Abortion on the ballot

 And in other news, we're in new territory for the American experiment.  This will surely have effects on controversial markets (among other things).  An interesting feature of yesterday's vote was that many states preserved or restored abortion rights. 

CNN has the still-unfolding story: 

7 states vote to protect abortion rights, while efforts to expand access in Florida and South Dakota fail by By Amy O’Kruk, Annette Choi, Lauren Mascarenhas, Kaanita Iyer and Piper Hudspeth Blackburn, CNN, Updated 8:22 AM EST, Wed November 6, 2024

"More than two years after the US Supreme Court overturned Roe v. Wade and ended the federal constitutional right to an abortion, voters in 10 states cast ballots on whether to cement reproductive rights in their state constitutions.

"Measures to protect abortion access in Arizona, Colorado, New York, Maryland, Missouri, Montana and Nevada will pass, CNN projects. In New York, Colorado and Maryland, where abortion is legal at least up to the point of viability, the measures will maintain current abortion access. In Missouri, the amendment will remarkably expand access to abortion, which is currently banned with no exceptions for rape or incest. Similarly in Arizona, the amendment is expected to overturn the state’s ban on abortions 15 weeks into pregnancy.

"But a Florida amendment to protect the right to an abortion up to the point of viability will fail, CNN projects, with the amendment falling short of the 60% voter threshold for passage. The state’s six-week ban will remain in place.

"And South Dakota’s ban on abortions with an exception to save the life of the mother will hold as a majority of voters cast a ballot against an initiative to legalize abortion – with regulations – during the first and second trimesters of pregnancy.

"Voters in Nebraska also weighed in on the issue as they faced dueling measures on the ballot: One that would invalidate the state’s 12-week abortion ban, which makes exceptions for sexual assault, incest and medical emergencies, and the other to uphold the restriction."

Repugnance doesn't establish standing in court: Supreme Court reverses Kacsmaryk on medical abortion

  Yesterday the Supreme Court ruled unanimously that (for the time being at least) the medical abortion pill mifepristone should remain legal and widely available.  This reverses the decision of judge Matthew Kacsmaryk of the Federal District court in Amarillo Texas, who ruled that the FDA's authorization of the drug was illegal. (That decision was stayed pending appeal, which has now reversed it.)

The Supreme Court left open the underlying legal issues, but ruled against Judge Kacsmaryk's decision that the plaintiffs in the case, a consortium of medical associations and physicians had standing to bring the case. They say clearly that finding a law repugnant doesn't give a plaintiff standing:

“standing screens out plaintiffs who might have only a general legal, moral, ideological, or policy objection to a particular government action.” 

More colorfully, they say

"As Justice Scalia memorably said, Article III [standing] requires a plaintiff to first answer a basic question: “‘What’s it to you?’” A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983). For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander, but instead must have a “personal stake” in the dispute."

Here is the full opinion:

SUPREME COURT OF THE UNITED STATES, “ FOOD AND DRUG ADMINISTRATION ET AL. v. ALLIANCE FOR HIPPOCRATIC MEDICINE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 23–235. Argued March 26, 2024—Decided June 13, 2024, https://www.supremecourt.gov/opinions/23pdf/23-235_n7ip.pdf 

Vatican statement on gender-affirming surgery and human dignity

 A new statement from the Vatican has been widely covered in the press.

Here's the story from the National Catholic Reporter:

Vatican condemns surrogacy, gender-affirming surgery, gender theory in new doctrinal note. Vatican doctrinal chief calls it 'painful' that some Catholics support gay criminalization  BY CHRISTOPHER WHITE, April 8, 2024

"Sex change operations, gender theory and surrogate motherhood pose grave threats to human dignity, according to a major new Vatican document released on April 8. 

While the highly anticipated treatise, "Dignitas Infinita: on Human Dignity," which has been the source of much speculation for months, offers a broadside against the creation of new rights motivated by sex and gender, it is largely a reiteration of long-held Catholic teaching on a number of social and moral concerns. 

The new document, however, seeks to elevate a number of social themes emphasized by Pope Francis during his decadelong papacy — such as poverty, migration and human trafficking — as being equally a part of the full panoply of potential threats to human dignity as bioethical concerns, such as abortion and euthanasia.   

...

"Among the newly identified threats to human dignity are poverty; war; the travail of migrants; human trafficking; sexual abuse; violence against women; abortion; child surrogacy; euthanasia and assisted suicide; the marginalization of people with disabilities; gender theory; sex change; and digital violence.

Gender theory, according to the document, is a subject of considerable debate among scientific experts, and risks denying "the greatest possible difference that exists between living beings: sexual difference."  

The document repeats a frequent warning of Francis against "ideological colonization," where the pope has sharply criticized western governments for allegedly imposing their sexual values on the developing world. All efforts to eliminate sexual differences between men and women must be rejected, says the document. 

At the same time, the document also begins with a caveat that all persons, regardless of their sexual orientation, must be respected, and "every sign of unjust discrimination is to be carefully avoided, particularly any form of aggression and violence."

"For this reason," the document continues, "it should be denounced as contrary to human dignity the fact that, in some places, not a few people are imprisoned, tortured, and even deprived of the good of life solely because of their sexual orientation."  

Last year, Francis became the first pope to specifically condemn the criminalization of homosexuality and said that the Catholic Church must work towards an end to what he described as "unjust" laws that criminalize being gay. At present, at least 67 countries have laws criminalizing same-sex relations. 

In its brief section on gender-affirming surgeries, the document avoids using the term "transgender" and instead offers a muted prohibition against medical interventions for such purposes.

...

"Catholic LGBTQ groups criticized the new Vatican document within hours of its publication, saying it failed to acknowledge the concrete experience of transgender and nonbinary individuals.

New Ways Ministry, an advocacy group that had an historic meeting with Francis at the Vatican last October, said in a statement that the text "fails terribly" and shows the limits of the church's understand of human dignity.

...

"The new document also goes on to repeat the pope's recent call for an international ban on the rising practice of surrogate motherhood, declaring that the "legitimate desire to have a child cannot be transformed into a 'right to a child' that fails to respect the dignity of that child as the recipient of the gift of life."  

In January, Francis used his annual "State of the World" address to ambassadors accredited to the Holy See to push for a global ban on surrogacy. 

While the pope had previously condemned the practice, the pope's sweeping remarks on the topic — where he called it a "grave violation of the dignity of the woman and the child" — marked the first time he had made such a specific policy proposal. Last month, the Vatican's ambassador to the United Nations, Archbishop Gabriele Caccia, also pressed for an international prohibition against the practice. "

France amends its constitution to protect access to abortion

 The decision of the U.S. Supreme Court to overturn Roe v.Wade and end a constitutional right to abortion in the U.S. prompted France to amend its constitution to guarantee access to abortion.

Here's the WSJ story:

France becomes first country to explicitly enshrine abortion rights in constitution  By Karla Adam

"With the endorsement of a specially convened session of lawmakers at the Palace of Versailles, France on Monday became the first country in the world to explicitly enshrine abortion rights in its constitution — an effort galvanized by the rollback of protections in the United States.

"The amendment referring to abortion as a “guaranteed freedom” passed by a vote of 780 in favor and 72 against, far above the required threshold of support from three-fifths of lawmakers, or 512 votes.

"French President Emmanuel Macron announced that a “sealing ceremony,” a tradition reserved for the most significant laws, would take place Friday, coinciding with International Women’s Day.

“We’re sending a message to all women: Your body belongs to you, and no one can decide for you,” Prime Minister Gabriel Attal told lawmakers assembled in Versailles."*

#########

Le Monde has the story, in an editorial supporting the amendment:

Enshrining abortion access in the French Constitution is a win for feminism and democracy, EDITORIAL, Le Monde, March 4

"The joint session of both houses of Parliament convened in Versailles on Monday, March 4, to enshrine access to abortion in the French Constitution, marks an important moment in the life of the nation. And a proud moment, too. A few days before International Women's Rights Day on March 8, women's freedom to control their own bodies should be anchored in French law. It also comes at a time when abortion, once thought to be a widely accepted procedure, is being undermined in a number of democracies, most notably the United States.

...

"The three-fifths majority required in Parliament means that a consensus has been reached, despite the fact that abortion still disgusts some on the right and far right. It's a sign that democracy works, despite the distress signals it is sending out.

"At every stage of the lengthy procedure initiated in November 2022, the drafting of the Constitutional reform constantly required perseverance and tact. First in the Assemblée Nationale, where, in response to the shockwave caused in June 2022 by the US Supreme Court's decision to revoke the federal right to abortion, the radical-left La France Insoumise party and the center-right presidential majority agreed to work together on a common cause.

"Then the fight continued in the Sénat, where, in loyalty to Simone Veil's 1975 battle to decriminalize abortion, a number of right-wing Les Républicains elected representatives fought hard to ensure that the debate, which they had reframed, could continue against the advice of their group's president, Bruno Retailleau, and Sénat President Gérard Larcher. Finally, in the government, Justice Minister Eric Dupond-Moretti facilitated the drafting and adoption of the final text. The compromise consists of enshrining the notion of "guaranteed freedom" for women to have access to abortion, without introducing an enforceable "right" to abortion as demanded by the left."

#######

*Regarding the Prime Minister's remark to women that "no one can decide for you" I note that surrogacy remains illegal in France.

Friday, October 18, 2019

Will IVF become more widely legal in France?

Frozen embryos are children: Alabama Supreme Court ruling

 The Washington Post has the story, which emphasizes the implications this ruling could have on in-vitro fertilization (IVF).  That would also impact surrogacy, and possibly deceased donor transplantation (depending on how it impacts the definitions of who is alive and who isn't...) 

Frozen embryos are children, Ala. high court says in unprecedented ruling. By Dan Rosenzweig-Ziff, February 19, 2024 

"The Alabama Supreme Court ruled Friday that frozen embryos are people and someone can be held liable for destroying them, a decision that reproductive rights advocates say could imperil in vitro fertilization (IVF) and affect the hundreds of thousands of patients who depend on treatments like it each year.

"The first-of-its-kind ruling comes as at least 11 states have broadly defined personhood as beginning at fertilization in their state laws, according to reproductive rights group Pregnancy Justice, and states nationwide mull additional abortion and reproductive restrictions, elevating the issue ahead of the 2024 elections. Federally, the U.S. Supreme Court will decide this term whether to limit access to an abortion drug, the first time the high court will rule on the subject since it overturned Roe v. Wade in 2022.

"The Alabama case focused on whether a patient who mistakenly dropped and destroyed other couples’ frozen embryos could be held liable in a wrongful-death lawsuit. The court ruled the patient could, writing that it had long held that “unborn children are ‘children’” and that that was also true for frozen embryos, affording the fertilized eggs the same protection as babies under the Wrongful Death of a Minor Act.

...

"The push for defining personhood has even affected tax law: Georgia now recognizes an “unborn child” as a dependent after six weeks of pregnancy.

Abortion bans in some states lead to late stage abortions in others

Obstacles to abortions in some states mean that some people seeking to end a pregnancy will have a late stage abortion where it's legal--i.e. laws intended to ban abortions or to allow only very early abortions may be moving some abortions much later. 

The New Yorker has a photographic essay:

A SAFE HAVEN FOR LATE ABORTIONS. At a clinic in Maryland, desperate patients arrive from all over the country to terminate their pregnancies.  Photographs by Maggie Shannon.  —Margaret Talbot

"For several years, Morgan Nuzzo, a nurse-midwife, and her friend and colleague Diane Horvath, an ob-gyn, talked about opening a clinic that would provide abortions in all trimesters of pregnancy. In May, 2022, the draft opinion of the Supreme Court ruling that overturned Roe v. Wade was leaked, infusing their plan with fresh urgency. The women had launched a GoFundMe campaign earlier that spring, noting that stand-alone clinics made up the majority of providers offering abortion after fifteen weeks, and that many of these had closed in recent years. Within weeks, Nuzzo and Horvath had raised more than a hundred thousand dollars; that summer, they started training employees for the new clinic, Partners in Abortion Care, in College Park, Maryland. They saw their first patient that October, and by the end of 2023 they had treated nearly five hundred. The youngest was eleven years old, the oldest fifty-three.

...

"Abortions in the second or third trimester are rare—the vast majority of abortions in the United States are performed in the first thirteen weeks of pregnancy—and when they occur the circumstances tend to be desperate. Horvath told me, “We know that when people decide they need an abortion they want to have it as soon as possible. Nobody is hanging out until they get to twenty or thirty weeks, saying, ‘Oh, I think maybe I’ll have my abortion now.’ ” A common scenario, she said, went like this: “You’re in, say, Texas—you’re pregnant and you need an abortion. You found out you were pregnant at eight weeks, which is a very usual time to find out. You arrange for child care—sixty per cent of people who have abortions are already parents—you get the money together, you’re going to have to travel out of state. You go to the next state that you can go to, and you find out you’re too far along for them. So now it’s going to be three times as much money. The cost goes up because the complexity of care goes up. If you travel four or five states over, how many days off is that, how many days of child care?”

Brain death for organ donation, and its relation to controversy about abortion

 Here's a summary of the current discussion of brain death (and its possible connection to the debate on whether a fetus is a living person), in JAMA. Maybe it will reach some resolution this year...

Truog, Robert D., and David C.  Magnus. The Unsuccessful Effort to Revise the Uniform Determination of Death Act. JAMA. 2023;330(24):2335–2336. doi:10.1001/jama.2023.24475

"In 1968, a Harvard committee proposed a new approach for determining death, one based on the irreversible loss of neurological functions.1 This concept was instantiated into law in 1980 when the Uniform Law Commission endorsed The Uniform Determination of Death Act.2 The act, which a large majority of states have adopted in whole or with some variations, says, in part, that an individual is dead if the individual has sustained (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem. A determination of death must be made in accordance with accepted medical standards.

"In 2020, the commission was asked to consider updating the act, based in part on concerns that the act does not fully align with current medical practice.3 A draft of its revision was presented and discussed at the commission’s annual meeting on July 26, 2023.4 Herein, we summarize the major issues that led to the decision to draft a revision, the alternatives that were considered, why there was failure to reach consensus, and what this means for the future.

"The Uniform Determination of Death Act defines neurological death, commonly known as brain death, as the complete absence of all functions of the entire brain. The current diagnostic criteria, however, test for only a subset of brain functions, and most notably do not include testing for neurosecretory hypothalamic functions, which are retained by many patients who have been diagnosed as brain dead.5 In addition, the law requires the “irreversible” cessation of biological functions, whereas in practice the standard has been “permanence,” with the distinction being that irreversible implies that the function cannot be restored, whereas permanence means that the function will not be restored because no attempt will be made to do so.

...

"n order for medical practice to be in compliance with the law, the commissioners considered either changing the guidelines to conform with the law, or changing the law to conform with the guidelines. Under the first approach, the guidelines would require physicians to diagnose the irreversible cessation of all brain functions, not just selected functions. This would be challenging, given the difficulty of detecting and measuring all of the brain’s many functions. Alternatively, the law could be revised to be coherent with current practice guidelines. At the annual meeting of the Uniform Law Commission, the committee considered the following draft alternative to the existing Uniform Determination of Death Act4: “An individual is dead if the individual has sustained: (1) permanent cessation of circulatory and respiratory functions; or (2) permanent (A) coma, (B) cessation of spontaneous respiratory functions, and (C) loss of brainstem reflexes.”

"This proposal would harmonize the law with the practice guidelines. Instead of requiring the absence of all brain functions, this revision would have required only the absence of specific brain functions, namely the capacity for consciousness and spontaneous respiration.

"The proposed revision also would have replaced the requirement for irreversible cessation with permanent cessation, thereby anticipating the trajectory of new developments in resuscitation research, including work demonstrating the potential for restoration of neuronal function in brains, even many hours after the loss of brain perfusion.6 Using the permanence standard, death can be determined in these patients on the grounds that function will not be restored rather than the requirement that it cannot be restored.

"Finally, the proposed revision also included a section that would have required hospitals to respect the refusal of patients or their surrogates to having death determined by neurological criteria. This position was supported by various constituencies, including the Catholic Medical Association, as well as several of the Uniform Law Commission commissioners, who saw it as a way to respect the diversity of opinions surrounding the determination of death while still supporting the concept of brain death. At the same time, this approach was strongly condemned by most mainstream physician and transplant organizations, given the burden that it would place on hospitals and intensive care units and its potential negative impact on organ procurement.

...

"in an email on September 22, 2023, the committee leadership announced that they had decided to pause the process, saying that “although we will continue to hope mid-level principles will become apparent, no further drafting committee meetings will be scheduled at this time.”

"Perhaps this outcome could have been predicted from the beginning, given the polarization that has evolved in the US around issues at the beginning and end of life. Commissioner James Bopp emphasized these connections in asserting that the controversies around brain death and abortion are an “identical debate, just in a different context.”7

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Earlier:

Wednesday, October 18, 2023

Peter Singer on brain death

The Comstock Act returns from the dead, post Roe

 While there's no agreement about whether life begins at conception, it appears that the Comstock Act has risen from the dead to play a role in contemporary legal duels about abortion.

CNN brings it all back:

The 150-year-old chastity law that may be the next big fight over abortion By Tierney Sneed

"A law passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide – even in states where the procedure is legal.

"When the Supreme Court last summer reversed Roe v. Wade and eliminated constitutional protections that guaranteed abortion rights nationwide, the conservative majority fashioned its ruling as returning the matter of abortion policy-making to elected officials, particularly in state legislatures.

"But the battle lines now being drawn around the Reconstruction-era federal law – the Comstock Act – are an example of how the picture after Roe v. Wade is far more complicated as abortion opponents are challenging the means of abortion, such as the drug mifepristone, in court.

"The most sweeping Comstock Act arguments from anti-abortion activists could at the very least end the availability of medication abortion, which make up the majority of abortions in the US today, and could have the effect of eliminating surgical abortions as well by restricting the shipment of medical instruments and supplies used in the procedure.

...

"The Comstock Act, first passed in 1873, is named after Anthony Comstock, who was a special agent of the US Postal Service and an anti-vice crusader.

...

"Prosecutions under the law were bought in the first few decades after its passage, but by the 1930s, courts began whittling down some of its provisions and enforcement of the law ceased. Congress meanwhile amended it in the 1970s to remove its ban on mailing birth control.

...

"The Biden administration, in an internal advisory opinion released by the Justice Department’s Office of Legal Counsel, argues that the law does not apply to the mailing of abortion pills if they’re not being sent with the intent of unlawful use. The opinion pointed to how 20th century courts had interpreted it narrowly as excluding drugs mailed with legitimate intent."

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Earlier:

Monday, April 10, 2023

Comstockery and abortifacients, on the way to the Supreme Court

Comstockery and abortifacients, on the way to the Supreme Court

 The Comstock Act of 1873 made it a Federal crime to distribute information or medicines for contraception or abortion, and more generally on material judged to be for "any indecent or immoral purpose."  The 1965 ruling in Griswold vs. Connecticut found the bans on contraception to be unconstitutional, and the bans on pornography were strictly limited the year before in the case Jacobellis v. Ohio.  But the Act reared its head again when it was cited by a Federal judge in Texas, Matthew J. Kacsmaryk, in his ruling that the abortion inducing drug mifepristone was illegal to distribute anywhere in the U.S., including in states where abortion is legal.

Michelle Goldberg in the NYT writes about "The Hideous Resurrection of the Comstock Act"

"suddenly, the prurient sanctimony that George Bernard Shaw called “Comstockery” is running rampant in America. As if inspired by Comstock’s horror of “literary poison” and “evil reading,” states are outdoing one another in draconian censorship. In March, Oklahoma’s Senate passed a bill that, among other things, bans from public libraries all content with a “predominant tendency to appeal to a prurient interest in sex.” Amy Werbel, the author of “Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock,” described how Comstock tried to suppress photographs of cross-dressing women. More than a century later, Tennessee has banned drag performances on public property, with more states likely to follow.

"And now, thanks to a rogue judge in Texas, the Comstock Act itself could be partly reimposed on America. Though the act had been dormant for decades and Congress did away with its prohibitions on birth control in 1971, it was never fully repealed. And with Roe v. Wade gone, the Christian right has sought to make use of it. The Comstock Act was central to the case brought by a coalition of anti-abortion groups in Texas seeking to have Food and Drug Administration approval of mifepristone, part of the regimen used in medication abortion, invalidated. And it is central to the anti-abortion screed of an opinion by Matthew J. Kacsmaryk, the judge, appointed by Donald Trump, who on Friday ruled in their favor.

...

"On Friday a Washington State judge issued an opinion directly contradicting Kacsmaryk’s and ordering the F.D.A. to continue to make mifepristone available. The dispute now is likely headed to the Supreme Court."

Judge shopping for abortion rulings

 Justice (like politics, sausage and econometrics) is constructed in complex ways. The Washington Post has a story on the case against an anti-abortion drug, now being heard by federal judge Matthew Kacsmaryk in Amarillo Texas, which could result in a nationwide ban on that drug.  The case concerns medical issues about drug regulation, and isn't directly concerned with the legal controversy about abortion rights.

The Texas judge who could take down the abortion pill. A devout Christian, Matthew Kacsmaryk has been shaped by his deep antiabortion beliefs. By Caroline Kitchener and  Ann E. Marimow  February 25, 2023 

"The abortion pills lawsuit, which Kacsmaryk could rule on any day, is the latest in a long line of politically explosive cases to appear on the judge’s docket. In a practice known as “forum shopping,” conservative groups have zeroed in on the Amarillo division of the Northern District of Texas as a go-to place to challenge a wide range of Biden administration policies. Because Amarillo is a federal district with a single judge, plaintiffs know their arguments will be heard by Kacsmaryk — who, like any federal judge, is positioned to issue rulings with nationwide implications.

"Appeals from Kacsmaryk’s district follow a path that has regularly yielded favorable outcomes for conservatives — reviewed first by the U.S. Court of Appeals for the 5th Circuit, which upheld a strict Texas abortion ban long before Roe v. Wade was overturned, then ultimately by the conservative-controlled Supreme Court."

********

Here's a related story from Medpage Today:

A Ban on the Abortion Drug Mifepristone Is Looming— A Texas lawsuit may be disastrous for effective abortion access and FDA's authority by Lawrence O. Gostin, JD, LLD, and Sarah Wetter, JD, MPH, February 23, 2023

"In the most consequential and controversial attack on reproductive rights since the overturning of Roe v. Wade, a Texas judge could ban the safest, most effective, and most common method for abortion in all 50 states. The hyper-conservative anti-abortion group Alliance Defending Freedom  (ADF) is seeking to overturn the FDA's approval of mifepristone (Mifeprex), a medication in a two-pill regimen used to terminate pregnancies through the first 10 weeks gestation. The lawsuit does not target the other medication, misoprostol (Cytotec), which FDA approved to treat stomach ulcers, and can be prescribed off-label for abortion.

...

"Given the FDA's rigorous risk evaluation and mitigation strategy (REMS) for mifepristone and its safe use for 23 years, the case is utterly frivolous and political, but due to "judge shopping" the repercussions for reproductive health and equity are real. Perversely, a single federal trial judge has the power to block a federal law, rule, or action on a national scale. The case could make its way to the Supreme Court, with potentially disastrous consequences for safe, effective abortion access and the authority of the FDA."

opens in a new tab or windowfor mifepristone and its safe use for 23 years, the case is utterly frivolous and political, but due to "judge shopping" the repercussions for reproductive health and equity are real. Perversely, a single federal trial judge has the power to block a federal law, rule, or action on a national scale. The case could make its way to the Supreme Court, with potentially disastrous consequences for safe, effective abortion access and the authority of the FDA.

Legal Frontiers for Safeguarding Reproductive Freedoms, in JAMA

 We can expect long legal battles to follow the repeal of Roe v. Wade.  Here's a survey of the battlefield in JAMA.

New Legal Frontiers for Safeguarding Reproductive Freedoms by Rebecca B. Reingold, JD; Lawrence O. Gostin, JD, JAMA. Published online January 30, 2023. doi:10.1001/jama.2023.1004

"In Dobbs v Jackson Women’s Health Organization, the Supreme Court overturned the landmark ruling, thus eliminating a national right to abortion before viability. Key federal strategies to address this ruling include expanding access to medication abortions and emergency abortion services. Federal conscience protections for health workers balance nondiscriminatory access to abortion services. Ballot initiatives and courts are seeking to protect reproductive rights under state constitutions. At stake is whether pregnant people can access essential services, with significant consequences for autonomy, dignity, health, and emotional well-being.

...

"In January 2023, the US Food and Drug Administration (FDA) modified its Risk Evaluation and Mitigation Strategy (REMS) to allow retail pharmacies to dispense mifepristone.2 Previously, mifepristone could be dispensed only in certain clinics, medical offices, and hospitals.

...

"In December 2022, the Department of Justice (DOJ) at the request of the US Postal Service (USPS) issued guidance clarifying the lawfulness of sending abortion medications through the USPS.3 An 1873 federal law (the Comstack Act) prohibits mailing any “article or thing designed, adapted, or intended for producing abortion.”4 The DOJ determined that the Comstack Act does not prohibit mailing, delivery, or receipt by mail of mifepristone or misoprostol because the sender cannot know if the drug will be used unlawfully.

...

"The Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals that receive Medicare funds to provide stabilizing treatment to patients experiencing a medical emergency.6 Urgent medical treatment should extend both to saving life and preserving health. In July 2022, the Centers for Medicare & Medicaid Services (CMS) issued guidance stating that EMTALA requires abortion services wherever necessary to stabilize a pregnant patient experiencing an “emergency medical condition.”6 The CMS concluded that EMTALA preempts contrary state laws banning or restricting abortions under urgent circumstances.

...

"In December 2022, the Department of Health and Human Services (HHS) Office for Civil Rights proposed a new rule for health workers and entities that refuse to provide abortion or other services for religious or moral reasons. ... The Biden administration’s proposed rule would strike a balance between “safeguarding conscience rights and protecting access to health care.”8 Marginalized, disadvantaged, and underserved communities, including LGBTQ+ patients, persons with disabilities, and persons living with HIV, are disproportionately affected by conscience protections. The proposed rule should better protect patients’ autonomy, health, and dignity, while also respecting clinicians’ moral and religious convictions."

Post Roe (post Dobbs) legal efforts to secure rights established in previous Court decisions

 Since the Supreme Court ruling in Dobbs that overturned Roe and said that abortion was subject to regulation by each State, and not an individual right, there have been attempts in Washington to moderate some of its potential effects, particularly in light of Justice Thomas' opinion that the ruling could lead the way to rolling back other rights established by previous court rulings.

There have been some successes and some failures.

Here's a story from the Guardian about some new regulations and interpretations.

The US government just took two big steps on abortion. Will they matter? While the decisions cannot undo abortion bans in the 13 states they exist, it could make a huge difference where the right is protected  by Poppy Noor

"This week, the federal government announced two decisions designed to improve abortion access in the US. The first, a rule change made by the Food and Drug Administration, allows pharmacies to dispense mifepristone, one of the two drugs needed for a medication abortion. The second, an opinion drafted by the justice department, gives the US Postal Service the all clear to continue mailing abortion pills, even to states where abortion is severely restricted.

South Carolina supreme court rules six-week abortion ban unconstitutional

Read more

...

These decisions cannot undo abortion bans in the 13 states where they exist. While major pharmacies such as Walgreens and CVS have announced they will seek certification to dispense mifepristone, a prescription for it still will not be legal in states with a ban. Anyone distributing or taking abortion pills in banned states could still face severe consequences. And the justice department opinion will not protect anyone sending pills to a banned state from being prosecuted in that state, or anyone who takes the pills knowingly to induce an abortion from being investigated.

But in states where abortion is protected, both moves could make a big difference, advocates say.

Take California as an example, which recently expanded access for abortion care in its state constitution. Until now, abortion pills had to be dispensed by a doctor, an abortion clinic, or a mail order pharmacy. But even in California, many people live hundreds of miles away from an abortion clinic.

...

"It is unclear whether the FDA ruling will see pharmacies dispensing mifepristone in states with limits on abortion that fall short of total bans."

************

One of the concerns is that some states may declare fetuses to be persons, in a way that would extend their abortion bans to also include forms of assisted reproductive technology such as IVF, which create embryos to allow infertile couples start families.  An effort to protect IVF was introduced just before the close of the previous Congress, but it wasn't made into law, and the new Congress is likely to be less sympathetic.

Right to Build Families Act of 2022 (proposed by Senator Tammy Duckworth, but not enacted)

"A BILL To prohibit the limitation of access to assisted reproductive technology, and all medically necessary care surrounding such technology."

*********

Earlier:

Wednesday, December 14, 2022

Biden Signs Bill to Protect Same-Sex Marriage Rights

Biden Signs Bill to Protect Same-Sex Marriage Rights

 With little delay after the Senate passage of the bill, the House followed, and now President Biden has signed into law a bill protecting same sex marriage from easily reversing the decision of a previous Supreme Court to make it legal throughout these United States.  The new bill requires states to recognize marriages made legally in other states...

Here's the NYT on the story:

Biden Signs Bill to Protect Same-Sex Marriage Rights. Proponents of the legislation argued that Congress needed to be proactive in ensuring a future Supreme Court would not invalidate same-sex marriages around the country.  By Michael D. Shear

"President Biden signed the Respect for Marriage Act into law on Tuesday, mandating federal recognition for same-sex marriages and capping his own personal evolution toward embracing gay rights over the course of a four-decade political career.

...

"The landmark legislation, passed by a bipartisan coalition in Congress, officially erases the Defense of Marriage Act, which a quarter of a century ago formally defined marriage as between a man and a woman. The new law prohibits states from denying the validity of out-of-state marriages based on sex, race or ethnicity.

...

"For Mr. Biden, who voted for the Defense of Marriage Act as a senator in 1996 and wavered on letting gay men and lesbians serve in the military, the signing ceremony was an indication of how much the president has changed when it comes to championing L.G.B.T.Q. equality.

"It is also another example of how Mr. Biden’s gradual transformation as a politician more broadly has matched the evolution of his own party since he started in public life as a junior senator on Jan. 3, 1973.

...

"Since the Supreme Court’s ruling in June to end the constitutional right to an abortion, Mr. Biden has been fervent in his condemnation of the decision in Dobbs v. Jackson Women’s Health Organization and has repeatedly called for legislation that would replace the 50-year-old court precedent with legal protections for the right of women to have an abortion.

...

"no issue represents Mr. Biden’s tendency to adapt to societal and political change as well as gay marriage. Polls show a sea change in public opinion across the political spectrum in the past decade, with nearly 70 percent of Americans now saying they support the right of same-sex couples to be married, with all the rights that heterosexual couples have under the law.

...

"But it is also a mark of ongoing fear that newfound gay rights may be fragile. The push for passage of the law was driven in part by the Supreme Court opinion overturning abortion rights, in which Justice Clarence Thomas raised the possibility of using the same logic to reconsider decisions protecting marriage equality and contraception rights."

Same sex marriage rights reaffirmed by the Senate

After a Supreme Court ruling in 2015, it seemed secure that the right to same sex marriage was the law of the land. However the recent Supreme Court decision overturning Roe v. Wade sent the question of abortion rights back to the states, and explicitly raised the question of whether other rights, such as marriage rights, might also be overturned. Justice Thomas, in his concurring opinion in the case (Dobbs) also mentioned that the rights to contraception and to same-sex sexual relations could be reconsidered, in his view.  

It appears that there will now be Federal legislation (and not just Court rulings) defending marriage rights. 

The NYT has the story:

Same-Sex Marriage Bill Passes Senate After Bipartisan Breakthrough. The 61-to-36 vote sends the legislation back to the House, which is expected to approve it and send it to President Biden.  By Annie Karni

"There was little question that the bill’s embrace in the Senate, where proponents had a breakthrough this month in drawing a dozen Republican supporters and overcoming a filibuster, gave it the momentum required to become law.

"The bill would repeal the Defense of Marriage Act, which denied federal benefits to same-sex couples. It prohibits states from denying the validity of an out-of-state marriage based on sex, race or ethnicity. 

...

"Its path represents a significant shift in American politics and culture in which same-sex marriage, once considered a divisive political issue, has become so widely accepted by members of both parties that a measure to protect has managed to attract decisive, bipartisan majorities in both the Senate and the House.

...

"Still, more than seven out of 10 Republican senators voted against the bill, underscoring how the party has continued to cater to religious conservatives who oppose same-sex marriage long after large majorities of the American public have come to support it.

...

"In the end, 12 Republicans voted for the measure

...

"The push to pass the legislation began over the summer, after Justice Clarence Thomas suggested in his opinion in the ruling that overturned Roe v. Wade, which had established a constitutional right to abortion, that the court also “should reconsider” precedents enshrining marriage equality and access to contraception.

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Earlier posts:

Friday, June 26, 2015

An ancient repugnance crumbles: Same sex marriage is a right, in all 50 of the United States

Abortion protections and restrictions in the midterm elections

 Here's a post-election report from the NYT on how abortion protections and restrictions fared in the midterm elections. (It tries to reflect not only specific referenda and constitutional amendments, but also the platforms of elected candidates...)

Where the Midterms Mattered Most for Abortion Access  By Allison McCann, Amy Schoenfeld Walker, John-Michael Murphy and Sarah Cahalan

"The first election to put abortion rights to the test after the Supreme Court overturned Roe v. Wade appears unlikely to reshape the map of abortion access — at least not overnight. Voters in much of the country reinforced the status quo, choosing candidates who are likely to either maintain existing protections or restrictions in their states, or deepen them."

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Here's MSNBC's roundup, in an opinion piece that looks more at specific laws on the ballot:

The 2022 midterms abortion results should surprise literally no one. When voters get a say in their own individual reproductive rights, most want to keep them. By Emma Gray,

"On Thursday, Montana’s “Born Alive” legislative referendum officially failed.

...

"This meant that Montana’s voters joined Vermonters, Michiganders, Californians and even voters in deep-red Kentucky in protecting abortion rights. Vermont, Michigan and California enshrined reproductive freedom in their state Constitutions, and in Kentucky, voters struck down a proposed constitutional amendment that would have explicitly stated that there is no right to abortion in the state."

Black markets in abortion pills

 Americans differ in their opinions about whether American women have a right to end a pregnancy, or whether state legislators have the right to decide the issue for residents of their state.  Six American Supreme Court justices hold the latter opinion, and so overturned the constitutional right defined 50 years ago by the same court in Roe v. Wade.

This means that different states are going to have different laws about abortion. But medical technology is such that abortion pills exist, and can arrive in the mail. So even State laws criminalizing that may not stop it, when abortion and abortion pills remain legal in other states. That is, we're about to see a situation ripe for black markets. We may also see a legal conflict among the states.

The NY Times has a story on that:

Risking Everything to Offer Abortions Across State Lines. Doctors and midwives in blue states are working to get abortion pills into red states — setting the stage for a historic legal clash.  By Emily Bazelon

"When the landscape settles, abortion is likely to be illegal or severely restricted in at least 20 states — where just two years ago, in 2020, about 250,000 people had abortions. It is clear that clinicians in those states will face imminent prosecution if they continue to provide abortions. What is much less clear is what happens if providers in blue states offer telemedicine abortions to women in states where that’s against the law. These clinicians, too, could be arrested or sued or lose their medical licenses. To protect themselves, they may have to give up traveling to certain parts of the country — and it’s still no guarantee.

"In the face of so much uncertainty and an invigorated anti-abortion movement, large organizations and most clinicians are loath to gamble. But Aid Access providers think that the end of Roe calls for doctors to take bold action. Their answer is to mail many more pills to women who otherwise may be forced to carry pregnancies they don’t want.

"The court’s decision overturning Roe last June, Dobbs v. Jackson Women’s Health Organization, polarized the public while opening the door to a new threat — a direct clash among the states over abortion law. In jettisoning the single national standard Roe established, the court invited states to pass or enforce their own laws, which could be diametrically opposed to those of neighboring states."

"Sitting in her office in New York, hundreds of miles from states that could go after her, Prine, at 71, was close to retirement and willing to take chances. “I don’t want younger physicians to be embroiled in lawsuits or criminally charged,” she said. “I’m the one that should happen to. Doctors like me who are at the end of our careers, we should be the ones to step up.”

"Article IV of the Constitution, which addresses the relationships among states, says that if a person charged with a crime in one state flees to another, she must be “delivered up,” or extradited, to the first state. If a doctor from Connecticut, for example, went to Texas, performed an illegal abortion there and then went home, Connecticut would have to send that doctor to Texas for prosecution. But courts have held in the past that if the person never set foot in the state that is prosecuting her, then she didn’t flee, and her state of residence has no constitutional obligation to extradite her. 

...

"But there’s a catch. If a provider travels outside her home state while Texas has a warrant for her arrest, another state without a shield law could follow the customary practice of interstate cooperation — and extradite her to Texas. In addition, if an abortion provider in a pro-access state like Connecticut is sued in Texas rather than prosecuted, Article IV requires the states to help enforce a civil judgment. Connecticut would probably be obligated to comply in collecting damages, for example, if a family member of a woman who had an abortion won a lawsuit for the wrongful death of a fetus. To deter these sorts of suits, Cohen, Donley and Rebouché suggest that states that want to shield their abortion providers could authorize them to countersue for interfering with legally protected health care. “If you’re hoping for a $1 million judgment in Alabama, but you know New York will let someone try to get it back from you, maybe you don’t sue in the first place,” Cohen says.

"The closest historical analogy, however imperfect, for the coming clash may be the conflict between Southern and Northern states over fugitive slave laws in the 19th century. “There are genuinely significant differences between slavery and abortion, morally and legally,” says Jamal Greene, a law professor at Columbia University. “But it’s a reasonable starting point for understanding why it’s a problem, in a nation that wants to hold itself together, when individual states are allowed to make policy about basic rights that people feel extremely strongly about, on both sides.”

"Tensions among the states can become corrosive. The framers of the Constitution gave enslavers the power to recapture enslaved people who escaped to free states. As the cause of abolition gained support, some free states passed personal liberty laws that protected Black people from kidnapping. In 1842, in Prigg v. Pennsylvania, the Supreme Court weighed in on the side of the South, striking down the conviction in Pennsylvania of a slave catcher for kidnapping a mother and her children."