WASHINGTON — Exactly two years after the U.S. Supreme Court struck down the constitutional right to abortion, battles rage at the state and federal levels among advocates and lawmakers alike over the future of reproductive rights.
Anti-abortion activists, who have had notable success in deep-red parts of the country, are working in more than a dozen states to dissuade voters in November from approving ballot questions that could strengthen abortion protections, several of which will be decided in states that will play an outsized role in controlling Congress and the White House.
Abortion opponents are also preparing a plan to implement if former President Donald Trump returns to the Oval Office, a prospect that could lead to sweeping executive action on abortion access and at least one more conservative justice on the Supreme Court.
Reproductive rights organizations see the numerous ballot questions as an critical way to take decisions away from lawmakers, especially in states with a more conservative or Democratic majority.
In addition, abortion rights advocates are trying to gain support for Democrats in key elections for seats in the U.S. House of Representatives and Senate, hoping to keep President Joe Biden in office for another four years.
$100 million to be spent by abortion rights activists
Both sides plan to spend millions to win votes.
The Center for Reproductive Rights, the National Women’s Law Center, the American Civil Liberties Union and several other organizations announced Monday that they will invest at least $100 million to build a “long-term federal strategy to codify abortion law that includes advocacy, grassroots movements, public education and comprehensive communications strategies to mobilize support and bring about change.”
“Anti-abortion activists have already banned or severely restricted abortion in 21 states, with devastating consequences. And they won’t stop until they can force a nationwide ban on abortion and push medical care completely out of reach even in states that have protected access to abortion,” they wrote.
Susan B. Anthony Pro-Life America and PAC Women Speak Out announced they would provide $92 million to contact at least 10 million voters in the swing states of Arizona, Georgia, Montana, North Carolina, Pennsylvania, Wisconsin, Michigan and Ohio.
SBA President Marjorie Dannenfelser wrote in a statement released Monday that “we still have much work ahead of us to ensure every mother and child is supported and protected.”
“We are now just one election cycle away from having all of life’s achievements ripped away from us,” Dannenfelser wrote. “Joe Biden and the Democrats are hell-bent on banning protections for unborn children, spreading fear and lies, and enforcing abortion in any trimester, at any time, for any reason – even when babies can feel pain – as national law.”
Democrats have repeatedly tried to pass protections in Congress for access to abortion, contraception and in vitro fertilization – both when they had unified control of the government after the Roe case in 2022 Dobbs v. Jackson – Women’s Health Organizationand during a divided government.
None of the Democrats’ bills have received the support needed to overcome the 60-vote filibuster in the Senate.
In addition to calling on Congress to restore protections under Roe, the Biden administration is seeking to defend abortion and other reproductive rights through executive action and before the Supreme Court.
Abortion pill, emergency care
Earlier this year, Attorney General Elizabeth Prelogar litigated two cases involving abortion access.
The first case, brought by four medical abortionists and four abortion opponents, concerned access to mifepristone, one of two drugs used in medical abortion.
The judge Decided unanimously at the beginning of the month that the groups had no right to raise the case at all, although they did not address any other aspects of the case.
The second casestill undecided, has to do with when doctors can perform abortions as emergency medical care under the Emergency Medical Treatment and Active Labor Act (EMTALA).
Assistant to the President and Director of the Gender Policy Council Jennifer Klein said in a call with reporters on Monday that there is not much the Biden administration can do if the judges side with Idaho in the case.
“If the court rejects our current interpretation, our ability to provide emergency medical care will likely be limited,” Klein said.
US Health Secretary Xavier Becerra published a letter and said that EMTALA protects health care providers who employ abortion as a stabilizing treatment.
The letter stated: “If a physician believes that a pregnant patient presenting to an emergency department – including certain maternity units – is experiencing a medical emergency as defined by EMTALA and that abortion is the necessary stabilizing treatment to correct that condition, the physician must provide that treatment.”
“And if a state law prohibits abortion and does not provide an exception to protect the life and health of the pregnant person – or makes the exception narrower than the definition of a medical emergency in EMTALA – that state law will be overridden,” Becerra wrote.
The Centers for Medicare & Medicaid Services recently founded a up-to-date portal designed to make it easier for people to file complaints under the EMTALA law when they are denied an emergency abortion.
Repeal of the Comstock Act
Klein also said in the phone call that the White House would likely support a bill introduced last week in Congress to repeal sections of the Comstock Act, an 1873 anti-obscenity law that could be used under a future Republican administration to ban the mailing of medication abortion drugs.
“We support all actions taken by Democrats in Congress to protect reproductive freedom, including this one,” Klein said, after noting that the interagency process to determine whether the Biden administration would support the bill is still ongoing.
But the bill is unlikely to pass in a Congress where Republicans control the House and Democrats have a majority in the Senate. And divided government will likely continue for the next four years regardless of which presidential candidate wins in November.
Voting issues in the states
Aside from litigation and executive action, referendums are emerging as a more lucrative battleground for abortion access advocates, although anti-abortion groups hope to make some progress this fall.
Proponents in Arizona, Arkansas, Colorado, Florida, Iowa, Maryland, Missouri, Montana, Nebraska, Nevada, Pennsylvania and South Dakota have secured or are in the process of securing questions for the November ballot. accordingly the health news publication KFF.
In California, Kansas, Kentucky, Michigan, Vermont and Ohio, residents have already voted to strengthen or expand access to abortion in the two years since the Supreme Court’s ruling was released.
Pew Research Center survey conducted earlier this year shows 63% of Americans support that access to abortion should be legal in all or most cases, while 36% say it should be illegal in most or all cases.
The poll shows that both Democrats and Republicans hold differing views: 41 percent of Republicans and 85 percent of Democrats say marijuana should be legal in most or all cases, while 57 percent of Republicans and 14 percent of Democrats say marijuana should be illegal in most or all cases.
The issue, as well as Biden and Trump’s records on abortion, are likely to be a central part of the first presidential debate on Thursday, just three days after the second anniversary of the Dobbs ruling.
Editor’s note: This story has been updated to reflect that Maine is not on the list of states with voting questions this fall.
