggling, who scrape together everything they’ve had in order to go through these procedures,” Duckworth added.

Senators on record

Should a GOP senator block the legislation from passing the Senate on Wednesday, Duckworth said she believes that Senate Majority Leader Chuck Schumer will hold a roll call vote on the bill that would put each senator on record with supporting protections for IVF or not.

Schumer, who was at the press conference Tuesday but left before questions were asked of senators, said Congress must pass the legislation to give people pursuing families through IVF certainty.

“There’s so many countless people we all know who have the joy of children because of IVF,” Schumer said. “It’s heartbreaking, it’s enraging and Republicans know it.”

GOP lawmakers throughout the country, Schumer said, are “like arsonists who set a house on fire and then said ‘Why is it burning?’”

“Republicans own what happened in Alabama,” Schumer said, and “Democrats are absolutely committed to doing everything we can to protect women, families and reproductive freedom.”

Former President Donald Trump, the front-runner for the GOP presidential nomination in 2024, last week called on Alabama lawmakers to come up with a fix for the state Supreme Court decision, and national Republicans sought to distance themselves from it, including U.S. Senate hopefuls in key races.

House bill

On Tuesday, Washington state Democratic Sen. Patty Murray said her “heart truly goes out to all the women in Alabama who are suffering right now” and called on Republicans not to block passage of the IVF bill.

Murray also rebuked the more than 120 GOP lawmakers who have co-sponsored a bill in the U.S. House that would define life as beginning at conception, a move she said would put IVF and other reproductive health care at risk nationwide.

“You cannot support IVF and support fetal personhood laws. They are fundamentally incompatible,” Murray said. “You are not fooling anyone. Women aren’t just going to forgive who is responsible for this, who ripped away their dreams of building their families.”

Ramifications of Dobbs decision

Wisconsin Democratic Sen. Tammy Baldwin traced the Alabama state Supreme Court’s decision back to the U.S. Supreme Court’s decision less than two years ago in Dobbs v. Jackson Women’s Health Organization, which ended the constitutional right to an abortion.

“When Dobbs was decided, millions of women were stripped of their reproductive rights,” Baldwin said. “At that time Republicans said we were being alarmist when we said the ramifications of this decision would go far beyond abortion care.”

“They said we were being dramatic when we raised that birth control might be on the chopping block. They said that we were overreacting when I fought to pass the Respect for Marriage Act to protect same-sex and interracial couples,” Baldwin added. “And they said that we had nothing to worry about when we insisted the right to IVF was in jeopardy.”

Baldwin said she supports “women’s and families’ rights to control their destiny without interference from the government or politicians.” And she called on Republicans to do the same by not blocking the IVF bill.

Minnesota Democratic Sen. Amy Klobuchar said the Alabama state Supreme Court’s ruling that ended IVF is just one “example of the chaos and cruelty that has been unleashed since Roe v. Wade was overturned.”

“First they interfered with a woman’s right to make her own decisions about ending a pregnancy and now they’re trying to interfere with a woman’s right to choose whether to start a family,” Klobuchar said.

“It is time to enshrine the right of people to build their own families,” Klobuchar said. “And again, we welcome them to vote with us to make this clear.”

Former U.S. President Donald Trump urged Alabama lawmakers Friday to find a fix for a state Supreme Court ruling that threatened the availability of in vitro fertilization. Trump is shown speaking at a campaign rally at Drake Enterprises, an automotive parts manufacturer, on Sept. 27, 2023, in Clinton Township, Michigan.(Photo by Scott Olson/Getty Images)

Former President Donald Trump called on Alabama lawmakers Friday to “find an immediate solution” to remedy a state Supreme Court ruling that threatened the availability of in vitro fertilization, and national Republicans running for Congress sought to distance themselves from the Alabama decision as well.

In a post to his social media site, Truth Social, Trump said the Alabama Supreme Court ruling last week that gave fertilized embryos the same rights as children was at odds with the anti-abortion movement that is influential in the Republican Party.

The front-runner for the GOP presidential nomination endorsed efforts by Alabama legislators to tweak state law — which includes one of the most restrictive bans on abortion — to protect IVF.

“Today, I am calling on the Alabama Legislature to act quickly to find an immediate solution to preserve the availability of IVF in Alabama,” the post read, in Trump’s first public comments since the Alabama ruling. “The Republican Party should always be on the side of the Miracle of Life – and the side of Mothers, Fathers, and their Beautiful Babies. IVF is an important part of that.”

IVF, a common fertility practice, involves harvesting a woman’s eggs and fertilizing them outside the body. The resulting embryos are frozen and stored for future transfer into a uterus, but couples often create more embryos than they end up using.

The Alabama justices’ ruling could open prospective parents and clinics to criminal charges of abandonment or manslaughter for embryos that are destroyed rather than implanted into a uterus.

Leaders in Alabama’s Legislature scrambled late this week to address the ruling, with a key committee chairman authoring a bill to declare embryos created during IVF would not be considered a human life unless implanted into a uterus.

The decision led to the closure of at least three IVF programs in the state this week and inspired intense criticism of anti-abortion Republicans from Democrats from President Joe Biden on down.

U.S. Supreme Court decision

The ruling was a continuation of Republicans’ attempts in the states to control pregnancy after the U.S. Supreme Court 2022 ruling overturning the constitutional right to an abortion, many national Democrats said this week.

“They came for abortion first. Now it’s IVF and next it’ll be birth control,” Trump’s 2016 Democratic rival Hillary Clinton said in a tweet Thursday. “The extreme right won’t stop trying to exert government control over our most sacred personal decisions until we codify reproductive freedom as a human right.”

The House Majority PAC, which helps Democrats running for the U.S. House, compiled a list Friday of Republicans in competitive districts who’d voted for legislation the group said would have the same effect nationally as the Alabama Supreme Court’s ruling.

Biden, who is likely to face Trump in the November general election, is seeking to hold the former president responsible. Trump appointed three of the six justices who voted to overturn abortion protections.

Biden campaign director Julie Chavez Rodriguez said in a statement that Trump bore responsibility for the Alabama decision and other restrictions on abortion and fertility treatment.

“American women couldn’t care less what Donald Trump posts on Truth Social, they care that they can’t access fertility treatment because of him,” Chavez Rodriguez said. “Let’s be clear: Alabama families losing access to IVF is a direct result of Donald Trump’s Supreme Court justices overturning Roe v. Wade.”

U.S. Senate GOP campaign arm sends out memo

Trump’s position — that Alabama lawmakers should find a legislative fix to protect IVF after the court’s ruling — is in line with U.S. Senate Republicans’ campaign arm.

National Republican Senatorial Committee Executive Director Jason Thielman sent a memo to GOP Senate candidates, Politico reported Friday.

The memo instructed candidates to “Clearly state your support for IVF and fertility-related services as blessings for those seeking to have children” and to “Publicly oppose any efforts to restrict access to IVF and other fertility treatments, framing such opposition as a defense of family values and individual freedom,” according to the Politico report.

Five GOP Senate hopefuls in key races then issued statements expressing support for IVF. The candidates were Kari Lake in Arizona, Tim Sheehy in Montana, Sam Brown in Nevada, Mike Rogers in Michigan and Matt Dolan in Ohio.

Former United Nations Ambassador Nikki Haley, the last Republican still challenging Trump’s 2024 nomination, sent mixed messages this week about her position.

The former South Carolina governor said in an NBC News interview Wednesday that she personally agreed that embryos “are babies,” and that the Alabama court ruled correctly under state law. But she later told CNN’s Jake Tapper she disagreed with the ruling and said the state should reexamine the law.

Alabama lawmakers search for fix

Alabama legislators worked Thursday to file legislation addressing the court’s ruling.

Republican Tim Melson, the chair of the Alabama Senate’s Healthcare Committee, drafted a bill on Thursday that would declare that a human egg fertilized in vitro would not be considered a human life unless implanted in a uterus.

Alabama House Democratic Leader Anthony Daniels, a candidate in Alabama’s 2nd Congressional District, filed a bill that said that a fertilized egg or human embryo outside a uterus shall not “be considered an unborn child, a minor child, a natural person, or any other term that connotes a human being for any purpose under state law.”

Gov. Kay Ivey, a Republican, and leaders of the Alabama Legislature, which has a Republican supermajority, expressed a cautious desire to address the Supreme Court’s ruling.

Ivey, who signed Alabama’s near-total abortion ban in 2019, said in a statement Friday that she looked forward “to continue closely following this issue.”

“Following the ruling from the Alabama Supreme Court, I said that in our state, we work to foster a culture of life,” the statement said. “This certainly includes some couples hoping and praying to be parents who utilize IVF.”

Alabama House Speaker Nathaniel Ledbetter said in a statement Friday that the Legislature would “soon consider a solution” to the issue.

“Alabamians strongly believe in protecting the rights of the unborn, but the result of the State Supreme Court ruling denies many couples the opportunity to conceive, which is a direct contradiction,” the statement said.

Senate President Pro Tem Greg Reed told reporters Thursday the chamber was weighing options.

“If we’re supposed to do something or there’s an opportunity for us to do something with it, what would we do?” he asked. “How would we address that? And so we’ve got some smart legal minds trying to help us understand.”

The office of the state’s Republican attorney general, Steve Marshall, said in a statement ??he “has no intention of using the recent Alabama Supreme Court decision as a basis for prosecuting IVF families or providers.”

Senate Minority Leader Bobby Singleton, a Democrat, said that Democrats in 2019 pushed for exceptions in the abortion ban, but were rebuffed by majority Republicans.

“At the end of the day, the Republican Party has to be responsible for what they have done,” he said. “They need to watch how they’re passing these laws that could affect people, and this is one of the unintended consequences they never saw coming. This is what we keep trying to tell them on a regular basis. This is theirs. They need to fix it.”

Brian Lyman and Jemma Stephenson contributed to this report.

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

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

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

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

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

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

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

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

“I was beside myself.”

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

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

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

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

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

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

Abortion stigma still exists in places like New England

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

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

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

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

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

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

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

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

Termination allowed her to go on to have a living child

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘My abortion saved my life’

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

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

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

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

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

Family physicians practicing in places where there are no other medical professionals should be able to provide reproductive health care, says Dr. Christine Dehlendorf. (Getty Images)

More than a year after the U.S. Supreme Court overturned Roe, many have raised concerns about training for obstetrician-gynecologists, particularly in states with civil and criminal penalties for providers if they perform abortions. But researchers from the Person-Centered Reproductive Health Program at the University of California San Francisco have found there is reason to be concerned about training for family physicians in ban states as well.

A study published in the November-December issue of the Annals of Family Medicine found that 29% or 201 of 693 accredited family medicine residency programs in the U.S., are in states with abortion bans or significant restrictions on abortion access. The study used publicly available data from the American Medical Association to conduct the analysis, and found 3,930 residents out of 13,541 were in states where abortion is banned or heavily restricted.

This has implications for family physicians who are often tasked with helping patients manage early pregnancy loss, or miscarriage, the researchers said, as well as patients who self-manage an abortion at home with medication. Any of those patients might need follow-up care from a family physician, the study said.

States Newsroom spoke with one of the lead researchers, Dr. Christine Dehlendorf, about the results of the study. Her responses have been edited for clarity and conciseness.

States Newsroom: Why did you think it was important to conduct this study?

Dr. Christine Dehlendorf: We really just wanted to be descriptive about what the reality was. It was less than what was seen in previous analyses of OB residencies (which showed about 45% were in ban or heavily restricted states), but that was based on the assumptions of what bans would look like post-Dobbs. It is an evolving map — we know the abortion policy landscape is changing on a daily, weekly, monthly basis, so this is a moment in time that tells us already a substantial portion of residents are having their training influenced.

The residents that are in those programs are not going to have access to comprehensive reproductive health training because they’re not experiencing it within their state context. They cannot see abortions, cannot perform them, cannot learn how to care for patients after abortions in the same way they would be able to if they were working in a state where abortion was unrestricted.

SN: What does that mean for those residency programs?

Dehlendorf: What that means is that residency programs need to be very intentional about their curriculum and seek out ways for residents to get experience with reproductive health care, including ways they can get that training out of state.

In typical family medicine residency programs, you have your routine primary care curriculum, and then also specialty rotations (e.g., dermatology or other specialties), where you get more dedicated time with that topic. Having abortion be restricted will influence training in both of those contexts. You won’t see people who recently had an abortion and be able to help manage post-care, like bleeding, and you will not be able to provide abortion medication. You won’t be able to see patients who have abortions in hospital settings.

So residency programs will have to think about how, in the absence of this natural way people would be exposed, how they can substitute and supplement the curriculum to make sure people have that exposure. The experience of residency is a moment in time, and the reality is they will be taking care of these patients regardless of whether they’re in states with abortion restrictions.

SN: What supports can family physicians provide to those experiencing a miscarriage or who are self-managing an abortion?

Dehlendorf: People need to be able to go to their primary care doctors with any questions they have, including about bleeding or other side effects. Early pregnancy loss is a very common experience, and the skill set for caring for that and first trimester abortion are very similar.

SN: How concerned are you that these programs won’t provide this training?

Dehlendorf: I’m very concerned that programs will not pay adequate attention to this newfound gap in their curriculum, and therefore that their residents will not be comprehensively trained, and their future patients will be negatively impacted by that.

Patients are going to receive less patient-centered care. Ideally, primary care providers should be able to take care of people throughout the reproductive health cycle. If we can’t do that, what that means is care will be fragmented in a way it doesn’t have to be. It also means some of those patients won’t receive care at all, and some will receive lower quality care.

SN: Who might be affected the most by this lack of training?

Dehlendorf: We know that family physicians provide care in areas where there are no other health care professionals, and they are the safety net for underserved communities, rural or urban, where there is no access to specialty care. Those providers need to be able to provide the full scope practice of family medicine, including the full scope of reproductive health care. Those are the communities that are most likely to be impacted.

SN: What can be done to help support those training opportunities?

Dehlendorf: From an educational lens, people in states with abortion access funding training opportunities for people in states without it is something that is absolutely essential.

SN: What other implications might this have on family medicine?

Dehlendorf: Prior to Dobbs, there was a lack of recognition of the critical role that abortion access played in many aspects of our medical institutions and health care system, and that includes the fact that we prescribe medications that can cause birth defects with the knowledge that abortion could be available to the patient if needed. There have been cases of people being denied those medications because access is not available.

All of those things are affecting our lives and health. It’s multi-faceted, and we’re just beginning to see the impacts that are going to influence the system, and how it will fail to meet people’s needs in places where abortion is restricted.

“Bans off our bodies” balloons decorated the Protect Kentucky Access election night watch party on Nov. 8, 2022, in Louisville. Kentuckians rejected an anti-abortion amendment to the state constitution. The state Supreme Court has allowed the near-total ban on abortion to remain in force. (Kentucky Lantern photo by Arden Barnes)

Morgan Nuzzo, an advanced practice clinician nurse-midwife, started Partners in Abortion Care in Maryland about a year ago with Dr. Diane Horvath, an OB-GYN who specializes in complex family planning. The clinic is among the few in the country that provides abortions in the third trimester of pregnancy. Abortions that late in pregnancy are rare and often sought because of health risks to the pregnant person or because of a fatal fetal diagnosis.

In June, Nuzzo and other abortion providers and reproductive health experts told States Newsroom that, with the end of Roe v. Wade, they had begun to see a rise in later abortions in the U.S. because of diminished access and increased wait times and costs. But surprisingly, Nuzzo said that in the last few months her clinic has seen a drop-off in patients seeking later abortions, something she suspects could be due to patients not being aware or informed of other options when they can’t access abortion in other states, or because they’re unable to travel.

Some things that haven’t changed, Nuzzo said, are the significant distances people are traveling to end their pregnancies and the high number of young children who need abortions but now can’t get them in their home states. In 2017, there were nearly 4,500 pregnancies among girls under 15, with about 44% ending in abortion, according to the Guttmacher Institute. The age of sexual consent in the majority of states is 16, according to the U.S. Department of Health and Human Services’ guide to statutory rape laws and reporting requirements. Few of the abortion bans enacted since Roe was overturned have exceptions for survivors of rape and incest, and those that do typically have specific police reporting requirements.

This interview has been edited for brevity and clarity.

States Newsroom: Has anything changed at Partners in Abortion Care since June?

Morgan Nuzzo: We actually saw a decrease in later abortion patients from July until very recently. We were booked out several weeks in the spring and early summer. And then there was just this dramatic drop-off. Last year some advocacy folks did some data, and they were like, [the need for later abortion is] going to increase like a hundredfold. So I’m not really sure how to reconcile that with the reality of what we were seeing. But you know, even in California and Washington and Oregon, people were saying that they were seeing less people.

We aren’t booking out now for appointments — we have availability next week. Whereas before [the wait time] was two to three weeks on average, sometimes as much as five. We were getting a little worried about where the patients are.

SN: Why do you think you’re seeing fewer later abortion patients?

Nuzzo: I think there are more patients, and they’re not able to get where they need to go. I think hospitals are potentially seeing people, which we’ve always asked them to do. I think that people are trying, are certainly navigating to safe clinics, and maybe have that on their mind that if they are pregnant, and they need an abortion, that they should not delay for any reason and are trying, you know, realizing that they might have to travel and willing to do that maybe more than they were before.

I wonder, too, it almost feels like there’s a wall in the middle of the United States now that kind of runs from one end to the other of places you can’t get an abortion. And I wonder if people aren’t finding us because they’re not going to places that refer to us. People don’t expect to need a later abortion, or an abortion after 28 weeks. And so I think sometimes when people are told that they’re further along in pregnancy, it’s just like, well, that’s the end. And maybe those referral lists aren’t getting into the hands of people. We’re doing our best to make sure that people know that people can still access later abortion care. It might not be legal in their state, but it’s certainly legal here in Maryland.

SN: How many patients are you seeing on average a week?

Nuzzo: Ten a week now.

SN: And what are the average gestational ages?

Nuzzo: Between 20 and 34 [weeks’ gestation]. And then we’ll see first-trimester patients, too. That would make a much higher number; we can see a lot more first-tri patients.

SN: How often are you turning people away, because they are too far along or for other reasons?

Nuzzo: Once a week. The very worst thing to do is turn somebody away who wants an abortion. It’s a terrible feeling to take someone’s choice from them. I’m not saying abortion is for everyone. Some people get here and they choose not to continue, and that’s wonderful. But to say, someone who wants to not be pregnant anymore, and to say, “You have no other options,” is a terrible thing to have to do to somebody.

SN: Where are your patients coming from?

Nuzzo: Very few are local. I mean, today we have somebody from California. People come from all over. People are still traveling very far to get to us. But it’s just fewer of them.

Things are changing constantly. We’re just waiting for this Florida ban to come. [Florida’s six-week abortion ban, signed earlier this year, has been blocked until the Florida Supreme Court rules on the constitutionality of the state’s current 15-week abortion ban.] We know when that happens that we’re going to get an influx of people from Florida. We already see a good number of people from Florida.

SN: How do you deal with patients from states like Texas and Idaho that are trying to prevent people from traveling or even learning about legal abortion care in other states?

Nuzzo: I mean, we talk to our Texas patients. You know, it’s not illegal in Maryland. We can tell them the services that they can get. We often do have to do some patient education with people while they’re here and be like, ‘You know if you go home, it’s illegal in your home state, right?’ I think some people know and some people don’t really.

I’m just trying to navigate all 50 states’ changing rules all the time. What other medical practice do you have where you’re worried that it’s illegal to talk to somebody on the phone from that state?

SN: The last time we talked, you said your patients range from 10 to 53 years old? What is the age range like now?

Nuzzo: Yeah, still the range. We see a lot of kids. A lot of kids.

SN: About many kids do you usually see a week?

Nuzzo: Usually one to two.

SN: What are the risks of children giving birth?

Nuzzo: Younger people have risks for things like preeclampsia. There’s an increased risk certainly for smaller people who have not gone through puberty completely and become their full adult size. Their pelvises are very small. We see folks up to 34 [weeks’ gestation], so we usually don’t turn those kids away. But sometimes they need to be seen in a hospital. And we’ve certainly consulted for people who are younger than people we’ve seen in clinic [meaning younger than 10 years old] who needed hospital-based care.

What do you think will be some of the lasting effects of the Dobbs decision?

Nuzzo: Birth rates will increase, and then we’ll see an increase in maternal mortality and infant mortality. Maternal mortality is going to go up. If we haven’t already seen it, we know that this is what’s going to happen. We’re already a country that does not take care of their pregnant people in the way that they should be cared for. Black people who are pregnant and give birth are more likely to die than their white colleagues.

People don’t have the access that they need. We know that OB-GYNs aren’t going to places to train where abortion’s restricted. So you’re limiting OB-GYN services and L&D [labor and delivery] services in these areas. Hospitals are already closing down L&Ds all across the country. It’s going to be a ripple effect, even for pregnant people who want to have deliveries.

SN: What are some of the challenges you’ve faced this year?

Nuzzo: When we think about the things that have happened post-Dobbs, it’s like, all of a sudden, everybody’s eyes opened to how the system is just built on the goodwill of people. There isn’t a system. It’s, you know, eight dozen people being like, “All right, I know somebody who knows somebody who knows somebody, let’s try and get this done.” And taking those calls, on the weekends and at night and at your kids’ soccer games.

You want to keep your team in good spirits and also understand that they are real people with real lives. And it’s hard to do this work when every day you wake up and find out a new headline of something horrible has happened. It’s like trying to run a clinic on a foundation of quicksand. And we’ve got the 2024 election coming up. It’s going to be a stressful year.

SN: I read recently that abortion funds have been getting fewer donations. Has that affected your clinic?

Yeah, funds are going dry earlier and earlier each month. We want your readers to know that they can support their local abortion fund. That money really, really matters. It’s not just going into this pot that’s not going anywhere; it’s going directly to patients so that they can get seen. We work with over 40 abortion funds, and we couldn’t do this without their support.

SN: Is there anything else you want to share with our readers?

Make sure that you have a plan if you or someone you love were to find out that they were pregnant and they didn’t want to be or couldn’t be.

And then, you know, we are always wanting to bust later abortion stigma and let people know that these are patients that never expect to be seen by us. And something has changed in their life. And now they need a later abortion. And they’re incredibly brave and strong and resilient for being able to get from wherever they are to us. It’s incredible the things that people have to do just to get to us. And when they come here, they’re often frustrated, but not because they need a later abortion, but because of how frustrating and how many barriers it took them to get here.

Experts have said that a U.S. Supreme Court ruling on the use of mifepristone, a key abortion medication, could have implications for drug approval by the U.S. Food and Drug Administration. (Getty Images)

This year will end on a major cliffhanger for abortion access.

Last November, anti-abortion activists via a powerful conservative Christian law firm asked a federal court to effectively ban or widely restrict the abortion drug mifepristone. Finally on Wednesday, the U.S. Supreme Court agreed to take the case, making Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration the high court’s first abortion-related case since overturning the federal right to an abortion in June 2022.

As abortion access advocates, providers, people of reproductive ability and anti-abortion proponents wait until mid-2024 for the results of this case, other ongoing abortion litigation (a Texas woman left the state after her request for an emergency abortion was granted before being blocked by that state Supreme Court) and a presidential election, uncertainty and fear about the future of reproductive health access remain high.

Abortion via a two-step medication process of mifepristone and misoprostol has become the predominant way Americans terminate pregnancies post-Dobbs, particularly those living in states with bans or in areas with no providers. Mifepristone blocks the progesterone hormone, which is necessary to continue a pregnancy.

“We should never be in a position where judges are deciding whether people can get effective medicines,” said Elizabeth Ling, an attorney for the legal advocacy group If/When/How, in a statement. “Mifepristone access is essential to people’s ability to determine their own future and actualize self-determination by ending a pregnancy, including self-managed abortion.”

Though the anti-abortion plaintiffs in this case asked the Supreme Court to fully reverse the FDA’s 2000 approval of mifepristone for first-trimester abortions, the high court is expected to review questions around restrictions that were lifted during the last decade because of mifepristone’s proven safety record. Depending on how the court rules next year, mifepristone will likely remain legal but could prove much harder to access, especially if the court strikes down the ability to obtain the drug via telemedicine. Legal and pharmaceutical experts have said this case could have far-reaching implications on approval for medications beyond abortion drugs.

“The future of telehealth for medication abortion care now hangs in the balance,” said Dana Northcraft, founding director of Reproductive Health Initiative for Telehealth Equity & Solutions, in a statement. “Telehealth for medication abortion is safe and effective and helps people overcome barriers to care, whether it be long travel distances or getting time off from work or school. Everyone deserves compassionate, accessible, and inclusive abortion care.”

Mifepristone is also used for miscarriage management but has become harder to access, doctors report.

For providers who spoke with States Newsroom on Wednesday, it’s not just about what restrictions will or won’t stand after a ruling from the U.S. Supreme Court, but the fact that the case got this far in the first place.

Dr. Erin Berry, an OB-GYN in Seattle who works at 15 Planned Parenthood clinics around the West, said it’s hard to sit with the idea that nine judges are making a decision about the medical science and safety of a drug.

“That’s just unprecedented, they are not to be the experts in that, and them getting to have a say on that, that’s a big deal to me,” Berry said. “And it has implications on all of our lives.”

Berry sees patients from all across the country in various clinics, including people from as far as Louisiana and Texas who travel to Seattle, often because they know someone who can help drive them home from an appointment and offer them a place to stay. But that alone is disruptive to a person’s privacy, she said, because if care was accessible in their home state, they might have been able to keep a very personal event to themselves.

Cynthia Dalsing, a retired nurse midwife in Sandpoint, Idaho, said restrictions have made local providers more wary about how they interact with pregnant patients, including how they reflect a patient’s demeanor in a medical chart. Abortion restrictions have made people second guess their decisions about evidence-based medical care out of fear, she said.

Dr. Caitlin Gustafson, an OB-GYN in a rural area of central Idaho, still regularly prescribes mifepristone for miscarriage management, and based on evidence, she said using it for that care results in fewer visits to the emergency room and a reduced need for procedures that empty the uterus. Access to the medication in Idaho is already more restricted because only providers can dispense it, not local pharmacies. Some people already have to drive more than an hour to get to a clinic in the case of a miscarriage, she said.

“As we lose providers (to other states) and then further lose access to this medication, if that’s what the Supreme Court does, it will make that experience harder,” Gustafson said.

In the year and a half since the abortion access landscape exploded into chaos and confusion, attorneys like Ling spend their days answering desperate phone calls on the Repro Legal Helpline, which is managed by If/When/How. Earlier this year, If/When/How joined a network of reproductive rights legal assistance groups and law firms called the Abortion Defense Network.

The helpline has been around for a few years, but the end of Roe v. Wade saw inquiries increase by 2,460%, If/When/How’s legal support director Kylee Sunderlin told States Newsroom earlier this year. Sunderlin said many people call before they ever see a provider about a suspected pregnancy or a pregnancy that’s turned into a health emergency because they’re scared about the legal consequences. She said most people don’t understand what is and isn’t legal these days.

On Wednesday, Ling reiterated that If/When/How is committed to helping people navigate these complex and ever-changing laws.

“This case is a further weaponization of the courts to deny people bodily autonomy,” Ling said. “But no matter what the court says, people will always have abortions. Myself and the rest of If/When/How are here to provide people the legal support they need to access the abortions they want and help them fight back against state violence.”

In states with extremely limited abortion access, like Idaho, some people are actively avoiding pregnancy.

Makayla Sundquist, 27, lives in North Idaho and said she has been with her partner for seven years and would consider having children if abortion access was available. She lives in Sandpoint, a rural area of about 9,000 people, where OB-GYN services are no longer offered at the county’s only hospital after the unit closed in March, citing staffing issues and the political environment of the state, where a near-total abortion ban has been in effect since 2022. The closest area with OB care is Coeur d’Alene, which is an hour-long drive both ways.

“We saw it when Roe fell, the number of vasectomies in young men rose dramatically, and I think so many people in red states are realizing that if they want children, this is not the place for them, and I fall into that demographic,” Sundquist told States Newsroom on Wednesday.

Sundquist said she can’t fathom a reason why the U.S. Supreme Court would further restrict a safe and well-tested medication when the other option for an abortion — a procedure that empties the contents of the uterus — is more invasive, but she thinks it’s a real possibility. According to the FDA, 28 deaths out of an estimated 5.6 million people in 23 years have been associated with mifepristone’s regimen for terminating a pregnancy, which is a markedly lower rate than many common FDA-approved drugs, like Tylenol and Viagra. The FDA notes that a small number includes fatal cases “regardless of causal attribution to mifepristone,” including people who died from homicide, suicide, and pulmonary emphysema.

“I will be angry and scared for the people in my life that would need (an abortion), me included if it came to it, but I would not be surprised if that’s what happens, unfortunately,” Sundquist? said.

The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person.(Getty Images)

In early October, an Idaho woman 20 weeks into her pregnancy went to the emergency room after her water broke about five months early.

When the water breaks prematurely, an infection can develop and infect the fetus, placenta and other fluids. At that stage of pregnancy, the threat of infection becomes a ticking clock for everyone involved.

And in this case, time was already running out.

At 20 weeks, there is virtually no chance a fetus can survive outside of the womb even with medical intervention — the heart and lungs are too immature. And once an infection reaches the uterus, it is systemic, so there isn’t enough time to allow the fetus more days in utero.

The condition can progress to a blood infection called sepsis within a matter of hours, then septic shock, which can cause organ failure in as little as 12 hours, according to medical research. More than one quarter of patients who develop sepsis die. And if the patient survives, merely having the infection can leave them with permanent organ damage and other long-term health effects.

In another state, a doctor would be able to induce labor and let the patient deliver if that was their wish, then offer palliative care so the parents could hold their child until it passed.

But in Idaho, a state with a strict abortion ban, the doctor had limited options. The law does not allow for termination to preserve a person’s health, only to prevent death. And hours could pass before the hospital’s legal, administrative and medical teams might approve the decision to terminate the pregnancy and properly care for the infection.

So rather than roll the dice, the doctor ordered the woman transferred in the hospital’s small airplane to Salt Lake City, Utah — a state that has an 18-week ban, but also an exception to preserve the pregnant person’s health.

It’s a scenario physicians have warned about in the year since the Dobbs decision, when 14 states implemented near-total abortion bans. Doctors in ban states, including those with health exceptions, have said the exception language is written so vaguely that it is essentially meaningless, and hospitals have adjusted their policies to protect doctors from potential criminal charges and loss of medical licenses. Several states with a general health exception don’t include fatal or life-limiting fetal anomalies.

On that day in October, the stakes felt especially high for ER physicians in Idaho, because it was during a limbo period when doctors were more at risk for state prosecutions after a court ruling. In the 12-day span of time between the initial ruling and the reinstatement of protection, 11 St. Luke’s patients were transferred for pregnancy-related complications, said spokesperson Christine Myron, which is a typical amount of pregnancy-related transfers in that time frame. Seven were within the hospital’s network and four were sent out of state.

The vast majority of Americans — 82%, according to a recent Marist poll — support allowing abortions at any stage of pregnancy to protect the life or health of the pregnant person. But five of the 14 states with bans — Idaho, South Dakota, Oklahoma, Arkansas and Mississippi — have an exception only to prevent death.

In all five states, legislation has been drafted to fix the issue, and in many cases, it is Republican lawmakers who offer such proposals. But with ongoing court battles, partisan fights at the local, state and federal levels, and arguments among anti-abortion advocates over policy details, those efforts failed during each state’s 2023 legislative session.

Opposition to health exceptions goes back to Roe-adjacent court case

In Arkansas, Democratic Rep. Denise Garner sponsored a bill in late March adding a health exception to the state’s ban. Garner, a retired oncology nurse, said during the committee hearing that several health care workers shared stories with her about the “devastating effects” on patient health after the ban went into effect. She told lawmakers about a 19-year-old college student who became pregnant while a contraceptive IUD was still inserted, causing the embryo to develop around the device.

Doctors delayed ending the pregnancy, hoping it would spontaneously discharge, Garner said, but four weeks later the IUD perforated the woman’s uterus, causing hemorrhaging and forcing doctors to remove the uterus entirely in a hysterectomy — ending her chances of giving birth to a child of her own.

“I can’t tell you how many times patients were diagnosed with cancer at the time of a pregnancy,” Garner said, and a pregnancy can make it difficult to continue chemotherapy treatments. “Let’s figure out a way to make sure that the specialists are able to do what they’re trained to do and take care of the health care of women who need these abortive treatments.”

The Arkansas Family Council immediately voiced its opposition, saying the legislation would effectively legalize all abortions in the state. During the committee hearing, Republican Rep. Marcus Richmond said he was “sympathetic” to the issue but voted no because he wanted the language to be more narrowly focused.

“It’s going to be such an arbitrary thing that anybody who’s wanting to perform an abortion will be able to make some claim somehow that their health is being affected, and they can find somebody who will support that,” Richmond said.

Jerry Cox, Arkansas Family Council president, told States Newsroom his organization believes cultural issues should have a biblical worldview, including abortion.

He said their opposition to health exceptions stems from the 1973 case of Doe v. Bolton, which was decided on the same day as Roe v. Wade. The U.S. Supreme Court struck down portions of a Georgia law that limited when and where someone could seek an abortion, namely that it had to be within a hospital with specific accreditations, and several layers of administrative and medical staff had to grant permission for the procedure if it met the exceptions for rape, a fetus with severe abnormalities or a life-threatening condition. The court said the requirements were unreasonable and ruled them unconstitutional on the basis of a right to privacy. That ruling invalidated many other state laws with restrictions.

Justices also said the Georgia law could not restrict the definition of “health” to physical health only, and said emotional, psychological, familial and age factors should also qualify.

To anti-abortion activists, the ruling effectively legalized abortion up until birth for almost any reason. The Doe ruling made clear, however, that a statute placing such limits on where abortions could be performed after the first trimester might hold up to constitutional scrutiny.

Prior to the Dobbs decision in 2022 that overturned Roe, less than 1% of abortions in the U.S. occurred after the 21st week of pregnancy. The ones that do happen after that stage are often related to fatal or life-limiting fetal anomalies.

“One would hope that doctors are not going to say, ‘OK, you’re going to start labor next week, but your health is bad, so we’re going to abort,’” Cox said. “I can’t name any cases where that’s happened, but that’s why over the years when people would say, ‘Well, we need a health exception in this abortion law,’ we’ve always resisted that, because it would pretty much then put it all back in the hands of the doctor.”

Cox said he knows doctors have to make judgment calls more often than the public is aware of, but since no doctors have yet been prosecuted under an abortion state law, then maybe the concerns are overblown.

“It makes me wonder if some people might think that’s a convenient way to justify doing the health exception, is to say that well, doctors won’t know what to do. It seems they’ve been able to figure it out pretty well,” Cox said.

Dr. Nisha Verma, an OB-GYN and abortion provider in Georgia, said even though her state includes medical emergencies in its six-week abortion ban, it’s impossible for a law to encompass the nuance and complexity of medical decisions in a patient’s life.

“There isn’t this line in the sand, there isn’t this moment in time where someone goes from totally fine to actively dying, it’s a continuum. It’s really difficult to determine where we can legally intervene,” Verma said.

In the case of a patient’s water breaking before fetal viability, Verma said the risk of maternal death increases by 50% if a doctor waits to treat until the person is sicker, which they often end up doing to protect themselves from legal consequences. One woman in Oklahoma named Jaci Statton was told to wait in a parking lot until her infection was more serious so she could be treated. Statton has filed a federal complaint over the incident, and she is one of several women in Idaho, Oklahoma and Tennessee who have taken action after being denied abortion care in their home states.

“I think these laws are establishing for people what risk is acceptable and what isn’t, and that component of it is really problematic,” she said. “And they’re using these non-medical terms to try to regulate the practice of medicine.”

Women in several ban states have sued over denial of care

Earlier this year, 13 Texas women sued the state after they were denied abortion care despite the fact that they were facing severe, dangerous pregnancy complications. Although Texas’ law includes an exception for the pregnant person’s health, the severity of the ban in place makes doctors feel uncomfortable relying on it, according to the lawsuit. One plaintiff, Amanda Zurawski, said she was forced to wait until her infection became septic to receive abortion care, causing one of her fallopian tubes to permanently close and affecting her future fertility. She spent three days in the intensive care unit.

A Texas district judge issued a ruling in early August saying doctors could use their own good faith judgment in emergencies, but the state immediately appealed it, which stopped the decision from taking effect. The Texas Supreme Court is scheduled to hear arguments on Nov. 28.

In August, a Texas Democratic lawmaker successfully passed a bill allowing doctors to legally terminate a pregnancy in two scenarios: When a pregnancy is ectopic, which is a nonviable condition, and when a pregnant person’s water breaks prematurely and the fetus is not yet viable. Republican Gov. Greg Abbott quietly signed the bill into law in August, and it took effect Sept. 1.

Exceptions in bans are ‘fake,’ Wisconsin Democrat says

For abortion rights advocates, even the states with health exceptions in their ban laws are causing harm, because often the laws lack clarity and do not account for instances of fatal or life-limiting fetal anomalies.

Jillaine St.Michel, an Idaho plaintiff in a lawsuit led by the Center for Reproductive Rights, was 20 weeks into her second pregnancy when her fetus was diagnosed with multiple developmental abnormalities of the organ and skeletal systems at a routine scan. It was so severe that the doctors asked St.Michel if she worked in a factory around any dangerous chemicals. She didn’t.

St.Michel had to spend three days in Seattle with her husband and 3-year-old child, which made her feel like she was doing something wrong.

“To have to go through that procedure and then go back to an unfamiliar hotel room, and have to heal and go through that process not in the comfort of your own home felt really degrading,” she said. “It felt really insulting that we had to go through that in such a demeaning way.”

Democrats in states like Wisconsin, which had a complete ban without exceptions until a recent court ruling prompted Planned Parenthood to resume its abortion services, think most Republican-proposed bills to add health exceptions are drafted in bad faith.

“The idea of exceptions to abortion bans, it’s absolutely fake, it’s false,” said Sen. Kelda Roys, a Democratic legislator in Wisconsin. “It’s intended to do one thing, and that is to give political cover to anti-abortion politicians who realize how deeply unpopular their position is and are desperately trying to scramble to appear less extreme.”

Wisconsin Republicans proposed legislation with a health exception in March, but Democrats immediately rejected it, calling it a publicity stunt that came just a few months after Republicans nationwide performed poorly in the 2022 midterm elections. It also came a little more than two weeks before a significant state supreme court election, which Justice Janet Protasiewicz went on to win in April. Protasiewicz openly campaigned in favor of abortion rights.

Wisconsin Gov. Tony Evers, a Democrat, also vowed to veto the bill if it passed, after which the bill died. While it passed the House, Republican Senate Majority Leader Devin LeMahieu said at the time that the Senate would not hear the bill because, “This is not a topic to use as a political football.”

As political minorities in ban states, Democrats sometimes protest exception bills

In most states with abortion bans, Republicans dominate the legislature in both chambers, and a lack of Democratic support for a bill typically won’t determine whether a bill advances or passes into law. For that reason, in places like Idaho and South Dakota, proposals to add health exceptions have drawn support and ire from Democrats at the same time.

In South Dakota, Democratic Rep. Erin Healy responded to a health exception proposal drafted by Republican Rep. Taylor Rehfeldt by saying she heard anecdotes from women in her life who had pregnancy complications and were affected by the vague laws, but health exceptions are just a small carveout to what is still a violation of individual privacy and doctor-patient relationships.

“Democrats really believe that there shouldn’t be just exceptions, that abortion should be an option for women, and that bodily autonomy is important,” Healy told the Mitchell Republic in January.

Rehfeldt did not respond to requests for comment.

In Idaho, Democratic legislators were angry after health exceptions were dropped from the bill that ultimately passed the legislature in April. Republican Rep. Brent Crane withdrew the version that included that language after opposition from Right to Life of Idaho and state Republican Party Chairman Dorothy Moon.

Rep. Brooke Green, a Democrat, said her caucus decided to walk out of the House chambers when the bill came up for a vote as a form of protest because it only included ectopic pregnancies and miscarriages as exceptions.

“It was one of those situations where we were damned if we do, and damned if we don’t,” Green told States Newsroom. “When you have an environment where you’re the super, super minority, these are the circumstances that play out.”

Crane said he is still working to find the right language for a bill that could pass during the 2024 legislative session, which begins in January. Rehfeldt has vowed to keep fighting for her bill in the next session as well.

National Right to Life helps guide legislative language to keep exceptions narrow

Ingrid Duran, director of state legislation for National Right to Life, also cited the Doe v. Bolton case as one of the reasons why the organization is typically opposed to legislation that adds a health exception to an abortion law. Because the court in that ruling said that a physician could use their own medical judgment to determine what qualifies as “health,” any exception related to health must be narrowly tailored if it is to earn the NRLC’s support.

From Right to Life’s perspective, during the time of Roe, doctors were providing abortions after viability for arbitrary reasons, even in states where the procedure was more tightly regulated after about 22 or 24 weeks of pregnancy.

“This is a tale as old as time, as far as the different medical associations — or maybe just a pro-choice senator or representative — that will introduce language that would make it not as narrowly tailored and kind of leave it open and vague to the person performing the abortion’s interpretation of what ‘health’ could mean,” Duran said. “I think when we do that, it is very akin to the wolf looking after the sheep.”

Right to Life was heavily involved in the passage of a narrow health exception in Tennessee’s abortion ban earlier this year. The Tennessee Medical Association supported an initial version of the bill that included fatal fetal anomalies and allowed physicians to provide an abortion if in their “good faith” judgment it would prevent serious health consequences.

After Right to Life’s objections, a different version passed without fetal anomalies and instead said the physician must act with “reasonable” medical judgment. Duran said that term is preferable because to her, it reflects a consensus of the medical community. Objections from the medical community must be taken with a grain of salt, in her view, because groups like Right to Life believe physicians profit from providing abortions.

“If you had a very terrible abortion doctor like Kermit Gosnell, you wouldn’t want to leave it up to him to determine what is his good faith medical judgment,” Duran said, referring to a former physician and convicted serial killer.

For attorneys like Peg Dougherty, deputy general counsel for St. Luke’s in Idaho, that distinction is important from a legal standpoint when advising medical staff. Dougherty would prefer to see “good faith” wording because in other areas of medicine, physicians are trusted to provide the appropriate training and expertise to a patient. If it is specific to a doctor’s “reasonable judgment,” she said, it is easier for prosecutors to find witnesses who might testify that a course of treatment wasn’t what they would consider reasonable.

“Doctors are treating patients and providing the best care for their patients that they can and they’re also working with their patient. They’re not trying to fabricate reasons for their patient to do something, ever.”

Republican Attorney General Daniel Cameron, left, and Democratic Gov. Andy Beshear debate at WKYT in Lexington. (Screenshot)

Democratic Gov. Andy Beshear and Republican challenger Attorney General Daniel Cameron pressured each other to clarify their views in their fifth and final debate ahead of the November election.?

Tuesday’s debate, hosted by WKYT of Lexington and moderated by Bill Byrant, covered a range of issues between the candidates, including school vouchers, abortion, the government’s response to the coronavirus pandemic, the economy and public safety.?

Beshear and Cameron have recently debated in Paducah, Highland Heights, Louisville and Lexington.?

Throughout much of Tuesday’s debate, both candidates referred to the core messages of their campaigns.?

Beshear touted his administration’s economic accomplishments and his leadership as Kentuckians faced hard times, including? the pandemic, flooding and tornadoes.?

Cameron offered a bleaker view of Kentucky’s current state, noting the difficulties Kentuckians face because of inflation and the need to recover from the pandemic, especially in terms of small businesses that closed and learning loss experienced by students.?

The candidates frequently talked over each other, especially in moments when Beshear pressed Cameron for answers on his support for school vouchers and Cameron repeatedly asked Beshear to clarify what abortion restrictions he would support.

“Folks, we’ve got to keep this going, and in me, you have a governor that doesn’t see team red or team blue, just team Kentucky,” Beshear said in his closing statement. “But if we want to talk about ‘normal versus crazy,’ it’s crazy we have a candidate that doesn’t have the empathy to look in a camera and say he supports victims of rape and incest, some as young as nine, to have options. I will always be the type of governor that you might not agree with, but you’ll know he’s doing what he thinks is right.”?

“Normal versus crazy” was a reference to remarks Cameron made Tuesday as well as in previous debates about Beshear’s stance on social issues, like vetoing legislation to prevent transgender women and girls from playing on their schools’ sports teams and endorsing President Joe Biden’s reelection bid. Beshear was also referring to Kentucky’s near-total ban on abortion, which Cameron supports and has defended in court.

“Ladies and gentlemen, we don’t have to accept this crazy agenda any longer,” Cameron said in his closing statement. “We can make sure that we have leadership that makes sure that we have quality schools, that we support our teachers, that we keep our streets safe from crime and drugs. And yes, we can eliminate Kentucky’s income tax. That’s where you and I can go together if you vote for me on Nov. 7.”?

Income tax

Beshear and Cameron have repeatedly addressed economic issues during their debates. On Tuesday, the two further clarified their positions, particularly on eliminating the state’s income tax.?

Beshear said he vetoed a 2022 bill from the General Assembly to gradually eliminateKentucky’s income tax because the bill also contained increases in the sales tax. He signed a similar bill in 2023 because it did not change the sales tax and his review of year-over-year state revenue numbers showed the state could afford the tax cut..?

“I do want to continue to make those cuts but we’ve got to do it wisely and carefully, not rashly,” Beshear said.?

Cameron, who has long vowed to eliminate the income tax as governor, said economic policies from Democrats like Biden and Beshear are the reason the country is experiencing inflation now.?

“I’m going to eliminate Kentucky’s income tax, and I’m going to do it in a thoughtful and responsible manner,” Cameron said.?

School voucher programs

Beshear and Cameron have previously published their education policies, and both candidates have fielded questions on education in their previous debates. During Tuesday’s debate, things got particularly heated when discussing school vouchers, or programs that would allow public funding to follow students to private schools. Kentucky currently does not allow such programs, but the Republican-led General Assembly may review legislation regarding voucher programs during its next session.?

In response to a question about funding gaps between school districts and if the state should address it, Beshear pressed Cameron on his support of school voucher programs and referred to a primary debate where the attorney general said he supported vouchers and charter schools.?

Beshear, who opposes school vouchers, said the idea would take funding away from public education.?

Cameron pushed back, saying Beshear’s coronavirus response lowered student performance and pointed to his plan for a 16-week long tutoring program as a solution. After some back and forth, Cameron said Kentucky “needs to expand opportunity and choice” but that his plan, as well as Beshear’s, is focused on public education.?

“You need a governor that not only talks about these things, but is willing to do the hard work of communicating with our legislature to get them done for your request,” Cameron said.?

Eventually, both candidates said the state should address funding inequities between poor and richer school districts.?

Abortion

The candidates were again pressed about their stances on abortion. Cameron said last month that he would sign legislation adding exceptions in cases of rape and incest to Kentucky’s near-total abortion ban if the General Assembly passed it. However, he has not directly said if he personally supports those exceptions and continues to call himself the “pro-life candidate.” During recent debates, Beshear asked Cameron to answer the question directly.?

On Tuesday, Beshear called Kentucky’s near-total abortion ban “draconian” and referred to one of his campaign ads featuring a woman who was raped as a child and became pregnant.?

“I will press every day to get exceptions for rape and incest because those that have been harmed and violated absolutely deserve those options,” Beshear said.?

Cameron called himself “Planned Parenthood’s worst nightmare,” like he did during Monday’s debate, and claimed the organization “wants to destroy the Black community” because of the views of its founder, which the organization has denounced.?

“At the end of the day, we need to keep in mind that every baby is an image bearer of God,” Cameron said. “And I think that we need to establish here in Kentucky a culture of life.”?

Beshear said he supported “reasonable restrictions” on abortion, including late-term abortions, and Cameron asked him repeatedly what exactly that meant. The governor said restrictions under Roe v. Wade “got it right,” but didn’t specify a number of weeks during the debate.?

Covid response

The candidates again discussed Beshear’s response to the coronavirus pandemic, which killed more than 19,000 Kentuckians.?

Cameron, like he has throughout his campaign, criticized Beshear for “infringing upon your constitutional rights,” which included sending Kentucky state troopers to record license plates at churches during Easter Sunday 2020.?

“He has never shared any regrets because he’s too proud,” Cameron said. “And to say that he is sorry is to hold him accountable for those disastrous decisions that he made.”?

Beshear said his decisions were a matter of? “life and death.” He added that if he could have predicted the pandemic when he was elected in 2019, he would have worked to reverse cuts in the state’s unemployment insurance program backed by the Bevin administration and reopen rural offices.?

“I will always put what I believe is best for the people of Kentucky over my own self interest or over any number of votes,” Beshear said.?

Restoring voting rights

Bryant asked both candidates if they support restoring voting rights to people with previous felony convictions after they have completed their sentences.?

Beshear said he was “proud” to have signed an executive order shortly after becoming governor that automatically restored voting rights to nonviolent and non-sex offender felons. However, Bolts recently reported that some Kentucky advocates say Beshear’s administration has not done enough to notify those with restored voting rights how they were affected.?

“I do believe that we ought to have a constitutional amendment that puts that into the Constitution that ensures that it lasts longer than me,” Beshear said.?

“I don’t have any problem with restoring a person’s voting rights under the same rubric,” Cameron said.?

Election Day is two weeks away — Tuesday, Nov. 7.

Russell Coleman

Russell Coleman, the Republican candidate for attorney general, in an interview this week said he supports adding exceptions to Kentucky’s near-total abortion ban in cases of rape and incest.

Coleman, who is a former U.S. attorney for the Western District of Kentucky, has been endorsed by advocacy groups who support Kentucky’s current abortion law, which bans abortions after six weeks of pregnancy. Coleman’s comments come after Democratic Gov. Andy Beshear’s campaign has put Republicans on the defensive on the abortion issue.

“While I will enforce the law as passed by the General Assembly, that’s the job, I am pro-life, but I support the exceptions for rape and for incest, to not re-traumatize these women, and I would ask — call on the General Assembly to take a hard look at that issue,” Coleman said in a Spectrum News 1 interview published Wednesday.?

Advocates for abortion rights in Kentucky were skeptical that Coleman’s proposed exceptions would be helpful, pointing out that the Kentucky law has closed all the state’s abortion clinics, which means victims, including young victims of incest, would have to seek abortions in other states. Exceptions to abortion bans in cases of rape and incest are reportedly rarely granted.

Tamarra Wieder, Kentucky state director for Planned Parenthood Alliance Advocates, said, “Russell Coleman, just like (GOP candidate for governor) Daniel Cameron, is talking out of both sides of his mouth.”

In a statement to the Kentucky Lantern, Coleman said he “had never stated nor been specifically asked whether the General Assembly should amend our pro-life laws” before the interview with Spectrum. If elected this fall, Coleman vowed to be an attorney general who is “both pro-life and pro-victim” — which “are not in opposition to each other,” he said before adding: “Part of being pro-life is being compassionate to crime victims.”

“After listening to prosecutors, crime victims and my family, I made a statement that I believe the law should be amended to include exceptions for rape and incest in addition to the existing exception for life and health of the mother,” Coleman said. “What does it mean to me to be 100% pro-life? I said it for the record for all to hear: limit abortions and protect victims of rape and incest. That’s my definition. It’s a mainstream position consistent with my faith that I believe most Kentuckians share, including so many who consider themselves pro-life.”

Coleman’s public comments on his support for exceptions in cases of rape and incest echo recent remarks from Republican gubernatorial candidate Cameron — the current attorney general, who is defending the Kentucky ban in court, and is a personal friend of Coleman’s.?

Last month, Cameron for the first time publicly said as governor, he would sign legislation adding exceptions to Kentucky’s abortion law in cases of rape and incest if the General Assembly would pass it, but he continues to support the law as it is. The Beshear campaign has released two ads criticizing Cameron for supporting the law.?

Republican House Whip Jason Nemes proposed a bill in the last legislative session that would allow exceptions in case of rape and incest but the bill did not advance at all.?

Both Coleman and Cameron have been endorsed by advocacy group Kentucky Right to Life in their respective elections. KRTL’s website said both candidates provided “100% ProLife Responses” to its candidate questionnaire.?

Northern Kentucky Right to Life said Coleman responded to its May 2023 candidate questionnaire but did not answer it. The group did endorse Cameron and published his responses.?

Both KRTL and NKYRTL did not immediately return a request for comment Thursday morning.?

Angela Cooper, a spokesperson for the American Civil Liberties Union of Kentucky, said in a statement that perpetrators of rape and incest “are already rarely reported, rarely caught, and rarely convicted. And that’s WITHOUT an unwanted pregnancy to compound the victim’s trauma.” She added that the government “does not have the right or the expertise to intervene” and such medical decisions should be between patients and their providers.?

“There certainly seems to be a recent trend where those who have historically presented themselves as 100% anti-choice suddenly agree that comprehensive reproductive care must include access to abortion, if only in certain cases,” Cooper said. “But these changes in sentiment present more questions than answers.”?

Cooper said reproductive care is “a complex area of medicine,” and pregnancy in itself “a particularly complicated and time-sensitive medical state.”?

“Abortion bans, even those with exceptions, are blatantly harmful to pregnant people. Let’s say an exceptions bill is signed into law in Kentucky,” she continued. “Where does the burden of proof lie when it comes to determining the cause of an unwanted pregnancy? Does a rape victim have to get a conviction before being allowed to terminate their pregnancy? Does a 12-year-old victim of incest stand a chance when it is a family member who is raping them in the first place? Does a physician have to get the attorney general’s approval before performing an abortion? Who is going to perform these abortions, with no clinics left in the state?”?

Coleman’s opponent, Democratic state Rep. Pam Stevenson, has been endorsed by Planned Parenthood Alliance Advocates. In a statement, Stevenson said she was “committed to protecting the reproductive rights and healthcare choices of Kentuckians.”?

“We will refuse to prosecute patients or doctors under state law (if elected). It is essential that individuals have the freedom to make their own healthcare decisions without fear of legal repercussions,” she said. “I will use the office’s bully pulpit to vigorously defend the rights of patients and doctors, advocating for access to safe and legal healthcare options without interference from politicians.”

Wieder, Kentucky state director for PPAA, expressed the group’s support for Stevenson in a statement to the Lantern.?

“Russell Coleman, just like Daniel Cameron, is talking out of both sides of his mouth. Here are the facts: Coleman answered ‘yes’ to every question the Kentucky Right to Life Victory PAC put out in order to receive their endorsement, and he backed the 2022 Constitutional Amendment that Kentucky voters defeated – neither include exceptions for rape and incest survivors,” Wieder said. “Coleman has the rubber stamp approval of several extreme anti-abortion organizations, because he, too, is extreme and out of touch with Kentuckians. With Coleman and Cameron leading our Commonwealth, sex offenders will have more freedom than their survivors. It’s atrocious.”

Hadley Duvall in a Beshear campaign ad.

Hadley Duvall, a 21-year-old from Owensboro, said speaking about her experience with sexual abuse amid debates on abortion rights is a calling for her.?

That’s why Duvall is appearing in an ad for Democratic Gov. Andy Beshear’s reelection campaign. After the U.S. Supreme Court overturned Roe v. Wade in 2022, Duvall began publicly sharing her story about the sexual abuse she experienced as a child.?

In the campaign ad, Duvall speaks directly to the camera and slams Republican Attorney General Daniel Cameron for his support of Kentucky’s near-total abortion ban.?

“This is to you, Daniel Cameron,” she says. “To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable.”

Previous news stories reported that Duvall’s stepfather raped her when she was 12 and she became pregnant, but miscarried. Her stepfather pleaded guilty?to raping her and is in prison.

The ad with Duvall is the Beshear campaign’s second taking Cameron to task on abortion. The first ad, released earlier this month, features a Jefferson County prosecutor who claims that Cameron believes 9-year-old rape victims “should be forced to give birth.”

In a Wednesday telephone interview with the Kentucky Lantern, Duvall said someone from her hometown asked her if she would share her story with the team who made the campaign ad, which was filmed in July. It was an easy decision, she said.?

While she would not have been in a place to share her story as a child, Duvall said now she can handle it, even if it is difficult to be vulnerable.?

“It’s not just a statistic that people want to throw out there,” Duvall said. “I’m a real person, and it’s a real story.”?

Cameron, who has a history of highlighting his opposition to abortion, has defended Kentucky’s abortion ban in court. The law only allows abortions up to six weeks of pregnancy and does not include exceptions in cases of rape and incest.?

Duvall said that she first discussed the abuse as a freshman in high school. When the Supreme Court overturned Roe v. Wade, she made a social media post publicly sharing her experience.?

“Once I found my voice, I’ve never really lost it,” she said. “I’m really passionate about helping other survivors and other victims and just doing what I can to help the people who go through what I went through.”

Kentucky’s abortion ban was a trigger law, meaning it went into effect after Roe v. Wade was overturned. Duvall said that she felt anger that day. Duvall said she grew angry hearing people she knew saying they agreed with the court’s decision.

“It just made me really angry, and I just kept thinking about the little girl that I used to be when I was sitting there staring at a positive pregnancy test at 12 years old,” Duvall said. “Because I mean as soon as you see that you instantly think, ‘OK, what am I going to do?’ You start thinking about your options. And right now, if a girl or a woman is going through that, they don’t really have options.”

Since first speaking publicly about the abuse, Duvall said she has gotten a lot of support, especially from other survivors of sexual abuse. As for the reaction to the ad over the last week, Duvall said that the most meaningful part has been hearing from women and girls thanking her for helping them find their voices and strength.?

When it comes to negative reactions online, Duvall said she had tried to not look at them.?

“What I’m doing is for the women and the girls, so the people that speak negative on it don’t really deserve any of my attention,” she said. “But overall, I’ve just seen a lot of people talk about how important it is to bring this up into the light.”

Days before the ad featuring Duvall aired, Cameron said in a radio interview that if elected he would sign legislation adding exceptions of rape and incest to Kentucky’s abortion law if the General Assembly passed it. A spokesperson for his campaign said when asked for clarification that he continues to support the law as it is now but “if the situation in Kentucky were to change and the legislature brought him a bill to add exceptions for rape and incest, he would, of course, sign it.”

The Lexington Herald-Leader reported Wednesday that Cameron indicated he would only add the exceptions “if the courts made us change that law” during a recent campaign stop.?

Hadley said she did not find Cameron’s change of position “genuine,” given his past support of the current law and with only weeks left ahead of the general election in November.?

After the ad with Duvall aired, David Walls, the executive director of conservative public policy organization The Family Foundation, told LEX 18 in an interview about the ad that the organization believes “the value of a human being is never determined by how the child is conceived, however tragic it might be.” When asked about the interview, Duvall said that victims still deserve a choice.?

“How can anybody tell a child what they’re capable of doing when they’re not the ones standing in their shoes?” she said. “So, I think that it’s your choice because the trauma itself alone, of going through the rape and the sexual abuse, that’s lifelong trauma in itself.”

Duvall said she does not believe abortion is a “make or break issue” for most Kentucky voters, but “it is more important than it has been in the past because of the trigger law.”?

Now, Duvall is studying psychology, has plans to attend graduate school and wants a career working with trauma victims.

If the law never changes, Hadley said there will continue to be anger in the commonwealth.?

“I keep thinking about all the little girls who aren’t speaking up, who are hiding this, and if the law doesn’t change, then they don’t have any choice,” Duvall said. “And that in itself is a nightmare.”

Gubernatorial candidate Daniel Cameron and his wife Makenze Cameron greet the crowd during the Graves County Republican Party Breakfast on Saturday, Aug. 5, 2023. (Kentucky Lantern photo by Austin Anthony)

Republican gubernatorial candidate Daniel Cameron on Monday said he would sign legislation allowing exceptions to Kentucky’s near-total abortion ban in cases of rape and incest — signaling a departure from his past comments on the law.?

Cameron, Kentucky’s attorney general, said in an? interview on the Tony & Dwight show on NewsRadio 840 WHAS that he would sign legislation that provided exceptions in cases of rape and incest if the General Assembly approved? it.?

“If our legislature was to bring legislation before me that provided exceptions for rape and incest, I would sign that legislation,” Cameron said. “There’s no question about that.”

It’s the first time Cameron has publicly expressed support for changing the Kentucky abortion ban by adding any exceptions.

During a Republican primary debate held in Louisville earlier this year, Cameron was among candidates who signaled support for Kentucky’s current law, which bans abortions up to six weeks of pregnancy. His office has also defended the law in court.?

The Kentucky attorney general’s website says: “General Cameron is a fearless advocate for the unborn because every life is worth protecting. Inside the courtroom and outside of it, Daniel Cameron is the tip of the spear in the fight to preserve a pro-life Kentucky.”

The trigger law, also called the Human Life Protection Act, went into effect after the U.S. Supreme Court overturned Roe v. Wade last year. The law makes no exception for pregnancies resulting from rape, incest or in cases of serious fetal abnormality. It does require doctors to “make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of the unborn child ‘in a manner consistent with reasonable practice,’” a 2022 advisory opinion from the Cameron’s office said.

Last November Kentucky voters defeated an anti-abortion constitutional amendment.?

When asked for clarification of Cameron’s latest comments and if he continued to support the law as it is, his campaign provided a statement calling Cameron “the pro-life candidate” in the race and saying that he “supports the Human Life Protection Act.”?

“But if the situation in Kentucky were to change and the legislature brought him a bill to add exceptions for rape and incest, he would, of course, sign it,” the statement said.??

The Cameron campaign called Democratic Gov. Andy Beshear “an extremist” on abortion but? did not indicate if Cameron would urge Republican lawmakers to add exceptions.

A spokesperson for the Beshear campaign, Alex Floyd, issued this statement: “Throughout his time in office, even before this campaign began, Daniel Cameron has made it clear that he supports Kentucky’s extreme abortion ban with no exceptions for survivors of rape or incest. He has repeated that position in public statements, questionnaires, press interviews, and debates. As attorney general, Cameron repeatedly defended this extreme law with its lack of exceptions in front of multiple courts, including the Kentucky Supreme Court. Either recent polling numbers have changed Cameron’s core beliefs, or he is lying to Kentuckians now that he is seven weeks from an election.”

Also on the radio show, Cameron pushed back at an attack ad from Beshear’s campaign, criticizing Cameron’s stance on abortion. The ad, released two weeks ago, features a Jefferson County prosecutor who claims that Cameron believes nine-year-old rape victims “should be forced to give birth.”?

Nine was the age of the two youngest abortion recipients in Kentucky in 2021 and last year before the procedure was all but outlawed, Deborah Yetter reported, based on state records. In 2021 in Kentucky, 34 girls ages 15 or younger received abortions,?

Cameron chalked the Beshear ad up to a “smear campaign,” but reiterated that he supports “a culture of life.”?

Beshear has said Kentucky’s abortion ban should be amended to include expections for rape and incest. In a December interview with the Kentucky Lantern, he said the Republican-dominated General Assembly had “given rapists more rights than their victims.”?

Republican House Whip Jason Nemes proposed a bill in the last legislative session that would allow exceptions in case of rape and incest but the bill did not advance at all.?

“Either recent polling numbers have changed Cameron’s core beliefs, or he is lying to Kentuckians now that he is seven weeks from an election,” a spokesperson for the Beshear campaign said in a statement about Cameron’s Monday comments.

The WHAS interview also touched on another area that has brought on social media criticism of Cameron — whether or not he wants to ban birth control and other contraceptives. Cameron said on the radio he supports birth control and contraception and wrote off the idea of him not supporting either as “completely absurd.”?

However, in response to a questionnaire from anti-abortion group Northern Kentucky Right to Life earlier this year, Cameron’s campaign responded “yes” to all questions including the following: “Will you actively support (and if in a position to do so, sponsor and vote for) legislation which prohibits all use of local, state, federal, and/or Medicare or Medicaid funds for abortion (including chemical abortions, such as RU-486, or the so-called “morning after pill,” Norplant, Depo Provera, or the so-called “standard birth control pill”)?”

Cameron’s campaign also responded yes to another question regarding funding birth control: “If there should come before you the question of appointment or confirmation of an individual to any board, agency, or committee, etc., which does or could perform, counsel, refer, or fund abortion (including chemical abortions, such as RU-486, and the so-called “morning after pill,” Norplant, Depo Provera, and the so-called “standard birth control pill”), will you nominate or confirm only individuals (1) who refuse to perform, counsel, refer, or fund any surgical or chemical abortion and (2) who refuse to support, vote for, or fund any government or private agency that would perform, counsel, refer, or fund any surgical or chemical abortion?”

This story has been updated with a response from the Beshear campaign.

The men of Operation Save America close out the group’s weeklong anti-abortion protest in front of the Nathan Deal Judicial Center in Atlanta, Georgia, on July 22, 2023. (John McCosh/Georgia Recorder)

Wendell Shrock doesn’t believe in condoms. “We should leave the uterus to God,” the street preacher from Tennessee tells States Newsroom, in front of an abortion clinic outside of Atlanta, mid-morning in late July. Sweat drips from his cowboy hat into his salt-and-pepper beard that stretches halfway down his red-plaid shirt. The retired police officer is running security for the conservative Christian group Operation Save America’s annual national event. Their followers interpret the Bible literally. Some believe constant procreation is God’s will.

Shrock surveilles the crowd while his wife, Dawn, cares for six of their 11 children on the opposite end of a sidewalk crowded with warring abortion messages. One of their daughters walks over, and Shrock explains she will wed soon. He’s been praying God will give her 20 children. (For privacy reasons, he doesn’t share her age.) One of his sons got married about six years ago at 18 and has had a child every year since. Shrock says with pride that Dawn, who wears a hair covering and a long dress, has never held a public job.

“God created a woman, not only to have a baby and a baby to grow inside of her, but to nurture a baby,” says Shrock, who is not a spokesperson or leader for the group. “I could never have the closeness to my children that my wife has. That’s because God created her that way. He created her different from me. And I know that goes against some of today’s norms. ‘We’re all the same’— that’s not what my Bible says.”

Overwhelmingly, men are driving the quest to restrict and remove women’s reproductive rights in as many states as possible. Women leaders are and have always been involved in this decades-long fight. But in the post-Roe era, when more mainstream anti-abortion groups are trying to navigate increased bipartisan support for reproductive rights, a more extremist male-dominated faction has risen up. Groups like Operation Save America want to put women on trial for abortion. They want to eliminate all abortion exceptions and certain forms of birth control and fertility treatments. And they are finding support for these messages across the U.S. — in conservative churches and among conservative Christian lawmakers.

But even beyond the militant corner of the anti-abortion movement lies a male-dominated network of academics, attorneys, judges, lawmakers and lobbyists working on legal arguments that position fertilized eggs as constitutionally protected persons. And now that federal abortion rights no longer exist, these men are able to say the quiet part out loud: that somewhere between conception and the first few weeks of pregnancy, the rights of the zygote, embryo, or fetus trump those of the pregnant person.

South Carolina Supreme Court Justice John Kittredge recently argued as much in his opinion upholding the state’s so-called “heartbeat” ban, which was approved by the majority on what recently became the only all-male state supreme court in the nation.

“To be sure, the 2023 Act infringes on a woman’s right of privacy and bodily autonomy,” Kittredge wrote. “The legislature has made a policy determination that, at a certain point in the pregnancy, a woman’s interest in autonomy and privacy does not outweigh the interest of the unborn child to live.”

For South Carolina right now, that point is approximately four weeks of pregnancy.

Protecting and punishing women

Shrock recently texted States Newsroom about the gender roles he’s laid out for his daughters.

“As my daughters were growing up, I would from time to time ask them what they wanted to be when they grow up. Regardless of their answers, I would take them to this scripture and tell them that this is what God has said they should do when they grow up,” Shrock wrote, then quoted from the second chapter in the New Testament’s book of Titus, his version varying slightly from other translations:

Older women likewise are to be reverent in their behavior, not malicious gossips nor enslaved to much wine, teaching what is good, so that they may instruct the young women in sensibility: to love their husbands, to love their children, to be sensible, pure, workers at home, kind, being subject to their own husbands, SO THAT THE WORD OF GOD WILL NOT BE BLASPHEMED.

Asked to explain the verse on the phone, Shrock warned, “You won’t like it.”

“God in the Bible, in Genesis, God created a man to provide, protect,” he said. “And he gave the man a mission. And he created the woman; he said he needs a helper. God gave me a mission, and it’s my wife’s job to come alongside me and help me with that mission. And I know that goes against the world’s grain. They’ll say, ‘Wait a minute, what if she wants a career and what if she wants recognition? What if she wants to climb the corporate ladder?’ Well, God created my wife to have babies, to — literally what it says in Titus.”

Operation Save America’s pervading message is about empowering men and boys to adopt an old, punitive Christian worldview, one more widely embraced when women had few rights and power. But they also take their roles as provider and protector seriously.

For its national director Jason Storms and his father-in-law, longtime anti-abortion radical Matthew Trewhella, that partly means buying guns and building militias. Trewhella has shared his 2013 manifesto calling for government defiance with many interested state lawmakers.

“We live in a culture of so many weak and pathetic Christian men who couldn’t fight their way out of a paper bag if their life depended on it,” Storms said in August 2022, from the pulpit at Mercy Seat Christian Church in Brookfield, Wisconsin, where he is the minister of evangelism and Trewhella is the lead pastor. “It’s not being a protector to your family that God has called you to be. Get yourself in shape. Cultivate some physical strength. Buy guns. If you need to, buy a lot of guns. It’s no limit on gun purchases; you have my blessing. … And if you buy a gun and you buy ammunition, train with it, and get around a group of men that you can train with. Get around a group of courageous men who will fight, bleed, and die with you, for you, and for your families and for your liberties.”

A 2021 YouTube video that was posted on Operation Save America’s website featured suggestive and violent imagery involving scenes of a man with an assault rifle, then cutting to a Planned Parenthood facility, while reciting the biblical verse that begins, “To everything there is a season” and includes the line, “a time to kill.” That video “was removed by the uploader” Tuesday afternoon after the initial national publication of this States Newsroom report.

Storms, in an interview Tuesday afternoon, said his organization doesn’t advocate for violence against abortion providers and believes in advancing its causes through peaceful persuasion. He said the film was produced by a friend for a Christian film festival and is not an endorsement by OSA to commit any violence against Planned Parenthood or abortion providers. When asked why the video was on OSA’s website, Storms said ?that he’d been meaning to take it down because of its “mixed messaging.” It was removed a short time later.

Storms said, under his leadership these past few years, he is trying “to teach our boys to be hardworking, responsible, sacrificial, caring, thoughtful.”

This year Operation Save America hosted its first Manhood Restored Bootcamp for boys and young men in Frankfort, Indiana, which involved hand-to-hand combat training and an event referred to in the schedule as “shooting range.” “Aborting your own child is a betrayal of every godly masculine virtue,” reads an OSA Facebook post leading up to the bootcamp. “Making alllowance [sic] for others to abort their own children emasculates society, decimating its soul and conscience. Abortion will end in America when Men become Men again.”

Storms said this bootcamp is also about teaching men to be responsible and good to women, including when it comes to sex and reproduction. He said he’s against “toxic masculinity” and noted that women participate in his organization.

“We do have a lot of very active women, and women that have jobs outside the home, like, all my kids.”

In addition to claiming to protect women, OSA approves of penalizing them for their reproductive decisions. They call what they support “abolitionism,” and use language from anti-slavery and civil rights movements.

“Thirteen states have banned abortion,” Storms said during the last protest of OSA’s summer event in front of the Nathan Deal Judicial Center in Atlanta, on July 22 (at the time it was actually 14 states that banned abortion at all stages; now it’s 15). “In all those states they’ve given immunity to mothers, and mothers are still killing their children with immunity. That is a problem. We must pursue equal protection, equal justice, equal weights and measures.”

In a follow-up interview post-publication, Storms said the purpose of including criminal penalties for women is as a deterrent.

“I don’t want any woman to go to jail,” Storms said. “The bigger debate is more about the humanity of the preborn child than it is about the punishment for the moms. The whole reason why pro-life organizations exempt the mothers from punishment is because they think that that’s going to help them politically, with public opinion, to make it more palatable. But that’s actually not true. Now 15 states have banned abortion, right? Every single one of those exempt the mothers from punishment, so moms can still legally do self-managed abortion in every one of those states.”

Storms acknowledged there is a difference of opinion among members and leaders about how harsh penalties should be.

“We readily acknowledge the place for various mitigating circumstances which would cause a massively reduced sentence if a woman did procure an abortion under an equal protection law. We certainly do not want to pursue the harshest of penalties. … Our heart is not to see women executed or anything like that,” Storms said in an interview.

OSA sees Georgia as a key battleground state, because, like South Carolina, it still allows abortion for the first few weeks of pregnancy, when electrical activity can be detected on an ultrasound. This law, whose constitutionality the state Supreme Court will determine this fall, does something legally strategic. It defines personhood with potentially future-history-making clauses:

“‘Natural person’ means any human being including an unborn child.”?

‘“Unborn child’ means a member of the species Homo sapiens at any stage of development who is carried in the womb.”?

But this near-total ban doesn’t go far enough for OSA and its partner groups like End Abortion Now, who’ve been lobbying for a much more extreme bill that was introduced earlier this year but has not advanced out of the state House. Under the “Georgia Prenatal Equal Protection Act,” doctors could be convicted under homicide charges unless they could prove the abortion was necessary to prevent “imminent death or great bodily injury.” Pregnant people suspected of having abortions could also be convicted under homicide charges, unless they could prove they were coerced into having the abortion. The bill says nothing about pregnant teenagers and children accused of this crime. Georgia is among 27 states where capital punishment is a possible sentence for homicide.

“In keeping with our oaths of office, the God-given right to life shall be secured and the impartial and equal protection of the laws shall be provided to all unborn persons from the moment of fertilization and at every stage of development, and abortion shall be abolished in this state, so help us God,” reads the bill.

OSA and its partners have lobbied for similar bills, many of them crafted by the Foundation to Abolish Abortion and advanced by sympathetic lawmakers, in more than a dozen states, including Alabama, Arizona, Kentucky, Missouri, and Oklahoma.

Men’s laws

The largest uterus in Washington, D.C., is made of reflective stainless steel. It’s embedded within a nearly 4,000 pound, 10-foot-tall bronze statue of a serenely pregnant Virgin Mary that now sits on the lawn in front of the Catholic University of America’s Theological College. Curled up inside what looks like a giant bowl is a bronze unborn Jesus.

Canadian sculptor Timothy Paul Schmalz says he believes it’s the first representation of Jesus as a fetus. Schmalz, whose work has been commissioned by the Vatican, opposes abortion. He toured the globe with this“Advent” statue before bringing it to its permanent home in May, in D.C., where it is now known as the National Life Monument. Schmalz’s goal is to get one in every U.S. state Capitol building. There’s a bill to erect “Advent” in Texas. One could end up in Arkansas, whose secretary of state is actively seeking design submissions for an anti-abortion monument.

It’s an appropriate representation in a statue of what many state legislatures are trying to do in statute: separate a woman from her womb.

This past spring, Washington Archbishop Wilton Cardinal Gregory blessed D.C.’s new giant uterus while surrounded by other male Catholic leaders. After the ceremony Schmalz told Catholic News Agency that he sculpted Mary’s uterus like a halo, one made of “mystical material.”

But in real life, the uterus is shaped more like a pear than a halo, located between a woman’s bladder and her rectum. Pregnancy begins when a fertilized egg implants in the uterus, which will nourish the egg until it develops into an embryo, then a fetus, and then a full-term baby. As the uterus expands, the woman’s other organs start to work exponentially harder to sustain this new life. Nearly every part of the human body changes during pregnancy and impacts the pregnant person’s comfort and mobility. Pregnancy for some causes temporary or permanent health conditions of varying severity. In the U.S., many people die during or soon after pregnancy or birth, especially pregnant people who are Black and Indigenous.

In 1973’s Roe v. Wade decision, the U.S. Supreme Court prioritized the rights of the pregnant person over the fetus until it reached a later stage of development. Even then, the court allowed states to give discretion to medical providers to weigh the physical and mental health risks women face against those of the fetus. A half-century later, in 2022’s Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito described each stage of the unborn’s development, but wrote not a word about the bodily developments of the person gestating that life.

The Court did not expressly address personhood in this ruling, but it’s expected to in a future case. That’s why anti-abortion legal architects are now toiling away at the legal definitions that they hope will crack the federal personhood code.

Some states are testing the constitutionality of so-called “heartbeat” bills that ban abortion around six weeks’ gestation, about two to four weeks after a missed period. According to the American College of Obstetricians and Gynecologists, an actual heart is not detectable by ultrasound until roughly 17 to 20 weeks’ gestation. What exists now is electrical pulses. At this gestational point, pregnant people often begin to feel extremely tired or dizzy or short of breath as their hearts begin pumping what will eventually be a 40 to 45% percent increase in blood volume.

South Carolina recently became the second state, after Georgia, with a six-week ban, and Florida could be next, which would make abortion virtually inaccessible in the South. The South Carolina Supreme Court made national headlines after its lone female justice retired, and the country’s only all-male high court promptly reversed her majority-approved opinion that a nearly identical six-week ban was unconstitutional.

Helping Republican lawmakers advance increasingly restrictive anti-abortion laws are longtime legal strategists like Robert P. George and Harold Cassidy, who live-streamedtheir recent strategy chat at Our Lady of Perpetual Help-St. Agnes Parish in Atlantic Highlands, New Jersey. George says he became an anti-abortion activist as a young teenager in West Virginia, shortly before the Supreme Court made abortion a federal right. The Princeton University law professor has spent his entire academic career trying to overturn Roe and block LGBTQ rights. He has advised several Republican presidents and founded many influential political groups.

For decades, the professor and co-author of the 2008 book “Embryo: A Defense of Human Life,” has been refining his legal personhood argument, which he submitted in a co-authored “friend of the court” brief in Dobbs, that the U.S. Constitution’s 14th Amendment already guarantees the right to life for unborn human beings. During his conversation with Cassidy, George said that abortion should not be allowed at any stage, because embryos’ unique DNA make them fully separate humans from the moment the sperm fertilizes the egg.

“Harold is the same guy who was the embryonic Harold, the fetal Harold, the infant Harold, the adolescent Harold,” George said, gesturing to Cassidy. “All of our lives begin from the earliest embryonic stage. And at all stages, and in all conditions, human life is valuable. So the first thing we’re up against is that people have been mis-instructed by the law itself.”

Universities across the country have begun to reproduce the conservative legal training ground George created at Princeton University’s James Madison Program in American Ideals and Institutions. He and his peers have been influencing young anti-abortion legal scholars with their brand of intellectual rather than overtly religious-based anti-abortion reasoning,

Cassidy’s legal career has centered around the so-called woman-protective argument, which the mainstream anti-abortion movement pivoted to during the Roe years in order to pass onerous legislative restrictions. Cassidy has represented women who claim to be victims of abortion, including Norma McCorvey and Sandra Cano, the anonymous plaintiffs in Roe v. Wade and its companion case, who would eventually oppose abortion. Cassidy asserts all women suffer mental traumas after having abortions. In a major legal victory, he drafted a provision in South Dakota’s law (which was upheld by an appellate court in 2008) stating that abortion terminates “the life of a whole, separate, unique, living human being.” Abortion is currently banned in South Dakota, but Cassidy is trying to advance this language in future federal abortion challenges. He twists up the rights argument, saying allowing abortion violates a woman’s right to parent.

“We have to protect the real rights of pregnant mothers: their right to give birth to their child, their right to keep and maintain the relationship with their children, their right to enjoin the equal protection of the laws that say it’s a homicide to kill their child, and their right to an interest in their child’s welfare and life,” Cassidy said.

Cassidy and George and many of their legal peers have long claimed to oppose abortion laws that would penalize women. But their arguments have helped spawn bills that do create criminal penalties for the pregnant person. And mainly men are advancing them.

Personhood laws will diminish the rights of pregnant people, says Khiara M. Bridges, a law professor at the University of California, Berkeley.

“It’s kind of like a zero sum type of game in the sense that the more rights you give to fetuses, the fewer rights you give to the people that actually gestate them,” Bridges told States Newsroom in a phone interview. “We have to acknowledge the conflict as opposed to obscuring it, which I think George and Cassidy participate in that. They need to say with a straight face, like looking people dead in the eye, that the fetus’ well-being is much more important to them than the well being of the person who gestates it. Otherwise they’re just lying and trying to win by obscuring this truth.”

Pregnant people are already facing the legal and medical consequences of abortion bans and onerous restrictions, including bans on information-sharing and attempts from anti-abortion activists and lawmakers to prevent minors and women from traveling out of state for legal abortions in Alabama, Idaho, and Texas.

Determining personhood from conception has terrifying implications for pregnant people, legal experts say. But it would affect more than abortion. If applied broadly, it could affect population counts and tax benefits. Many lawmakers advocating for personhood are unable to fully articulate the full implications or even how to enforce these laws. But even aggressively anti-abortion state governments like Texas’s have indicated personhood laws might only be used to prevent abortion rather than in ways that could benefit the pregnant person or fetus. The Texas attorney general’s office recently rejected a personhood argument in a lawsuit brought by a former prison guard who partially blames the state for her stillbirth.

That Texas’s government was suddenly uninterested in calling fetal life a person when it was unrelated to an abortion law wouldn’t surprise writer Gabrielle Blair, who believes most anti-abortion politicians are disingenuous. The Mormon mom of six behind the popular DesignMom blog has injected a new framework in the reproductive rights debate: Men are disproportionately responsible for unwanted pregnancies, and they should not leave pregnancy prevention exclusively to women, or criminalize women’s pregnancy decisions.

“We’ve put the burden of pregnancy prevention on the person who is fertile for 24 hours a month, instead of the person who is fertile 24 hours a day, every day of their life,” Blair wrote in the 2022 book adaptation of her viral 2018 X (formerly Twitter) thread, titled “Ejaculate Responsibly: A Whole New Way to Think About Abortion.”

Blair’s manifesto, like Matthew Trewhella’s, is also finding an audience among lawmakers, many of them women. She told States Newsroom that she’s heard from lawmakers receiving the book in Ohio, South Carolina, and Utah. South Carolina Republican Sen. Katrina Shealy read it into the legislative record. Blair said she’s also had encouraging conversations with men about making reproductive rights their issue too — working with rather than against women.

“For almost fifty years, a lot of men were focused on what it would take to overturn Roe v. Wade, claiming they wanted to reduce abortions,” Blair wrote in her book. “At any point, men could have eliminated elective abortions … without ever touching an abortion law, without legislating about women’s bodies, without even mentioning women. All men had to do was ejaculate responsibly. They chose not to. Today, they continue to choose not to.”

Midwife Stephanie Mitchell, who is attempting to open a birth center in Alabama and has sued the state, speaks at the Mothers of Gynecology monument in Montgomery, Ala., this month. Supporters say such centers could improve birth outcomes in the South, which has some of the highest maternal and infant mortality rates in the country. Anna Claire Vollers/Stateline

When Katie Chubb announced in 2021 she was planning to open a freestanding birth center in Augusta, Georgia, it seemed like everybody in town was excited about it.

She met with local physicians and nurses who said they would welcome her Augusta Birth Center as a provider of midwifery services for low-risk pregnancies. Hundreds of people signed the interest form on her website. She met with the head of obstetrics at University Hospital (now Piedmont Augusta), located less than a mile from the proposed birth center location, who responded positively, she said.

But when Chubb submitted her 800-page application to the state health department for a so-called Certificate of Need — a requirement to open a licensed birth center in Georgia — she discovered that not everybody in town was enthusiastic about the Augusta Birth Center.

Two local hospitals, including the one she’d met with, filed letters of opposition with the state. They cited several concerns, including a belief that the center hadn’t demonstrated its services were needed in the community. Those hospitals, plus a third in the area, refused to sign a written agreement with Chubb saying they would accept emergency transfers from the birth center. As a result, the state?denied?Chubb’s application.

The property in downtown Augusta that she’d planned to purchase for the birth center remains vacant and filled with weeds, since the sale was contingent upon her receiving state permission to open. With the future of the business uncertain, her main funder backed away.

The South has long had poorer birth outcomes than the rest of the country. Most of the highest maternal and infant mortality rates in the nation are in Southern states, which tend to have higher rates of poverty and the types of health conditions — such as high blood pressure — that make pregnancy more dangerous. Access to care is thinning out: More than half of rural hospital closures over the past two decades have been in Southern states.

Supporters say birth centers can help improve that record. Nationwide, birth alternatives such as freestanding centers and midwifery care have surged in popularity, particularly since the COVID-19 pandemic prompted increased interest in out-of-hospital birth options. The number of birth centers nationwide has doubled over the past decade, while midwife-attended births now account for about 12% of all births.

But the South lags the rest of the nation in offering birth alternatives, in part because of regulatory roadblocks, such as the transfer agreements with area hospitals that thwarted Chubb.

Hospital and physicians’ groups in the South say such rules are necessary to protect the health and safety of women and babies. Critics counter that doctors and hospitals are more interested in preserving their monopoly on maternal care.

In Chubb’s case, the state regulatory board denied her application despite concluding that there was a need for her birth center’s services and that the center would offer “a low cost, high quality alternative” for maternal health in the area.

“A week before the deadline, [the hospitals] went quiet,” said Chubb, who works as a personal trainer focused on prenatal and postnatal exercise and who is currently a nursing student. “We’ve tried to contact the hospitals multiple times, even since they switched management. And yet we still can’t open because the hospitals want to block us.”

Piedmont Augusta did not answer requests for comment. Augusta University Health did not respond in time for publication.

Chubb has sued the state, challenging the constitutionality of the state’s Certificate of Need law. The case is ongoing.

“If we’re not going to do it, nobody’s going to do it,” she said. “You’ve got to have someone who’s tenacious and has the resources to go after this.”

A ‘de facto ban’

A similar situation is unfolding In Alabama, where three women who want to run birth centers sued the state health department this month, claiming it has created a “de facto ban” on birth centers. Mississippi and Kentucky, like Georgia, also have requirements that effectively let hospitals veto birth centers from opening by refusing to sign transfer agreements.

Dr. Heather Skanes opened Alabama’s first freestanding birth center last fall in Birmingham. She hoped the birth center would represent a leap forward in improving access to maternal health care in a state that’s long had among the nation’s highest rates of maternal and infant mortality.

“I opened my center because there is a maternal and infant health crisis in Alabama which is disproportionately affecting Black women and infants,” said Skanes, who is Black and who opened her center in a majority-Black area of her native Birmingham.

About six months after the center’s first delivery — a 6-lb., 12-oz. baby girl who became Alabama’s first baby born in a freestanding birth center — the state health department came calling.

Skanes said a department representative informed her that by holding deliveries at the birth center she was operating an “unlicensed hospital.” Alabama does not have state regulations for birth centers; the health department has been working on a proposed set of regulations for the past year.

Skanes said she was told to stop accepting new patients and to arrange for her existing patients to give birth elsewhere. A representative from the Alabama Department of Public Health declined to comment on the birth center regulatory process aside from a memo issued earlier this year.

“At no point did the department say there had been any complaints about the safety or quality of the center’s care,” Skanes said. Her center had hosted more than a dozen births before she had to shut the doors, and, she said, it had a perfect safety record. “I was shocked that we would be forced to stop providing the midwife-led care that was working well for our patients and our community. Having to turn patients away has been devastating.”

Earlier this week, Skanes joined with two other women who are also attempting to open birth centers in Alabama — Dr. Yashica Robinson, an OBGYN in North Alabama, and Stephanie Mitchell, a licensed midwife in Alabama’s rural and economically disadvantaged Black Belt region — to sue the Alabama Department of Public Health over what they see is a de facto ban on birth centers.

“The department is refusing to allow birth centers to operate in Alabama without having a hospital license, but at the same time the department is making it impossible for any birth center to even apply for such a license,” said Whitney White, staff attorney with the American Civil Liberties Union (ACLU), which is representing the birth center owners and their co-plaintiff, the Alabama affiliate of the American College of Nurse-Midwives.

A representative of the Alabama Department of Public Health said the department had not yet had time to review the lawsuit fully and would not otherwise comment on active litigation.

Department leadership, dominated by the state’s private physicians’ association, has a long history of opposing the expansion of midwifery practice in Alabama.

The Alabama Department of Public Health is governed by the State Board of Health, which is by law composed of all 7,000 members of the state’s largest private professional association of physicians, the Medical Association of the State of Alabama. The state law granting that authority is a Reconstruction-era mandate that places the state agency squarely under the control of a private organization.

The medical association has historically lobbied against legislation that would expand consumer access to midwives in Alabama. Members of the medical association also comprise the majority of seats on the 16-member State Committee of Public Health, which oversees and regulates public health matters in Alabama, including hospital licensing.

Mitchell, the midwife working to open a birth center in Alabama’s Black Belt region, said some of the women she sees travel 75 to 100 miles roundtrip to receive prenatal care because of the lack of hospitals and obstetric providers in the area. The region is federally designated as medically underserved, which means it has too few primary care doctors and high rates of poverty and infant mortality.

“Expanding access to midwifery and birth centers in places like Sumter County is a life-or-death situation for many families,” she said.

Hospitals defend requirements

At least 34 states operate Certificate of Need (CON) programs, which vary by state but are designed to control the number of health care resources in an area by requiring a hospital or health system to prove the community needs a certain service before the provider builds or expands it.

In their letters of opposition to Chubb’s Augusta Birth Center, two Augusta-area hospitals cited several reasons, including the center’s lack of written transfer agreements, which the hospitals refused to sign.

The Augusta University Medical Center, in its opposition letter, noted the birth center “has garnered opposition from two of the hospitals precisely because it will not function well as part of the established system of perinatal care” and recommended the birth center “work much more closely with the local hospitals and physicians.”

“Instead,” the letter said, “it is proposing a project that will only take from the existing hospitals.”

Chubb proposed charging about $5,000 for an uncomplicated birth, far below the $15,000 at Augusta University Medical Center or the $7,300 at University Hospital, according to the health department’s decision letter. Both hospitals questioned the financial feasibility of the birth center’s proposed charges in their letters of opposition.

Chubb, in her lawsuit against the Georgia Department of Community Health, is being represented by the Pacific Legal Foundation, a national public interest law firm that often champions conservative or libertarian causes.

“We’re opposed to Certificate of Need laws of any variety, but we believe the ones in Georgia for birth centers are worse because they give an absolute veto to competitors who simply don’t want the competition,” said Joshua Polk, an attorney at Pacific Legal who is working on Chubb’s case.

Kentucky’s CON law is the primary reason that state has no freestanding birth centers, said state Sen. Shelley Funke Frommeyer, a Republican who filed one of the bills during Kentucky’s 2023 legislative session that would have exempted freestanding birth centers from CON requirements.

“We want to promote and inspire people to take responsibility for their health, but the hospitals aren’t giving us the freedom to do that,” said Funke Frommeyer. “The hospital association and our hospitals are battling to restrict this offering.”

Hospital officials from around Kentucky testified against removing the CON requirement for birth centers and the Kentucky bills ultimately failed.

Jim Musser, senior vice president for policy and government relations at the Kentucky Hospital Association, pointed out that three certificates of need have been granted for freestanding birth centers over the past 20 years, though those centers were ultimately never built.

The hospital association’s position is that freestanding birth centers should be overseen by obstetricians, staffed by certified nurse-midwives and “closely aligned with a hospital” via a written transportation agreement or being operated by the hospital, he said.

“Kentucky has some of the worst infant and maternal mortality rates in the country and we want to make sure we’re doing things to improve that and not jeopardize the lives of mothers and children,” Musser said.

Earlier this year, South Carolina passed a law that eliminated its CON requirements for nearly all health care facilities, including birth centers. And West Virginia amended its CON law to exempt hospitals and birth centers.

Roadblocks

Months before filing the lawsuit in Alabama, Skanes and the other birth center owners had joined with midwives, nurses and birth advocates to protest the state health department’s proposed birth center regulations as being out of step with nationally recognized standards for birth centers and so restrictive that they essentially required birth centers to be “mini labor and delivery departments,” Skanes said.

Among the department’s proposed regulations was a requirement that birth centers have a written transfer agreement with a nearby hospital. It’s not part of a CON program, but just like in Georgia, the requirement would give hospitals veto power over whether birth centers can open and operate in their service areas.

Mississippi also requires birth centers to obtain written transfer agreements. Getty Israel, founder of Sisters in Birth Inc., a women’s health clinic in Jackson, is trying to open the state’s first birth center.

Her main roadblock has been funding, she said. She has a partnership with a local hospital, thanks to connections and relationships she’s built, she said, but called the written transfer requirement an “unnecessary burden” for birth centers.

“It needs to be removed, but it’s probably going to take a lawsuit to do it,” she said. “You can’t be docile when you’re trying to change the infrastructure. There are interests that don’t want to see midwives win.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence.?

Pharmaceutical sciences professor Chris Adkins, who has questioned the accuracy and data used in a 2021 study authored by anti-abortion doctors about the key abortion drug mifepristone, says U.S.-based academic publisher Sage Publishing is reviewing the paper. (Courtesy Chris Adkins)

Pharmaceutical sciences professor Chris Adkins was perusing news on his computer in December when he came across an item that fascinated him: Anti-abortion groups had sued the U.S. Food and Drug Administration to force a recall on a commonly used abortion drug.

Adkins teaches future pharmacists at South University School of Pharmacy in Savannah, Georgia. His early-career research focused on cancer drugs, but mifepristone is among the many drugs he’s familiar with. Adkins understood from the medical literature that the FDA-approved two-drug abortion regimen has a high safety and efficacy record. So, it surprised him to read plaintiffs arguing this medication is so unsafe it needs to be pulled from the market. But what he still can’t get over is the research U.S. District Judge Matthew Kacsmaryk cited liberally to order a suspension of mifepristone’s FDA approval earlier this year.

That ultimately blocked April 7 ruling in Alliance for Hippocratic Medicine v. FDA relied on a handful of studies authored by many of the same anti-abortion activists directly involved in suing the FDA. Kacsmaryk leaned hard on a 2021 study that was designed, funded and produced by the research arm of one of the most powerful anti-abortion political groups in the U.S. The judge cited this paper — which looked at Medicaid patients’ visits to the emergency room within 30 days of having an abortion — to justify that a group of anti-abortion doctors and medical groups have legal standing to force the FDA to recall mifepristone.

“Here, the [plaintiff medical] associations’ members have standing because they allege adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress’ on doctors during emergencies and complications,” Kacsmaryk wrote.

But U.S.-based global academic publisher Sage Publishing, which publishes thousands of journals including “Health Services Research and Managerial Epidemiology,” is now investigating this study and the peer review process it went through after Adkins contacted the journal in April with a pile of red flags. Last week Sage published an “expression of concern” about the paper.

“As part of the investigation, we are looking into Dr. Adkins’ concerns as well as any concerns related to conflict of interest,” Sage spokesperson Camille Gamboa told States Newsroom in an email. The lead author of the paper, James Studnicki, who works for the anti-abortion think tank Charlotte Lozier Institute, is also on the editorial board of “Health Services Research and Managerial Epidemiology.” Gamboa said that Studnicki, in accordance with his journal’s ethics guidelines, was “not involved in the decision-making process for this article.”

Adkins dissected this paper the way he used to as a onetime peer reviewer. He told States Newsroom that the authors exaggerated their findings and visually misrepresented them in ways that are “grossly misleading.” And that’s led to legal consequences. Except, he said, their study doesn’t actually show what Kacsmaryk said it does: that medication abortion leads to significantly high rates of complications.

“I can’t prove that there was intent to deceive, but I struggled to find an alternative reason to present your data in such a way that exaggerates the magnitude,” Adkins said. “They’re misrepresenting its conclusions to begin with. That’s my frustration with this whole process.”

For now, mifepristone remains legal (except in the 14 states with total abortion bans). But this high-stakes federal lawsuit is ongoing, awaiting a decision from the conservative 5th U.S. Circuit Court of Appeals. And while Sage determines whether this study should have been published in the first place, plaintiffs continue wielding it as one of their best defenses against a safe drug protocol that is now the most common method of terminating a pregnancy (and managing miscarriages) post-Roe v. Wade.

Wading into politically charged science fights is new territory for Adkins. So is advocating for abortion rights, something he says he didn’t believe in when he was growing up in Amarillo, Texas, where the lawsuit was coincidentally filed. He said his views on abortion (and gender and climate science) radically shifted when he left his conservative hometown for graduate school and then became a scientist.

“I have significant concerns about the merits, legality, and use of shoddy studies and personal anecdotes to upend national healthcare policies essential to women’s reproductive health and bodily autonomy,” Adkins told States Newsroom. “To go out and say this drug needs to be, you know, removed from the market, it’s not honestly paying tribute to what the true science really is saying.”

Roe v. Wade was overturned on Adkins’ birthday last year — about a year before he would meet his first child. Living in South Carolina, where laws about pregnancy termination have toggled throughout the year, Adkins has been thinking often about the consequences of ending federal abortion rights. He’s grateful his wife didn’t have any pregnancy complications, but he worries about her reproductive freedom going forward, and that of their weeks-old daughter.

“I now have a daughter that is born in a world where there is no Roe v. Wade, no federal recognition that women have the right of bodily autonomy,” Adkins said. “And just, I don’t know. … I’m going to support her in whatever way I can.”

Studnicki et al.

This lawsuit ultimately hinges on scientific questions: Was the science strong enough to justify the FDA’s approval of abortion drugs more than 20 years ago and then its relaxing of certain restrictions? And does the data predominantly show that medication abortion is safe and effective? Evidence in the affirmative, presented by the FDA’s defense team, outweighs that of plaintiffs in volume and medical journal prestige.

Most drugs approved by the FDA come with some risk of side effects, but mifepristone’s risk level is significantly lower than many commonly used over-the-counter drugs. In 23 years, 28 out of more than 5 million medication-abortion patients have died, but not all necessarily because of mifepristone. Some died of sepsis, ectopic pregnancies, homicide and drug overdoses.

Still, plaintiffs who sued the FDA to revoke mifepristone’s approval rely on studies that have been criticized — and on speculation about a potential spike in future adverse events.

Many U.S. scientists and mainstream national medical institutions like the American Medical Association have asked the courts not to overturn FDA approval of mifepristone, and have called out the misuse of science in the lawsuit. And yet, the conservative federal judges assigned to the case have been nodding along to plaintiffs’ hyperbolic arguments that abortion via medication leads to overwhelmed emergency rooms and blood supply shortages.

One study that appears to have convinced Kacsmaryk that mifepristone causes high amounts of severe adverse events was authored by a half-dozen longtime anti-abortion activists. The study, “A Longitudinal Cohort Study of Emergency Room Utilization Following Mifepristone Chemical and Surgical Abortions, 1999–2015,” was funded by the Charlotte Lozier Institute, the research arm of the influential Susan B. Anthony Pro-Life America, which works to elect federal and state anti-abortion lawmakers. The study was published in November 2021, exactly one year before plaintiffs filed in the Amarillo court. Charlotte Lozier filed a “friend of the court brief,” citing its research.

All but one of the eight authors are affiliated with the Charlotte Lozier Institute, including principal author James Studnicki, who is the institute’s vice president and director of data analytics. Currently everyone on the editorial board of “Health Services Research and Managerial Epidemiology” works for a university except for Studnicki, who until 2016 was a university professor focused on health policy and management for most of his career. Now he works for an anti-abortion think tank and in recent years has served as a paid expert witness that defends anti-abortion laws in federal court.

Dr. Donna Harrison, another co-author, was until recently the CEO of the American Association of Pro-Life Obstetricians and Gynecologists, one of the plaintiff medical groups suing the FDA over mifepristone. Another author is longtime anti-abortion activist David Reardon, who has a record of criticized research that tries to directly link abortion to depression and suicide.

The Studnicki et al. 2021 longitudinal study looked at people who had a surgical or medication abortion between 1999 and 2015. The researchers used data from 17 states that allow state Medicaid funding of abortion, and identified more than 400,000 abortion patients. Of those they found that more than one-quarter visited an emergency department within 30 days of having the abortion. Over the 16 years, they found that there were progressively more emergency room visits following a medication abortion than a surgical procedure. The authors claim that between 2002 and 2015, there was a 500% increase in emergency room visits from people who had had a medication abortion within 30 days.

Following the study’s release in 2021, Studnicki penned an opinion piece in Newsweek, calling the study’s findings “clear and alarming.” “Post-abortion emergency room visits are increasing following any type of abortion, but visits following a chemical abortion are growing faster,” Studnicki wrote.

But Adkins and other researchers told States Newsroom that some of these findings are missing important context, and that the study’s major flaws are related to methodology and in how they communicate their findings:

• The study captures emergency room visits broadly and does not distinguish between routine medical care and adverse events. The codes they use lump in issues like ectopic and molar pregnancies, which are medical emergencies not necessarily related to having taken abortion drugs. University of California San Francisco reproductive health researcher Ushma Upadhyay led a similar study in 2015 and found that less than 1% of medication abortion patients have major complications. Upadhyay told States Newsroom that just looking broadly at emergency department visits among people on Medicaid does not give the most accurate picture of the abortion drug protocol’s safety, as many of the visits are observation-only. A medication abortion is an induced miscarriage and necessarily involves bleeding. First-time medication abortion patients often go to the ER because they don’t know what is normal. And that’s especially true if they don’t have a regular medical provider, like many people on Medicaid, Upadhyay said.

• Adkins said the study’s findings appear in line with increased use of the FDA’s medication abortion protocol between its approval in 2000 and 2015. The amount of patients on Medicaid also grew toward the end of that time frame, reflecting Medicaid expansion following the Affordable Care Act in 2014. “What they find is exactly what you would expect to find when you expand coverage and expand care,” Adkins told States Newsroom. “And so, you know, that really made me wonder, what degree of scrutiny was provided during the peer review process?”

• The researchers do not offer an estimated total of emergency department visits among Medicaid patients to contextualize the estimated abortion-related visits. “Nowhere in the article do the authors provide estimates of the total number of ER visits during 2015 among Medicaid patients in these 17 states,” Johns Hopkins Bloomberg School of Public Health professor Suzanne Bell told State Newsroom in an email. “I imagine the 790 ER visits they identified as associated with a recent medication abortion is a very small percentage of the total number of ER visits and in no way would risk overwhelming the medical system as Judge Kascmaryk suggests.”

Studnicki did not respond to a request for comment. He continues to defend the study, and recently told the Washington Post that abortion rights groups are discounting ER visits as serious matters and underplaying potential complications from abortions involving mifepristone. He blames academic and media bias for the criticism the Charlotte Lozier Institute’s work has received.

“We have a very biased media,” Studnicki said on the Canadian podcast Pro-Life Guys earlier this year. “Our media outlets are largely pro-abortion in their ideological posture. And we fight against that every day. But we’re just going to keep pounding on the rock basically.”

‘Dishonest science’

Adkins argues there is bias within Charlotte Lozier’s science and within the conservative courts hearing the Alliance for Hippocratic Medicine v. FDA lawsuit. Federal Judge Kacsmaryk used this paper (and a follow-up 2022 analysis published in the same journal, by the same researchers) to argue that mifepristone leads to high complication rates. This summer the Charlotte Lozier team produced yet another study using Medicaid data, this time published in the International Journal of Women’s Health, which concludes that a first pregnancy abortion compared with birth is associated with “significantly higher subsequent mental health services utilization.”

“The fact that, you know, the judge really gives a lot of credit to a very niche, a very small pocket of doctors that don’t fully represent consensus, that’s one of my big problems,” Adkins said.

In his April 7 ruling, Kacsmaryk also echoed plaintiffs’ arguments that the FDA has been undercounting adverse events related to mifepristone and cited the other big finding in the Studnicki paper, which is that some patients who have taken abortion drugs but come to the emergency room for observation or treatment are miscoded as miscarriage patients.

“Consequently, the treating physician may not know the adverse event is due to mifepristone,” Kacsmaryk wrote. “Studies support this conclusion by finding over sixty percent of women and girls’ emergency room visits after chemical abortions are miscoded as ‘miscarriages’ rather than adverse effects to mifepristone. Simply put, FDA’s data are incomplete and potentially misleading, as are the statistics touted by mifepristone advocates.”

The 5th Circuit Court of Appeals in its ultimately blocked April ruling to temporarily reinstate old restrictions on medication abortion, referenced many of the same studies as Kascmaryk to justify the plaintiff doctors’ position, writing: “the risk of severe bleeding with chemical abortion is five times higher than from surgical abortion.”

Adkins said he believes that how the Charlotte Lozier team presented their data visually lends for judges to be misled about the significance of the paper’s findings. For example, Figure 3 showed about 800 emergency room visits in 2015 within 30 days of a medication abortion, out of more than 5,000 abortion-related visits, but the authors inexplicably used two different y axes to plot these numbers, making it possible to conclude that medication-abortion-related visits were numbered in the thousands.

“Scientific communication is something I deeply value, and I think this is an example of one way that misuse of science through improper communication can influence how public policy manifests itself, through a result of dishonest science,” Adkins said. “It really makes the likelihood of someone misreading that and then, for instance, Kacsmaryk coming back and saying the alleged adverse events from chemical abortion drugs can overwhelm the medical system. Well, maybe he didn’t scrutinize these figures if he read this paper. That’s a highly plausible outcome here because he’s basically thinking, ‘Oh, my gosh, look at these numbers. They’re skyrocketing.’ When they’re really kind of not.”

For now, Adkins impatiently awaits the results of Sage’s probe into this study. A few months ago, he wrote a letter to Georgia U.S. Rep. Earl L. “Buddy” Carter, one of the few licensed pharmacists in Congress, who joined other Republicans in supporting the plaintiffs’ lawsuit against the FDA. Carter is outspokenly anti-abortion, but Adkins tried to appeal to the congressman’s inner pharmacist.

“All practicing US pharmacists publicly recite an oath which affirms pharmacists’ embracement and advocacy for ‘changes that improve patient care,’” Adkins wrote in the letter, which he says the congressman never answered. “The case rendered in Amarillo only deteriorates patient care and sows unnecessary distrust of scientific and medical institutions in the United States.”

Operation Save America Director Jason Storms told a gathering of religious, anti-abortion attendees that the church must take the lead to end abortion, which could happen with civil war. (John McCosh/Georgia Recorder)

An all-male panel of anti-abortion religious leaders from around the country met Friday night to discuss the strategies that should be used to end abortion in every state at any stage of pregnancy, without exceptions for rape and incest, and with criminal punishment for the pregnant person in line with existing criminal penalties for murder, which includes the death penalty.

The panel was part of a week-long series of events hosted by Operation Save America, an anti-abortion, anti-LGBTQ and anti-Muslim religious group that wants all Americans to follow “God’s law” and their interpretation of the Christian gospel. Many of the?events were held?in Douglasville, Georgia, at Pray’s Mill Baptist Church, which?broke away?from the Southern Baptist Convention for supposed acceptance of liberal social justice views regarding race and gender. Tuesday through Friday, the group started its mornings by?protesting outside?of A Preferred Women’s Health Center, an abortion clinic near Atlanta.

Friday’s speakers included Wisconsin-based Operation Save America Director Jason Storms and former OSA director Rusty Thomas, along with Arizona-based?End Abortion Now?communications director Zachary Conover, Georgia Right to Life President Ricardo Davis, and Gabriel Rench, a member of the extremist?Christ Church?in Moscow, Idaho.

Speakers focused on equal protection bills in state legislatures?

The theme of OSA’s national event was unity, and highlighted divisions within anti-abortion circles over what they described as the proper approach and response to legislation that seeks to limit or entirely restrict abortion procedures. The moderator of the panel, Derin Stidd, opened by asking, “Why do you all hate women?” to which the men laughed.

Rench then joked about not giving the microphone to Conover and said, “We don’t give him a voice like women,” then added, “Bad joke.”

The comments were in jest, but in line with remarks from OSA speakers throughout the week, including another comment from Rench, who said the church was wrong to allow women to be preachers.

On Thursday, anti-Islam speaker Raymond Ibrahim said, “If you look at a country, and the best they can come up with for a president is a woman, there’s something wrong about that. That doesn’t mean women aren’t smart or capable, I believe that, but if the very best — the crème de la crème — is a woman, that tells me something about the men when it comes to positions of authority and leadership.”

The panel focused on legislation they call “equal protection” bills, such as Georgia’s House Bill 496, also called the?Georgia Prenatal Equal Protection Act, which was introduced in February but did not advance in the state’s House of Representatives. An “equal protection” bill, by their definition, is one that adds criminal penalties to a pregnant person for the intentional termination of a pregnancy at any stage, with no exceptions for rape or incest. The law would make an exception if the abortion was performed to prevent the pregnant person’s “imminent death or great bodily injury.”

Storms said OSA has advocated for similar bills in?more than a dozen states, including Alabama, Arizona, Missouri, Kentucky and Oklahoma. So far, no states have passed an “equal protection” bill, but several, including Georgia, did pass what anti-abortion advocates call “heartbeat bills” that ban abortion after six weeks of pregnancy, before many people know they are pregnant. Those who advocate for “equal protection” bills call themselves “abolitionists,” co-opting language from the movement to abolish slavery, while the “pro-life” community has advocated for more politically expedient bills like six-week bans. Storms and other panelists called the six-week bans weak, even though they expressed understanding of political environments that make “equal protection” bills unlikely to become reality.

Rench said that is the case in Idaho, where many members of the state legislature are part of the Church of Jesus Christ of Latter-Day Saints. The church has taken an?official position?that rape and incest exceptions are acceptable, and bills that have not included those exceptions, such as?one introduced?by OSA-endorsed?Sen. Scott Herndon of Sandpoint, have gone nowhere in the Idaho Legislature. Christ Church and its followers have taken an approach they dubbed?“smashmouth incrementalism,”?which acknowledges that change can be achieved through gradual reformation and repentance in the country’s culture.

But Rench said he intends to keep working with Herndon and others to bring equal protection bills back in the next legislative session to keep pushing for it. Davis, president of Georgia Right to Life, said his organization will push for their bill again in the next session as well, and said he’s confident they’ll get it done the next time around.

How is abortion going to end? Maybe with civil war, speaker says?

Thomas, who was a longtime director of Operation Save America before Storms, said incremental steps like heartbeat bills were “a lie from the pit of hell” from the very beginning, but the organization didn’t used to be politically involved because there was too much compromise and too much that needed to be changed.

Thomas said it wasn’t until pastor Matthew Trewhella, who co-founded the Milwaukee-based group Missionaries to the Preborn and is?Storms’ father-in-law, wrote “The Doctrine of the Lesser Magistrates” that he felt like there could be progress. The book references history and biblical theology to argue that governments deemed “tyrannical” and ungodly can and should be defied. Trewhella has said he has spoken to at least 11 state legislatures across the country about the book.

“That was the first time in my life I knew we had solid rock to stand on to fight this battle politically,” he said. “That was the game changer.”

Conover’s organization, End Abortion Now, creates model legislation that grants legal personhood to fertilized eggs, which would limit in-vitro fertilization procedures, and assigns penalties to people who have abortions in addition to doctors who provide them. Some of his legislative efforts have been defeated by organizations that are against criminal penalties for pregnant people.

“It’s a dirty little secret of the pro-life industry: Their heretical teaching that has informed the types of laws they’ve supported for five decades, the lie that women should be allowed to kill their own children with immunity and impunity because they themselves are victims of abortion,” Conover said. “It is a lie that says that they are never legally culpable, however willfully or intentionally they carry out the act of taking the life.”

Regardless of the legislative strategy, the panelists agreed changing the culture of America to take on a Christian biblical worldview, which will require all pastors to take the same position on abortion as their own.

“We must see that the church plays that role culturally, to create that social tension. That’s the standard, that’s the ideology,” Storms said. “But that’s when we have to say, ‘Well, how does that flesh out in the real world?’ It doesn’t always look so pretty when we actually see that applied. How is abortion going to end? I don’t know, maybe it’s going to be a civil war, maybe it’s going to be a whole variety of other means.”

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

For the past four years, at least one lawmaker has annually tried to reform Kentucky’s certificate of need (CON) laws. (Getty Images)

Nearly 50 Democratic and independent members of Congress are appealing to the U.S. Department of Health and Human Services to tighten regulations protecting the privacy of health information.

In a July 18 letter to Secretary Xavier Becerra, they asked that the department enact more precautions to ensure that law officers obtain a warrant before seeking the release of any medical records, prohibit law enforcement agencies from sharing records and require that the person involved is informed of the warrant.

Sens. Ron Wyden of Oregon and Patty Murray of Washington and Rep. Sara Jacobs of California spearheaded the letter. Seventeen senators, including Washington’s Maria Cantwell, as well as 27 representatives, including Oregon Democrats Suzanne Bonamici, Earl Blumenauer, Val Hoyle and Andrea Salinas and Washington’s Pramila Jayapal. The only non-Democrat who signed the letter was an independent, Sen. Bernie Sanders of Vermont.

Their letter came a month after 20 conservative attorneys general, including Kentucky’s Daniel Cameron, called on the Health and Human Services secretary to drop a proposal to protect reproductive health records.

In April, the department issued its proposal for tightening federal privacy regulations for reproductive health care and other medical records under the Health Insurance Portability and Accountability Act, or HIPAA. The department said in its proposal that changes were necessary following the U.S. Supreme Court decision last year in Dobbs v. Jackson Women’s Health Organization to overturn abortion rights nationwide.

“Following the Dobbs decision in 2022, laws enacted or effective in a number of states raised the prospect that highly sensitive (public health information) would be disclosed under circumstances that did not exist before the Supreme Court’s decision, generating significant confusion for individuals, health care providers, family, friends and caregivers regarding their ability to privately seek, obtain, provide or facilitate health care,” the agency said.

The changes added extra protection for providers, insurers, patients and others to safeguard private medical information in investigations or prosecutions. But the Congress members who signed the letter said they didn’t go far enough, noting that while doctors cannot be forced to testify,? law enforcement agencies can subpoena records without showing probable cause of a crime or without the oversight of a judge.

“The ability of law enforcement agencies to subpoena these records undermines patients’ legal protections, particularly in an era of digital health records, where every patient interaction is carefully documented,” the letter said. “HHS should ensure that Americans’ (public health records) receive the greatest degree of protection under federal law.”

They want law enforcement agencies to obtain a warrant from a judge to seek records from doctors, pharmacists or other health care providers.

“This change would align federal health privacy regulations with the protections for Americans’ medical records under the Fourth Amendment and is consistent with the protections afforded to other sensitive data under federal law and the Fourth Amendment,” the letter said, pointing out that police need warrants to tap phone calls or obtain emails or text messages.

They also said that informing patients when their health information is disclosed to law enforcement would be consistent with procedures for wiretaps and bank subpoenas.

“Americans expect their (health records) to be at least as private as their email and text messages, phone calls and location data. While federal and state courts around the country have recognized the importance of protecting Americans’ medical privacy, HHS’ regulations have lagged behind,” the lawmakers wrote.

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: [email protected]. Follow Oregon Capital Chronicle on Facebook and Twitter.

U.S. Health and Human Services officials say it is necessary to specify increased protections for the private health information of patients who seek care including abortions in states where such procedures are legal. (Getty Images)

Calling it “a disgusting overreach of government authority,” Planned Parenthood officials in Kentucky are denouncing an effort by Republican attorneys general to block a federal expansion of medical privacy protections for patients who seek reproductive care.

The rule change proposed by the U.S. Health and Human Services Department would enhance protections for patients who seek services out of state if abortion or other reproductive care is illegal in their own state.

Kentucky Attorney General Daniel Cameron and Indiana Attorney General Todd Rokita are among the 19 GOP attorneys general — led by Mississippi’s Lynn Fitch — who sent the June 16 letter to Xavier Becerra, secretary of the federal agency, objecting to the change.

“Why would Cameron, Rokita or any attorney general be seeking private medical information related to abortion patients if not to prosecute them for obtaining care?” asked Tamarra Wieder, Kentucky state director for the Planned Parenthood Alliance Advocates. “Anti-abortion lawmakers like Cameron and Rokita seem willing to go to any extent to scare patients out of obtaining abortions.”

Planned Parenthood stressed there is no prohibition against a patient seeking care in another state.

“Let’s be perfectly clear,” it said in a news release. “It is legal for anyone in the United States, no matter what state they are from, to access abortion care in a state where that care is legal.”

Kentucky is among 16 states with a near total ban on abortion since the U.S. Supreme Court struck down the 1973 Roe v. Wade decision that had established it as a federal constitutional right. Indiana is poised to ban abortions following a recent state Supreme Court ruling.

Cameron, in a June 19 news release, called the proposed federal rule change to health privacy law an “intrusion on state sovereignty,” adding it could “incentivize providers to break state laws on everything from protecting unborn life to gender-altering surgeries.”

Rokita said the change would put “many of Indiana’s laws at risk.”

In their letter, the GOP attorneys general said the change “would unlawfully interfere with states’ authority to enforce their laws and does not serve any legitimate need.”

But in a discussion that accompanies the proposed rule change published April 14 in the Federal Register, the agency noted that since the U.S. Supreme Court ruling, known as Dobbs, some states have outlawed abortion and added or discussed increasingly stringent laws to restrict access to reproductive care.

For that reason, HHS officials said, it is necessary to specify increased protections for the private health information of patients who seek care including abortion, in states where such procedures are legal.

“After Dobbs, the department has heard concerns that civil, criminal, or administrative investigations or proceedings have been instituted or threatened on the basis of reproductive health care that is lawful under the circumstances in which it is provided,” the agency said.

Without such additional and more specific privacy protections, patients may be afraid of seeking care in another state or be reluctant to provide full medical histories to providers for fear of prosecution in their home state. And providers might be reluctant to provide care or fully document care for the same reason, it said.

“These proposed modifications would provide heightened protections for individuals’ health information privacy under the defined circumstances; foster an open and honest exchange of information between the individual and health care provider, who — with that information — could employ evidence-based clinical practice guidelines; and increase access to high-quality, lawful health care,” the agency said.

A group of Democratic attorneys general, in a June 16 letter to the agency, agreed that more privacy protections are needed to protect patients seeking care outside their states.

Citing a “drastically shifting legal landscape,” the 23 Democratic state attorneys general led by New York Attorney General Letitia James, forcefully endorsed the proposed changes.

The letter notes that one state, Idaho, already has enacted a “trafficking law” aimed at restricting access of some patients to out of state care and Texas and Oklahoma have enacted “vigilante laws” allowing civil lawsuits against those aiding an individual in obtaining an abortion.?

Increased medical privacy protections could shield patient information from those seeking to prosecute or sue individuals, the letter said.

“The hostile and fragmented reproductive health care landscape heavily burdens patients in need of health care,” their letter said. “Reports continue to emerge — even in states with abortion bans that include exceptions for the health or life of the pregnant person — of patients with serious pregnancy complications being denied care or forced to wait until they are ‘sick enough,’ and often enduring unnecessary pain and life-threatening complications, to justify pregnancy termination.”

The Democratic attorneys general urged HHS to move “expeditiously” to adopt a final rule and enforce it within the standard 180 days afterwards.

Abortion rights advocates march up Capitol Avenue to surround the Indiana Statehouse on July 25, 2022. (Whitney Downard / Indiana Capital Chronicle)

Indiana’s near-total abortion ban, which prohibits the procedure with only narrow exceptions, will go back into effect after the Indiana Supreme Court upheld the law last week. But justices left open the possibility for other challenges in the future.

Plaintiffs have 30 days to seek a rehearing before the decision is certified, meaning the ban won’t be effective until Aug. 1, according to the ACLU of Indiana, which challenged the law. Rehearings are rarely granted.

In a split, 4-1 decision, the high court nixed a preliminary injunction that has kept the ban on hold since September. An injunction issued in a separate religious freedom challenge to the ban only applies to the plaintiffs in that case.

Justices opined that Planned Parenthood and other health care providers unsuccessfully brought a “facial” challenge to the entire law, which alleged that the abortion ban is always unconstitutional and should therefore be voided.

In the ruling, the state Supreme Court, however, said the providers “cannot show a reasonable likelihood of success” with that challenge because there are cases in which the ban could be constitutionally enforced.

” … we hold that Article 1, Section 1 (of the Indiana Constitution) protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk, but the General Assembly otherwise retains broad legislative discretion for determining whether and the extent to which to prohibit abortions,” Justice Derek Molter wrote in the ruling.

Molter is the newest member of the court, appointed by Republican Gov. Eric Holcomb in June 2022.

The five Indiana justices heard oral arguments over the constitutionality of the new law in January.

The court challenge was originally filed in Monroe County Circuit Court in August by the American Civil Liberties Union (ACLU) of Indiana on behalf of health care providers and a pregnancy resource center.

A special judge in Owen County later ruled that the ban likely violates the Indiana Constitution. An injunction issued by Judge Kelsey Blake Hanlon, a Republican, halted the state’s new abortion law one week after it took effect. Under the injunction, the state’s previous abortion law stood — allowing abortions up to 20 weeks.

A joint statement from leaders of Planned Parenthood Federation of America, Planned Parenthood Great Northwest, Hawai‘i, Alaska, Indiana, Kentucky, ACLU of Indiana, Whole Woman’s Health Alliance, All-Options, the Lawyering Project, and Women’s Med Center bemoaned the ruling.?

In particular, the group decried the disparate impact the decision would have on nonwhite people, LGBTQ+ people and low-income Hoosiers who can’t afford to travel elsewhere.

“Now, patients will be forced either to flee the state to access abortion if they have the means, seek abortion outside of the health care system, or carry pregnancies against their will with profound medical risk and life-altering consequences,” the statement said. “Despite this setback, we’ll keep fighting to restore reproductive rights in Indiana and to help Hooisers get access to the services they need. Today’s decision is not the end of our fight for equitable, compassionate care in Indiana, or the patients in surrounding states who rely on Indiana for access to abortion.”

The Republican-dominated Indiana General Assembly advanced the abortion-restricting measure during a heated, two-week special session last August.

That action made Indiana the first state in the nation to approve such legislation since the high court ruling that overturned Roe v. Wade.

The ban outlaws all abortions except in the case of a fatal fetal anomaly and cases of serious health risk to the mother. One part of the law says these exceptions are up to 20 weeks but another part says they can be used anytime. Rape survivors can get an abortion up to 10 weeks post-fertilization. It also strips abortion clinics of their state medical licenses, and provides that only hospitals and hospital-owned ambulatory surgical centers can provide abortions.

“We celebrate this day – one long in coming, but morally justified,” Indiana Attorney General Todd Rokita’s office said in a statement. “Thank you to all the warriors who have fought for this day that upholds LIFE.”

Justices weigh the case

Molter, along with concurring Chief Justice Loretta Rush and Justice Mark Massa, emphasized that — even when the Indiana General Assembly revised the state’s abortion laws in response to U.S. Supreme Court decision overturning Roe v. Wade —? abortion continued to remain available “to save the life of the mother.”

That keeps in line with Indiana’s Constitution, which protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. It also protects a fundamental right to “liberty.”

Plaintiffs in the case contended that right includes “a bundle of liberty rights” — like inferred rights to privacy, bodily autonomy, and self-determination — which coalesce to allow abortions up to fetal viability outside the womb: about 23 or 24 weeks.

But justices said that’s not how the framers and ratifiers of Indiana’s Constitution understood that language.

“We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest — informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy,” Molter wrote. “Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances.”

“By saying Senate Bill 1 is not unconstitutional in its entirety in all circumstances, we do not say the opposite either — that every single part of the law can be applied consistent with our Constitution in every conceivable set of circumstances,” the ruling continues. “We do not prejudge those questions.”

Even so, the court held that the plaintiffs have standing to challenge the abortion ban “because the law criminalizes their work and the injunction they seek would protect them from the law’s criminal and regulatory penalties.”

Justices maintained that others could still be successful if they challenge “a particular part of the statute,” or with a challenge that focuses on the law’s application “in a particular set of circumstances” where a pregnancy endangers a woman’s life or health.

But in this lawsuit, the court contended that the plaintiffs’ claim for a preliminary injunction failed to outline the specific limits on life or health exceptions and when those limits needed to be broader.

Justice Geoffrey Slaughter joined the majority but said in a separate opinion that he would have ruled the health care providers who sought the injunction lacked a standing to sue in the first place, rather than ruling on the merits of the overall lawsuit.

“Despite our differences, I ultimately agree with the Court that the disputed injunction must be vacated, and so I concur in its judgment. But unlike the Court, I would reach that result based on the lack of standing and not on the merits,” Slaughter wrote. “… the Court today dives into the constitutional scrum, pronouncing its views of myriad issues not squarely before us and not necessary to today’s disposition. I would limit our decision today to Plaintiff’s lack of standing.”

Justice Christopher M. Goff dissented, in part, writing that medical providers have standing to contest the constitutionality of Senate Bill 1 because the statute criminalizes their work. He also disagreed with his colleagues’ decision to terminate the trial court’s injunction “in its entirety.”

“Many of the liberties Hoosiers take for granted — the right to vote, to travel, to marry, to educate one’s children as one sees fit, or to refuse medical treatment — stand on federal precedents that are also now vulnerable to reversal. Within this ‘bundle of liberty rights’ stands the fundamental ‘right to be let alone,’” he wrote. “In my view, even those who abhor abortion in all circumstances should be wary of unfettered government power over the most personal, private aspects of a person’s life.”

Goff instead urged the General Assembly to put the question of bodily autonomy directly to Hoosier voters.

“In my view, there is a reasonable likelihood that (Indiana’s Constitution)’s guarantee of ‘liberty’ includes a qualified right to bodily autonomy, one which the General Assembly must accord some weight in the legislative balance,” he wrote. “More importantly, I believe that the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana.”

Other case still ongoing

Appeals in a second case that seeks to strike down Indiana’s abortion ban on the basis of the state’s controversial religious freedom law are still playing out in court.

That underlying lawsuit was filed in August by the ACLU of Indiana on behalf of Hoosier Jews for Choice, as well as four anonymous women who represent a variety of faiths. The lawsuit argues that the new abortion law violates Indiana’s Religious Freedom Restoration Act (RFRA).

The lawsuit prompted a Marion Superior Court judge to grant a second preliminary injunction against the state’s abortion ban in December. Despite the Indiana Supreme Court ruling, the injunction will remain in the RFRA case.

However, that injunction only applies to the plaintiffs in the case. ACLU of Indiana Legal Director Ken Falk contends it also applies to the class that the Marion County trial court has certified. The class includes all Hoosiers whose religious beliefs “direct them to obtain abortions in situations” prohibited by Senate Enrolled Act 1 — the near-total abortion ban — and “who need, or will need, to obtain an abortion and who are not, or will not be, able to obtain an abortion because of the Act.”

Rokita’s office is appealing the injunction and the class action certification.

Both parties have since asked for a pause on the underlying lawsuit. The Marion County Superior Court granted the motion in a brief ruling earlier this month.

That separate appeal of the preliminary injunction is set for oral argument in the Indiana Court of Appeals on Sept. 12.

This article is republished from the?Indiana Capital Chronicle, part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Indiana Capital Chronicle maintains editorial independence. Contact Editor Niki Kelly for questions: [email protected]. Follow Indiana Capital Chronicle on Facebook and Twitter.

Elevated Access has recruited more than 1,200 volunteer pilots to privately fly those in need of an abortion to states where it is accessible. (Isiah Holmes/Wisconsin Examiner)

Editor’s note: This report is part of a special States Newsroom series on abortion access one year after the U.S. Supreme Court decision struck down the federal right to abortion.

When the U.S. Supreme Court issued its Dobbs decision one year ago, people of childbearing age in states across the country suddenly faced what seemed like a new prospect — having to travel hundreds or even thousands of miles from home to get an abortion.

But historians say it is merely continuing a long tradition of pregnant people seeking out the sometimes lifesaving care they need wherever it can be found, and other people helping them along the way.

In the Midwest, Dr. Josephine Gabler operated an abortion clinic that served tens of thousands of people in Illinois, Indiana, Michigan and Wisconsin between 1930 and 1940.?Patricia Maginnis?kept a list of trusted physicians in Mexico, Japan and Sweden through the 1950s and ‘60s where people could be?referred from California?for safe abortion care.

The Clergy Consultation Service, made up of 3,000 religious figures across 38 states, helped 7,500 women find abortions from 1967 until 1973, when the U.S. Supreme Court ruled in favor of Roe and legalized the procedure nationwide.

Today, with 14 states that have implemented near-total bans on abortion, one organization called Elevated Access has recruited more than 1,200 volunteer pilots to privately fly those in need of an abortion to states where it is accessible.

Since the Dobbs ruling, states with abortion access have experienced an increase in out-of-state patient volume. In Illinois,?nearly one-third?of Planned Parenthood patients came from other states, compared to an average 6% prior to Dobbs. Similarly, clinics in Colorado reported out-of-state patients doubled from 14% in 2021 to 28% in 2022, with a large share coming from Texas, which has a strict abortion ban. At least one state, Idaho, has passed legislation aimed at restricting out-of-state travel for an abortion for minors who don’t have parental permission, but it’s unclear how that law will be enforced. Other states with bans have not successfully implemented any laws aimed at restricting travel.

“This is part of a long history of people seeking out ways to end their pregnancies and to get abortions, or ‘get their menstruation back,’ as they called it then, that often included travel,” said Leslie Reagan, a historian who wrote?“When Abortion Was a Crime”?and scholarly articles about women traveling for abortion throughout the 19th and 20th centuries. “They could be coming by train, driving, or taking a bus, depending on what time period we’re talking about and their circumstances.”

Groups across America ran underground networks that kept organized lists of trusted physicians who would provide abortion care. Sometimes those physicians operated covertly in communities within the U.S., but often they were located across the border in Mexico, or across oceans in Puerto Rico, Europe and Japan.

Overseas, people have also traveled where abortion was illegal. Irish citizens?traveled to the United Kingdom?for abortion care for many decades, and still do for pregnancies beyond 12 weeks’ gestation. Canadians traveled to U.S. cities like New York City and Chicago and Washington state prior to legalization in 1988. Between 2001 and 2017, Dutch Dr. Rebecca Gomperts used ships to ferry women from cities in Ireland, Poland, Portugal, Spain, Morocco, Guatemala and Mexico to international waters, where they could terminate their pregnancies legally aboard the ship and then return home.

“Sometimes people can’t control when they’re going to get pregnant, or if the timing is right, or you’re going to get kicked out of school,” Reagan said. “And really what I saw was not only were women doing it, they had a lot of support. There’s really a lot of moral support for this even though the laws might say it’s illegal.”

Volunteer pilot raised $15,000 to buy small seaplane?

A Midwestern pilot who goes by Mike Bonanza?started Elevated Access three days before the leaked draft opinion overturning Roe was released on May 1, 2022. He volunteered for the?Midwest Access Coalition, an abortion access fund in Chicago, and his background as a pilot led him to put the two together to help more people. The organization also flies those who need gender-affirming care, which is quickly becoming a larger need. As of June 1,?21 states?have banned gender-affirming care for minors, including all 14 states with abortion bans.

One of Elevated Access’ volunteer pilots is Adrian, who asked only to be identified by his first name, as all Elevated Access volunteers and staffers do to protect themselves from harassment and potential legal scrutiny. But he is one of the most outspoken individuals affiliated with the organization, and one of the only people who willingly shows his face on social media — his TikTok account has more than 115,000 followers.

“I stopped counting donations (to Elevated Access) once we crossed over $150,000,” he said.

When asked why he volunteers, Adrian speaks plainly about his mother, who was raped by an older man when she was 13 years old. Her parents, he said, were members of the Church of Jesus Christ of Latter-Day Saints in Utah and did not allow her to seek an abortion. She was forced to give birth to Adrian and his identical twin brother at the age of 14.

For the first eight years of their lives, Adrian and his brother lived with his grandparents, until his mother returned and took the boys to Georgia to live on a military base with her and a man she was dating. From that time until he left home, Adrian and his brother frequently experienced food insecurity and other abuse.

Now that he is married and living in Wisconsin, Adrian said he doesn’t have a relationship with his mother, stepfather or his brother, who has also struggled with substance abuse.

“A lot of people will say, ‘Oh well, my god, he’s doing so much for his mom,’” he said. “No, it’s not about my mom. Yes, my mom is an individual that perfectly embodies the individual that should have access to reproductive health care. It doesn’t mean I like her.”

His plane is a model from the 1980s, and one of less than 50 left in operation around the country. He opted for an amphibious plane for its versatility, especially after rumors that states with strict abortion laws such as Texas might try to interfere with people trying to leave the state for the procedure. According to the National Oceanic and Atmospheric Administration, about 2.1 million of Wisconsin’s 5.7 million people live in coastal areas of the state, or nearly 37%, and he could taxi through the water right up to their docks if needed.

Although Elevated Access has many volunteer pilots, Adrian said they need more who own their own planes.

“That’s our biggest hurdle, is actually pilots with planes,” he said.

Word of mouth spreads easily in the internet age

Some of the circumstances surrounding abortion access today are easier to navigate now than they were prior to 1973, according to historians. Katrina Kimport, a researcher at the Bixby Center for Global Reproductive Health at the University of California, San Francisco, said travel has historically been limited to those with the means and resources to do it. Wealthier people had the financial backing as well as more connections who could help lead them to the right people. In the internet age, information is readily available to many more people, she said, and there is often more financial support for those who can’t afford it.

Christabelle Sethna, a professor at the University of Ottawa who wrote a book called “Abortion Across Borders,” said the information network that exists today is an essential difference from history.

“In the past it was sort of underground, whispered information; you’d have to ask a whole number of people and maybe one would come through for you with the name of a doctor,” Sethna said. “It was much more disparate in the past, and now it’s much more organized because of the internet and the vast reach of the internet.”

That includes being able to access abortion medication through websites, Sethna said, which is another option that wasn’t available in the past. Another significant difference is that the procedure is legal at various stages of pregnancy in 36 states rather than banned nationwide, as it was between the late 1890s and 1973.

Despite those changes, Kimport said her research shows there are still many?logistical, emotional and financial burdens?placed on those forced to travel because of a lack of access in their own state. She pointed out that prior to the Dobbs ruling, abortion after 24 weeks was still heavily restricted, which provided a preview of what pregnant people are experiencing now at a much broader scale.

“Putting aside the cost of the procedure, travel itself is an additional cost,” Kimport said. “There’s also the logistical burden of having to seek out child care or pet care, time off work, getting reservations. Some people don’t have credit cards, some don’t have a car. This is a time and resource and organizational burden.”

Emotional costs are difficult to measure, she said, but are some of the most heightened effects, especially for someone leaving a rural area and traveling to an urban area if they have never traveled before.

“Even for people who have experience in travel, going to an unknown place can be extremely stressful and unsettling,” Kimport said.

Abortion access funds rely on each other to cobble together funds for travel

While Elevated Access is responsible for the pilots and the actual flights, it is partner organizations large and small that refer clients to them and help arrange lodging and other logistics, often providing additional financial support for meals and other expenses.

One of those partners is?New River Abortion Access Fund, which started in 2019 in rural Virginia, where it can take hours to drive to the nearest clinic. Sophie Drew, interim director of the fund, said barriers to access already existed prior to the Dobbs ruling, but at a much smaller scale. The initial budget for the fund was about $600 per week, she said, with maybe five calls for help during that week.

Now, the fund averages $20,000 per week with 60 to 70 calls on average in one week.

Gianna G., an intake coordinator for New River, said that might sound like enough funding, but with an average cost of $300 to $500 for first-trimester abortion care and as much as $20,000 for abortions later in pregnancy, abortion funds around the country rely on each other to cobble together enough dollars from donations each week to help all of their callers.

“Right now, we just don’t have the money we need in order to make this sustainable,” they said. “I think a lot of people support abortion care, but they don’t know the monetary need behind it.”

The vast majority of those who call New River seeking help can travel by car where they need to go, Drew said, but there are still instances when a flight is the best option.

Gianna G. said much of their job is identifying barriers, like someone who doesn’t have a car or driver’s license, or doesn’t have a support person who can come with them for a long car ride.

Both commended Elevated Access, and said the fact that the flights don’t come at additional cost, including for a support person, is incredibly helpful.

“We’ve gotten feedback from some callers about their experience and it’s been exclusively positive,” Drew said. “Even if someone was nervous about flying. Elevated Access has been a great support both logistically and emotionally.”

Pilots use their own funds to gas up their planes, which Adrian said typically burn 10 to 25 gallons per hour. With the typical average cost of fuel, it can range from $60 to $120 per hour in gas alone. Sometimes Elevated Access can help offset those costs, but that funding is limited.

“Any of these pilots actually volunteering their time and resources, they’re losing money,” Adrian said.

Most patients who need flights come from the South and Midwest

Elevated Access has a policy of not asking many questions about the patient or their circumstances to respect their privacy as much as possible, especially because the situations can be complicated and emotionally difficult. Some flights have even been one-way trips, for those fleeing abusive situations or other dire circumstances.

“By the time they get to Elevated Access, they have tried many, many approaches,” said Fiona, who acts as a volunteer media relations coordinator. Elevated Access volunteers and staffers go by their first names only to protect themselves from harassment and potential legal scrutiny. “We are often the end of a long road for them. They are often very desperate at that point. They know that they can’t carry the pregnancy to term for many reasons.”

The organization does not disclose how many flights it has completed through volunteers over the past year to avoid becoming a target of anti-abortion advocates. But it now has three full-time staff members, including the executive director and two flight coordinators, and nearly 2,500 people have donated in the past year, even without active fundraising campaigns.

The requests for flights come from all states with abortion bans, Fiona said, but the largest share come from the South and the Midwest, where 13 of the 14 states with abortion bans at any stage of pregnancy are located.

“There are states where we will get requests where technically there is access, but it’s eight weeks out to get an appointment, or it’s a very specialized need for care,” Fiona said. “That’s more the exception.”

Researchers: Stigma from community adds to stress

The stigma surrounding abortion remains, presenting an added burden, according to Kimport’s research. She interviewed 30 women who traveled for abortion prior to the Dobbs decision about their experiences and said many of them felt forced to disclose their situation to people before they were ready or lied because they had to explain their absences.

Being away from support networks, including children, family, pets, neighbors and friends is another difficulty, she said.

Those who have to travel for an abortion, especially if it is by plane, are often in more advanced stages of pregnancy, Kimport said. Sometimes that is because a lethal fetal anomaly was discovered and sometimes it’s because the person did not know of the pregnancy until it was advanced — or, in today’s environment, an appointment could take weeks to obtain, depending on the demand at available clinics.

Whatever the reason, Kimport said those late-term abortion seekers face added emotional, physical and logistical burdens, since the procedure itself is more intense and requires more time to recover.

“People with third-trimester abortions had to travel because their state said that care was not allowed, and they talked about how that particular fact made things additionally emotionally stressful,” Kimport said. “One woman said she felt cast out from her community, that the law was saying what she was doing was deviant and she felt stigmatized.”

One benefit of Elevated Access and its volunteer pilots, according to the organization’s leadership, is that it offers a private method of flying to a destination. Kimport said those who have traveled for later-term abortions are more visibly pregnant and have to interact with strangers who will compliment and congratulate them and offer unsolicited advice. For someone whose wanted pregnancy went wrong, she said, that can be devastating.

‘We shouldn’t get used to it being complicated’

At the moment, as is in the case in so many states, the reproductive rights landscape in Wisconsin is complicated. The state is currently operating under a criminal abortion ban that went into effect in 1849, banning all abortions except to save the pregnant person’s life. But it’s unknown if a law that dated can still be enforced, particularly since Roe was in effect for 50 years in between. The law passed to comply with Roe allowed abortions at any stage of pregnancy.

The question of enforceability is currently under consideration in one of Wisconsin’s circuit courts, after Democratic Attorney General Josh Kaul filed a lawsuit against the three district attorneys who would prosecute cases in the counties with abortion clinics.

“Whichever party loses, I anticipate they would file a notice of appeal to the court of appeals and then it would go up to the (Wisconsin) Supreme Court,” said Michelle Velasquez, director of legal advocacy and services for Planned Parenthood of Wisconsin. “But the circuit court’s decision is an important first step to potentially restoring abortion access.”

The state’s governor is also a Democrat, but Republicans have a majority in both chambers of the legislature, creating a split, stalemated government. Unlike other states that are using citizen ballot initiatives to try to codify abortion access, Wisconsin only allows the legislature to propose ballot referendums.

Even before Roe fell, access to abortion was restrictive. Only three of the state’s 72 counties had a health center that offered abortion care, and using telehealth for abortion medication was prohibited by law. To obtain mifepristone and misoprostol, the two-drug regimen used to terminate early pregnancies, an individual is required to complete two in-person visits with the same physician present.

But Wisconsin is an island in the upper Midwest in terms of access — its border states, including Minnesota, Michigan, Illinois and Iowa all continue to allow abortions.

By plane, Adrian can fly from Wisconsin’s eastern peninsula to a Minnesota clinic in about 45 minutes, but it would take someone living on the peninsula four hours to make the drive.

“That’s kind of how ridiculous this is,” he said. “I couldn’t imagine what it feels like to be told, ‘No, you can’t get the care you need.’ It’s also going to permanently rearrange your body, and you’re never going to be the same all because some a— h—- assaulted you or some tech bro didn’t want to wear a condom.”

Although the people working to connect pregnant people with abortion care are passionate about the work, New River’s Interim Director Sophie Drew said she hopes having to drive for hours or take a private flight to get an abortion doesn’t become normalized. In her ideal world, none of these resources would need to exist.

“People should be able to access abortion in their communities without all these hoops to jump through,” she said. “That’s the main thing I wish people knew, is that it can be a complicated process, and we shouldn’t get used to it being complicated.”

When Roe was overturned, Adrian posted a video to promote Elevated Access and recruit more pilots. His presence as “cheesepilot” on TikTok is how the leadership at Elevated Access found him and asked for his help in May 2022. The organization had barely started in April, and only had a few volunteers. He made a quick video on a break from his job as a pilot for a regional airline and came back several hours later to nearly 500,000 views and hundreds of people asking how to donate. The seaplane he bought last year was made possible with a $15,000 down payment raised by his TikTok followers.

Abortion providers and support groups are reporting delays in seeing patients and higher demand for help. (Gloria Rebecca Gomez/States Newsroom)

Editors’ note: This report is part of a special States Newsroom series on abortion access one year after the U.S. Supreme Court decision struck down the federal right to abortion.

In April, a Reddit user in Alabama posted a breathless message to the abortion subreddit the morning after learning she was pregnant. She guessed she was early, two or three weeks maybe.

“there’s a clinic in GA about 3 hours away. They said they will do it as long as no heartbeat is found on the ultrasound. If they find a heartbeat what do I do then??”

Alabama, where abortion is a crime, is surrounded by states with abortion bans. But nearby Georgia currently allows a tiny window, which shuts once the embryo’s cardiac activity registers on an ultrasound. This happens generally by six weeks’ gestation, and the user was running out of time. In reality, she had to have been farther along, as pregnancy is counted from the first day of one’s last period. And now she was sick to her stomach and passing gelatinous blood clots.

This very active subreddit is moderated around the clock by the Online Abortion Resource Squad, a group of mostly volunteers that debunk abortion misinformation and help users navigate a labyrinth of abortion bans and restrictions. The end of federal abortion rights changed access nationwide. Even ending a wanted pregnancy is now more difficult based on your income, how far along you are, and your state’s ever-changing abortion laws.

In a plot twist for the user in Alabama, it turned out she had likely miscarried. “UPDATE!!!!! My uterus is empty,” she wrote. “Basically alabama politicians made me drive across state lines and pay $250 because I was too scared to go to my regular doctor .”

But then there’s the Reddit user who described weeping in a Planned Parenthood clinic because her pregnancy measured just a few days beyond its 19.6-week cutoff. Staff helped her make an appointment at another clinic. “I really want this to be over with,” she wrote. “Now to just figure out transportation for next Saturday. Easy enough. *fingers crossed*”

It’s been a year since the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that states could criminalize all or most abortions, and now 15 states?fully or mostly ban the procedure, while others have begun enacting gestational limits and other restrictions. That’s left the?hundreds of thousands?of U.S. women and minors who annually seek abortions forced to travel if they can, overwhelming the abortion clinics in states where it’s legal. This has led to astronomical patient costs and major care delays.

As a result, abortions in the second and third trimester of pregnancy appear to be on the rise, abortion providers, public health researchers, and patient advocates told States Newsroom. Many patients, they say, are experiencing the higher risks of complication, anxiety, and trauma that sometimes come with abortion later in pregnancy. And advocates say this situation is likely to get worse, with an abortion-provider shortage and states continuing to throw up new legislative barriers.

“Right now, in any state, there’s just no scenario where people aren’t getting delayed because of wait times for appointments,” said Ariella Messing, who founded OARS.

Messing told States Newsroom she spends about 80 hours a week managing the abortion subreddit and helping connect people to abortion providers and financial and practical support. OARS has been monitoring the subreddit since 2019, but activity spiked after Texas outlawed most abortions in 2021. Since Dobbs, it’s exploded. Messing said OARS decided to keep r/abortion open during the Reddit blackout protest.

Some of the abortion cases are so complicated and medically necessary that Messing, who previously worked as a case manager for the Baltimore Abortion Fund, personally gets involved, sometimes spending a whole day trying to help someone desperate to terminate a pregnancy under a ticking clock.

The woman for whom it took eight weeks to terminate a pregnancy that had become dangerous? kept Messing up at night, until that person terminated, finally, at 27 weeks.

“This wasn’t how they should be getting care – by a random stranger on Reddit,” Messing said.

Overwhelmed abortion providers and assistance groups

While the true extent to which Dobbs has prevented people from getting abortions remains to be seen,?emerging research?suggests that women and minors are increasingly unable to end a pregnancy, especially people of color and people living in poverty.

The Society of Family Planning has been measuring the number of abortions reported by abortion clinics and hospitals. In the nine months after the Dobbs decision, the rate of medication abortion jumped, but overall, providers reported more than 25,000 fewer abortions nationwide.

The Society’s latest?#WeCount report?did not capture how many people self-managed outside the formal health care system, or how far along patients were. But University of California San Francisco professor Ushma Upadhyay, who co-chairs the #WeCount project, said it would be logical for gestational ages to be rising, given the increased obstacles in accessing care quickly.

Additionally, brand-new research from the university’s Advancing New Standards in Reproductive Health program finds a nationwide increase in providers?offering abortion later in gestation?than they were previously due to rising demand, as well as more clinics?offering telehealth medication abortion. But the demand is still overshadowing the need, especially later in pregnancy.

“The states where there are bans now, there were very few clinics in those states, because there were so many restrictions,” Upadhyay said. “But those clinics that were open did offer abortion care till later, usually midway of the second trimester. … So, right now there’s huge swaths of the country where later abortion is simply unavailable.”

Part of the problem is that so few clinics in the U.S., especially post Dobbs, go beyond 20 weeks’ gestation. The vast majority are independent clinics not part of the Planned Parenthood network, which has?more resources and political clout?than the independents.

There is a tiny cluster of clinics that provide abortions in the third trimester, on a case-by-case basis. One is in Boulder, Colorado, and the others are concentrated in and around Washington D.C., which has become a major national abortion destination.

Abortion providers say they are scheduling visits weeks out.

“Anecdotally, we are seeing in some places, people are being pushed, or people are having to delay their care, and it has resulted in people having procedures one to two weeks later than they then we saw the previous year,” said Melissa Fowler, chief program officer of the National Abortion Federation, which provides resources for abortion clinics and funds some patient costs. “And of course, we’re also seeing a delay with people who need later care as well.”

Dr. Sarah Traxler, the chief medical officer for Planned Parenthood North Central States,?testified?before the Minnesota lawmakers back in March about a 40% rise in second-trimester cases since Dobbs. The region encompasses Iowa, Minnesota, Nebraska, North Dakota, and South Dakota, with the bulk of patients going to Minnesota.

“Since June, I have cared for patients from everywhere,” Traxler testified. “I’ve seen patients who’ve flown from Louisiana, only to find that their complex pregnancy condition kept them from being seen in a freestanding clinic like mine, forcing them to continue a dangerous pregnancy because hospital-based care was not available to them.”

Astronomical costs

A first-trimester abortion can range from $500-$1,000 to tens of thousands in the second trimester, and up to $25,000 in the third, said Jade Hurley, communications manager for the DC Abortion Fund, one of more than 100 mutual aid organizations to crop up during the?past two decades?to help cover these steep costs, which are compounded by travel, transportation, and child care costs.

Financial and logistical barriers to abortion are not new, but Dobbs has exacerbated them. Shortly after the Supreme Court originally enshrined federal abortion rights in 1973, anti-abortion lawmakers began passing public-insurance bans on abortion, as a way to at least prevent part of the population from accessing this medical procedure.

“I would certainly like to prevent, if I could legally, anybody having an abortion – a rich woman, a middle class woman, or a poor woman,” said the late U.S. Rep. Henry Hyde (R-Ill.)?during a floor debate in 1976?to defend a ban on the use of Medicaid insurance for abortion. “Unfortunately, the only vehicle available is the [Medicaid appropriations] bill.”

Just over a dozen states allow Medicaid to cover abortion using state-only funding. And as costs rise, abortion and practical-support funds around the country report receiving more higher dollar requests. These days funds typically have to work together, pooling grants from multiple funds just to serve one patient. Representatives from multiple abortion funds told States Newsroom they are also receiving more donations than at any other time, but they say the need is still overwhelming demand.

Hurley told States Newsroom in an email that since Dobbs, the fund has pledged nearly $2.3 million to more than 3,000 callers seeking abortions in the D.C. area. Their average pledge has jumped from $260 to $710, a 173% increase. Last month the highest gap they filled was $4,500, Hurley said.

“We’re seeing a huge amount of people coming from all over the country,” Hurley said during a?recent webinar?hosted by the abortion-rights activist group Reproaction. “We had a person come from California very recently, which is honestly, you know, it’s shocking, because that’s so far away. … We’re dealing with funding gaps that we didn’t even know existed. And I think overall we don’t even know the true need that’s out there, from D.C. to across the country.”

Medication abortions are getting later, too

Two months ago, a 40-year-old woman in Arizona delivered a lifeless 13-week-old fetus into a plastic food storage container. The woman, who asked not to be named out of fear of criminal prosecution, told States Newsroom that the fetus had obvious deformities. She was a much wanted rainbow baby, the term given to a baby born after a pregnancy loss.

Until recently this mother of seven was “1,000% against abortion.” One stillbirth separates two sets of three kids. Her eighth pregnancy, last year, resulted in a twinless twin. But this pregnancy was even grimmer: What started out as triplets became one surviving embryo. At 13 weeks, the remaining living fetus was diagnosed with trisomy 18, a fatal genetic condition.

She voraciously read the literature on trisomy 18 and learned that the vast majority of babies born with this disease die before their first birthday, within months, days, or hours. For her the decision to terminate was simple. “Imagine bringing this baby home and all my kids love her and get attached, and then she died at 3 months or something?” she said.

But getting timely, legal care was a different story.

Her state currently allows abortion up to 15 weeks’ gestation, while an 1864 total abortion ban works its way through the courts. However, Arizona criminalizes something only?a handful states?do: Terminating a pregnancy?because of fetal genetic abnormalities. Her doctor said she couldn’t terminate the pregnancy but suggested she go to an abortion clinic and not disclose she’d had genetic testing done. But the nearest clinics were booked out until May and June. A clinic in Nevada could see her, but she didn’t have the money or ability to travel.

Because she’s had so many kids and two stillbirths, the Arizona woman decided to go outside the medical system. She had her stepdad get her misoprostol over the border in Mexico. This medication is typically used to treat ulcers but is also an abortifacient, and it’s available over the counter for around $30 in Mexico. The typical two-drug regimen approved by the U.S. Food and Drug Administration two decades ago comprises the hormone-blocker mifepristone followed by misoprostol, which causes the uterus to contract and expel the embryonic or fetal remains.

Medication abortion – whether obtained at a clinic or via legal telemedicine, or by?ordering pills from abroad?– has helped fill an access gap since Dobbs. Most often women are terminating with the same two-drug regimen approved by the FDA. However, that protocol is approved only for?up to 10 weeks’ gestation, while the World Health Organization?okays the protocol for 12 weeks.

But many women are taking the medication as soon as they get them, even if that means well into the second trimester, because of travel and shipping delays, which fundamentally changes the experience. Rather than experiencing what may describe as moderate to heavy bleeding and moderate to excruciating cramps, second-trimester medication abortions involve delivering a more developed fetus, with its umbilical cord and placenta.

It took the Arizona woman about seven hours to deliver the fetus and placenta using the misoprostol-only regime, followed by weeks of bleeding. This method is considered safe and effective, but is associated with higher rates of incomplete abortion, and pain. Days later, the woman’s doctor found retained placenta inside her. She says she couldn’t imagine having done this without her birthing experience or guidance from her regular medical providers.

“Being like my basically ninth delivery, I knew what to do,” she said, “I would never just give the pills to somebody that has never had a baby. … I understood delivering the baby and then delivering the placenta, and my water breaking. But if you’re like a first-time mom, and you had to go through the pills at the gestation I did, they would freak out.”

And that’s exactly what’s happening, says family physician Linda Prine, who co-founded the Miscarriage and Abortion Hotline to help guide pregnant people seeking information on where to get abortion drugs and how to self-manage their abortions safely. She said at least once a day now the hotline is hearing from women who took the medication in the second trimester and were unprepared to deliver an intact fetus.

“Prior to the fall of Roe, we probably only had two calls per year of anyone using pills past 13 weeks. Now we have several every week and sometimes daily,” Prine told States Newsroom a few months ago, for a?previous story. “The issues we see are the psychological trauma if they are not prepared for the experience, and the potential legal risks.”

Abortion access advocates note that all of this will be compounded if the U.S. Supreme Court ultimately orders a recall or severely restricts the abortion drug mifepristone in a?high stakes lawsuit?currently making its way to the high court.

‘End of the line’

For the many years that Roe v. Wade protected abortion rights, the vast majority of abortions happened in the earliest stages of embryonic and fetal development. In 2020, the?Centers for Disease Control and Prevention reported?that 93% of abortions took place before 13 weeks, less than 6% performed between 14 and 20 weeks, and less than 1% after 21 weeks’ gestation.

That 1% represents the most expensive, complex, and controversial abortion cases. They are multi-day procedures that involve on-call care and are performed by a vanishingly small number of providers. A physician well known for this work, Dr. George Tiller, was villainized by Fox News years before an anti-abortion activist assassinated him in 2009.

At 84, Dr. Warren Hern, a former colleague of Tiller’s, is the oldest doctor doing this work, in Colorado. Another Tiller colleague, Dr. LeRoy Carhart, who provided later abortions in Maryland,?died this past April?at 81.

Shortly after Dobbs, Hern said his Boulder Abortion Clinic was seeing an uptick of 50% more patients but has been unable to sustain the demand. Hern told States Newsroom that his small clinic sees a weekly average of six to 12 cases from around the country, which is still more than before Dobbs. Whereas before his clinic would coordinate aftercare with patients’ regular doctors, now Hern said he rarely communicates with OB-GYNs in banned states and sends patients with generic letters hoping they will receive necessary aftercare.

“This is a national catastrophe,” Hern said. “The details are in our face every single day, every week. It has unfolding complications and consequences across the country for women, many of whom are not wanting an abortion, but they can’t get medical care for the pregnancy because the doctors are afraid.”

Slowly a younger crop of third-trimester abortion providers is emerging. Morgan Nuzzo, an advanced practice clinician nurse-midwife, started an all-trimester abortion clinic Partners in Abortion Care in College Park, Maryland, seven months ago with her partner Dr. Diane Horvath, an OB-GYN who specializes in complex family planning and has provided abortion for almost two decades.

Nuzzo says colleagues refer to clinics like hers as the “end of the line,” one of the last?places?in the country they can go for a safe and legal abortion. They see people on the spectrum of disability, from the very rich to the very poor. The oldest patient Nuzzo has seen is 53; the youngest is 10. Children over-represent Partners in Abortion Care’s patient population, Nuzzo said. As research shows, many people seek abortions into the later stages of pregnancy because they found out new information about the pregnancy (such as a fatal fetal anomaly or a new health risk) or their life circumstances, or because they didn’t know they were pregnant.

What her patients and their parents do share in common these days is confusion and anger, Nuzzo said.

“Even people who are dismayed by grief, by this horrible fetal diagnosis they might have received later in pregnancy, are still angry and frustrated at the chaos that they have to navigate in their times of greatest need,” Nuzzo told States Newsroom. “It is confusing, it is constantly changing, and it is chaotic. And sometimes you start to believe that that’s on purpose.”

Partners in Abortion Care treats an average of 10 to 12 patients weekly, Nuzzo said, prioritizing abortions after 20 weeks, with growing wait lists. They have to turn away at least one patient a week, she said, often because the patient is too far along, or has complicating health factors. Then it’s time to talk to patients about other options: carrying to term, or adoption. Partners requires patients to secure an ultrasound in advance to confirm how far along they are, but she said patients in states with bans are often too scared or unable to obtain an ultrasound outside of religious anti-abortion pregnancy centers, which are typically unregulated and offer non-diagnostic ultrasounds.

“The number of fetal genital pictures that people are given with no accurate dating associated with it has been astronomical since we opened,” Nuzzo said. “So, ‘I’m a girl,’ ‘I’m a boy,’ and a picture of a penis or a vagina. And a lot of times, that’s the only picture they’ll give to a patient. And I’m like, What am I supposed to do with this? This gives me no information.”

Consequential compromises on later abortion

In 2015, North Carolina Rep. Tricia Cotham made national headlines when she told her colleagues on the House floor about the painful and heartbreaking “induced miscarriage” she once had for a wanted but doomed and dangerous pregnancy. “This decision was up to me, my husband, my doctor, and my God,”?she testified. “It was not up to any of you in this chamber.”

Then a Democrat, Cotham was testifying against a 72-hour abortion waiting period, which opponents argued would exacerbate abortion delays and which ultimately became law. Cotham?told Time magazineshe’d wanted to quell later-abortion stigma.

But in April, Cotham, who campaigned on abortion rights,?switched parties. Soon after, she helped state Republicans?override the governor’s veto of a new 12-week abortion ban, which has limited exceptions for fetal anomalies. She also switched her own abortion narrative, now calling it a spontaneous miscarriage, contradicting her?own words.

More GOP-led states (and presidential candidates) are leaning away from radioactive total abortion bans, and into these so-called gestational compromises. Like North Carolina, Nebraska recently prohibited abortions after 12 weeks. Florida’s new 6-week ban is on hold while courts litigate the state’s 15-week abortion ban.

A few Democratic-led states, meanwhile, are working on efforts to lift or relax their third-trimester gestational limits,?like in Maine?and?Minnesota. But many others?still ban abortion by or before 24 weeks’ gestation, with some exceptions. And many of the state abortion-rights amendment initiatives underway also maintain this Roe-era standard.

Like Cotham, Erika Christensen is a white woman with enough privilege to have accessed a later abortion because of fetal anomalies. Because even in 2016, the abortion-access landscape and policies already made it incredibly difficult to access and,?for her, emotionally harrowing. But Christensen’s pregnancy experience took her in a different professional direction than Cotham.

“We were radicalized by the plane,” said Christensen, who was turned away in New York City and flew to Colorado for a multi-day procedure that cost thousands of dollars out of pocket. She and her husband soon after started Patient Forward, a later abortion advocacy group that successfully lobbied New York to relax its abortion law. Christensen said Roe-era gestational limits are too restrictive for this current landscape, and she criticizes Democratic-led initiatives that attempt to compromise on later abortion.

“There used to be a path where you could care for your patients up to a point, and then you sent them out of state,” Christensen said. “And you wouldn’t really have to put yourself out on the limb because there was somebody else who would take care of your patient. That path is gone. It’s dead, and it’s never coming back, not while we have what we have. So when we compromise on this population, we are really condemning them to forced pregnancy and birth.”

Planned Parenthood's Louisville health clinic. (Kentucky Lantern photo by Deborah Yetter)

In a surprise move, Kentucky’s two licensed abortion providers have asked a judge to dismiss their case seeking to overturn the state’s near-total ban on abortion.

The joint motion on behalf of Planned Parenthood and EMW Women’s Surgical Center comes on the eve of the first anniversary of the June 24, 2022, U.S. Supreme Court decision to strike down Roe v. Wade, the landmark 1973 decision establishing abortion as a federal constitutional right.

Their motion, if granted by Jefferson Circuit Judge Mitch Perry, would for now bring an end to the clinics’ efforts to restore abortion rights in Kentucky. It was filed by Planned Parenthood and the American Civil Liberties Union, which represents EMW.

Still, “the fight is far from over,” a Planned Parenthood official said Tuesday.

The clinics are seeking to reserve the right to pursue the case, when appropriate.

“It’s unfortunate that it falls upon the anniversary of Roe v. Wade,” said Tamarra Wieder, public affairs and policy director for the Planned Parenthood region that includes Kentucky. “That hurts a little bit more.”

Attorney General Daniel Cameron, an anti-abortion Republican who has been defending the two state laws under challenge, said in a statement that his office was “gratified” by the abortion providers’ motion to dismiss and added that “the elective abortion industry is out of business” in the state.

“A society is judged by how it treats its most vulnerable — especially the unborn,” he said. “Today is a reminder that every life deserves to live. My office will always defend and enforce Kentucky’s pro-life laws passed by our General Assembly.”

The parties in the case had been scheduled to return to court June 28 to update Perry on their progress.

The U.S. Supreme Court decision last year ended access to almost all abortion services in Kentucky, where a “trigger law” took effect banning the procedure in the event of such a ruling. A second state law banning abortion after about six weeks also took effect.

EMW and Planned Parenthood filed a lawsuit last June in state court arguing that the state constitution provides reproductive rights to women including to terminate a pregnancy.

But a state Supreme Court ruling earlier this year sharply limited the providers’ right to pursue the case, finding they lack “standing” to purse some of their claims, a finding that meant they had to find a patient affected by the law and willing to sue.

In a news release Tuesday, EMW and Planned Parenthood said they asked the court to dismiss their challenge to the two laws restricting abortion because of that ruling.

“We moved to dismiss this case because earlier this year, the Kentucky Supreme Court issued an extraordinary ruling that took away health care providers ability to defend the rights of their patients, upending decades of precedent,” the two health providers said in a statement.

The state Supreme Court decision that the plaintiffs lacked standing left them searching for a patient who had been adversely affected and who was willing to join the lawsuit challenging Kentucky’s abortion laws.

In previous litigation, courts generally have allowed abortion providers to bring cases on behalf of patients.

In a joint statement, Planned Parenthood and EMW said they have not given up and will continue seeking such a patient willing to come forward, allowing them to file a new challenge to the laws.

“We remain open to hearing from patients who are in Kentucky and need access to abortion,” the statement said.

It added that “our phone lines are open” and urged potential plaintiffs to call or text 617-297-7012.

Kentucky’s two abortion laws permit no exceptions for pregnancies from rape or incest or severe fetal anomalies in which a fetus is unlikely to survive. They allow abortion only to save the life of the pregnant patient or prevent disabling injury.

Last year, Perry agreed Kentucky’s constitution appears to protect a woman’s right to abortion and agreed to temporarily block enforcement of the two laws while the lawsuit was pending.

However, an appeals court judge reversed the decision and the case moved to the state Supreme Court, which in February declined to block enforcement of the two laws. The high court sent the case back to Perry for further action.

ACLU lawyer Heather Gatnarek told Perry at a hearing in April the plaintiffs were having difficulty finding a patient willing to join the case.

The Kentucky Supreme Court ruling on standing left the providers in the difficult spot of finding a patient seeking to end a pregnancy and willing to join a major lawsuit even while seeking abortion care in another state, Wieder said.

“They are in a medical crisis and trying to get care,” Wieder said. “It is outrageous.”

While dismissal of the case would end, for now, Planned Parenthood and EMW’s challenge to the law, another remains pending in Jefferson Circuit Court.

Three Jewish women from Louisville have filed a lawsuit challenging Kentucky’s abortion ban, which states life begins at conception, arguing it violates their religious freedom under state law.

In the lawsuit, they argue that the abortion laws — one of which defines life as beginning at conception — clash with Jewish teaching that life begins at birth. They also argue it limits their right to other care, such as in-vitro fertilization.

Prior to the abortion ban, volunteer escorts in orange vests waited outside EMW Women's Surgical Center to help patients get past anti-abortion protesters who regularly gathered at the clinic. (Photo by Deborah Yetter)

After more than four decades of providing abortion and contraceptive services, EMW Women’s Surgical Center is selling its downtown Louisville building.

The move by EMW comes nearly a year after the U.S. Supreme Court struck down abortion as a federal constitutional right and it became virtually illegal in Kentucky under existing state laws.

At the time of the court ruling, EMW was one of only two abortion providers in Kentucky. The other was Planned Parenthood, which suspended abortion care but has remained open for other health services at its downtown Louisville clinic.

EMW co-owner Ona Marshall said in an email the owners are not commenting on the sale of the building. She owns the clinic with her husband, Dr. Ernest Marshall, one of the physicians who founded it in 1981.?

“However, EMW and the Kentucky Reproductive Freedom Fund remain committed and engaged in restoring access to abortion and contraceptives in Kentucky and nationally,” her email said.

The Marshalls founded the Reproductive Freedom Fund, a volunteer organization that supports reproductive rights.

EMW remains a plaintiff along with Planned Parenthood in a lawsuit in Jefferson Circuit Court challenging two state laws that together ban almost all abortions in Kentucky except to save the life of a patient or prevent disabling injury.

A milestone

While no abortion services have been available in Kentucky for the past 11 months, the sale of the EMW building marks a milestone for opponents of abortion rights who fought to enact the laws.

“For years Kentucky Right to Life and our members, faithful pro-life advocates and prayer warriors have stormed Heaven for those who had no voice,” Addia Wuchner, Right to Life executive director, said in a post on the organization’s website. “We waited, trusted, and advocated that one day we would see EMW shut down. Well, that day has come!”

“Yes, we know that Planned Parenthood still stands, but optimism is in the air,” she added. “Let’s continue to pray and stand against abortion.”

The sale of EMW is a sad occasion for abortion rights supporters, including Ashley Jacobs, who served for eight years as a clinic escort.

As an escort, she joined dozens of volunteers who would stand outside EMW in orange vests to help people get safely into the facility past anti-abortion protesters — who often shouted at and swarmed around patients, trying to discourage them from entering.

Jacobs said she valued her work assisting patients.

“It was definitely rewarding,” she said. “If someone got into the clinic and wanted to be there, you felt like you helped someone get access to care they wanted.”

Her volunteer work “made me a better person,” Jacobs said. “I met some of the best and worst people in the world.”

EMW’s 14,124-square-foot building on West Market Street is listed for sale for $3.5 million by a commercial real estate agency. The listing describes it as a “free standing medical building” in a prime downtown Louisville location, suitable for a health clinic or outpatient surgical center.

The site is close to the Kentucky International Convention Center, several hotels and a nearby medical complex anchored by University of Louisville Health.

Court fight continues

Meanwhile, a court fight continues in Jefferson Circuit Court in which EMW and Planned Parenthood are challenging the current laws that block abortion in Kentucky.?

Assisted by lawyers for the American Civil Liberties Union, they argue that the Kentucky Constitution provides a right to abortion and have asked a judge to strike down two laws.

One, the “trigger law,” banned abortion should the U.S. Supreme Court overturn Roe v. Wade, the landmark 1973 decision establishing it as a federal constitutional right. It took effect immediately after the high court’s June 24, 2022 decision.

Another law prohibits abortion once cardiac activity is detected in an embryo, generally at about six weeks of pregnancy and often before a woman realizes she is pregnant.

Neither law permits any exceptions for rape, incest or fetal anomalies nor makes any allowance for the age of the individual who is pregnant.

In Kentucky, in the two years before abortion was banned, the two youngest patients were age 9 which would classify them as rape victims under state law.

Kentucky Attorney General Daniel Cameron is defending the two laws and is asking the court to uphold them.

Judge Mitch Perry has scheduled a hearing June 28 to determine how the case will proceed.

Meanwhile, a separate lawsuit challenging the laws is pending in Jefferson Circuit Court. Filed by three Jewish women. It argues the laws violate their rights under Kentucky’s Religious Freedom Restoration Act.

They argue that Kentucky’s abortion laws are based on Christian orthodoxy and conflict with Jewish teachings that generally uphold abortion rights and prioritize the pregnant patient’s life over that of the fetus.

Cameron also is defending the laws in that lawsuit which has been submitted to Judge Brian Edwards for a decision.

The U.S. Food and Drug Administration approved mifepristone in 2000 as part of a two-drug regimen that’s currently used up to 10 weeks in a pregnancy. (Photo illustration by Anna Moneymaker/Getty Images)

America’s major medical institutions and drug policy scholars have roundly denounced as “pseudoscience” many of the claims brought by anti-abortion groups in a high-profile federal lawsuit asking the Food and Drug Administration to revoke its 23-year-old approval of mifepristone, one half of a two-drug regimen that has become the most common form of pregnancy termination post-Roe v. Wade.

But the three-judge panel of the 5th U.S. Circuit Court of Appeals that heard oral arguments Wednesday appeared to be persuaded not by the medical consensus in this case, but by some of the evidence brought forward by plaintiffs that consists largely of anecdotes, speculation, and cherry-picked studies brought by a handful of anti-abortion medical groups and doctors.??

Medical and public health societies led by the American Medical Association submitted a “friend of the court” brief before the 5th U.S. Circuit Court of Appeals, stating that the lower court’s ruling “relies on pseudoscience and on speculation, and adopts wholesale and without appropriate judicial inquiry the assertions of a small group of declarants who are ideologically opposed to abortion care and at odds with the overwhelming majority of the medical community and the FDA.”

While asking a question of U.S. Deputy Assistant Attorney General Sarah Harrington, Judge Jennifer Walker Elrod referred to mifepristone cutting off “nutrition” to the fetus, which is a false claim cited in the initial ruling written by Texas federal Judge Matthew Kacsmaryk in April. Kacsmaryk referred to mifepristone as a “synthetic steroid that blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death.”

According to Johns Hopkins Medicine, the progesterone hormone is produced in early pregnancy to help thicken the lining of the uterus to support implantation of a fertilized egg. Without that hormone stimulation, which mifepristone blocks, the lining breaks down and the pregnancy cannot continue. It is then followed by doses of misoprostol to induce contractions and expel the pregnancy.??

Former President George W. Bush appointee Elrod – like her fellow Donald Trump appointee Judges James C. Ho and Cory T. Wilson – shares ideological views on abortion with the plaintiffs’ anti-abortion coalition, which is represented by the Alliance Defending Freedom. So does Kacsmaryk, whose since-blocked decision to suspend FDA approval of mifepristone cites anecdotal evidence from plaintiffs.?

Mifepristone remains legal and on the market as the case winds its way through the legal system, and data from the FDA since the drug’s initial approval in 2000 shows it is overwhelmingly safe to use. Out of an estimated 5.6 million people in 23 years, 28 deaths have been associated with the FDA’s abortion medication regimen, which is a markedly lower rate than many common FDA-approved drugs, like Tylenol and Viagra. And as the FDA has noted, that number includes fatal cases “regardless of causal attribution to mifepristone,” such as people who died from homicide, suicide, and pulmonary emphysema.?

If the plaintiffs prevail, health care providers, medical institutions and pharmaceutical industry organizations have warned of its potentially catastrophic consequences. In addition to radically reducing access to abortion nationwide, removing mifepristone from the market would reduce access for miscarriage treatment, public health experts say, and have far-reaching consequences beyond abortion.

“The implications of this case are extraordinary, and they include the potential termination of access to mifepristone, a precedent for court interference in the FDA’s rigorous and science-based testing and approval process not just for mifepristone, but for any drug,” said Joanne Rosen, a senior lecturer in the departments of Health Policy and Management and Population, Family and Reproductive Health at the Johns Hopkins Bloomberg School of Public Health, during a media briefing hosted by the university Thursday. “This would be the first time in history that a court has abrogated the FDA’s approval of a drug over the objections of the FDA.”

Sympathetic, cynical and combative exchanges

The appeals court judges seemed sympathetic to the narrative brought by the plaintiffs that mifepristone is a dangerous drug, as they were in their previous opinion blocked by the Supreme Court, which would have restricted the use of mifepristone. A big question in this case has been whether the coalition of anti-abortion medical groups and four doctors, including Indiana state Sen. Dr. Tyler Johnson, have standing to sue. Plaintiffs have argued their doctors would suffer direct harm if mifepristone remains on the market.

Like medical and legal scholars following this case, Rosen said plaintiffs’ arguments for standing are weak, and if accepted would open the door to any group that wants to challenge the FDA’s approval of a drug for any reason.??

Plaintiff groups argue that their member doctors could be overwhelmed with a potential future influx of emergency room visits from mifepristone patients, or forced to treat an abortion patient against their will. These claims are based not on robust data but largely on the testimony of handful of plaintiff doctors, three of whom give mostly non-specific anecdotes about treatment they performed for women who allegedly had taken some form of medication abortion, but it’s not clear when the procedures took place and whether it was the FDA’s regimen.?

Harrington argued on behalf of the federal government that plaintiffs had not made claims of being forced to treat abortion patients against their will.?

“They claim injury from speculative downstream effects of choices made by a chain of other people who are not parties to this lawsuit,” Harrington said.

But Wilson pushed back.

“The declarants here said they’ve seen these patients, they’ve cared for them,” he said. “I take that to mean that they treated them and that they expect to see more in the future. How’s that not enough for standing if the doctor also has a conscience objection to doing so?”

The judges made a series of sometimes snarky and combative comments and questions aimed at the attorneys for the U.S. Department of Justice, representing the FDA, and the mifepristone manufacturer Danco Laboratories, and called into question trust in the FDA’s expertise and judgment.?

Echoing plaintiffs’ criticism of the FDA approving mifepristone as part of a particular category of drugs for serious illnesses, Ho said pregnancy is not a serious illness, quipping, “When we celebrated Mother’s Day, were we celebrating illness?”

A question of evidence

And they misstated non-scientific assertions by plaintiffs, such as claiming that non-fatal adverse reporting is no longer required by the FDA. Mifepristone manufacturers (but no longer medical providers) are still required to report non-fatal adverse reactions.

Much of the anti-abortion evidence submitted in this case was authored by researchers who work for the anti-abortion Charlotte Lozier Institute, whose role is to defend abortion bans and restrictions with research. Regarding mifepristone, Charlotte Lozier’s researchers have published articles that mostly speculate large amounts of under-reporting when it comes to abortion complications, and argue the true risk of mifepristone is unknown.?

Another anti-abortion organization, the Family Research Council, also submitted a 125-page amicus brief with false claims that the drug approval was expedited by former President Bill Clinton. It also cites research from the Charlotte Lozier Institute to back claims that the drug is unsafe.?

Judges echoed this sentiment and speculated on the safety of telemedicine abortion and questioned the FDA’s process of loosening restrictions over time. Elrod asked Harrington if a medical provider could examine someone via email rather than video, and if people could use telemedicine as an “intermediary” to send the medication to a state with an abortion ban. Elrod referenced amicus briefs that alleged individuals were engaging in those tactics to skirt state laws.?

Harrington said the statements referenced by Elrod in the briefs are unsupported and irrelevant to the central issue.

“None of that is dictated by the FDA, and none of that is relevant to whether the FDA’s determination that this drug is safe and effective with these conditions in place,” Harrington said.

Elrod pushed back, asking if it was a relevant factor to consider in issuing an injunction that would limit access to the drug.?

“If it’s violating other law, which we have to determine, perhaps, then we have to decide whether or not it’s appropriate to enter an injunction or not and that’s one of the factors we would consider,” Elrod said.

Public health experts say the appeals court’s attitudes toward the science in this case are deeply concerning.?

“Judges and lawmakers should not be substituting their own opinion for the experience, expertise, and authority of the U.S. Food and Drug Administration. Nor should they ignore the substantial weight of scientific evidence from hundreds of studies and millions of patients confirming the safety and effectiveness of mifepristone, which has been used for decades in both medication abortion and miscarriage management,” said AMA President Dr. Jack Resneck Jr. in a recent statement.?

Even if the appeals court rules to restrict or revoke approval of mifepristone, the federal government will most likely appeal the case to the U.S. Supreme Court. Regardless, the 5th Circuit Court judges’ reasoning could prove influential to the Supreme Court’s eventual decision.?

In this photo from 2021, pro-life demonstrators attempt to convince a patient surrounded by volunteer clinic escorts not to enter the EMW Women's Surgical Center in Louisville. Kentucky banned abortions with limited exceptions in 2022. (Photo by Jon Cherry/Getty Images)

Dr. Christina Francis, an OB-GYN from Fort Wayne, Indiana, and chair of the board of the American Association of Pro-Life Obstetricians and Gynecologists, speaks in front of the 5th Circuit courthouse in New Orleans on May 17, 2023, following arguments on a case challenging FDA approval of the abortion pill. Greg LaRose/Louisiana Illuminator.

NEW ORLEANS — A federal appeals court panel quizzed lawyers during oral arguments Wednesday over a Texas judge’s decision that could end access to the abortion pill nationwide.

Observers see the 5th Circuit Court of Appeals as a legal way station for the case, in which anti-abortion groups sued the U.S. Food and Drug Administration, arguing its approval of mifepristone in 2000 was improper and subsequent changes to its use didn’t rely on solid science.?

The three-judge panel’s ruling, which could come anytime after oral arguments, will likely be put on hold as the case moves up to the U.S. Supreme Court.?

In the meantime, access to mifepristone, one of two drugs used in medication abortions, remains legal under a temporary order from the U.S. Supreme Court.?

U.S. Deputy Assistant Attorney General Sarah Harrington called U.S. District Court for the Northern District of Texas Judge Matthew Kacsmaryk’s ruling to overturn mifepristone’s approval an “unjustified attack on FDA scientific expertise.”?

Physicians who brought the lawsuit failed to demonstrate “imminent risk” of being forced to perform a medical procedure that goes against their conscience as a result of complications from mifepristone, Harrington said.?

Physicians aren’t required to perform procedures to which they hold a religious or moral objection, under the federal Emergency Medical Treatment and Labor Act, Harrington said.?

Jessica Ellsworth, the lawyer representing Danco Laboratories, which manufactures the name brand version of mifepristone known as Mifeprex, questioned the claims of the anti-abortion physicians who brought the suit and were referenced in court records.

“The declarants offer nonspecific statements that are untethered to actual facts about what drug a patient took,” Ellsworth said. “They often say, ‘The patients can’t tell me what they took,’ so we don’t know even that it was FDA-approved mifepristone.”

One example Ellsworth cited involved a patient who took an unidentified abortion drug from India, which wasn’t FDA-approved, and another instance where a pregnant woman took mifepristone while on blood thinners, after being told she wasn’t eligible for medication abortion. Neither case supports the anti-abortion groups’ contention that mifepristone is an untested, riskier medication, she said.?

Alliance Defending Freedom Senior Counsel Erin Morrow Hawley argued the appeal for the anti-abortion legal organization that filed the lawsuit on behalf of four medical organizations and four doctors.

Hawley rejected the notion that mifepristone should be left on the market to aid in miscarriage care, saying that not all doctors prescribe it to treat pregnancy loss and that an “off-label” use shouldn’t be used to uphold the approval.

“I don’t think that that would be an appropriate basis or an appropriate consideration to uphold FDA approval here,” Hawley said.?

Questions for Danco lawyer

The three-judge appeals panel included Jennifer Walker Elrod, who was appointed by former President George W. Bush, as well as James C. Ho and Cory T. Wilson, who were both appointed by former President Donald Trump.

The panel had pointed questions for the appellants’ counsel on whether the FDA’s role in health policy extended past review and approval of medication. Elrod specifically took exception with language in Danco’s briefs, calling it a personal attack on Kacsmaryk, the Texas judge.???

“This is much more the kind of remarks towards district court that we normally don’t see from learned counsel,” Elrod told Ellsworth, “and I’m wondering if you would have had more time and not been under a rush and probably exhausted from this whole process, would those have been statements that would have been included in your brief?”?

“I don’t think that those remarks, any of them, were intended as any sort of personal attack,” Ellsworth responded. “They were an attack on the analysis and reasoning.”

The judges asked the appellants what repercussions FDA approval — and its possible reversal — might have on telemedicine. In 2021, the agency removed the requirement for an in-person doctor’s visit to prescribe mifepristone and misoprostol, the second prescription used in medication abortion.

Elrod questioned how physicians could accurately confirm how far along a pregnancy is without an in-person exam. Harrington said doctors can ask specific questions that inform their decisions on prescribing the abortion drug.

Answering a similar question, Ellsworth told the judges the FDA doesn’t regulate the practice of medicine, to which Elrod responded the agency does have a stake in the negative outcomes of the medication it approves.?

Questions from the judges for Hawley largely involved the FDA’s approval and updates for mifepristone use.??

“The FDA acknowledges that emergency room doctors are going to be part of the solution in cleaning up the messes left for women suffering consequences of chemical abortion,” Hawley said, referencing the agency’s original approval of mifepristone.?

She also cited figures from an FDA medication guide published in January that say between 2.9% and 4.6% of women who take mifepristone “will present to the emergency room,” although Hawley acknowledged after a probe from Elrod that not all instances involve an actual emergency.?

Lawsuit challenged FDA approval

Alliance Defending Freedom filed the lawsuit in November, arguing the FDA erred in how it approved mifepristone in 2000 while also contending that it’s not safe and effective.??

The lawsuit called on the federal district court to overturn the 2000 approval, but said that if the judge didn’t do that, he should revert prescribing and use pre-2016 instructions.?

Changes that year increased when mifepristone could be used from seven to 10 weeks gestation, reduced the number of in-person visits from three to one and changed the dosage and timing of the two-drug regimen.?

The FDA broadened who could prescribe the medications from only doctors to health care providers with the ability to prescribe pharmaceuticals.?

In 2021, the FDA removed the in-person dispensing requirement allowing qualified health care providers to prescribe mifepristone and the second drug, misoprostol, via telehealth and send the medication through the mail.?

Kacsmaryk agreed with the claims the anti-abortion organizations made, releasing an opinion in early April revoking the FDA’s 2000 approval of mifepristone.?

Mifepristone remains available under a ruling the U.S. Supreme Court issued April 21 that blocked enforcement of that ruling.

That likely means whatever action the 5th Circuit Court of Appeals takes following Wednesday’s oral arguments would be paused until the nine justices on the Supreme Court decide whether to hear the case.???

If the Supreme Court does take the case and issues a ruling on the approval and use of mifepristone it would apply to every state in the country, including those that have protected abortion access up to 10 weeks, the cap on the medication’s use.?

Drugmakers file brief

Pharmaceutical companies have raised concerns about the ability of a judge to alter the use and administration of an FDA-approved medication, or overturn that decision altogether.?

The Pharmaceutical Research and Manufacturers of America, or PhRMA, and others filed a 40-page brief with the appeals court arguing against overturning or altering the FDA’s judgment.?

They argued the federal district judge “erred by replacing FDA’s scientific judgments with its own views on what information should be considered and how it should be assessed.”?

They also wrote the ruling “risks stifling pharmaceutical innovation by disrupting industry’s reasonable investment-backed expectations.”

And major medical organizations, including the American College of Obstetricians and Gynecologists, the Society for Maternal-Fetal Medicine and the American Society for Reproductive Medicine, have urged the court to keep mifepristone legal.?

They contend the district court’s ruling “disregards decades of unambiguous analysis supporting the use of mifepristone in miscarriage and abortion care.”

“It relies on pseudoscience and on speculation, and adopts wholesale and without appropriate judicial inquiry the assertions of a small group of declarants who are ideologically opposed to abortion care and at odds with the overwhelming majority of the medical community and the FDA,” a group of 13 medical organization wrote in a brief to the appeals court.?

U.S. House gets involved

Not everyone, however, agrees with leaving the medical and scientific approval process to the FDA.?

U.S. House Republicans sought to change access to medication abortion Wednesday, introducing a funding bill?that would nullify changes the FDA made in January.?

Those changes allowed brick-and-mortar and mail-order pharmacies to apply to dispense mifepristone to patients after they received a prescription. The FDA also solidified changes made during the pandemic that ended the in-person dispensing requirement.?

A summary of the agriculture appropriations bill from House Republicans says the measure includes a “provision that ends mail-order chemical abortion drugs.”?

The legislation, one of the dozen annual appropriations bills, funds the Agriculture Department and the FDA as well as the Commodity Futures Trading Commission and the Farm Credit Administration.

Maryland Republican Rep. Andy Harris chairs the subcommittee tasked with drafting the legislation.

The contraceptive drug norgestrel sold as Opill, which was approved by the FDA decades ago for prescription-only use. If the FDA approves, it would be the first time a birth control pill would be available without a prescription. (Screenshot FDA)

Dyvia Huitron started having sex when she was 16. Worried about getting pregnant, she talked to her parents about getting on hormonal birth control. Instead, they grounded her.

The now-19-year-old had expected pushback – she was living in a religious community in conservative McAllen, Texas. But she underestimated how many years it would eventually take to get on a reliable form of birth control. She watched a number of friends get pregnant during that time.

“Accessing birth control should not be this complicated,” Huitron told the Food and Drug Administration’s advisory panel tasked with determining whether a low-dose contraceptive pill is safe and effective enough to be recommended for over-the-counter use. “At 16, 17, 18, and now 19 my needs have been unmet, yet have remained the same for years.”

Now a college student in Alabama, Huitron said she still faces barriers to accessing birth control and was among dozens of reproductive health care providers and advocates who publicly testified during the FDA’s two-day hearing on the contraceptive drug norgestrel sold as Opill, which was approved by the FDA decades ago for prescription-only use. Overwhelmingly, public commenters urged the agency to address a lack of access to effective birth control, faced by millions of women and teenagers of reproductive age at a time when options to terminate unintended or risky pregnancies have become extremely diminished.

The FDA advisory committee not only agreed with advocates that improving access to contraception for marginalized groups is a vital public health need, but were convinced by the science presented by drugmaker HRA Pharma that Opill is overwhelmingly safe and effective to take over the counter.

The 17 advisers – whose collective experience includes obstetrics and gynecology, complex family planning, breast cancer, and consumer health behavior – unanimously voted for the FDA to immediately approve Opill over the counter. This would be the first time a birth control pill would be available without a prescription, something many experts on the panel and public testifiers say presents a huge barrier, especially to adolescents and people with less health care access, like people with low literacy.

“Adolescents really urgently need this,” said adolescent medicine specialist Dr. Leslie Walker-Harding, one of the advisers, who said teens are intelligent and savvy enough to follow the drug’s label. And she said she was very comfortable with the drug’s high safety record. “The safety profile is so good that we would need to take every other medicine off the market, like Benadryl, Ibuprofen, Tylenol, which causes deaths, and people can get any amount of that without any oversight.”

Referred to as “mini pill,” Opill contains only one hormone, progestin, and has been established as having lower health risks than so-called combination contraceptive pills, which contain both progestin and estrogen and carry a risk of blood clots in some populations. Major medical groups, including the American Medical Association, support making the drug over the counter.

The panel’s green light came a day after scrutinizing and meticulously analyzing the HRA Pharma’s studies of over-the-counter use of Opill, which has been around for decades. Many of the advisers addressed flaws with some of the data and studies’ design, as well as concerns that people with contraindications would erroneously take Opill, or that young people or people with trouble reading would not be able to properly follow the drug’s directions and diminish its efficacy, leading to unplanned pregnancies. People with breast cancer are advised not to take Opill, as are people taking certain medications and herbal supplements, such as St. John’s wort. A key understanding of progestin-only contraceptives – which can be taken by women who are breastfeeding – is that they need to be taken approximately the same time every day, within a three-hour window in order to work effectively.

But advisers determined the benefits in this case vastly outweigh the risks, noting high rates of teen pregnancy and unplanned pregnancy in America, as well as data showing that the current over-the-counter contraceptives, like condoms, sponges, and spermicides, have high failure rates given common incorrect use. In the face of limited options and limited access to health care, many people use nothing for contraception, the experts said. Though, there are increased efforts to bring better and more accessible options to market, including a male contraceptive.

“It is past time for an over-the-counter birth control pill, which has the potential to advance reproductive justice and expand health equity,” said Victoria Nichols,?project director of?Free the Pill, a project of Ibis Reproductive Health, in a statement following the advisory committee’s vote on Tuesday. “Now, we look to the FDA to follow the committee’s recommendation, in addition to the overwhelming data, and approve the first-ever over-the-counter birth control pill in the U.S. The days of the current prescription requirement are numbered.”

FDA proceeding cautiously

The FDA could approve the drug for over-the-counter use this summer, moving the U.S. in line with at least 100 other countries that offer contraception over the counter. But FDA representatives expressed skepticism with some of the data presented by the drugmakers. The agency – which is currently being sued by anti-abortion activists for its approval of medication abortion 20 years ago appeared to be proceeding with caution.

“The FDA has been put in a very difficult position of trying to determine whether it is likely that women will use this product safely and effectively at the nonprescription setting,” said Dr. Karen Murry, deputy director of the FDA’s office of nonprescription drugs, during the second day of the advisory hearing on Wednesday.

Though public opposition to approving over-the-counter use of Opill has been limited to a small group of conservative Christian anti-abortion groups, the anti-abortion voice has been loud when it comes to birth control access in the U.S. The same federal Texas judge, Matthew Kacsmaryk, who ruled that medication abortion should be taken off the market based on scientifically unsound claims also recently blocked access to birth control for minors without parental permission.

Some anti-abortion groups like Students for Life of America, falsely conflate certain types of birth control with abortifacients, while simultaneously speaking out against premarital sex. SFLA, which actively fights against access to birth control on college campuses, opposes Opill and suggests that allowing it over the counter will be a boon to sex predators.

“Most parents do agree that reckless distribution of certain products is not in the best interests of children who need to hear from someone other than a salesman or abuser,” said SFLA President Kristan Hawkins. “The FDA should care more about the people who receive a product than the people who want to sell it.”

Now, as the FDA considers the panel’s recommendation, advisers urged the FDA to act quickly, and emphasized being moved by public testimony outlining the public health crisis.

Jacquiline Marcel Blanco, a clinical nurse leader from Washington state, identified herself during Monday’s public comment session as “a person with a uterus who cares for many people with uteruses.”

While Washington state has made efforts to expand abortion access, Blanco said it’s still increasingly difficult to access abortion care because of nationwide bans and delays and provider shortages. One of her recent pregnant patients had to wait eight days to get a life-saving abortion for a pregnancy that was no longer compatible with life, Blanco said. Thus she urged for better efforts to promote pregnancy-prevention, beginning with approving Opill over the counter.

“BIPOC people like me bear the burden of the maternal mortality crisis, being two to three times more likely to die than white peers,” Blanco said. “Preventing unintended pregnancies is the primary recommendation of our global leaders and evidence-based health promotion, and we have failed.”

May 2 marks a year since an early draft of the Dobbs decision was leaked, a precursor to the U.S. Supreme Court decision in June that overturned the federal right to abortion, a victory for anti-abortion protesters, above. (Getty Images)

Anti-abortion leaders could not stop paraphrasing Winston Churchill last June after the U.S. Supreme Court overturned Roe v. Wade, a victory that took 50 years to realize.?

“While we celebrate the momentous ruling in Dobbs, we must remember that overturning Roe was not the beginning of the end, but it was the end of the beginning,” said Kristen Waggoner, CEO of the leading anti-abortion law firm Alliance Defending Freedom, on a webcast days after the Supreme Court overturned federal abortion rights in Dobbs v. Jackson Women’s Health Organization.

Waggoner was one of several leaders on the “Life Beyond Roe” webcast to echo the late British prime minister after a pivotal World War II victory for Western Allies in November 1942. Defeating Roe was far from the end of the war on abortion rights, but it opened wide the frontier to diminish access for as many people as possible, she said.?

“We are Christ’s hands and feet. He has used us in this victory, but he still desires to use us to help women and children and to promote human flourishing. And to do that, we need … to use the influence that God has given us to promote sound policy,” she said. “We now have 50 different battles.”?

As it turns out, abortion foes’ post-Dobbs strategy has been even more sprawling than state-level bans and restrictions. Today (May 2) marks one year since an early draft of the Dobbs decision was leaked to Politico, and in that time anti-abortion activists have flooded state legislatures and city governments with proposals to criminalize pregnancy termination or to add burdensome regulations, and are defending many of them in state and federal court.

Activists managed to return to the Supreme Court with a controversial lawsuit – brought by an anti-abortion coalition represented by Alliance Defending Freedom – that is trying to ban medication abortion nationwide. The high court has, for now, preserved access to abortion-inducing drugs while the lawsuit folds. Legal and FDA experts say the plaintiffs in the case likely lack standing to sue and their claims that medication abortion is unsafe are deeply flawed. But this case is just the beginning of bold and ambitious efforts to restrict abortion as much as possible.

The consequences thus far have been sweeping. In addition to creating confusion and fear of jail time for health care providers and patients, state abortion bans have led to women and girls being denied emergency medical care in states like Kansas and Missouri, to maternity wards shuttering in Idaho, and to an increasing shortage of OB-GYNs in Tennessee.?

But anti-abortion activists are far from finished in their quest. Because many of the more than a dozen state abortion bans are currently being litigated, activists continue to introduce new anti-abortion regulations just in case those bans are ultimately struck down. Here are a few of their legislative and legal strategies.

Reviving Victorian era laws

Of the 14 states with active total abortion bans, three of those states – Oklahoma, Texas, and Wisconsin – are operating under laws passed in the mid-1800s to early 1900s with other hundred-year-old state bans currently blocked in court.?

But the entire country could soon be transported back to 1873, if anti-abortion activists are successful at getting the U.S. Supreme Court to uphold an anti-obscenity law known as the Comstock Act, which bans abortion drugs and medical equipment from being sent in the mail. The law was intended to prevent the mailing of anything that promoted non-procreative sex. It has long-remained dormant in the U.S., and narrowed by federal courts and Congress, which in the 1970s removed from the statute mailing contraceptives.

However, Congress never officially repealed the law, and anti-abortion activists have invoked the Comstock Act in the Alliance for Hippocratic Medicine? v. FDA case, to receptive ears, and in a lawsuit involving a city abortion ban in New Mexico. Additionally, attorneys general in 20 Republican-led states cited Comstock to stop national pharmacy chains from shipping abortion pills to their states.?

Legal and historical experts have told States Newsroom this law is destined to receive a hearing from the Supreme Court. But reviving Comstock could once again have devastating consequences for the same people who lacked rights when this law was passed: people of color and women. For many women and girls across the U.S., medication abortion has become the only available option. And this medication regimen is used not just for abortion, but to treat miscarriages, as well.?

?Environmental laws

For two decades, anti-abortion activists have focused on federal drug policy as a way to curtail access to medication abortion. Now their focus has shifted to exploring environmental regulations, an atypical avenue for their allied conservative lawmakers who typically oppose environmental regulations.?

Though it had already banned abortion, this year West Virginia introduced the West Virginia Chemical Abortion Prohibition Act, which restricts how medication abortion can be prescribed, administered – and disposed of. Many women experience medication abortion – like those who experience miscarriage – in their homes or in a private space; some miscarry over the toilet. This bill would require women – many of whom are traveling long distances to get abortions – to dispose of embryonic and fetal tissue in a special medical waste bag and return the remains to the health care provider. The law would not, however, apply to women taking the abortion drugs for a serious health condition. Providers would face up to a $1,000 fine and/or three years in prison for violating this regulation.?

The West Virginia bill also holds abortion drug manufacturers liable for the disposal of their drugs: “The manufacturer of any abortion drug is responsible for proper disposal of discarded abortion drugs. If abortion drugs are found in wastewater, the pill manufacturer company shall be responsible for cleanup, remediation, and further preventative measures.” The manufacturer would face a $20,000 fine per violation.

The bill did not move during this legislative session, but likely would in the event that the state’s abortion ban were blocked. Students for Life of America, the national anti-abortion group that drafted this wastewater language, is pushing these regulations and petitioning the FDA to study the environmental impacts of the abortion drug mifepristone, despite no present evidence of the drug having an adverse impact on the environment.?

Talking about the environment has also been a way for anti-abortion organizations to appeal to Gen Z.??

Restricting medication abortion at state level?

If the attempts to pass prohibitive federal regulations on medication abortion don’t work in the long run, more and more states might begin passing more restrictions or explicit bans on abortion-inducing drugs, including states with total or near-total bans, like Tennessee and Texas. Wyoming’s governor recently signed a ban on medication abortion, and similar laws have been introduced in Arkansas (died this week) and Iowa.

Meanwhile, attorneys general in Alabama and Idaho have simply asserted that their states’ respective chemical endangerment and abortion bans prohibit distribution or use of abortion-inducing drugs in their states. Alabama Attorney General Steve Marshall has since attempted to walk back claims that women in his state could be prosecuted for taking medication abortion.?

And Idaho Attorney General Raúl Labrador also attempted to walk back his interpretation of his state’s law, which was influenced by anti-abortion activists. Labrador’s legal analysis is now the subject of an ongoing lawsuit brought by Planned Parenthood and the American Civil Liberties Union, which also challenges the attorney general’s statement that merely giving information about how to access abortion in a state where it is legal would violate Idaho’s law.?

Restricting credit card purchases, and other financial restrictions?

Several states this year have introduced different bills regulating insurance coverage and public funding as it relates to abortion and abortion information, including in states where abortion is still legal. A bill in Indiana would prohibit the state from covering costs associated with an abortion, which includes allowing the use of hospitals or surgical facilities to perform abortions.

A lawmaker in Texas, which strictly bans abortion, proposed a bill that would prohibit credit card companies from processing transactions for the sale of abortion pills. Like other Texas abortion laws, this one would allow any citizen to sue a credit company over an abortion pill sale. Lawmakers in Texas have also proposed legislation that would censor abortion pill websites.?

?Fighting for abortion rights

These new laws and proposals merely scratch the surface. Utah, where abortion remains legal through 18 weeks’ gestation, is currently trying to ban abortion clinics. But abortion rights activists and lawmakers at the state and federal level have not backed down.?

They are fighting restrictions and bans in court, in addition to stockpiling abortion medication ?and trying to enshrine abortion rights in more states (something GOP lawmakers in Ohio are trying to defeat by making it harder for voters to amend the state constitution). The federal government, in addition to defending medication abortion access, has also continued to investigate hospitals – recently in Kansas and Missouri – that deny emergency care to pregnant women for fear of violating states’ abortion bans. (Kansas still allows abortion, but the law governing a state university hospital bans abortion on its property.)?

At a U.S. Senate Judiciary Committee hearing last week, Senate Democrats invited reproductive rights expert witnesses to explain the practical and legal impact of these new anti-abortion policies on U.S. residents.

“This period of time since Dobbs has unleashed criminal actions against women and their doctors — it has also unleashed civil surveillance,” said Michele Goodwin, chancellor’s professor of law at the University of California Irvine School of Law. “What we see is the dismantling, the vulnerability of constitutional principles that date back centuries, and abortion is being used as a proxy to dismantle fundamental constitutional principles, including the right to travel.”

Medical abortions make up more than half of abortions in the U.S. (Photo illustration by Anna Moneymaker/Getty Images)

WASHINGTON — More than 250 congressional Democrats have filed a brief urging an appeals court to reverse a Texas federal judge’s decision to suspend the U.S. Food and Drug Administration’s two-decade-old approval of the abortion pill.

In an emergency order, the U.S. Supreme Court in April issued a stay, meaning the abortion pill known as mifepristone will remain available throughout the United States while the lawsuit over its approval works its way through the appeals process.?

In the brief filed Monday with the 5th Circuit Court of Appeals in New Orleans, lawmakers argued that the decision by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas is not based in law and poses a health risk to pregnant patients if they are denied access to mifepristone.?

They added that it could also threaten access to other medications that have been approved by FDA’s drug process.?

“The consequences of the district court’s remedy could extend far beyond mifepristone, for it undermines the science-based, expert-driven process that Congress designed for determining whether drugs are safe and effective,” the 253 lawmakers — 50 senators and 203 House members — wrote.

Kacsmaryk in early April overturned the FDA’s approval of mifepristone dating back to 2000. Kacsmaryk is a nominee of former President Donald Trump.

Kacsmaryk’s opinion in the case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, is here.

“The district court’s order not only misapplies the law but also threatens to harm members of the public, many of whom rely on the availability of mifepristone for reproductive care — and many more of whom rely on the integrity of FDA’s drug approval process for continued access to life-improving and lifesaving drugs,” lawmakers wrote.

“Congress intended to — and did — vest authority in FDA to evaluate and ensure the safety and efficacy of drugs in the United States, and Amici call on this Court to give due weight to that intent,” they continued.?

Mifepristone blocks a hormone called progesterone that is needed for a pregnancy to continue, and it’s one of two drugs used in a medication abortion. Medical abortions make up more than half of abortions in the U.S., according to research by the Guttmacher Institute.

Oral arguments in the appeal are set for May 17 in New Orleans.

Several New Mexico towns are using an 1873 federal law to push back against a new state law to protect abortion access. (Getty Images)

When officials in a small New Mexico city sued the governor and attorney general over their ordinance placing restrictions on abortion clinics earlier this month, they argued that a late 19th century federal anti-obscenity law superseded state law. In March, Gov. Michelle Lujan Grisham signed into law a measure prohibiting public entities from interfering with reproductive and gender-affirming care access.

It was the latest legal challenge to abortion access to lean on the Comstock Act of 1873, federal statutes that ban the mailing of anything “obscene, lewd, lascivious” or considered morally impure, including abortifacients or abortion-related materials. The plaintiffs in the high-profile Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, challenging the U.S. Food and Drug Administration’s decades-old approval of the key abortion pill mifepristone, cited the act in legal arguments, asking the court to find the 150-year-old law makes it illegal to send abortion pills through the mail.?

But in December, the U.S. Department of Justice Office of Legal Counsel issued an opinion for the U.S. Postal Service stating that federal law does “not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully. Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion, the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.’’

The campaign launched by abortion opponents to revive the Comstock Act is working: Recent court rulings in the abortion pill case suggest the dormant law can be applied today.??

U.S. District Judge Matthew Kacsmaryk referenced the act earlier this month in revoking FDA approval of mifepristone, a decision immediately appealed to the U.S. Fifth Circuit Court of Appeals. “Defendants rely heavily on the OLC (Office of Legal Counsel) Memo that purports to establish this ‘consensus.’ But none of the cases cited in the OLC Memo support the view that the Comstock Act bars the mailing of abortion drugs only when the sender has the specific intent that the drugs be used unlawfully,” Kacsmaryk wrote. He found that the FDA’s decision to allow abortion pills to be mailed violated the act.?

The conservative-leaning appellate court in Louisiana also appeared skeptical of the federal government’s argument that the Gilded Age law is irrelevant. “The plain text does not require that a user of the mails or common interstate carriage intend that an abortion actually occur. Rather, a user of those shipping channels violates the plain text merely by knowingly making use of the mail for a prohibited abortion item,” the Fifth Circuit wrote. (The U.S. Supreme Court issued a stay on lower courts’ rulings last week while the appeals process plays out in court, leaving the ability to access the pill in place.)

Legal and historical experts told States Newsroom the statutes — named after the moral purist Anthony Comstock — could be the next major legal argument used by the anti-abortion movement in the courts to restrict abortion and reproductive health care. “No court has really determined what is the enforceability and scope of the Comstock Act,” said Rachel Rebouché, Temple University Beasley School of Law dean.?

“We’re going to see this head right back to the Supreme Court,” Rebouché said.?

Who was Anthony Comstock?

Anthony Comstock was a Connecticut native affiliated with Congregationalists, a devout sect of Christianity descended from the Puritans, according to Amy Werbel, a cultural historian and professor at the Fashion Institute of Technology who wrote the 2018 book Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock.?

“They were true believers in the sense that if one wasn’t saved properly as they thought, they would burn in hell. And I think that’s really important to understand — that the root of all of these laws is even Christianity, the desire to save the souls of Americans through the lens of their own religious framework. And that also then will be motivated by this idea of Christian nationalism,” Werbel said.

Comstock spent his life spreading his view of moral superiority. Congregationalists believed that sex was a sin and people should only have intercourse for procreation, Werbel said. After serving in the Civil War — many Northern fundamentalists were abolitionists —? Comstock and others turned to other tactics to sanctify the nation. “An abortion also wasn’t seen as a sin because it was the death of a person. It was seen as taking away the punishment for sex” because procreation was the sole purpose of intercourse, Werbel explained.

His crusade eventually influenced Congress, who named the 1873 anti-obscenity laws after him, she said. President Ulysses S. Grant signed the act into law in March 1873. First-time violators faced up to five years in prison. The federal government soon hired Comstock to serve as a Post Office special agent.???

“After 1873, Comstock goes all over the country,” Werbel said. “He goes to state capitals. He’s always bringing suitcases of contraceptives, abortifacients, sex toys, pornographic photographs. And [he] spread them out for people to look at, then they pass the legislation, express their horror.”?

The act was weakened in the 20th century after a pivotal U.S. Supreme Court ruling, 1965’s Griswold v. Connecticut, which found the state law banning contraception was unconstitutional and violated the right to privacy, according to legal experts. Six years later, Congress removed restrictions on contraception and birth-control information from the act, wrote Joanna L. Grossman, a Southern Methodist University law professor, and Lawrence M. Friedman, a Stanford Law School professor.?

But a version of the law is still on the books — Congress never repealed it.?

Culturally, the newfound interest in the late-19th century anti-obscenity codes revives a stunted view of sexual morality, said Priscilla Smith, a Yale Law School professor and director of the Information Society Project’s study of reproductive justice program. “They’re rooted in archaic views of women’s sexual expression and their subservient role in the family. They really were designed to control women’s sexual activity.”?

“All of these things go together,” Werbel said. “The suppression of teaching about LGBTQ history, the suppression of access to abortifacients. All of these things go to this belief that is also woven into this particular Christian evangelical idea: God creates Adam, woman is born from man, and I’m just going flat out say it —? a white man has dominion over all else in the world, including women.”

New Mexico ordinance cases cite Comstock?

The New Mexico lawsuit, filed on April 17 in the Fifth Judicial District Court County of Lea, stems from the city of Eunice’s recently enacted ordinance requiring abortion clinics to comply with Comstock.?

The ordinance is part of the so-called Sanctuary Cities for the Unborn campaign, started by Texas anti-abortion activist Mark Lee Dickson, whose mission has been to ban abortion across the nation city by city. The initiative started in Texas and has spread to other states.?

The New Mexico Supreme Court recently suspended similar ordinances in Hobbs and Clovis, Source NM reported. And the town of Edgewood just passed a parallel ordinance, according to the Albuquerque Journal.

“The problem that the New Mexico attorney general has really isn’t with these ordinances; it’s with these laws that were passed by Congress in 1873,” Dickson told States Newsroom. “Even if the New Mexico Supreme Court were to rule against us, that would actually be a great opportunity to take this before the Supreme Court of the United States. And I do not believe the Supreme Court of the United States would hold the same opinion as the Office of Legal Counsel opinion that the Biden administration put forth.”

Attorneys for Eunice – two local lawyers and former Texas solicitor general Jonathan Mitchell, the architect of a bounty-style six-week abortion ban –? argued that city ordinances and the Comstock Act take precedence over state laws, according to the complaint. “Federal law imposes criminal liability on every person who ships or receives abortion pills or abortion-related paraphernalia through the mail, an express service, a common carrier, or an interactive computer service,” they said.?

They also claim distributing abortion pills is a violation under the Racketeer Influenced and Corrupt Organizations (RICO) Act. Therefore, abortion providers such as Planned Parenthood, employees, volunteers and donors face civil and criminal penalties, the suit said.?

“I think the argument is that RICO provides a civil cause of action against people who are violating civil law,” Rebouché said. “RICO is a hook to prosecuting people under civil litigation for their conspiracy to violate federal law. It’s just another way to try to breathe life into Comstock.”?

Last week, New Mexico Attorney General Torrez argued that the local government ordinances exceed their authority and are unconstitutional, according to a brief filed to the state Supreme Court.??

“Our brief demonstrates that the counties and cities violated the state constitution and state law when they passed their ordinances to restrict abortion care and undermine women’s reproductive rights,” Torrez said in a statement. “Further, our briefing provides analysis into House Bill 7 which reinforces our argument that local governments cannot regulate abortion clinics and reproductive healthcare.”?

Eunice officials want a judgment that the act is fully enforceable, after the Dobbs decision? overturned the federal right to abortion. They urged the court to ban abortion pills and abortion-related paraphernalia through the mail.

Arguments referencing Comstock target early abortions, according to Smith, the Yale professor. Medication abortion is approved by the FDA for up to 10 weeks of pregnancy. Besides abortion pills, devices called tenaculums and vacuum aspiration equipment are needed in surgical abortions. Even though 14 states ban most abortions, there are still exceptions in some states to save the life of the mother or terminate an ectopic pregnancy, for example.

“It’s ridiculous to say that abortion remains legal in many states around the country, and yet you can’t deliver equipment and medications used to perform abortions through mail carriers,” Smith said. “How else are you going to get the equipment there? That’s like saying it’s legal to take Viagra, but nobody can send it to pharmacies or doctors around the country.”?

Sofia Resnick contributed to this report.

Protesters and safety escorts for patients gathered last year outside EMW Women's Surgical Center in Louisville. (Photo by Deborah Yetter)

LOUISVILLE —With Kentucky’s abortion ban now in its 10th month, advocates have returned to court to argue that abortion is a right under the state constitution after the U.S. Supreme Court last year struck it down as a federal constitutional right.

But a February ruling by the Kentucky Supreme Court curtailed the ability of abortion rights lawyers to make their case in state court.

“A very narrow opening for a very narrow claim,” is how Samuel Marcosson, a constitutional law professor at the University of Louisville, described prospects for the case brought by Kentucky’s two abortion providers, Planned Parenthood and EMW Women’s Surgical Center.

The state Supreme Court ruling cut off the right of providers to challenge a law banning abortions after about six weeks of pregnancy, once cardiac signals from an embryo are detected. It does allow them to challenge the state’s “trigger law,” a measure enacted in 2019 to ban all abortions in Kentucky should the Supreme Court end the federal constitutional right to abortion.

Lawyers for the American Civil Liberties Union, representing Kentucky’s abortion providers, say they are seeking ways to bolster their case, possibly by adding an individual affected by the ban. That would give them a new opening to challenge the six-week ban as well as the trigger law.

“We are working on it,” ACLU lawyer Heather Gatnarek told Jefferson Circuit Judge Mitch Perry at an April 24 hearing he scheduled to determine how to proceed in light of the state Supreme Court decision.

But it’s been difficult, Gatnarek said, “to find a plaintiff with standing who is willing to be involved in issues like this.”

Christopher Thacker, representing Kentucky Attorney General Daniel Cameron, who is defending the laws, said he would object to adding a plaintiff at this point and said the only issue left is whether to uphold the trigger law.

“This case is simply about the trigger ban,” he said.

Perry gave parties two months to work on the case and asked them to return to court June 28.

Abortion is now banned or restricted in roughly half the states, according to the Kaiser Family Foundation, following the June 2022 U.S. Supreme Court decision to strike down Roe v. Wade, the landmark 1973 case that established pregnancy termination as a constitutional right.

Kentucky’s laws allow abortion only when it is deemed medically necessary to save the life of or prevent disabling injury to the patient. The laws provide no exceptions for fetal defects or pregnancies from rape or incest.

Abortion providers filed an immediate challenge last year after the laws took effect in June upon the U.S. Supreme Court ruling. In July, Perry ruled in their favor, temporarily barring enforcement of the Kentucky laws while the challenge proceeded in state court.

That allowed abortion services to briefly resume for about a week until a state Court of Appeals judge overruled Perry. The case eventually made it to the state Supreme Court, which declined to block enforcement of the laws and sent the case back to Perry to decide within new limits it imposed.

Patients still call

Meanwhile, demand for the procedure continues.

Patients still regularly contact Kentucky’s two abortion providers, both in Louisville, in hopes of scheduling the procedure or finding out where abortion care is available. Not all realize abortion is banned in Kentucky, though that is changing.

“There is a diminishing number of people that know don’t know it’s illegal,” said Jessica Carpenter, manager of Planned Parenthood’s health center. “A lot of the confusion comes in as to where they can access abortion in states surrounding us.”

EMW continues to field calls from patients although it has been unable to provide care, said co-owner Ona Marshall.

“We are still answering the phone and we are still hearing from people,” Marshall said. “We get calls every week and every month.”

Based on EMW’s number of patients in the year prior to Kentucky’s abortion ban, Marshall estimates about 3,000 people have been denied abortion services in Kentucky, many likely seeking care in other states.

Marshall called the restrictions “an affront” to those seeking to end a pregnancy. “It’s causing a lot of harm to people,” she said.

Abortion opponents, who celebrated the end of Roe v. Wade, see it differently.

“It’s saving lives of the unborn children,” said Addia Wuchner, executive director of Kentucky Right to Life, adding her organization values “the life of the mother and the unborn child.”

‘Absolutist positions, they don’t work in medicine’

But Dr. Anna Feitelson, a Louisville obstetrician and gynecologist, said absolute bans on abortion don’t take into account complications that may arise in a pregnancy, including fetal abnormalities that mean little chance of the fetus surviving, or conditions that could threaten the health of the pregnant patient.

“Too many people see this as black or white, right or wrong,” she said. “Absolutist positions, they don’t work in medicine. There are always going to be areas of gray.”

For example, Feitelson said one of her patients had a fetus with severe abnormalities that could not survive. She had to leave the state to end the pregnancy because Kentucky’s law provides no exceptions for such conditions.

“She had to drive to Illinois,” Feitelson said. “It was a highly desired pregnancy but the fetus was not going to survive.”

Another dangerous condition is when the patient’s water breaks too early in a pregnancy, causing the loss of amniotic fluid that surrounds and protects the fetus, increasing the risk of infection.

Some years ago, Feitelson said she had a patient who experienced that condition but tried to continue the pregnancy. She experienced severe infection and died.

Several lawmakers in Kentucky’s General Assembly, controlled by a Republican supermajority, expressed concern about the laws’ lack of exceptions for fetal anomalies or pregnancies from rape or incest.

But measures including one filed by Rep. Jason Nemes, R-Louisville, to allow abortions in such cases got no attention in the 2023 legislative session and died without hearings.

Supreme Court stopped short of ruling on abortion bans’ constitutionality

Advocates for abortion rights still hope to prevail in state court.

But they will have to overcome the ruling from the state Supreme Court that found abortion providers who brought the case lack “standing,” or the right to challenge the six-week ban.

The majority opinion by Justice Debra Lambert gave the abortion rights advocates limited standing to challenge the trigger law on grounds that it is unconstitutional.

In doing so, the court stopped short of ruling on whether the laws themselves are constitutional.

“To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion,” it said.

By reaching that conclusion, it saved the majority from having to reach any decision about the laws, said Marcosson, the constitutional law professor.

“I’m not surprised the court was anxious to find a way not to rule on the merits,” he said.

Marshall had a more pointed take. “They took the easy way out, which is really an affront to women, decency and personal liberty,” she said.

The decision drew several sharply worded dissents including one from Justice Angela McCormick Bisig who argued the majority erred by failing to evaluate whether the laws may be unconstitutional, saying justices were “remiss for refusing to do so.”

She also said the majority erred in denying standing to the abortion providers to challenge the six-week ban.

Bisig noted that Kentucky voters in November rejected a ballot measure that would have changed the state constitution to specifically state it includes no right to abortion.

And Bisig said the abortion providers might resolve the lack of standing by adding a patient as plaintiff to the case to challenge the six-week ban.

Overturning the trigger law, which bans all abortions from the moment of fertilization, could restore some access to abortion in Kentucky.

About 40 percent of abortions are performed by six weeks of gestation, according to the Kaiser Family Foundation.

Marcosson said the only way he believes the abortion providers could strengthen their right to challenge the six-week ban on abortions is by adding to their lawsuit a patient who was affected in some way.

“If they don’t,” he said, “the six-week ban is off the table.”

African-american female patient touching belly and telling a mature worried doctor about stomachache at hospital appointment. Healthcare specialist showing concern about symptoms

These days Kylee Sunderlin is often the first person people will talk to about needing or wanting to terminate a pregnancy, even though she’s not a nurse or doctor or a loved one. She’s a lawyer.?

This is Sunderlin’s third year overseeing a national hotline dedicated to helping people navigate legal questions around abortion in their states. Calls have been at an all-time high, she said, as have callers’ fear and confusion.

“It’s just all really scary right now — I can hear it in people’s voices,” said Sunderlin, the legal support director for the nonprofit If/When/How. The organization is part of a nascent network of reproductive rights legal-assistance groups and law firms called the Abortion Defense Network, which formed in response to sustained legal uncertainty around abortion rights in the U.S.

“There’s a real sense that people are scared that if they share their pregnancy, or any information at all, that they are necessarily going to put someone else at legal risk, not just themselves. And so I’m just seeing and sensing a type of isolation that I hadn’t seen previously,” Sunderlin said. “People are navigating this alone.”

It’s been nearly one year since the U.S. Supreme Court overturned the federal right to terminate a pregnancy, followed by confusion and fear about contradictory state abortion laws and unresolved legal challenges. In this legal chaos emerged the Abortion Defense Network, which publicly launched in February and is trying to make providers and patients feel less alone. The network is a one-stop shop for patients and loved ones, and providers and practical support groups. Working together, the six reproductive rights groups in the network provide free legal advice, pro bono representation, and help paying legal expenses.?

“We believe this is a very robust system with serious legal and practical support that we are trying to get out to the community so that people who provide and support abortion care can continue to perform their vital services,” said Cassie Ehrenberg, senior counsel for pro bono initiatives for the Lawyering Project, which manages the intake calls and operations of the network. Its five partners are: the American Civil Liberties Union, the Center for Reproductive Rights, If/When/How, the National Women’s Law Center, and Resources for Abortion Delivery, in addition to seven anchor law firms.

The Supreme Court is once again about to make a consequential decision about medication abortion in the Texas-based Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration case, one of several federal cases related to the abortion drug mifepristone. And though nobody knows whether and in what states the most common form of abortion post-Roe will remain legal and available by the end of this week, abortion rights advocates told States Newsroom they are determined to find ways to help people access safe abortion care and understand their rights.

“These federal rulings, particularly from the judge in Texas, it’s creating even more chaos and confusion for people who are seeking abortions,” said Sunderlin, who along with a small team of trauma-informed attorneys field calls from people of various ages, races and backgrounds from around the country. “And every time this happens, we see an increase in calls.”

A more than 2,000% increase in abortion patient calls

Sunderlin said If/When/How transformed its Repro Legal Helpline in June 2020, from an informational helpline to one where people seeking abortions could be promptly connected to legal services. More staff were hired after Roe v. Wade fell in June 2022, when the helpline saw a whopping 2,460% increase in inquiries, Sunderlin said. She noted that the helpline has been consistently receiving hundreds of calls every month since then.

A lot of the questions that helpline attorneys are fielding these days are about the legal risks of seeing a health provider at all, Sunderlin said, whether it’s just to confirm the pregnancy or to seek care for complications of a self-managed medication abortion or to seek care for a medical emergency in a wanted pregnancy. Her group’s legal advice depends on each individual’s circumstances, including their geography and relationships.?

“You’re really responding to people’s legal questions, but also responding to their needs as whole humans coming to us in a really chaotic, difficult time,” Sunderlin said. “If there’s anything we can do to help alleviate people’s fear, that’s my primary goal and what I’m constantly thinking about.”

If/When/How, which has researched abortion-related criminalization in the U.S., published a report last year showing that people who go to jail for having or assisting with an abortion were often reported to law enforcement by health care providers or family members and acquaintances. If/When/How created a legal guide with Physicians for Reproductive Health, which says patients are within their legal rights not to disclose a medication abortion to an emergency room doctor or other health care provider. The guide notes that an abortion via medication presents like a natural pregnancy loss and usually requires the same care if complications arise.?

Right now only Nevada and South Carolina have laws on the books criminalizing self-induced abortions, Sunderlin said, though that hasn’t stopped states from charging pregnant people under various statutes. If/When/How found 61 cases between 2000 and 2020 across 26 states of people investigated or arrested for ending their own pregnancies or helping others to do so. And presently more states are floating policies to charge pregnant women who have abortions.?

Anti-abortion efforts to police health information and criminalize out-of-state abortion travel have only perpetuated the difficulty of accessing abortion for many Americans, especially those without the means to travel, Sunderlin said.?

“People have taken their health care into their own hands throughout the course of history,” Sunderlin said. “With all of this chaos and confusion, that is increasingly becoming the reality for people as access becomes more and more scarce. And with this increased need for people to end their own pregnancies, for people that take their medical care into their own hands, there’s a very real risk of being criminalized for doing that.”

Abortion providers are not going away

Abortion providers, meanwhile, are scrambling to figure out how to provide care, depending on which way the Supreme Court rules on Friday in the Texas federal case, which concerns mifepristone, part of the two-drug medication abortion regimen. The high court could uphold the appeals court’s decision that keeps mifepristone on the market while the lawsuit unfolds but also re-implements old, out-of-date restrictions, including shortening the timeline when people could access the drugs from 10 weeks to seven weeks’ gestation, and would potentially eliminate access to the generic version of the drug.?

Dr. Gabriela Aguilar, the regional medical director for Planned Parenthood of Greater New York, told States Newsroom that Planned Parenthood providers are determined to keep providing patients with abortion care no matter what happens. They have been planning for different scenarios that could come out of the Supreme Court’s ruling and are preparing to potentially provide only misoprostol, the other drug in the regimen. Providers say this is safe and effective, but still less effective and generally more pain-inducing than the current FDA two-medication regimen, which has a two-decade-long high safety and efficacy record.?

“We’re sitting in a holding pattern right now where we’re trying to stay optimistic – hope for the best, plan for the worst,” Aguilar said. “We’re going to continue providing medication abortion no matter what.”

Aguilar said patients are very confused right now, especially when they see constant news headlines of mifepristone being banned, even though that has not yet happened. She said she worries how a sudden change to medication abortion law will impact her patients.?

“What needs to be recognized is that mifepristone is not just used for abortion,” Aguilar said. “It’s also used for management and treatment of miscarriages. So this entire community of people who have early pregnancy losses are being left out of the conversation and potentially put in these scenarios where they’re not going to have as effective or patient-centered experience.”

On a press call organized by reproductive rights groups Tuesday, public health and FDA regulatory experts expressed frustration that the legal questions about mifepristone in this case are medically baseless and will likely lead to public health harm and massive confusion among health providers and public health departments nationwide.

Ushma Upadhyay, a professor and public health scientist at the University of California, San Francisco, said that if mifepristone is even temporarily taken off the market or if old out-of-date restrictions are returned, “that will send the abortion provider field into a little bit of chaos.”

“I think that was the intention of this, of these court cases in the first place,” Upadhyay said. “Providers will have to figure out what is the best course forward based on the state they’re in, based on their patient populations.”

But in all of the anxiety over what will happen next in the fight over abortion access, the Lawyering Project’s Ehrenberg said she’s been heartened to see the determination among providers to continue providing health care in a frightening legal landscape.

“What I wish other people could see is that the resolve and the commitment to continuing to bring this care forward to patients and community members is so steadfast and so strong, that it really is heartening in the midst of this,” Ehrenberg said. “[Providers] are looking to navigate this horrible new landscape, but they are resolved to do that.”

“Bans off our bodies” balloons decorated the Protect Kentucky Access election night watch party on Nov. 8, 2022, in Louisville. Kentuckians rejected an anti-abortion amendment to the state constitution. The state Supreme Court has allowed the near-total ban on abortion to remain in force. (Kentucky Lantern photo by Arden Barnes)

Though the U.S. Supreme Court has temporarily blocked an effective ban on medication abortion, anti-abortion groups are not giving up on trying to fast-track a national abortion ban. And that means continuing to try to squash nationwide access to the most common form of abortion post-Roe, by whatever means necessary.??

“Obviously, the pro life community is disappointed that there wasn’t an outright decision made concerning banning chemical abortions,” said the Rev. Patrick Mahoney, chief strategic officer for the Stanton Public Policy Center, the lobbying arm of a powerful Idaho-based network of crisis pregnancy centers which has heavily influenced Idaho’s attorney general. “But either way, for the pro life movement and Stanton Public Policy Center, this does not deter us. We have many, many avenues out there to try to ban chemical abortion.”

Legally challenging the U.S. Food and Drug Administration’s two-decades-old approval of the drug mifepristone despite its high safety and efficacy record in Alliance for Hippocratic Medicine v. FDA has been just one of the anti-abortion movement’s many strategies to further curb abortion access. As this case continues to wind its way through the courts, activists are testing other regulatory and legal avenues.

Just this week, anti-abortion activists once again petitioned the FDA to revoke the approval of mifepristone, but this time on (disputed) environmental grounds. The national anti-abortion group Students for Life of America is arguing that trace amounts of the hormone blocker mifepristone could be posing a risk to endangered or threatened species and is trying to compel the FDA to study these impacts if the agency is forced to restart the approval of mifepristone as a result of the Alliance case, according to Politico. The group has also floated state model legislation adding environmental restrictions to medication abortion, which has been introduced in West Virginia.??

But this is part of SFLA’s years-long campaign to curtail access to the abortion pill. SFLA also opposes contraception and fertility treatments, and its board co-chair is Federalist Society co-chairman Leonard Leo.

“When I launched Students for Life more than 16 years ago, we knew we were going to need a trained army, ground troops ready to go in states and communities around the country the moment Roe versus Wade was reversed. And we began looking at this issue of chemical abortion five years ago,” SFLA president Kristan Hawkins said on a webcast in February.

Anti-abortion legal activists are also currently leaning hard on the Victorian era anti-vice Comstock Act, which plaintiffs in the Alliance lawsuit argue legally prevents abortion pills from being sent in the mail, something the federal government disputes.

Meanwhile the Alliance case is far from over. Early this month, U.S. District Judge Matthew Kacsmaryk of Texas ruled to suspend the FDA’s approval of the abortion pill. That order never went into effect; neither did the Fifth Circuit Court of Appeals’ decision to keep medication abortion on the market but revive out-of-date restrictions lifted after 2016. Public health and legal experts have been warning that letting either decision stand would have severe public health and legal implications beyond abortion.

And though abortion rights advocates around the country count today’s decision as a victory, groups like the American College of Obstetricians and Gynecologists say the case has already caused damage.?

?“Although the Supreme Court has kept mifepristone available to patients for the duration of this legal battle, much of the damage of this process remains in place – and we know that the attacks on abortion care will not stop, no matter how many times medical professionals declare that abortion is essential, evidence-based health care and that interference in the patient-physician relationship must stop,” said ACOG president Dr. Iffath Abbasi Hoskins and ACOG CEO Dr. Maureen G. Phipps, in a statement. “We will continue to lead the medical community in providing the clear, strong evidence about mifepristone so that the Supreme Court can make the right decision in the end. ACOG remains steadfastly in opposition to interference in the patient-physician relationship.”

And meanwhile, the uncertainty and confusion over abortion rights in the U.S. marches forward, as are multiple lawsuits related to expanding medication abortion access. A recent order in the federal case out of Washington protects medication abortion in 17 states plus the District of Columbia. More states are trying to expand as abortion haven states. Oregon just joined Massachusetts, Maryland, and Washington in their efforts to begin stockpiling mifepristone. The governors of California and New York have announced plans to begin stock-piling misoprostol, the second drug in the FDA’s two-step regimen for abortion and miscarriage care.?

Providers in states not part of the Washington lawsuit have proposed pivoting to misoprostol-only protocols if mifepristone becomes unavailable. The method is said to be less effective and more painful.

Many legal experts have argued that were it not for a biased judge, this lawsuit would likely have already been dismissed for failing to meet certain legal standards. And its legal and medical arguments have been widely disputed. Kacsmaryk has been open about his anti-abortion and anti-contraceptive views but has recently come under fire for failing to disclose his part in a law-review article and radio interviews where he spouted off his anti-abortion and anti-LGBTQ ideology. In his ruling the judge adopted the same rhetoric as the anti-abortion political movement: using terms like “unborn human” to describe embryos and “abortionists” to describe health care providers.??

If plaintiffs in the case ultimately prevail, public health and regulatory experts worry about the public health and regulatory fallout. During a press call earlier this week organized by abortion rights groups, Dr. Joshua Sharfstein, a vice dean and professor at Johns Hopkins Bloomberg School of Public Health and a former principal deputy commissioner of the FDA, said that suspending or changing the medication abortion protocol to before 2016 is not based on scientific evidence and sets a dangerous precedent of separating the science from the reasons to regulate drugs.?

“These are the kinds of unfortunate questions you have to consider when you rip apart the evidence in public health from the legal framework, because they’re designed to go together,” Sharfstein said. “And you pull them apart, and you’re left with all these truly unique questions. Because, this is so unprecedented, like, what’s the state medical board to do? What’s the state health department to do? What’s the FDA to do under these circumstances? We rely on an alignment between evidence and the law. And when that’s broken, it’s, you know, it becomes a completely different scenario.”

Abortion access could see further decline if case is ultimately victorious

?Access to abortion has already significantly diminished since Roe v. Wade was overturned, with people having to travel and endure extended waits. But providers are determined to continue providing care to as many people as possible.

?Florida, a state with a challenged 15-week abortion ban (a newly signed six-week ban won’t go into effect before the 15-week ban challenge is resolved), and North Carolina, a state with a 20-week abortion ban, are critical access points in the Southeast. In the six months after the Dobbs decision, Florida saw the largest increase in clinician-provided abortions, followed by Illinois, North Carolina, Colorado and Michigan, according to a recent report released by the Society of Family Planning. Overall, there were more than 30,000 fewer abortions in the six months post Dobbs, though that figure does not include any self-managed abortions.

?The increased threats to medication abortion have created heightened fear of criminalization and uncertainty among patients and providers. Abortion rights attorneys who provide free legal services and advice to abortion providers and patients as part of the newly formed Abortion Defense Network have told States Newsroom that many patients have become scared to seek needed medical care related to their pregnancies or abortions.

In the face of abortion provider shortages, travel barriers, and highly restrictive state laws, more people have begun to rely on the two-drug medication abortion regimen of mifepristone and misoprostol. According to the Guttmacher Institute, an abortion rights research organization,10 states would be especially impacted if access to medication abortion is suspended, such as Maine, where the share of counties with an abortion provider would drop from 88% to as low as 19%.

A Woman’s Choice provides abortions at clinics in Jacksonville, Florida, and three cities in North Carolina, along with taking out-of-state patients from Alabama, Georgia, Louisiana, Mississippi, and Texas, according to Amber Gavin, vice president of advocacy and operations. The organization’s leadership is looking at the possibility of providing misoprostol-only abortions if mifepristone access is restricted, Gavin said.

?But Gavin noted that the fight to preserve access to abortion is far from over, regardless of the end result of this lawsuit.

“The goal of anti-abortion protesters has been to completely eliminate access to abortion care across the entire U.S.,” Gavin said, emphasizing that abortion rights opponents could also attack birth control next. “They’ll keep coming and finding ways to control our lives, our families and our futures,” she said.

?Elisha Brown and Kelcie Moseley-Morris contributed to this report.

Medical abortions make up more than half of abortions in the U.S. (Photo illustration by Anna Moneymaker/Getty Images)

Oregonians gather outside the Multnomah County Justice Center to protest the June 2022 U.S. Supreme Court decision that overturned Roe V. Wade. (Alex Baumhardt/Oregon Capital Chronicle)

Oregon Gov. Tina Kotek announced the state will secure a three-year supply of mifepristone, one of two drugs used to terminate a pregnancy and manage miscarriages, amid lawsuits and an expected U.S. Supreme Court ruling on access to the medication.

“By challenging the FDA’s authority over mifepristone, the lower court decisions set an alarming precedent of putting politics above established science, medical evidence, and a patient’s health, life, and well-being with potential implications beyond this one medication,” Kotek said in a news release.?

The state government intends to partner with Oregon Health & Science University to secure the supply of 22,500 doses. Kotek’s office and the Oregon Health Authority first asked health care providers in the state for their thoughts on the ongoing court battles and whether additional state support was necessary, according to the news release.?

The health authority told the Capital Chronicle on Monday that it was not yet stockpiling mifepristone and was exploring “all options” to ensure access to safe, legal and effective abortion care.

The move comes one day before the U.S. Supreme Court is scheduled to announce whether it will allow a Texas ruling to strike down the approval of mifepristone by the U.S. Food and Drug Administration. The ruling would have taken effect on April 14, but the U.S. Supreme Court paused its implementation pending its own opinion.

Kotek’s office said she will also direct Oregon’s licensing boards to issue guidance clarifying that the state supports providers continuing to prescribe, dispense and use mifepristone regardless of the decision issued by the U.S. Supreme Court. Kotek has also pledged that Oregon government officials will not extradite individuals for criminal prosecution for receiving, providing or supporting patients seeking reproductive health care in Oregon.

“To our providers, to the patients who live in Oregon or have been forced to come to our state for care, and to those who are helping people access the care they need, know that I have your back,” Kotek said.?

Oregon is a plaintiff in a competing lawsuit led by Washington Attorney General Bob Ferguson’s office calling on the FDA to lift the restrictions placed on mifepristone’s use. A federal judge in Washington has not yet ruled on the case, but ordered the FDA not to make any changes to the approval or accessibility of the drug in the meantime. Including Washington and Oregon, 15 other states and the District of Columbia joined the lawsuit as plaintiffs and are not expected to be affected by the outcome of the Texas case while the Washington judge’s order is in place.

Kotek joins Democratic governors of several states across the country who took similar action, including in Washington and Massachusetts. The governors of New York and California stockpiled misoprostol, the second drug in the two-step regimen for abortion and miscarriage care. If misoprostol becomes the only drug patients can access for medication abortion after the court’s decision, they might experience more side effects, such as cramping, nausea, vomiting and fever, health care professionals warn.

Lila Bonow, Alana Edmondson and Aiyana Knauer prepare to take abortion pill while demonstrating in front of the U.S. Supreme Court on Dec. 1, 2021. (Photo by Chip Somodevilla/Getty Images)

In addition to creating confusion and fear of jail time for health care providers and patients, state abortion bans have led to women and girls being denied emergency medical care to maternity wards closing to an increasing shortage of OB-GYNs. (Getty Images)

At the center of the federal anti-abortion lawsuit against the U.S. Food and Drug Administration is the abortion drug mifepristone and the regimen that reportedly accounts for the majority of abortions in post-Roe America. That’s why the whole country is bracing itself for a ruling from a notoriously anti-abortion judge in Amarillo, Texas.?

The attention and confusion around this case might end up being the most impactful aspects about it, as many legal scholars doubt the judge has the legal authority to do what plaintiffs are asking for, which boils down to forcing the FDA to essentially recall a drug that for two decades has maintained a record of efficacy and safety. But regardless of the lawsuit’s outcome, legal experts still think a ruling that even briefly or partially favors plaintiffs will likely have lasting consequences on U.S. abortion access and affect medication policy beyond abortion.

“What this case is doing is only increasing the politicization of mifepristone and abortion, as well as the entire FDA approval process, and [it’s] calling into question the impartiality and the legitimacy of our court system, as well as our FDA approval process,” Georgia State University law professor Allison M. Whelan told States Newsroom.

Last month Whelan along with 18 other FDA legal scholars co-signed a “friend of the court” brief on behalf of the FDA, arguing that U.S. District Judge Matthew Kacsmaryk doesn’t have the authority to force the FDA to immediately withdraw approval of mifepristone, which plaintiffs have asked him to do via preliminary injunction while the rest of the lawsuit unfolds.?

Theoretically, the judge could decline to order the total withdrawal of the drug but could grant some of plaintiffs’ other demands, which include ordering the FDA to reinstate regulations that were lifted within the last several years. In 2000 the FDA approved a medication abortion regimen involving the hormone blocker mifepristone followed by misoprostol to expel the pregnancy. Later the FDA extended the gestational age that this protocol could be used from seven weeks to 10, eliminated the in-person dispensing requirement, and most recently has allowed pharmacies to dispense the drug directly to patients under certain restrictions – though that policy is still being rolled out.?

The FDA scholars and other legal experts say the process to withdraw drug approval (or to undo decisions made around a drug) can take years, requires public input, and discretion ultimately falls to the FDA. And in the meantime, the agency could choose whether or how to enforce any order that the drug is unapproved, said Whelan, whose scholarship and teaching focus includes FDA law and reproductive justice.?

“(T)he FDA would issue this policy statement that signals for manufacturers that from the FDA’s perspective, the FDA is not going to bring any sort of a civil or criminal action against the company for continuing to sell their drug,” Whelan told States Newsroom. “The FDA has issued enforcement discretion policies many times, including recently with the infant formula crisis.”

Even Kacsmaryk questioned his own powers during last Wednesday’s injunction hearing.?

“(I)s it that you expect this Court to order the FDA to begin a suspension or withdrawal, almost like a writ-type scenario, or that the Court itself can withdraw or suspend on its own accord?” Kacsmaryk asked, according to the court transcript.

“The latter,” replied Erik Baptist, senior counsel for Alliance Defending Freedom, the conservative Christian legal shop representing plaintiffs. “We take the position that the Court, on its own accord, can order the FDA to withdraw or suspend the approval of the drug.”

“And explain to me your argument on why this Court has that sweeping authority,” Kacsmaryk replied.?

Baptist replied vaguely that the court has the power to “enjoin and take whatever action to prevent harm.”

Despite plaintiffs’ claims that medication abortion is dangerous, there is ample evidence of its efficacy and safety. In more than two decades, there have been 28 reported deaths associated with mifepristone and a generally low rate of adverse events, according to the FDA.

The issue of drug approval is just one among several reasons defendants (and legal analysts) argue the case should be thrown out. Others include that the statute of limitations on plaintiffs’ complaints has expired and that plaintiffs did not exhaust administrative remedies to challenge FDA’s approval of mifepristone.?

Attorneys for the government have argued that plaintiffs do not have standing to bring their claims and have not shown how they would be directly harmed by keeping mifepristone on the market. Plaintiffs have largely argued that doctors represented in the lawsuit might see an increase in workload in their emergency rooms if more medication abortion patients experience complications and seek medical treatment. Even if that were a viable argument, plaintiffs have not provided evidence that medication abortion is causing a large amount of adverse effects and problems – beyond speculation and minimal anecdotes.?

Plaintiffs have also asked the court to weigh in on a dormant federal law from the 1800s known as the Comstock Act, which anti-abortion advocates have been trying to argue legally prevents abortion pills from being sent in the mail, but the Biden administration contests this. Defendants have argued that whether a drug can be legally mailed has no bearing on this case about drug approvals.

A Trump appointee, Kacsmaryk previously served as deputy counsel for a Christian conservative legal group called First Liberty Institute, where he worked on cases fighting access to reproductive health care. “As a federal judge, Kacsmaryk has struck down protections for LGBTQ workers and trans youth and ruled that a federal family planning program’s policy of offering confidential birth control to teens violates federal law and Texas state law, potentially making it harder for Texas teens to access contraception (the ruling has been appealed).

But given all of the legal problems with the abortion pill case, legal journalist Chris Geidner suggests there are a lot of reasons why this case could fail, despite Kacsmaryk’s ideology and sympathies to some of the plaintiffs’ arguments.

“Anything could happen — and much has been made of Kacsmaryk’s background and rulings thus far on the bench — but DOJ and Danco’s lawyers made as strong a case as possible that Kacsmaryk would be going far afield of the law by doing anything about the 2000 approval of mifepristone, especially with these plaintiffs on these facts.”

This case is ongoing (as are several federal lawsuits about medication abortion), and Kacsmaryk’s preliminary injunction is likely to be appealed. Additionally, the ruling itself would only apply to the FDA and Danco Laboratories, one of the manufacturers of the abortion pill. Still, a decision that favors the coalition of national conservative Christian medical associations known as the Alliance for Hippocratic Medicine, and the four plaintiff doctors is sure to have far-reaching legal consequences, and could add more distress and confusion for manufacturers, pharmacists, and health care providers. Beyond abortion, Whelan said a favorable decision could open the door to lawsuits against politically controversial vaccines and hormone replacement therapies.?

A favorable decision could also embolden more states to try to ban mifepristone using the argument – if Kacsmaryk buys it – that the medication abortion regimen was not lawfully approved or properly vetted, which many legal and policy analysts say is patently false. A ruling that limits medication abortion in some way – even if it’s not enforceable – will add yet another confusing legal layer to the panoply of state anti-abortion laws that have led to pregnant women frantically traveling for abortion care outside their states, even for medical emergencies.

“It’s like there is no light at the end of the tunnel as to when this is going to end, and it’s just so problematic from a patient and provider perspective because of the uncertainty,” Whelan said. “I cannot imagine being a healthcare provider who does reproductive health care going to work every day thinking, ‘Can I do this today? I was allowed to do it yesterday. Can I do it today? Will I be able to do it tomorrow?’”

Since Roe v Wade was overturned last summer, abortion medication has been under fire as the abortion drug mifepristone is the subject of a federal lawsuit and some states are attempting to restrict access by threatening legal action against retail pharmacies and suppliers of the drug. (Adobe Stock)

The pills came in a dark salmon-colored envelope sealed with a plastic covering that traveled more than 7,000 miles, over a dozen time zones from Nagpur, India, in almost exactly one week.

They were placed partially under the doormat of a home in a state with one of the most restrictive abortion bans in the United States, where zero clinics or pharmacies dispense the medication and the closest option for an in-person procedure is at least an hour to four hours away.

It is, advocates say, one of the only options left for those seeking abortions in one of the 14 states with criminal penalties for health care providers who perform the procedure.?

The process of ordering the medication from Aid Access, a nonprofit organization founded by Dr. Rebecca Gomperts in 2018, is cobbled together in segments. From the organization’s headquarters in Austria, Gomperts acts as the prescribing gynecologist for the person ordering the pills on the Aid Access website. It’s one of the only services that allows people to order the medication as a “just in case” option, as the pills don’t expire for two years with proper storage.

Payment of $105 (about 98 euros) is made separately via PayPal, and once payment is complete, Gomperts sends her prescription to the pharmacy. There is also an option for financial assistance.?

Mifepristone and misoprostol are used in combination to end a pregnancy, typically before 12 weeks of gestation, and the drugs are used to help manage early miscarriages. Mifepristone is taken first to stop the production of the progesterone hormone, which is needed to continue a pregnancy. Misoprostol is then taken to induce contractions in the uterus to expel the pregnancy.

Mifepristone was approved by the U.S. Food and Drug Administration in 2000, but it is under legal challenges in court and legislatures across the country are attempting to restrict access to the drug. On Friday night, Wyoming’s governor signed into law a ban on medication-induced abortions. ?A lawsuit challenging the FDA’s approval process for mifepristone is ongoing in Texas, where a federal judge could order the agency to revoke its approval after more than two decades. Other states are attempting to restrict access by threatening legal action against retail pharmacies and any other suppliers of the drug.?

An email notification is sent when the package ships, with detailed instructions about how to take the medication, the potential risks involved, side effects and pain management and when to seek medical attention. The email also includes resources for hotlines with people available for emotional support or to provide answers to medical questions.

The package itself includes a box with one mifepristone pill and four misoprostol pills, and a separate package contains 12 misoprostol pills. The combination box is enough for pregnancies that are less than 12 weeks’ gestation, while the 12 pills are designed for pregnancies of more than 12 weeks.

By email, Gomperts told States Newsroom her organization is receiving more than 1,000 emails per day from individuals looking for help. Many of them also cannot afford the full price of the drugs. In February, Gomperts said 57% of those who paid for the drugs were able to pay less than 50 euros, or about $53.

“It is important to continue this work because the people we help cannot travel to other states to get a safe abortion,” Gomperts said.

Alabama has already threatened prosecution under different law for taking abortion pills?

Gomperts grew up in the Netherlands and became passionate about providing abortion care during her work for Greenpeace, according to the New York Times. She has worked to provide abortions for women in countries around the world, including Spain, Morocco, Guatemala and Ireland, when the country still had a strict abortion ban.

Christine Ryan, legal director of the Global Justice Center, is from Ireland and told States Newsroom she still lived there when the abortion ban was in place. It was repealed in 2018 after the high-profile case of a woman who died from a septic infection after she was denied abortion care during a miscarriage.

Ryan said witnessing those events and following Gomperts’ work is what made her decide to get involved in reproductive rights.

“Rebecca Gomperts has been like a guardian angel to women worldwide for decades,” Ryan said.

Gomperts used the same “workaround” to send the drugs to Irish women when it was banned, Ryan said, since she is based in another country.

Fourteen states across U.S. have abortion bans in place, nine of which do not include exceptions for cases of rape or incest. The bans do not have criminal penalties in place for the pregnant person, and while Texas, Oklahoma and Idaho have civil enforcement laws that allow family members or the pregnant person to sue medical providers for their role in an abortion, the suits cannot be brought against the pregnant person.

That has not stopped some states from threatening to prosecute individuals for taking abortion pills under different existing statutes. In January, Alabama Attorney General Steve Marshall said the state could prosecute people under a chemical endangerment law that has been used to prosecute women who use illegal substances during pregnancy. It’s unclear if that law would apply to mifepristone and misoprostol, which are legal drugs approved by the FDA. The U.S. Department of Justice also issued an opinion in December stating the mailing of the drugs to a particular jurisdiction is not sufficient basis for “concluding that the sender intends them to be used unlawfully.”??

The Wyoming Legislature also passed a ban on medication abortion in March, which Gov. Mark Gordon signed Friday.

Although Politico and the New York Times reported this month that Walgreens confirmed it would not sell the medication in up to 20 states where attorneys general had threatened legal repercussions for doing so, a Walgreens spokesman told States Newsroom in a statement, “We want to be very clear about what our position has always been: Walgreens plans to dispense Mifepristone in any jurisdiction where it is legally permissible to do so. Once we are certified by the FDA, we will dispense this medication consistent with federal and state laws.‘’

While that will make it difficult for individuals to receive mifepristone from a pharmacy, Ryan said it won’t be as easy to enforce bans on mailed pills.?“The authorities in (states with abortion bans) — who are they going to try to prosecute in terms of the mailing of these pills?” Ryan said.

Idaho anti-abortion activist: We need penalties for sending ‘human pesticide’ to women

Brandi Swindell, founder and president of anti-abortion clinic Stanton Healthcare, told States Newsroom she thinks the mailing of abortion pills is a major problem that she called “creepy” and said reminds her of a drug cartel.

“We have these — not only out-of-state — but out of country groups that are pimping a human pesticide that could have very serious ramifications on a woman physically and emotionally, can impact her mental health, her physical well-being,” Swindell said. “And they are coming into states where we have clear abortion laws, where we have gone through the legal process, the legislative process. … And they’re going to try to sell and pimp these drugs preying on women that are in a potential crisis or unexpected pregnancy situation, a vulnerable situation.”

Idaho has a near-total ban on abortions at any stage of pregnancy, with affirmative court defenses to save the pregnant person’s life and for rape and incest if a police report is provided. Swindell said she is working with state lawmakers in Idaho, where Stanton Healthcare is based, to seek an opinion from Idaho Attorney General Raúl Labrador’s office about whether the state’s abortion ban includes medication abortion.

“There needs to be clarification and enforcement that any organization or individual that is involved in promoting, selling or profiting from attempting to skirt Idaho’s law to dispense and sell and profit from the abortion pill, that those entities need to be held accountable,” Swindell said.

If Labrador’s office concludes the method is not included in Idaho’s law, Swindell said there needs to be legislation introduced as soon as possible to strengthen the existing law before the Idaho Legislature adjourns for the year, which could happen in the next few weeks.

“We’re passionately working to make sure that chemical abortions are banned,” Swindell said. “We want to make this a major issue in the 2024 presidential race.”

Self-managed abortions at home make pregnant people feel safer, legal advocate says?

The drug’s use has become much more common in abortions across the country in the past three years. According to the Guttmacher Institute, as of December, medication abortion made up about 54% of all abortions performed in the United States.

Part of that may be people taking advantage of those legal workarounds with the mail, but Ryan said some pregnant people find home management of an abortion to be empowering and it offers a stronger sense of safety.

“You’ve had clinics suffering so much violence in the clinic setting, and having to deal with protesters, and the difficulties in arranging transport and financing transport, whereas managing pregnancy in someone’s own home is a safe place,” Ryan said. “Also having access to a clinician over the phone and online is something that has shown to be quite powerful.”

While providers and patients across the United States wait on a ruling from a federal judge in Texas about the U.S. Food and Drug Administration’s approval of mifepristone, advocates want to stress that options like Aid Access will still be available no matter the outcome of the court case.

Dr. Jennifer Lincoln, an obstetrician-gynecologist who practices in Portland and the executive director of an advocacy organization called Mayday Health, said if state laws become more stringent around policing abortion medication, Aid Access and other internationally based options will become more important.

“The best thing you can do is inform yourself and pass the message along that you’ll still be able to get these medications,” Lincoln told States Newsroom. “It requires a few more hoops, but you’ll still be able to get it.”

Ryan doesn’t worry about organizations like Aid Access being affected by whatever happens in U.S. courts, but she is worried about state- and county-level prosecutors trying to target people who use the pills at home.

“What I do really see as a particularly challenging (fact) that activists and patients have to deal with in the U.S. that wasn’t as pertinent somewhere like Ireland, or even in Mexico and Argentina, is the level of surveillance that exists and the power and zeal of the criminal legal system,” Ryan said. “It is a phenomenon that is very much overlapping with the human rights crisis to create this extremely challenging environment for people to exist in.”

States Newsroom National Reproductive Rights Reporter Sofia Resnick contributed to this report.

Nearly 22 million women, girls and gender-nonconforming persons of reproductive age are now living in states where abortion has been banned or is in other ways inaccessible, a contingent of U.S. and global human rights groups noted in a letter to the U.N. (Photo by Jennifer Shutt, States Newsroom)

Ahead of International Women’s Day, hundreds of U.S. and global human rights groups, doctors, and attorneys have asked the United Nations to intervene on behalf of the millions of women in the U.S. who have been left without access to legal abortion and vital forms of reproductive health care in the wake of last summer’s monumental U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.

?“Eight months on from this catastrophic legal decision, it is now apparent that the consequences are even worse than feared,” states a letter signed by nearly 200 rights and justice groups and individual health care providers and attorneys, which was first shared with The Guardian last week. “Women and girls in need of reproductive health care are being met with systematic refusals, huge financial burdens, stigma, fear of violence, and threats of criminalization. Thousands are being forced to remain pregnant against their will.”

?Addressing the United Nations Working Group on Discrimination against Women and Girls and more than a dozen UN officials specializing in a wide range of human rights, the letter’s authors write that nearly 22 million women, girls and gender-nonconforming persons of reproductive age are now living in states where abortion has been banned or is in other ways inaccessible.

The more than 50-page letter – dense with devastating anecdotes from news articles and studies and doctor interviews – argues that the effects of Dobbs and the resulting state and local anti-abortion policies have compromised Americans’ rights to life, health, privacy, and liberty. The letter authors argue that the U.S. is violating various human rights treaties it has signed.??

?“These human rights obligations include, but are not limited to, the rights to: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom of thought, conscience, and religion or belief; equality and non-discrimination; and to seek, receive, and impart information,” the authors write. “The US has committed to respect and protect these rights; instead, it is infringing them through restrictions on abortion access.”

They ask the UN officials to make an official visit to the U.S. to witness these harms, to convene a virtual stakeholder meeting with U.S. civil society, and to call for private companies to take action to protect reproductive rights. They also call on the UN to ask the U.S. to comply with its obligations under international law.

?“The Dobbs decision abandoned the constitutional right to abortion, violated U.S. legal obligations under treaties such as ICCPR [International Covenant on Civil and Political Rights], and exposed the fact that Roe was never enough,” said Lauren Wranosky, research and program associate at Pregnancy Justice, one of the signatories, in a statement. “Many will continue to be jailed, convicted, and sentenced to prison for having abortions, experiencing pregnancy losses, or giving birth to healthy babies. This destroys families, inflicts trauma, and targets the most vulnerable by replacing healthcare with criminalization. We know this humanitarian crisis will only get worse, and we demand that the U.S. government join international peers as a leader in securing reproductive justice for all.”

?As the authors note, the end of federal abortion rights has led to 13 states criminalizing the procedure (with Georgia effectively outlawing the procedure with its six-week ban); dozens of clinic closures around the country; and increased travel times and delays for abortion care, even in situations when the pregnancy has become life-threatening. They write that the UN Human Rights Committee has already established that denial of abortion in other countries can cause suffering and amount to torture.?

And they stress that in the U.S., racial minorities and marginalized groups disproportionately face health and legal harms because of the policies enacted after the Supreme Court overturned Roe v. Wade.

?“Dobbs is devastating for all people who can become pregnant, but it has had and will have an?outsized impact on certain marginalized groups who already face documented discrimination?within and outside the healthcare system,” the authors write.

“This includes BIPOC women, people of diverse gender identities and sexual orientations, migrants, persons with disabilities, people who are low-income or living in poverty, children, and rural residents. These groups often have poorer health outcomes compared to other populations, Dobbs will worsen these disparities, since individuals who belong to these groups have fewer resources and face discrimination from the healthcare community.”

Lila Bonow, Alana Edmondson and Aiyana Knauer prepare to take abortion pill while demonstrating in front of the U.S. Supreme Court on Dec. 1, 2021. (Photo by Chip Somodevilla/Getty Images)

JACKSON, Miss. — The Pink House — otherwise known as Jackson Women’s Health Organization — was the center of the U.S. Supreme Court case that overturned the federal right to abortion in June. Today, the clinic, the only abortion clinic to serve Mississippi and the greater area for years, is shuttered. On a hot day in February, there are no protests outside the clinic’s gates, the air is still and quiet, the iconic walls on the outside have been painted white, and the medical equipment has been removed. A new owner has moved in and has begun converting it into a consignment shop for luxury goods.?

“I worry about those women a lot, that they no longer have means to health care in the state of Mississippi,” said Diane Derzis, former owner of the Pink House.?

The Pink House is just one of dozens of organizations across the South that have closed or stopped offering abortion services in the face of trigger abortion bans that went into effect right after Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade.?

Derzis said selling the building that housed the clinic was a “business decision.” She said the Jackson clinic’s operations, medical equipment, and furniture have moved to Las Cruces, New Mexico, in the face of Mississippi’s 15 week abortion ban. She also has clinics in places like Columbus, Georgia, and Richmond, Virginia. Now, many people in the South are traveling out of state to seek an abortion — either in-clinic or via medication abortion, she said.?

Derzis says she’s getting ready to open a clinic in Chicago, Illinois.?

But all those clinics and others still operating could soon face new restrictions as a federal judge in Texas decides on a lawsuit filed by anti-abortion groups that directs the U.S. Food and Drug Administration (FDA) to withdraw its approval of mifepristone — a widely used drug used in medication abortion that’s been around for decades.?

“I think that women need to pick up their guns and take to the streets, and I’m serious. This is a crusade against women,” Derzis said.

A broad lawsuit that leaves room for questions

Medication abortions account for over half of all abortions in the United States, according to the research group Guttmacher Institute. A ruling in favor of the anti-abortion groups would not only make legal abortion more challenging, it would also erase some of the limited options left for people in states where there are strict abortion bans. These restrictions are most prominent across the southeastern United States, where maternal health care deserts are growing.?

The likely immediate impact would be that manufacturers would not be allowed to ship mifepristone anywhere in the United States, and providers would no longer be able to prescribe it. It’s still unclear what could happen with misoprostol, a drug that’s used in medication abortion as well as to treat ulcers.

The typical regimen used in medication abortion involves the use of mifepristone and misoprostol, and has been prescribed by doctors since the 2000s.?

Elizabeth Nash, principal policy associate at Guttmacher, says it’s likely that only misoprostol would be used for medication abortions — which Nash says has been done in other countries. But she says, the issue is that the lawsuit is broad in some areas, so there are still a lot of unknowns.?

“How many providers would switch to a misoprostol regimen? Not every provider would do that. Secondly, it’s unclear how patients would feel about using a misoprostol-only regimen especially because it has a higher dosage. They may be asking for more procedural abortions and that may make it harder because in-clinic abortion takes more time and resources for clinic staff,” Nash said.

Erik Baptist, senior counsel with the Alliance Defending Freedom, one of the groups that filed the lawsuit, said the lawsuit also asks the FDA to ban the use of misoprostol in medication abortion.?

“This lawsuit focused on the FDA’s approval of both mifepristone and misoprostol for its use in medication abortion. Whether a doctor could approve the use of these drugs off-label is not in the scope of this lawsuit,” he said. “I think it’s important to note that this lawsuit doesn’t target the use of [misoprostol] for benign issues such as Cushing’s disease or gastric ulcers.”?

The plaintiffs argue that the FDA did not follow protocol to evaluate whether these drugs were safe to be prescribed for medication abortion. Although, numerous studies have shown the regimen to be safe and effective.

“We will evaluate the court’s decision no matter how he may rule and determine what to do from there. We are currently focused on prevailing at the district court,” Baptist said.?

Clinics strapped to provide care, patients with fewer options

While it’s still unclear what could happen after the ruling, what is known is that people in abortion restricted states who used to go to clinics like the Pink House in Jackson are already having a tougher time seeking legal abortion.

“People are still needing and wanting abortion services. It’s just making it harder for Mississippians. It’s more expensive having to travel farther and take longer periods off of work. Some folks have had to fly to either Florida and New York. Some of these people are experiencing their first time being on a plane,” said Michelle Colón, executive director of Sisters Helping Every Woman Rise and Organize (SHERo), an abortion-rights organization that helps connect people of color to legal abortion services.?

In Florida, abortion is illegal after 15 weeks, although soon that could be reduced. In New York, that timeframe is through viability of a fetus, which is about 24 weeks of pregnancy.

Clinics in northern states are already feeling the pressure of the increased demand, said Mara Pliskin, patient navigation manager at Planned Parenthood in Illinois.?

“We’re in the trenches. We are doing the best we can and have systems in place to get scheduled as fast as we can and get them here,” Pliskin said. “We hear patients say, ‘I don’t know how to make this happen.’… We’ve definitely seen an increase in patients from the South — Louisiana, Mississippi, Tennessee, Florida, all of these states.”

Pliskin says many patients are facing dangerous situations, especially if they are in states where they have to be mindful of confidentiality or dealing with issues like intimate partner violence.?

Pliskin said that like many abortion clinics around the country, clinics in Illinois have long waitlists and resources are stretched. And, those waitlists will likely get longer if medication abortion becomes restricted, as more patients will opt for the surgical procedure.?

In fact, data from Planned Parenthood Illinois shows that for patients from Louisiana, Mississippi, Alabama, Georgia, and Florida, 38% had a medication abortion and 62% had an in-clinic procedure between Nov. 1, 2022? to Feb. 28, 2023. Meanwhile, for the overall abortion population at that clinic in the same time period, 54% had medication abortion and 46% had an in-clinic abortion for the same time period.

“We will continue to offer medication abortion with misoprostol. There is already a method for it. The only thing is that it will take longer — it’s more medication over a longer period of time and it just makes it that much more difficult for people who travel,” Pliskin said. “That means patients will have to stay in Illinois longer … before they can return home to a state where it’s illegal or restricted.”?

Even when it comes to telehealth, Pliskin says the patient still has to come to Illinois when they are actually taking the medication. That means patients will also have to spend more money and time, adding to the emotional toll and financial strain they may be experiencing, said Colón. In turn, that makes it more difficult for advocates too.?

“It’s put a burden on all of the abortion funds that are in partnership with supporting folks from Mississippi,” she said. “When somebody calls you and they need you at the drop of a hat … it’s hard and it’s just wrong and sad. This is torture and government sanctioned oppression. But we’re doing what we can.”?

A future of more health and legal safety risks around reproductive care?

Anti-abortion groups argue that medication abortion is unsafe. Terri Herring, leader of pro-life group Choose Life Mississippi, says womens’ lives are at risk.?

“Abortion pills without confirmation of gestational age and consultation with a physician are dangerous for women,” Herring said. “We need to continue to educate women about the dangers of abortion on both their physical and emotional health.”

Other groups say they’re prepared to help people who have no choice but to give birth.

“I think that the pro-life movement has shown that we are here for women and we will continue to support women whether they are pursuing abortion or not,” said Sarah Zagorski, a spokeswoman for Louisiana Right to Life. “Of course, there are improvements that can be made, but I think we’ve come a long way in supporting women in crisis.”?

But reproductive health care in some southern states is lacking, causing some of the highest maternal mortality rates in the country, especially for people of color. CDC data from 2020 show that while the national rate for maternal mortality is 20.4 maternal deaths per 100,000 births, the rate is 30.2 in Mississippi, 31.8 in Louisiana, and 36.2 in Alabama.

“This is about control. This is about obliterating liberation of not only women, but of marginalized Mississippians, Black and brown Mississippians, queer Mississippians, and low income, poor Mississippians,” Colón said, adding that people who aren’t able to have a child will seek abortion anyway, but that the process will be much less safe for them.?

There are also more legal risks ahead for both providers and patients in the wake of a potential ruling to limit medication abortion, said Kelsea McLain, deputy director of the Yellowhammer Fund in Alabama.?

Alabama’s abortion law is highly restrictive and criminalizes anyone that aids a person seeking an abortion, McLain said. Yellowhammer has had to effectively stop most of its abortion-related services. They can only provide information that’s already available in the media.?

“We really effectively can’t do anything since the Dobbs decision … we’ve had to lean heavily into our programs that support new parents,” said McLain.?

McLain said it’s been tough hearing from people who they aren’t able to help in specific ways. The other concern, she says, is that there’s a pre-filed bill in Alabama that could make abortion akin to homicide.?

“The abortion haver would be charged with the crime,” she said, noting that the ruling on medication abortion could open up room to investigate people who have miscarriages to see whether they used medication or they had it naturally.?

“We are unsure looking at a future where multiple forms of pregnancy loss are facing criminalization or investigation,” she said. “So people are going to need to be more clandestine and intentional about when they visit a doctor and disclose if they are pregnant.”?

The FDA approved mifepristone under the brand-name Mifeprex in 2000 and an abortion-drug regimen that has seen few deaths and a low rate of adverse events in more than two decades of use. (Photo by Peter Dazeley/GettyImages)

WASHINGTON — The U.S. District Court judge who could end more than two decades of legal access to medication abortion underwent extensive questioning about LGBTQ equality at his December 2017 confirmation hearing — and very little about his views on abortion.

Matthew Joseph Kacsmaryk, appointed by former President Donald Trump earlier in 2017, spent much of his contentious Senate Judiciary Committee confirmation hearing explaining work he’d done at a conservative religious liberty legal organization.

As the deputy general counsel for the First Liberty Institute since 2014, he had written extensively about same-sex marriage and other subjects.

Kacsmaryk told the panel the First Liberty Institute “is the largest national legal organization dedicated to restoring religious freedom for all Americans, with a heavy emphasis on all,” in response to a question about the organization from Iowa GOP Sen. Chuck Grassley.

Kacsmaryk testified he “primarily focused on conscience litigation,” during his time there. But Democratic senators on the committee were skeptical Kacsmaryk would be able to rule impartially as a judge.

Connecticut Democratic Sen. Richard Blumenthal challenged Kacsmaryk for writing a 2015 brief to the U.S. Supreme Court in which he argued that recognizing a constitutional right to same-sex marriage would lead the country on a “road to potential tyranny.”

Kacsmaryk testified that as part of his job representing several religious organizations, he was making a point about free speech and the “importance of protecting religious dissenters.”

In the end, Maine Sen. Susan Collins was the sole Republican to join Democrats in their opposition to the confirmation, arguing that Kacsmaryk was too “extreme” to sit on the bench. The Senate voted 52-46 in June 2019 to confirm him to the Northern District of Texas.

It was three years before a U.S. Supreme Court that had become dominated by conservatives would overturn the constitutional right to abortion, throwing the issue back to states, some of which have responded by instituting bans.

Other states have kept abortion legal, but their residents could have access to abortion medication overturned or limited by a Kacsmaryk ruling in the case, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, expected any day.

Vetted by Cruz, Cornyn

Kacsmaryk was born in 1977 in Gainesville, Florida, though he grew up in Texas.

He graduated from Abilene Christian University in 1999 before going on to earn his law degree from the University of Texas School of Law in 2003, according to the questionnaire he submitted to the Senate Judiciary Committee.

Kacsmaryk worked as an associate at Baker Botts LLP in Dallas from 2003 through 2008, before becoming an assistant United States attorney for the North District of Texas.

After two years at the U.S. Attorney’s Office Dallas division, he moved to the Fort Worth division from 2010 through 2013. Kacsmaryk then spent a semester as an adjunct professor at Southern Methodist University’s Meadows School for the Arts in Dallas before becoming deputy general counsel for the First Liberty Institute in 2014.

In February 2017, he sent an application to a committee that Texas Republican Sens. John Cornyn and Ted Cruz established to vet potential nominees to the federal bench in their home state.

Members of the committee, known as the Federal Judicial Evaluation Committee, interviewed Kacsmaryk in March 2017 before the two senators interviewed him in April in Washington, D.C.

By the end of May 2017, the White House Counsel’s Office and the Office of Legal Policy of the Department of Justice were interviewing Kacsmaryk. Then Trump nominated him in September.

Cornyn said during the confirmation hearing that he was confident Kacsmaryk “will serve the people of Texas while on the bench by faithfully applying the law, no matter who the litigants are, where they come from or what their station in life is.”

Cruz noted that President Barack Obama’s first attorney general, Eric Holder, had recognized Kacsmaryk with the attorney general’s award for excellence in furthering the interests of U.S. national security for a case that involved the prosecution of a terrorist, who received life in prison following a jury trial.

Kacsmaryk volunteered for several Republican campaigns before his nomination, including for Cornyn and Cruz. But he made donations exclusively to Cruz, according to filingswith the Federal Election Commission.

Kacsmaryk donated $500 to Cruz’s Senate campaign in 2012, $500 to his Jobs, Growth & Freedom Fund leadership PAC in 2014, $500 to the Ted Cruz Victory Committee PAC in 2014 and $1,000 to Cruz for President in 2015.

Kacsmaryk was also a co-founder in 2012 of The Federalist Society’s Fort Worth Lawyers Chapter and served as vice president and programs director. The society, founded in 1982, describes itself in part as “a group of conservatives and libertarians interested in the current state of the legal order.”

He has remained active. Even as he awaited a final brief in the abortion medication case, Kacsmaryk spoke to The Federalist Society’s New Orleans Lawyers Chapter on Feb. 24, according to a post on the society website.

In other society activities, he was part of a deep dive into the criminal justice system in March 2022, was part of a virtual panel addressing sex and gender issues in February 2022 and appeared on a panel on religious freedom in January 2021. There are no videotapes, audiotapes or transcripts of his remarks on the Federalist Society website.

Senate hearing

At his confirmation hearing, his work at First Liberty Institute in connection with the group’s opposition to the legality of same-sex marriage drew intense scrutiny from Democrats.

Delaware Democratic Sen. Chris Coons questioned why Kacsmaryk “asserted that the recognition of same-sex marriage would cast into disarray family values and put children at risk.”

Coons contended that, in his experience, “same-sex couples are fully capable of providing loving and stable homes to children” and asked Kacsmaryk what evidence he could show “that recognition of same-sex marriage harms children or diminishes family values?”

Kacsmaryk said he didn’t remember making that specific argument, but noted he has represented numerous faith-based adoption and foster care agencies.

“It is my experience as their counsel that they’re willing to have all hands on deck, especially in Texas where we have an adoption/foster crisis,” Kacsmaryk said. “Faith-based agencies, who may have a different definition of marriage or faith tradition, they acknowledge your point that we need all hands on deck in child welfare.”

When Coons asked if it would be a mischaracterization of Kacsmaryk’s views to say that somehow same-sex couples are not capable of being loving and supportive parents, Kacsmaryk replied that it would be a mischaracterization.

Illinois Democratic Sen. Dick Durbin asked about a 2015 piece where Kacsmaryk wrote about the Equality Act, a bill introduced in Congress that would have added sexual orientation and gender identity to the list of federally protected classes.

In the piece, Kacsmaryk laid out his view for how the LGBTQ rights movement was more like the sexual revolution than the civil rights movement.

The sexual revolution, Kacsmaryk wrote, “was rooted in the soil of elitist postmodern philosophy, spearheaded by secular libertines, and was essentially ‘radical’ in its demands.”

“It sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults,” Kacsmaryk wrote. “In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore.”

The conclusion of that article, Kacsmaryk said during his confirmation hearing, was “that legislators and policymakers must balance constitutional rights — both the right to same-sex marriage and religious liberty.”

In that writing, Kacsmaryk compared Supreme Court justices establishing a constitutional right to same-sex marriage to the 1973 Roe v. Wade ruling, which established a constitutional right to abortion.

“On January 22, 1973, seven justices of the Supreme Court found an unwritten ‘fundamental right’ to abortion hiding in the due process clause of the Fourteenth Amendment and the shadowy ‘penumbras’ of the Bill of Rights, a celestial phenomenon invisible to the non-lawyer eye,” Kacsmaryk wrote.

“But Roe did not resolve the fierce controversy of abortion,” Kacsmaryk continued. “Instead, sexual revolutionaries suffered loss after loss when they rammed Roe into state and municipal policies restricting public funds or forced participation in the ‘fundamental right’ of abortion.”

Kacsmaryk argued that supporters of marriage equality would face similar challenges to attempts to pass LGBTQ equality legislation in the last years of the Obama presidency, writing “the post-Obergefell trajectory will probably look less like a two-year dash to the finish line and more like the ‘protracted’ timeline of post-Roe litigation and legislation.”

“That is, the new ‘fundamental right’ to same-sex marriage will be made to coexist alongside meaningful exceptions for religious dissenters,” he wrote, referencing the 2015 U.S. Supreme Court decision.

Confirmation debate

Kacsmaryk’s confirmation process stalled out following his December 2017 hearing before the Senate Judiciary Committee, but debate began again when Republicans moved his nomination to the floor in June 2019.

Democrats predominantly focused on Kacsmaryk’s past statements about LGBTQ rights during floor debate on his nomination, though some senators expressed concern about whether he could be impartial on cases addressing access to birth control and abortion.

“The Trump-Pence administration has taken every opportunity to undermine women’s health and reproductive rights,” Sen. Patty Murray, a Washington Democrat, said during floor debate.

“And we have seen far right Republicans across the country joining them, from state legislators working to pass extreme, harmful abortion restrictions to Republicans here in D.C. working to jam through extreme, harmful judicial nominees, like Mr. Kacsmaryk, who they hope will uphold blatantly unconstitutional restrictions on women’s rights to safe, legal abortion and ultimately take away that right by overturning Roe v. Wade,” Murray added.

Maine’s Collins, the sole Republican to vote against Kacsmaryk, in a statement criticized his views.

“Mr. Kacsmaryk has dismissed proponents of reproductive choice as ‘sexual revolutionaries,’ and disdainfully criticized the legal foundations of Roe v. Wade,” Collins said in a statement to Roll Call. “Such extreme statements reflect poorly on Mr. Kacsmaryk’s temperament and suggest an inability to respect precedent and to apply the law fairly and impartially.”

Immigration, birth control rulings

As a district judge, Kacsmaryk hasn’t issued many nationwide rulings, but has gained attention for his decisions on an immigration case and birth control access for minors.

Kacsmaryk wrote in his birth control ruling in early December that the federal government’s family planning grant program, known as Title X, “violates the constitutional right of parents to direct the upbringing of their children and Texas Family Code.”

The case, Deanda v. Becerra, began in 2020 when Alexander R. Deanda sued the U.S. Health and Human Services Department, which administers the family planning program.

Deanda argued the program infringed on his parental rights to raise “his daughters in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage.”

Because the federal family planning grants program didn’t explicitly require providers to inform parents if their minor children seek birth control or other family planning healthcare services, Deanda argued it violated his rights under the U.S. Constitution and a Texas law.

The federal government has appealed the Kacsmaryk ruling, which sided with Deanda.

Kacsmaryk made headlines again in late December when for a second time he blocked the Biden administration from ending the “Remain in Mexico” immigration policy that required some immigrants seeking asylum to remain in that country while waiting for their hearing.

The ruling followed the U.S. Supreme Court issuing an opinion in June 2022 that the Biden administration could end the program.

The justices, however, sent the issue back to Kacsmaryk’s district court, where he was tasked with deciding whether a follow-up memo from the U.S. Department of Homeland Security was in line with the Administrative Procedure Act.

Kacsmaryk argued the October 2021 DHS memo on winding down the “Remain in Mexico” policy was not, writing the federal government’s attempts to end the policy were done in an “arbitrary and capricious way.”

Rep. Lindsey Burke speaks on her abortion access bill. (Lantern photo by Sarah Ladd)

House Majority Whip Jason Nemes, R-Louisville, filed a bill Wednesday that would add exceptions for rape and incest to Kentucky’s near-total ban on abortion.

House Bill 569 also would allow for abortion when “necessary” — defined as when “there is reasonable medical judgment that there is definitive evidence that the unborn child the pregnant woman is carrying has an abnormality that is incompatible with life outside the womb of the mother.”

Another exception would be if “the physician reasonably believes the pregnancy is the result of rape or incest” up to 15 weeks.

A doctor would need to put these facts in writing before performing an abortion as well, according to a draft of the bill.

Right now, abortion in Kentucky remains outlawed in most cases.

When the United States Supreme Court overturned the federal right to abortion last summer, it allowed Kentucky’s “trigger law” to take effect, which banned abortion immediately.

Earlier Wednesday, a Democratic lawmaker proposed legislation that would restore abortion access in Kentucky.

Rep. Lindsey Burke, D-Lexington, acknowledged the difficulty in getting her bill heard.?

The Republican supermajority is “not interested in bipartisanship,” she said while criticizing the lack of Democratic bills heard this session.?

“I have no reason to think this will go different,” she said, “even though the people of Kentucky have been very clear how they feel on this issue.”

Her legislation states that, among other things: “Every individual has a fundamental right to choose or refuse to bear a child or obtain an abortion prior to the viability of the fetus, or to protect the life or health of the pregnant person,” according to a draft of the bill.?

“As someone who loves children and has been trying to become a mother for several years, I’ve had my eyes opened to the reality that abortion is an integral part of reproductive health care,” Burke told reporters.?

People behind her, meanwhile, held signs that said: “Bans off our bodies” and “Abortion is healthcare.”?

“The bill does not venture into new territory,” Burke said. “It simply restores us to the laws that were here for the majority of the late 20th century…”?

Burke also pointed to Kentucky’s maternal mortality rates and the high number of children in foster care and promised her bill would offer some “balance.”?

Co-sponsor Lamin Swann, D-Lexington, said that “enforced pregnancy affects disproportionately those who are struggling financially, Black, Indigenous, and people of color, the undocumented, young people and the LGBTQ community.”??

Supreme Court ruling?

Last week, the Kentucky Supreme Court ruled against a request from the American Civil Liberties Union to uphold an injunction that had briefly reinstated access to abortion in the state.

That means the commonwealth’s six-week abortion ban will remain in place as the case is litigated.?

The high court decision came more three months after arguments on the issue were heard on Nov. 15. Under it, EMW Women’s Surgical Center and Planned Parenthood in Louisville cannot resume abortion services at 15 weeks of pregnancy.?

Tamarra Wieder, the director of Kentucky’s Planned Parenthood Alliance, said the group is still analyzing the decision.

“The Supreme Court did leave the doors open for us to go back and fight tomorrow and that’s what we’re going to do,” Wieder said. “Our doors at Planned Parenthood stay open. Our priority is to start providing abortion care again. And so we are looking forward to going back to court.”?

Rep. Lindsey Burke speaks on her abortion access bill. (Lantern photo by Sarah Ladd)

FRANKFORT — Pointing to a November vote in which Kentuckians defeated an anti-abortion constitutional amendment, a state representative proposed legislation Wednesday to restore abortion access.?

Rep. Lindsey Burke, D-Lexington, acknowledged the difficulty in getting her bill heard.?

The Republican supermajority is “not interested in bipartisanship,” she said while criticizing the lack of Democratic bills heard this session.?

“I have no reason to think this will go different,” she said, “even though the people of Kentucky have been very clear how they feel on this issue.”

Her legislation states that, among other things: “Every individual has a fundamental right to choose or refuse to bear a child or obtain an abortion prior to the viability of the fetus, or to protect the life or health of the pregnant person,” according to a draft of the bill.?

“As someone who loves children and has been trying to become a mother for several years, I’ve had my eyes opened to the reality that abortion is an integral part of reproductive health care,” Burke told reporters.?

People behind her, meanwhile, held signs that said: “Bans off our bodies” and “Abortion is healthcare.”?

“The bill does not venture into new territory,” Burke said. “It simply restores us to the laws that were here for the majority of the late 20th century…”?

Burke also pointed to Kentucky’s maternal mortality rates and the high number of children in foster care and promised her bill would offer some “balance.”?

Co-sponsor Lamin Swann, D-Lexington, said that “enforced pregnancy affects disproportionately those who are struggling financially, Black, Indigenous, and people of color, the undocumented, young people and the LGBTQ community.”??

Supreme Court ruling?

Last week, the Kentucky Supreme Court ruled against a request from the American Civil Liberties Union to uphold an injunction that had briefly reinstated access to abortion in the state.

That means the commonwealth’s six-week abortion ban will remain in place as the case is litigated.?

The high court decision came more three months after arguments on the issue were heard on Nov. 15. Under it, EMW Women’s Surgical Center and Planned Parenthood in Louisville cannot resume abortion services at 15 weeks of pregnancy.?

Tamarra Wieder, the director of Kentucky’s Planned Parenthood Alliance, said the group is still analyzing the decision.

“The Supreme Court did leave the doors open for us to go back and fight tomorrow and that’s what we’re going to do,” Wieder said. “Our doors at Planned Parenthood stay open. Our priority is to start providing abortion care again. And so we are looking forward to going back to court.”?

“Bans off our bodies” balloons decorated the Protect Kentucky Access election night watch party on Nov. 8, 2022, in Louisville. Kentuckians rejected an anti-abortion amendment to the state constitution. The state Supreme Court has allowed the near-total ban on abortion to remain in force. (Kentucky Lantern photo by Arden Barnes)

The Kentucky Supreme Court has ruled against an ACLU request to uphold an injunction that had briefly reinstated access to abortion in Kentucky.?

That means the commonwealth’s six-week abortion ban will remain intact as the case is litigated.?

The high court decision came down Thursday more three months after arguments on the issue were heard on Nov. 15. Under it, EMW Women’s Surgical Center and Planned Parenthood in Louisville cannot resume abortion services at 15 weeks of pregnancy.?

Justice Debra Hembree Lambert penned the 144-page opinion. It’s a win for the Attorney General’s office, which argued against the ACLU.?

“After thorough review, we hold that the abortion providers lack third- party standing to challenge the statutes on behalf of their patients,” the opinion states. “Notwithstanding, the abortion providers have first-party, constitutional standing to challenge one of the statutes on their own behalf. We affirm the Court of Appeals’ holding that the circuit court abused its discretion by granting the abortion providers’ motion for a temporary injunction and remand to the circuit court for further proceedings consistent with this opinion.”?

Justices Robert Conley and Christopher Nickel concurred. Justice Laurance Vanmeter concurred with results only. Justices Angela McCormick Bisig, Michelle Keller and Kelly Thompson concurred in part and dissented in part.?

In her partial dissent, Bisig wrote that “put simply, the decision removes a forum for a balancing of the two important competing interests at issue in this case – the state’s interest in the protection of unborn life and a woman’s interest in bodily autonomy and self-determination.”?

‘Fight is not over.’

Organizations and leaders on both sides of the abortion debate took Thursday’s ruling as an opportunity to say their work is not over.

Attorney General Daniel Cameron praised the decision, calling it a “significant victory.”?

“We will continue to stand up for the unborn by defending these laws,” he said.?

The ACLU of Kentucky, meanwhile, promised to keep working for abortion access.

“We are extremely disappointed in today’s decision, but we will never give up the fight to restore bodily autonomy and reproductive freedom in Kentucky,” the nonprofit said on social media.?But: “This fight is not over.”

Kentucky Right to Life, an anti-abortion organization, said this is an example of “how democracy should work.”

“We clearly understand that the battle is far from over,” said?Addia Wuchner, the executive director, in a statement. She added that the goal is to “make abortion unthinkable.”

Senate President Robert Stivers echoed this, calling the decision the ruling “encouraging.”

But, he said: “I recognize there is still work to be done…”

The commonwealth isn’t alone in its strict abortion laws. Most of Kentucky’s neighbors have also banned or restricted abortion access. The nearest state in which abortion is accessible is Illinois, according to Planned Parenthood.

Kentucky House Democrat Leaders condemned the ruling.

“The current effective abortion ban is having a profoundly negative impact on women’s reproductive health, putting lives needlessly at risk and forcing many to take steps they shouldn’t have to,” Derrick Graham, Cherlynn Stevenson and Rachel Roberts said in a joint statement.

Abortion, they added, “had been a constitutional right for almost 50 years, and it has only been three months since Kentucky voters soundly rejected efforts to block potential constitutional protections here. Those two things should mean something.”

Gov. Andy Beshear, who’s said on record many times that he believes people who became pregnant because of rape or incest should have the option to get abortion, also criticized the ruling Thursday.

“Victims of rape and incest” in Kentucky, he said, “have fewer rights than their rapists.”

The FDA approved mifepristone under the brand-name Mifeprex in 2000 and an abortion-drug regimen that has seen few deaths and a low rate of adverse events in more than two decades of use. (Photo by Peter Dazeley/GettyImages)

Emergency rooms across America are teeming with women and girls bleeding from abortion drugs in such copious amounts that it’s exacerbating the national blood shortage.?

Or, at least, that’s the grim – but false – narrative a group of small conservative Christian medical associations have painted for a federal judge in Texas. Their mountain of evidence, they say, shows abortion via a specific drug regimen is incredibly dangerous and should never have been approved by the Food and Drug Administration more than 20 years ago.

The openly anti-abortion federal judge presiding over Alliance for Hippocratic Medicine v. FDA could, at least temporarily, ban abortion drugs any day now. But if he does, reproductive-health care experts say it will be based on deeply flawed evidence that largely rests on cherry-picked studies and a handful of anecdotes from a handful of anti-abortion doctors. And it will have immediate consequences for pregnant people in America, many of whom have begun to rely on this method to terminate pregnancies early and safely, especially in states that banned abortion after the U.S. Supreme Court overturned Roe v. Wade last year.?

“The attempt to reverse the FDA’s approval of mifepristone has absolutely nothing to do with the safety of this drug,” Dr. Kristyn Brandi, a family-planning subspecialist and fellow with the American College of Obstetricians and Gynecologists, said in an email. “This is a highly safe and effective medication that should be available to patients. The use of mifepristone for medication abortion improves patient outcomes. We know this based on evidence from numerous medical studies and data from millions of uses in the twenty-three years since the FDA first approved the use of mifepristone for medication abortion.”

Many of the doctors who brought this case are with the American Association of Pro-Life Obstetricians and Gynecologists, which represents about 7,000 members compared to ACOG’s 60,000 members. Despite its small stature, AAPLOG wields an enormous amount of power when it comes to reproductive-health policy. The group has spent decades in the courts and legislatures selling a narrative unsupported by the predominating medical consensus: Abortion is not only immoral, but should be banned because it’s dangerous.??

That strategy helped codify hundreds of state anti-abortion laws and paved the legal pathway for the reversal of federal abortion rights. Now, AAPLOG is back in court as part of the Alliance for Hippocratic Medicine, a consortium of medical associations that practice Christian-right beliefs when it comes to reproductive-health care, health care for trans people, and end-of-life care. They are represented by the nonprofit Christian-right legal shop Alliance Defending Freedom, which also represented plaintiffs in Dobbs v. Jackson Women’s Health Organization. ADF has? previously leaned on shaky science in the courts to defend anti-abortion and anti-LGBTQ policy, including the widely discredited practice of conversion therapy to change people’s sexual orientation and gender identity.??

One of conversion therapy’s biggest advocates, Dr. Quentin Van Meter, also testifies in this lawsuit: arguing that long-term effects of mifepristone on minors have not been adequately studied (HHS disagrees).

And the evidence in this case couldn’t be shakier. The data footnoted in the 113-page complaint don’t actually support plaintiffs’ horrifying scenario. At most, plaintiffs show there are sometimes complications associated with medication abortion, which sometimes require medical attention – but they don’t present convincing data to show high rates of life-threatening incidences.

Instead, plaintiffs cast doubt on the safety data collected and monitored by the FDA since it approved mifepristone under the brand-name Mifeprex in 2000, and then approved an abortion-drug regimen of mifepristone and an ulcer medicine called misoprostol. In more than two decades, there have been 28 reported deaths associated with mifepristone and a generally low rate of adverse events, according to the FDA.

Plaintiffs conjecture about high levels of under-reporting of adverse events. And they speculate that with increased availability of abortion drugs – especially as more people have begun self-managing their abortions – health issues will skyrocket.?

“We represent OBs, emergency-room doctors, medical associations, the doctors who every day care for women and see the harms of these dangerous chemical abortion drugs in their practice,” ADF senior counsel Julie Blake said last month on Washington Watch with Tony Perkins, produced by the conservative Christian Family Research Council. “And we are confident that once we get our claims in front of a judge, that he’ll say, ‘Hey you didn’t follow the law, you didn’t follow the science. And it’s time to withdraw these drugs from the marketplace.’”

In addition to relying on flawed research manufactured by the anti-abortion movement, the plaintiffs mix religion with their science.?

For example, California family doctor George Delgado, who practices medicine based on “teachings of the Catholic Church,” invented a controversial protocol to “reverse” an abortion, which has raised safety flags. Another plaintiff is Republican Indiana Sen. Tyler Johnson, an emergency room doctor, who last year campaigned as “a pro-life physician, not a politician.” He’s spoken out against the COVID-19 vaccine and against exceptions to Indiana’s legally challenged abortion ban.

This is the second time group-plaintiff Christian Medical & Dental Associations tapped the Detroit-based Dr. Regina Frost-Clark to be a party in an abortion-related lawsuit. She considers God to be the ultimate authority in her medical practice and works for a Catholic hospital system whose guidelines deny access to miscarriage management in the absence of life-threatening infection.

Like CMDA, AAPLOG is always scouting for new expert witnesses to lend credibility to their lawsuits and has been regularly hosting expert-witness trainings around the country, including this Sunday in Tucson, Arizona. Upcoming trainings are scheduled in Georgia, Kentucky, Florida, Wisconsin, Iowa, Michigan, and North Carolina.

“The voices of medical professionals carry great weight in the public square,” reads a recent AAPLOG member email advertising this training program. “We want to provide you with the training and confidence you need to give the evidence-based rationale for prolife medical practice to the media, to your state legislators, and in court.”

So, what are some of the most serious medical claims plaintiffs are making, and will their medical degrees be able to sell them in the absence of robust evidence?

?CLAIM: Abortion drugs are dangerous.

The FDA-approved medication abortion regimen involves taking mifepristone, which blocks the hormone progesterone, needed for the pregnancy to grow and develop normally. That’s followed a day or two later by misoprostol, which stimulates the uterus to empty the pregnancy, essentially inducing a miscarriage. The FDA approves this regimen for early abortion and miscarriage management through 10 weeks of pregnancy, while the World Health Organization says the drug regimen can be safely taken through 12 weeks.

Cramping and bleeding are expected symptoms after taking medication abortion. Just as with menstruation and pregnancy and childbirth, women report various experiences after taking medication abortion. Some report horrifying pain, while others compare the experience to a heavy period. Other potential side effects, which the FDA says are reportedly rare, are incomplete abortion (which then requires surgical intervention) and life-threatening bleeding and infection. The drug’s warning label instructs patients to seek medical attention if their blood soaks two thick full-size sanitary pads per hour for two consecutive hours, or if they experience fever, vomiting, or diarrhea in the days after taking the medicine.

In their opposing brief, general counsel for the U.S. Department of Health and Human Services cites the FDA’s 2016 scientific review of mifepristone, which was based on a dozen studies and on data from more than 30,000 patients, and found low rates of “serious adverse events”: 0-0.1 percent for needed blood transfusions; less than 0.01 percent for sepsis; 0-0.7 percent for hospitalization; 0.1 percent for hemorrhage.

But according to AAPLOG CEO-Elect Dr. Christina Francis in a recent Newsmax interview, “These drugs are extremely dangerous.”

To bolster this assertion, the main statistic plaintiffs cite in their complaint is that 1 in 5 women “will have an adverse event after taking chemical abortion drugs. … This includes over fifteen percent (15%) of females experiencing hemorrhaging and two percent (2%) having an infection during or after taking chemical abortion drugs.”

It comes from a 2009 Finnish study comparing adverse events associated with medication abortion compared with surgical abortion. As if they haven’t spent decades trying to ban surgical abortion on the premise that it’s also dangerous to women, plaintiffs have also glommed onto another statistic from the Finnish study: that the complication rate for medication abortions is four times higher than surgical abortions.

The HHS attorneys claim the plaintiffs have misconstrued the Finnish study’s findings, noting that that percentage encapsulates instances of expected and necessary bleeding. The Finnish researchers ultimately conclude that “both methods of abortion are generally safe,” but that counseling should address all the risks.

“Plaintiffs do not even attempt to allege facts supporting the chain of causation,” the government’s legal team argues. “They do not corroborate any of the pecuniary harms that they purport to fear, nor any of the intangible concerns that they raise. That omission is particularly telling given the more than two decades that mifepristone has been in use. If Plaintiffs’ injuries had an evidentiary basis, then Plaintiffs would be able to marshal allegations grounded in fact rather than conjecture.”

CLAIM: Medication abortion is riskier than full-term pregnancy and childbirth

Plaintiffs in their complaint boldly claim, “Pregnancy rarely leads to complications that threaten the life of the mother or the child.”?

Their source that medication abortion is deadlier than pregnancy and childbirth is a 2013 research paper published in a journal produced by one of the plaintiff groups, the Catholic Medical Association.?

The paper’s author, Dr. Byron Calhoun, is a longtime anti-abortion activist and a high-risk OB-GYN in West Virginia who says abortion is never necessary to save a life. He’s also made false claims to the West Virginia attorney general about high rates of abortion complications in his state for which he never produced evidence. Calhoun tries to take down the often-cited statistic that the risk of death associated with childbirth is approximately 14 times higher than with abortion. But his evidence boils down to assumptions that abortion-related deaths are vastly under-reported. The bulk of his argument relies on discredited studies showing links between abortion and suicide and cancer.

The footnote that abortion is deadlier than pregnancy also links to a National Review Online article by James Studnicki and Tessa Longbons, who work for the anti-abortion research group the Charlotte Lozier Institute. They also assume vast under-reporting of abortion-related complications. But their main evidence is a red herring.??

“Depending on the assumptions in estimating and accounting for miscarriages and the simple recognition that abortion is a death, abortion could be as much as 4,500 times more likely to result in a human death than giving birth,” Studnicki and Longbons write.

Arguing that abortion is more dangerous than giving birth because it ends a pregnancy omits the well-documented evidence that maternal mortality in the U.S. is the highest among developed countries and is three times higher for non-Hispanic Black women (about 55 maternal deaths per 100,000 live births in 2020) compared with non-Hispanic White women. There were 861 total reported maternal deaths in 2020, but the rate was three times higher for non-Hispanic Black women (about 55 maternal deaths per 100,000 live births in 2020) compared with non-Hispanic White women.?

CLAIM: ERs are flooded with medication abortion cases that are overwhelming the blood supply.

?To argue that they have legal standing in this case and are directly impacted by its outcome, plaintiffs speculate that the FDA’s most recent rule changes – allowing for patients to obtain medication abortion via telemedicine and allowing retail pharmacies to dispense the drugs directly to patients – will lead to a burdensome increase in workload in emergency rooms.?

“The increased occurrence of complications related to chemical abortions also multiplies the workload of healthcare providers, including AHM and AAPLOG members, in some cases by astronomical amounts,” writes outgoing CEO Dr. Donna Harrison in a legal declaration. “This is especially true in maternity care ‘deserts.’”

She argues that some of the FDA’s previously relaxed regulations resulted in “the explosion of Mifeprex complications including hemorrhage, adding to the current shortage of blood and blood products across the United States.”

?These claims are baseless, says Dr. Nikki Zite, a board-certified OB-GYN and complex-family-planning specialist at the University of Tennessee Graduate School in Knoxville, who submitted a legal declaration on behalf of the federal government.

?“Given the demonstrably low rate of complications from the Mifepristone/Misoprostol regimen, it is inconceivable to me that medication abortion could have a measurable impact on the blood supply in any location,” Zite writes, noting that ACOG has been monitoring a nationwide problem of hemorrhage following childbirth. “If hemorrhage or transfusions from medication abortion was a significant issue, ACOG would be addressing it as well.”

?The plaintiffs also offer anecdotes.

?Dr. George Delgado, who spearheaded a network of anti-abortion doctors willing to perform his experimental abortion-pill reversal protocol, claims he has “treated women suffering complications from chemical abortion and seeking to reverse the effects of chemical abortion,” but he gives no details.?

?The one attempt at a controlled study of Delgado’s protocol – which amounts to instructing women who have taken mifepristone to throw away their misoprostol and receive progesterone injections – stopped prematurely because the OB-GYN and mifepristone expert leading the study determined it was unsafe after three patients hemorrhaged. Neither in his declaration, nor in response to a media inquiry does Delgado explain if these complications were from the FDA’s approved regimen, or from women only taking the mifepristone.??

?Dr. Regina Frost-Clark of Michigan said she has “treated several women who have suffered complications from chemical abortions,” which she clarifies amounts to about dozen women who were suffering “significant bleeding,” which is inherent in a medication abortion.

?Dr. Shaun Jester, an OB-GYN from Dumas, Texas, recounts one example to back up his claim that unsupervised medication abortion is dangerous and “potentially life-threatening.” He says he treated a Texas woman, where abortion is currently banned, who obtained the medication abortion regimen in New Mexico but was still heavily bleeding two weeks later and had developed an infection. “IF she had waited a few more days before receiving care, she could have been septic and died,” Jester writes, noting that he reported the adverse event to the FDA.

?Similarly, Indiana state Sen. Tyler Johnson gives a concerning example: an Indiana woman who obtained abortion drugs in Chicago and bled heavily on the drive home, needed a blood transfusion. “I have seen multiple cases similar to this one,” he writes.

But their testimony does not contradict the medication abortion’s reported safety record, which does account for some incidences of serious adverse events. Neither of the doctor-plaintiffs or their attorneys responded to requests for comment.

Outside of the lawsuit, plaintiffs have simultaneously claimed abortion bans haven’t and won’t lead to denial of emergency medical care in the case of pregnancies that need to be terminated for health reasons – despite ample evidence to the contrary.

?What’s next

?Family physician Dr. Linda Prine, who co-founded the Miscarriage and Abortion Hotline to help pregnant people navigate self-managing medication abortions post-Roe, said it’s the anti-abortion movement putting women in riskier, more traumatizing abortion situations. She said her hotline has been hearing more from people taking abortions drugs later than 12 weeks – because it’s the earliest they could get them.

?“What leads to using abortion drugs past the first trimester are the abortion bans and the difficulties in getting the medications,” Prine said in an email. “It is medically less risky to use the medications earlier, and it is medically less risky to have an abortion rather than an ongoing pregnancy. The bottom line is that people should be able to get the medical care they need, whenever it is that they determine that they need it.”

There are other ongoing legal cases aimed at preserving access to abortion drugs, even in states that have passed abortion bans. But as early as this month, U.S. District Judge Matthew Kacsmaryk could rule that the FDA must ban the drugs, or resume its old protocols. From there the case would go to the conservative Fifth Circuit Court of Appeals. And if it goes to the U.S. Supreme Court, the scale is tipped by anti-abortion hard-liners.

?As the decision date for Alliance v. FDA has gotten closer, more providers have begun discussing how to help pregnant people terminate pregnancies using only misoprostol, which is used in other countries, but not as effective and more risky than the current regimen. Abortion-rights advocates and health professionals are scared for patients and frustrated.

?“The scenario of people being scared and traumatized by a later abortion could be prevented by giving people access to the pills early and legally, not by forcing them to continue an unwanted pregnancy,” Prine said.

“To me, it’s about accountability,” registered nurse Susan Rames said of ALC’s infection control practices. “This is something that needed to be brought to light.” (Photo for Reveal by Jon Cherry)

At 52, Susan Rames was looking for a way to give back. She worked part time at a Kentucky hospital as a postpartum nurse and, with her three children nearly grown, she had some extra time during the week.

Motivated by her Christian faith, Rames decided to volunteer at ALC Pregnancy Resource Center, a crisis pregnancy center whose mission is to discourage people from seeking abortions.

The center offers free ultrasounds and needed volunteer nurses to complete a sonography training program. Rames said she liked the idea of helping women see “the truth and the life” inside their pregnant bodies so they might make “a better choice for themselves and their babies.”

After taking an online training course, Rames began in-person instruction in August 2020 at ALC’s Shepherdsville site, one of its two Louisville-area locations, doing practice ultrasounds under the supervision of a nurse manager.

That’s when she spotted the red flags.

The center was using an expired disinfectant to sanitize an essential piece of equipment for early-pregnancy ultrasounds: the transvaginal probe. And that disinfectant, medical researchers have warned in recent years, doesn’t kill the human papillomavirus, a widespread and potentially deadly sexually transmitted infection responsible for more than 90% of cervical cancers, as well as cancers of the genitals and throat.

Stopping HPV’s spread has been a major public health goal for decades.

“You’re saying you want to help these women,” Rames recalls thinking as she researched different types of high-level germ-killers on the internet. “Yet you’re potentially going to transmit an infection to them?”

Rames said she immediately went about trying to fix the problems she saw, first with her manager and then the clinic’s leadership. After four months and little response, she filed a flurry of whistleblower complaints with the state of Kentucky.

But far from resulting in any action against ALC, the complaints illustrate just how difficult it is to get any accountability for crisis pregnancy centers that offer medical services such as ultrasounds.

A key part of the anti-abortion movement’s long-term strategy, pregnancy centers have proliferated across the country in recent years, many mimicking the look and feel of medical clinics. Yet an ongoing investigation by Reveal from The Center for Investigative Reporting has shown most centers operate in a kind of regulatory dead zone, free of the significant state and federal oversight – such as regular inspections and rules to protect ultra-sensitive personal information – that most medical clinics face.

Until five years ago, Kentucky was one of the few states that did regulate pregnancy centers, but that changed in 2018 when legislators passed a law that erased the licensing requirements as part of a broader push to make it easier for hospitals to expand. Now in Kentucky, as in most of the country, pregnancy centers don’t have to be directly licensed, instead providing medical services under the professional licenses of their staff and volunteers.

Rames’ account of the problems at ALC, documented in hundreds of pages of emails, cellphone photos, research papers and other materials, highlights how the lack of regulation of pregnancy centers can put women – and, in the case of HPV, potentially even their partners and babies – at risk.

Without meaningful oversight, it’s difficult to know whether centers are complying with the latest medical protocols or cutting corners in ways that compromise clients’ safety. Even when a whistleblower such as Rames is willing to come forward, without outside watchdogs, there’s no way to ensure that changes made by centers to correct problems will stick.

“The fact that you are allowed to put yourself out there as somebody that is helping pregnant women and (are) doing pseudo-medical procedures, but have no accountability as a medical facility, is a problem that endangers people,” said Seema Mohapatra, a health law professor at Southern Methodist University.

As a registered nurse with nearly 20 years’ experience in hospital settings, Rames was highly attuned to the importance of keeping up with the latest research and complying with even the most insignificant-seeming protocols to prevent infections. “We know it is what we can’t see with the naked eye that can continue to live on surfaces & then our instruments become vectors of these pathogens,” she wrote in one complaint.

Rames first got an inkling that ALC wasn’t being as careful as it should be when she said she noticed that staff weren’t using the right type of lubricant gel on the probe that was inserted into a client’s vagina. Instead, they were using gel meant for external abdominal ultrasounds and squirting it from refillable containers that, according to ultrasound industry guidelines, might not be sterile enough for transvaginal procedures.

When Rames voiced her concerns, ALC’s nurse manager, Sara Reece, said she’d have to get permission to order the correct product because, as a nonprofit, the center’s staff “have to use their donations responsibly,” Rames later alleged to the Kentucky Board of Nursing.

Rames ended up purchasing the proper lubricant on Amazon and donating it to the center, receipts show. Reece declined requests to comment.

In early December 2020, Rames said she noticed something more troubling. Hanging on the wall next to the ultrasound machine was a plastic canister of disinfectant that staff used to soak the probe after each examination. But the expiration date, scrawled in marker, read 11/11/20 – three weeks earlier. Rames said she didn’t raise concerns at the time because she assumed someone would replace it. But the canister was still there in January 2021, now nine weeks past when it should have been tossed.

For disinfectants, the expiration date typically marks the point at which the solution becomes less potent and reliable. Rames said that after she and another volunteer-in-training asked about the solution, Reece pulled out a big jug of the disinfectant, MetriCide OPA Plus, that was used to refill the smaller container. According to its label, it too had expired, on Dec. 1, 2020, Rames said. And no one had recorded when the jug was first opened – a critical part of infection prevention protocols, the manufacturer’s packaging warned. This particular disinfectant has a shelf life of only 75 days after the container is opened. Rames photographed the expired products with her phone.

Then, at home, Rames said she made yet another disturbing discovery. MetriCide OPA Plus wasn’t the right disinfectant for the pregnancy center’s purposes. A special report from the Society for Maternal-Fetal Medicine warned that orthophthalaldehyde, MetriCide’s active ingredient, has “virtually no efficacy against” HPV.

Rames said she considered reaching out to the center’s volunteer medical director, Dr. Anita Kotheimer, but the doctor never seemed to be there when she was. So, armed with her research, Rames requested a meeting in January 2021 with ALC’s executive director at the time, Diana Cahill. “Ms. Cahill appeared to understand the importance of this issue” and said she’d talk to Reece and replace the disinfectant, Rames recounted in her whistleblower complaints. “We want to use best practices,” Cahill told her. Cahill no longer works at the center and didn’t return Reveal’s calls. ALC’s current executive director, Erica Price, also didn’t respond to requests for comment.

Still, Rames quit the training program soon after that meeting, worried that her nursing license could be in jeopardy if she continued to volunteer there. “I did not want to be associated with an organization that was betraying people’s trust,” she wrote to one state medical board. “This way of operating presented a moral, ethical, legal & professional conflict for me.”

A few weeks later, Cahill checked in with Rames, telling her that ALC had indeed changed out the expired supplies. The center also upgraded a host of its infection control protocols. Yet Rames said she worried that without any external oversight, ALC could revert to its previous practices.

“To me, it’s about accountability,” she said in an interview. “This is something that needed to be brought to light and have some other people be aware of it.”

So starting in May 2021, Rames began filing her whistleblower complaints.

First, she went to the state, but the Kentucky Cabinet for Health and Family Services no longer had the authority to investigate her allegations because of the 2018 law that eliminated licensing requirements for several types of clinics, including pregnancy centers.

If ALC had been overseen by state authorities, “there would be a way to insist that corrections be made to deficiencies that are found,” said Lois Uttley, a national health care policy consultant who teaches at Sarah Lawrence College. “Clearly, that process is not happening with crisis pregnancy centers because they are under-regulated.”

Rames also turned to Care Net and Heartbeat International, two of the largest pregnancy center networks in the country, which issue best-practice recommendations to their members, including ALC. Both responded that they would follow up with the center, but neither had any regulatory authority. “We aren’t able to provide regulatory oversight for ultrasound practices outside of our affiliation requirements,” Care Net told Rames in an email. Neither organization responded to Reveal’s questions.

The only other avenue for accountability was to appeal to state medical boards, which can discipline doctors and nurses if they violate their professional codes of conduct but have no power to oversee the facilities where they work. Rames filed a complaint with the Kentucky Board of Nursing that accused Reece of a “repeated and willful” failure to follow current infection control guidelines, contributing to a “culture of non-compliance & poor nursing practice.”

Reece said the allegations were “inaccurate.” “I take my role as nurse manager very seriously and am always open to opportunities for improvement,” she wrote to the nursing board. “I take pride, as a nurse and as a leader at ALC, in fostering a culture of safety and transparency.” Ultimately, the board concluded that there was insufficient evidence for disciplinary action.

Rames filed a second complaint with the Kentucky Board of Medical Licensure accusing Kotheimer, the medical director, of failing to adequately supervise ALC’s services.

Under the pregnancy help industry’s own guidelines, centers that offer ultrasounds must have a medical director who is a licensed physician. But Rames said she met Kotheimer, a semi-retired OB/GYN with 40 years of experience, only once for about 10 minutes at the beginning of her training and never saw her during her once-a-week shifts over about five months at the center. In Reveal’s analysis of pregnancy centers in 27 states, including Kentucky, we found that most medical directors maintain their own practices or work as volunteers, raising questions about how much time they spend on their center duties.

In her response to the board, Kotheimer insisted she played an active role at ALC and said that after Rames raised her concerns, “changes were promptly put in place.” The medical board closed the case without disciplinary action. Neither the board nor Kotheimer returned Reveal’s messages for comment.

But the boards’ failure to take action against ALC’s medical director and nurse manager doesn’t mean Rames’ concerns weren’t valid, health policy experts said. Teneille Brown, a law professor and bioethicist at the University of Utah, noted that institutionwide problems, such as sloppy infection control or poor maintenance of medical equipment, can’t be addressed by only regulating staff and volunteers.

“Imagine that a popular restaurant had an outbreak of food poisoning. The state wouldn’t hold an individual server accountable. It would hold the entire restaurant accountable,” Brown said. “It’s the same in medicine. But if the clinic is not regulated or required to have a license, good luck deterring risky practice by putting pressure on individuals.”

After months of trying to get authorities to act, Rames said she felt deflated by the fact that ALC would continue to operate without external oversight.

“It’s a public health risk. It is not known by the public that this is how these centers are operating,” Rames said. “They are doing medical procedures, but not doing it to the standard of care that you would have if you were going to your doctor or any hospital or clinic.”

Less than a year after leaving ALC, one of Rames’ daughters got pregnant. It was an unplanned pregnancy, and she gave birth in July. Rames warned her to stay away from any pregnancy centers. “Whatever you do,” she told her, “don’t go.”

Read an earlier Reveal report about crisis pregnancy centers: How anti-abortion pregnancy centers can claim to be medical clinics and get away with it.?

This article first appeared on Reveal and is republished here under a Creative Commons license.

This story was edited by Nina Martin and Andrew Donohue and copy edited by Nikki Frick.

Laura C. Morel can be reached at [email protected]. Follow her on Twitter: @lauracmorel.

An ad on a subway train promoted RU-486, now known as mifepristone or the abortion pill, in 2001 in New York City. The ad campaign, sponsored by Planned Parenthood, set The Catholic League up in arms over the public advocacy of the abortion pill. (Photo by Spencer Platt/Newsmakers)

WASHINGTON — A Texas judge could decide as soon as next month whether to force the U.S. Food and Drug Administration to pull its two-decade-old approval of the abortion pill, which accounts for more than half of pregnancy terminations in the United States.

A nationwide injunction in the case, as requested by anti-abortion groups, would deny abortion medication even in states where abortion is legal and affect millions of individuals’ reproductive rights decisions. The legal fight is viewed as likely to eventually make its way to the Supreme Court, which in 2022 overturned the landmark Roe v. Wade decision that legalized abortion rights.

The FDA is urging the federal judge — an appointee of former President Donald Trump — not to issue a preliminary ruling in the case that centers on whether the agency exceeded its authority to approve mifepristone in 2000, whether it erred in making changes to when and how the medication can be used in 2016 and if sending the medication through the mail is legal.

The federal government, in a court filing on Jan. 13, said the anti-abortion groups’ lawsuit to force the FDA to pull the pharmaceutical from the market “is extraordinary and unprecedented.”

“Plaintiffs have pointed to no case, and the government has been unable to locate any example, where a court has second-guessed FDA’s safety and efficacy determination and ordered a widely available FDA-approved drug to be removed from the market — much less an example that includes a two-decade delay,” wrote attorneys for the U.S. Justice Department.

The 52-page opposition to a preliminary ruling says such a decision “would cause significant harm, depriving patients of a safe and effective drug that has been on the market for more than two decades.”

Suit filed in mid-November

The Alliance for Hippocratic Medicine along with the American Association of Pro-Life Obstetricians and Gynecologists, American College of Pediatricians and Christian Medical & Dental Associations filed the lawsuit in mid-November along with four doctors from California, Indiana, Michigan and Texas.

They argue in the 113-page lawsuit the FDA “exceeded its regulatory authority” to approve mifepristone and misoprostol to end a pregnancy within the United States. The two-drug regimen is currently approved up to 10 weeks into a pregnancy, though it was originally approved for up to seven weeks gestation.

“This case challenges the FDA’s failure to abide by its legal obligations to protect the health, safety, and welfare of women and girls when the agency authorized the chemical abortion drugs mifepristone and misoprostol for use in the United States and subsequently eliminated necessary safeguards for pregnant women and girls who undergo this dangerous drug regimen,” wrote attorneys from the Alliance Defending Freedom, the anti-abortion legal organization leading the case.

The lawsuit then calls on the court to “issue a preliminary and permanent injunction ordering Defendants to withdraw mifepristone and misoprostol as FDA-approved chemical abortion drugs.”

If the judge declines to do that, he could rule in support of one, or several, of the anti-abortion groups’ other claims in the case.

That could mean a court order to eliminate the mail-order option, reinstate the in-person dispensing requirement, re-apply in-person dispensing solely to doctors instead of prescribing healthcare providers like physician’s assistants or nurse practitioners, or wipe out the 2016 FDA changes to when and how the medication could be used.

Among those were increasing the number of weeks into a pregnancy mifepristone can be used from seven to 10 and making changes to the dosage.

The lawsuit doesn’t address the FDA’s decision in early January to allow commercial pharmacies to dispense the abortion medication after receiving a prescription from a healthcare provider; though if the judge were to require in-person dispensing by a doctor again, pharmacy pick-up of a prescription wouldn’t be possible.

Abortion rights advocates said during a briefing in January that while the case would be a joke in any other court, they are taking the filing in the North District of Texas seriously, in part because of the judge who will handle the case.

Kirsten Moore, director of the Expanding Medication Abortion Access Project, said “the idea that a drug approval infrastructure could be up to a single judge or that states would be able to recreate their own drug approval process is rash and downright dangerous.”

Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union, said the case “would be laughed out of court if it were filed somewhere else” due to several procedural defects.

But because of the federal district court and the judge, Dalven said, she is taking the case “quite seriously.”

“Mifepristone was approved over 20 years ago. It’s been used safely and effectively by millions of people for early abortion care and to treat miscarriages,” Dalven said. “But unfortunately, in the world we are living in today, we have to take this case seriously.”

A decision from the judge could happen any time after Feb. 10, when the last filings are due in the case, Dalven said.

Abortion rights advocates, she said, weren’t yet sure if the judge would hear oral arguments or issue a ruling without taking that step.

Trump appointees

The lawsuit is working its way through the U.S. District Court for the North District of Texas, the same district that issued a preliminary ruling in favor of the Texas attorney general and anti-abortion organizations regarding emergency medical treatment for pregnant patients.

That Emergency Medical Treatment and Labor Act case, State of Texas v. Becerra, was filed in the Lubbock Division and overseen by Judge James Wesley Hendrix, while the medication abortion case was filed in the Amarillo Division and is being presided over by Matthew Joseph Kacsmaryk.

Kacsmaryk was appointed by Trump in 2019, as was Hendrix.

The U.S. Senate voted 52-46 to confirm Kacsmaryk in June 2019 with Maine’s Susan Collins as the sole Republican to vote against him.

Collins told The Washington Post ahead of the vote that Kacsmaryk had an “alarming bias against LGBTQ Americans and disregard for Supreme Court precedents.”

“Mr. Kacsmaryk has dismissed proponents of reproductive choice as ‘sexual revolutionaries,’ and disdainfully criticized the legal foundations of Roe v. Wade,” Collins said in her statement to the Post. “Such extreme statements reflect poorly on Mr. Kacsmaryk’s temperament and suggest an inability to respect precedent and to apply the law fairly and impartially.”

One of the reasons abortion rights organizations are concerned about this particular case, Dalven said, is because the anti-abortion organizations filing the case went “to extraordinary lengths to get their case before” Kacsmaryk.

She also criticized them for filing the suit, Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, just after the November 2022 midterm elections.

The Alliance for Defending Freedom, the anti-abortion legal organization that filed the case on behalf of the anti-abortion medical associations and doctors, said in a written statement released in mid-November the FDA “illegally” approved the prescription abortion medication.

“On behalf of the national health care organizations and physicians we represent, we ask the court to hold the FDA accountable for its reckless, unlawful behavior,” said ADF Senior Counsel Erik Baptist.

Suing ‘over virtually any FDA action’

The U.S. Justice Department argued in its Jan. 13 filing the anti-abortion organizations didn’t have standing “to sue over virtually any FDA action” and criticized the logic they used to argue the doctors could be harmed by the use of abortion medication.

“As Plaintiffs’ argument runs, if FDA approved a new heart medication, emergency physicians would have standing to challenge the approval on the theory that some patients would experience adverse events under the new treatment; in contrast, cardiologists would have standing to challenge the approval on the theory that some patients would no longer require their services,” they wrote.

The federal government also sought to defend the approval of mifepristone in 2000, saying the FDA’s decision followed a comprehensive review of scientific data, which “demonstrated that the drug was safe and effective for abortions under the specified conditions.”

The FDA, the Justice Department lawyers wrote, “reviewed three separate clinical trials involving more than 2,500 pregnant patients, and those trials provided substantial evidence of effectiveness and showed a low rate of serious adverse events.”

“Rather than confront the significant evidence confirming mifepristone’s safety,” the Justice Department lawyers wrote, the anti-abortion organizations filing the lawsuit asked the judge “to second-guess the agency based on five selected publications.”

The FDA, in fact, considered the studies, they wrote.

“None purports to conclude that mifepristone is unsafe. Indeed, three of them expressly endorse mifepristone as a safe treatment,” the Justice Department lawyers wrote. “Moreover, Plaintiffs misconstrue these studies and their relevant findings.”

Biden memo

The White House, on what would have been the 50th anniversary of Roe v. Wade, sought to address the ongoing disputes over abortion medication.

President Joe Biden issued a memo calling on Health and Human Services Secretary Xavier Becerra to consult with the attorney general and the Homeland Security secretary to bolster access to medication abortion.

Biden calls on the three men to consider issuing guidance for people seeking access to mifepristone along with guidance for doctors and pharmacies that plan to continue prescribing or dispensing it.

Biden noted in the memo there “have been reports of efforts to suppress access to medication abortion.”

“State officials have announced that they will impose restrictions to limit access to this evidence-based, safe, and effective medication,” Biden wrote.

He mentioned a letter that 22 state attorneys general sent to his administration that “threatened to enforce State laws that purport to interfere with access to mifepristone.” The states represented included Arkansas, Alaska, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, Montana, Nebraska, Ohio, South Dakota and Tennessee.

“In Florida, the Governor recently said that major pharmacy chains in the State will not offer mifepristone,” Biden wrote.

“Florida health officials issued guidance discouraging pharmacies from dispensing mifepristone, claiming that State law limits where abortion medication can be provided to hospitals, clinics, or physician offices,” Biden added. “These actions have stoked confusion, sowed fear, and may prevent patients from accessing safe and effective FDA-approved medication.”