Tomorrow: If You Can, Vote For Lucas Kunce and Cori Bush in Missouri, Jason Call In Washington + Rashida Tlaib And Andy Levin In Michigan
Outside of the realm of The Handmaid’s Tale, it is practically unfathomable that a state government would try to prevent a woman from crossing state lines to get medical treatment. Unless you live in certain state’s with overly patriarchal elected officials. On July 15, the House passed a bill, H.R. 8297, Ensuring Access to Abortion Act that expressly forbids states to do anything like that. “This bill prohibits anyone acting under state law from interfering with a person's ability to access out-of-state abortion services. (Abortion services includes the use of any drugs that are approved to terminate pregnancies and any health care services related to an abortion, whether or not provided at the same time or on the same day.) Specifically, the bill prohibits any person acting under state law from preventing, restricting, impeding, or retaliating against
health care providers who provide legal abortion services to out-of-state residents,
any person or entity who helps health care providers to provide such services,
any person who travels to another state to obtain such services,
any person or entity who helps another person travel to another state to obtain such services, or
the movement in interstate commerce of drugs that are approved to terminate pregnancies.
All 220 Democrats present voted for it. 205 Republicans voted against it. Just 3 Republicans joined the Democrats: Brian Fitzpatrick (PA), Adam Kinzinger (IL) and Fred Upton (MI). None of the Republican women voted for it. Upton and Kinzinger are both retiring after the current term.
Last night Washington Post reporters Ann Marimow, Laurie McGinley and Caroline Kitchener alerted their readers that there are legal problems ahead. They wrote that “The Supreme Court’s three liberal justices, in denouncing their colleagues’ decision to eliminate the nationwide right to abortion, warned last month that returning this polarizing issue to the states would give rise to greater controversy in the months and years to come. Among the looming disputes, they noted: Can states ban mail-order medication used to terminate pregnancies or bar their residents from traveling elsewhere to do so? ‘Far from removing the court from the abortion issue,’ Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in dissent, ‘the majority puts the court at the center of the coming interjurisdictional abortion wars.’ The overturning of Roe v. Wade after nearly 50 years is expected to trigger a new set of legal challenges for which there is little precedent, observers say, further roiling the nation’s bitter political landscape and compounding chaos as Republican-led states move quickly to curtail access to reproductive care. It is possible, if not probable, that one or both of these questions will eventually work its way back to the high court.”
The Biden administration has pledged to ensure access to abortion medication, which is used in more than half of all terminated pregnancies in the United States, and prohibit states from preventing their residents from traveling out-of-state for care. But a month after the Dobbs ruling, administration officials are still debating how they can deliver on that promise beyond the president’s executive order to protect access. A White House meeting Friday with public-interest lawyers was designed to encourage legal representation for those seeking or offering reproductive health services.
Democratic leaders and liberal activists have called on President Biden to take bolder action, especially on medication abortion. Illinois Gov. J.B. Pritzker (D) said in an interview that he has directly urged the president to make clear that abortion providers in states controlled by Democrats should be able to ship pills to patients anywhere in the country, whether or not the patient’s state has enacted a ban. Pritzker advised the president to assert federal authority over the U.S. mail system, he said, and specify that no one will be prosecuted for prescribing or receiving them.
“People ought to be able to receive their medication in the privacy of their own home even if they live in a state where the procedure is not allowed,” Pritzker added, saying Biden appeared “very receptive” to the idea.
The White House did not immediately respond to a request for comment on Pritzker’s characterization of the conversation.
Republican state attorneys general are preparing for a court fight, said Sen. Roger Marshall (R-KS), accusing Biden and the White House of exhibiting a “consistent disrespect for the law and the constitution and the Supreme Court.”
“We’re anticipating that he’s going to do this,” Marshall said.
Already, the manufacturer of the abortion medication mifepristone has sued the state of Mississippi and promised that additional lawsuits would be filed in other states. It remains to be seen whether the Biden administration will intervene in one of those cases or file its own legal challenges.
The Justice Department has activated a “reproductive rights task force” to monitor and push back on state and local efforts to further restrict abortion, but officials have not fully detailed their plans. Attorney General Merrick Garland said during Friday’s White House event that “when we learn that states are infringing on federal protections, we will consider every tool at our disposal to affirm those protections— including filing affirmative suits, filing statements of interest, and intervening in private litigation.”
The Food and Drug Administration approved mifepristone in 2000, finding it safe and effective to end an early pregnancy. The medication, now authorized for the first 10 weeks of pregnancy, is used with a second drug, misoprostol, to induce an abortion.
Among the unresolved questions is whether FDA approval of medication preempts state action. Legal experts say it is unclear whether the federal government would succeed if it challenged state restrictions on abortion medication, and that it will depend on how those measures are written.
Garland said soon after the Supreme Court overturned Roe that states may not ban mifepristone “based on a disagreement with the FDA’s expert judgment.” The agency is charged with evaluating the safety and efficacy of drugs, and federal law generally preempts state law when two measures are in conflict.
The FDA lifted some restrictions on abortion pills in December, permitting providers to send medication through the mail in states that do not prohibit telemedicine for abortions. At least 19 states ban the use of telehealth for medication abortion, and Republican lawmakers in more than a half-dozen states have introduced or passed legislation to ban or severely restrict abortion medication, according to the Guttmacher Institute, a research group that supports abortion rights.
…Lawrence O. Gostin, director of Georgetown University’s O’Neill Institute for National and Global Health Law, said FDA approval of drugs, including in the abortion context, “should supersede any state restrictions” because the agency is responsible for setting a national uniform standard for what drug patients can get access to in the United States.
The Biden administration has an “extraordinarily strong legal claim,” he said. “Any other decision could open a floodgate of states making their own choices of FDA-approved medication, and that would be disastrous for the health and safety of Americans.”
Even so, he said the same conservative majority of the Supreme Court that erased the constitutional right to abortion “might just say, states license medical providers and can make judgments about what those providers can and can’t do.”
Ed Whelan, a fellow at the conservative Ethics and Public Policy Center, said federal preemption does not mean states are barred from dictating how— or whether— certain drugs can be used.
“Assume that the FDA approved a drug for use in physician-assisted suicide,” he wrote recently in National Review. “Why would anyone imagine that FDA approval overrode state laws barring physician-assisted suicide? Why should it be any different here?”
In a separate opinion concurring with the Supreme Court majority in June, Justice Brett Kavanaugh wrote that the court’s decision does not mean a state may block a resident from traveling to another jurisdiction to obtain an abortion. He characterized the legal question as “not especially difficult as a constitutional matter” based on the “constitutional right to interstate travel.”
But Republican state lawmakers and national antiabortion groups have put forward plans to restrict out-of-state abortions and modeled those proposals on the Texas six-week abortion ban crafted to evade judicial review. A Missouri bill, which failed to pass during the 2022 legislative session, would have imposed civil liability on anyone who helped a resident travel out of state to obtain an abortion. South Dakota’s governor has said she is open to such proposals, and an Arkansas senator has also expressed interest in similar legislation.
The Justice Department has emphasized that the Supreme Court’s ruling does not prevent women from traveling across state lines to terminate a pregnancy. Citing “bedrock constitutional principles,” Garland said individuals residing in states where access to reproductive care is banned “must remain free to seek that care in states where it is legal.”
Legal experts, though, say these constitutional defenses are subject to debate and have not been tested in court. Even if the Justice Department filed a lawsuit challenging such restrictions, litigation takes time.
“It’s not going to be instantaneous,” said Murray, the law professor. “In the meantime, what you have is a landscape of confusion, chaos and uncertainty where patients don’t know what their rights are and physicians don’t know how their medical judgment will interact with laws on the ground. That climate of fear and confusion can be just as effective as an outright ban.”
This morning Juan Cole looked at the far right’s attack on personal freedom and privacy from another perspective, highlighting the interracial kiss between Lt. Nyota Uhura and Captain Kirk in season 3 of Star Trek (Episode 10, “Plato’s Stepchildren”). “When the studio heads saw they dailies,: wrote Cole, “they freaked out that there might be a backlash in the Deep South. Southern TV stations had been known simply not to air network shows they thought provocative, even if they were part of the network, with all the economic downside that implied from lost advertising revenue.”
The Supreme Court had struck down laws against interracial marriage, which was characterized by the ugly term “miscegenation,” in 1967, only a year before. Until then, a white man kissing a black woman in public was a scandal in the South, and some teenagers were sent to reform school for this infraction.
So, Nichols said in her memoir, the studio insisted that they shoot a version of the scene in which the two did not kiss. Shatner flubbed all the takes of this non-kissing version by crossing his eyes, and the executives decided they would just risk Southern outrage with the original take.
In the event, there is no record of any public backlash, and Nichols said they got plenty of enthusiastic fan mail over the episode. It wasn’t the first interracial kiss on television, but it was probably the first substantial kiss between white and Black actors that formed a key plot element in a network prime time show. Young people won’t realize that there used to be only three commercial networks with nation-wide coverage, which split 90% of the US viewing audience among themselves. A really popular show could get 80 million viewers. The signal was received over the air with an antenna or rabbit ears from a local broadcasting station. Things weren’t fragmented the way they are now. Star Trek did not have great ratings compared to competing shows like “Bewitched” and “My Three Sons,” but likely a good quarter of US households were tuned to it when it was on. That would be like something getting 82 million viewers today, a rare event indeed, except for the Super Bowl.
But here’s the thing. The 1967 “Loving” decision of the Supreme Court that abolished state laws forbidding interracial marriage was underpinned in part by the Court’s having found an implicit right to privacy in the US Constitution.
Justice Samuel Alito, a strutting martinet, is hell bent on overturning any argument for a right to privacy, and that was the basis for his Dobbs decision annihilating a woman’s right to an abortion.
The ACLU is petrified that the natural outcome of Alito’s reactionary counter-revolution in the jurisprudence of liberty is the undoing of the Loving decision. See also Miles Mogulescu in the American Prospect on this danger.
So, that famous kiss between Uhuru and Kirk? Alito may have started us down the road of making it illegal, 55 years later.
Alito is the Borg of American jurisprudence, bent on assimilating us all not as unique individuals with a right to our personal privacy, but as serfs to invasive religious bigotry.