WASHINGTON — Exactly two years after the U.S. Supreme Court struck down the constitutional right to abortion, battles are raging among advocates and lawmakers alike over the future of reproductive rights at the state and federal levels.
Anti-abortion groups, which have had considerable success in deep-red parts of the country, are working to dissuade voters from approving ballot questions in a dozen states this November that could strengthen abortion protections. Several of them will be decided in states that will play key roles in determining control of Congress and the White House.
Abortion opponents are also preparing a game plan to implement if former President Donald Trump regains the Oval Office, which could lead to sweeping executive action on abortion access and at least one more conservative Supreme Court justice.
Reproductive rights groups have focused on numerous ballot issues as a key way to take the decision away from lawmakers, particularly in purple or conservative-leaning states.
Abortion rights supporters are also trying to boost support for Democrats in key U.S. House and Senate races and hope to keep President Joe Biden in office for another four years.
Abortion rights activists will spend $100 million
Both sides plan to spend millions to win over voters.
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 spend at least $100 million to build “a long-term federal strategy to codify abortion rights, including lobbying efforts, grassroots organizing, public education and comprehensive communication strategies to mobilize support and implement change.
“Anti-abortion lawmakers have already banned or severely restricted abortion in 21 states, with devastating consequences, and they will not rest until they can enforce a nationwide abortion ban and push care out of reach entirely, even in states that protect abortion access,” they wrote .
Susan B. Anthony Pro-Life America and Women Speak Out PAC announced they will commit $92 million to reach out to 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 Monday that “there is still much work ahead to ensure that every mother and child is supported and protected.”
“Meanwhile, we are just one election cycle away from being deprived of all of life’s gains,” Dannenfelser wrote. “Joe Biden and the Democrats are hell-bent on banning protections for unborn children, spreading fear and lies, and forcing full-trimester abortions at any time and for any reason – even though babies may feel pain – under the law of the land.”
Democrats have repeatedly tried to pass congressional protections for access to abortion, contraception and in vitro fertilization, both when they had unified control of the government after the fall of Roe in 2022. Dobbs v. Jackson Women’s Health Organizationand during divided government.
None of the Democrats’ bills received the support needed to overcome the Senate’s 60-vote legislative filibuster.
In addition to calling on Congress to restore protections that existed under Roe, the Biden administration is trying 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 introduced two cases regarding abortion access.
The first case, brought by four anti-abortion medical organizations and four anti-abortion doctors, concerned access to mifepristone, one of two pharmaceuticals used in medical abortions.
Judges ruled unanimously earlier this month that the groups did not have standing to bring the case in the first place, although they did not address any other aspects of the case.
The second caseyet undecided, concerns when doctors can perform abortions as part of emergency medical care under the Emergency Medical Treatment and Active Labor Act (EMTALA).
Assistant to the chairman and director of the Gender Policy Council Jennifer Klein said on a call with reporters on Monday that the Biden administration would be able to do little if judges sided with Idaho in the case.
“If the court rejects our current interpretation, our options for emergency medical care will likely be limited,” Klein said.
U.S. Secretary of Health and Human Services Xavier Becerra released in July 2022, shortly after the Dobbs ruling letter stating that EMTALA protects health care providers who exploit abortion as stabilization care.
The letter stated that “if a physician believes that a pregnant patient presenting to an emergency department, including certain labor and delivery units, is suffering from an emergency medical condition as defined by EMTALA and that an abortion is a stabilizing treatment necessary to resolve the condition , the doctor must provide such treatment.”
“And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or creates an exception that is narrower than the definition of a health condition included under EMTALA — the state law prevails,” Becerra wrote.
Centers for Medicare and Medicaid Services recently founded a novel portal to make it easier to file complaints under EMTALA when an emergency abortion is denied.
Repeal of the Comstock Act
Klein also said during the phone call that the White House would likely support the bill introduced last week in Congress to repeal portions of the Comstock Act, an 1873 anti-obscenity law that could be used to ban mailed abortion drugs during a future GOP administration.
“We support all actions by Democrats in Congress to protect reproductive freedom, including this one,” Klein said, after noting that an interagency process to determine whether the Biden administration would support the bill was still ongoing.
However, the legislation is unlikely to pass in Congress with a Republican-controlled House and a Democratic majority in the Senate. Divided government appears likely to persist for the next four years, regardless of which presidential candidate wins in November.
State ballot questions
Beyond court cases and executive actions, ballot referendums appear to be a more fruitful battleground for abortion access advocates, although anti-abortion groups hope to make some progress this fall.
Supporters in Arizona, Arkansas, Colorado, Florida, Iowa, Maryland, Missouri, Montana, Nebraska, Nevada, Pennsylvania and South Dakota have either secured questions for the November ballot or are in the process of doing so, According to in the KFF health news magazine.”
Residents of California, Kansas, Kentucky, Michigan, Vermont and Ohio have already chosen to strengthen or add abortion access protections within two years of the Supreme Court’s ruling.
A survey conducted earlier this year by the Pew Research Center to introduce that 63% of Americans support the legality of access to abortion in all or most cases, while 36% believe it should be illegal in most or all cases.
The poll shows that Democrats and Republicans split views both ways: 41% of Republicans and 85% of Democrats say it should be legal in most or all cases, while 57% of Republicans and 14% of Democrats say it should be legal be illegal in most or all cases.
The issue, like Biden and Trump’s agreements on abortion, will likely be a centerpiece of the first presidential debate on Thursday, just three days after two years after Dobbs’ ruling.
This report has been updated to reflect that Maine is not on the list of states with questions on the ballot this fall.
