The envelope is being pushed hard to end access to abortion care in the wake of last year’s U.S. Supreme Court decision on Dobbs v. Jackson Women’s Health Organization, which concluded that the Constitution does not protect the right to an abortion. And the fallout has been an increasing climate of fear among women and health care providers.
So said frontline reproductive justice and legal leaders who discussed the legislative and political landscape at the Aug. 3 program “After Roe and the Promise of the 14th Amendment,” sponsored by the Section of State and Local Government Law at the American Bar Association Annual Meeting in Denver.
More than 800 bills went through state legislatures in the last legislative term related to access to abortion and other critical reproductive health care, most seeking to end or restrict abortion, said panel moderator Aracely Munoz, director of the Lawyers Network and Washington, D.C., office of the Center for Reproductive Rights.
“Federal courts continue to see a lot of litigation around abortion,” said Rabia Muqaddam, senior staff attorney, U.S. Litigation, for the Center for Reproductive Rights. “The goal for those who oppose abortion is to continue to use courts as a tool to eliminate abortion nationwide.” On the federal level, “we are starting to see red states trying to do things we’ve never seen before.”
Litigation is making its way through the courts on medication abortion, specifically the safety and effectiveness of the abortion pill mifepristone, and in regard to access to emergency care and the right to travel to obtain an abortion in another state.
Natalie Hanlon Leh, chief deputy attorney general of Colorado, said her state, which allows abortion, is trying to help and support people in other states to gain abortion care where there is none. For example, nearby Idaho has restrictions on minors traveling to receive abortion care and consequences exist for providers who tell patients or clients that they can travel elsewhere for an abortion.
There’s been a “flip after Dobbs where we aren’t fighting ‘ban’ legislations, but there are definitely other places where we see the law being chipped away,” Leh said. A current unsettling issue is the challenge to the “bubble bill,” a 30-year-old law that prevents in-your-face harassment of people within 100 feet of the entrance of a health care facility, which includes those that provide abortions. “We all thought that was settled law from the Supreme Court” yet it is now being challenged by abortion opponents, Leh said.
Texas has been very creative in restricting access to health care, said Nancy Cardenas Peña, campaign manager at Abortion on Our Own Times, which advocates for self-managed abortions. Most notable is legislation presented on prosecutorial discretion, which puts district attorneys who refuse to enforce abortion laws at risk by threatening them with fines or removal from office. A lot of wiggle room still exists for states to restrict reproductive health care and criminalize people who seek reproductive health care, she added.
Cherisse Scott, founder and CEO of SisterReach, a reproductive and social justice organization in Memphis and Chicago, agreed. There is an all-out war on bodily autonomy, she said. “The goal for the Tennessee legislature is to be in full control over people’s knowledge about their own bodies ... and restricting access due to religious directives,” Scott said. More than 500 bills were filed during the state’s current legislative session that deal with anti-abortion rights and anti-LGBT rights.
There is also widespread fear among abortion providers, which includes hospitals and doctors, Muqaddam said. The majority of providers have left Idaho and “a climate of fear is collapsing health care for everyone,” putting a strain on states where abortion is legal.
SisterReach is also focusing on tackling Christian nationalism, which “hijacks” biblical texts to support their agenda, Scott said. Pursuing litigation around religious autonomy may be the way to go, she added. “We are holding out hope that we may do something around that” to protect human rights and democracy.
While Dobbs has really changed the landscape for access to abortion and health care, there are some beacons of light out there, Munoz said, pointing to the 2022 midterm elections when four states upheld rights to abortion care. In Colorado, Leh said, the Reproductive Health Equity Act passed just before the Dobbs decision. And the Biden administration has worked to protect women’s access to reproductive health, Muqaddam added.
So, what can be done to change the tide post-Dobbs? Keep fighting, the panelists said. Look beyond U.S. borders to countries who have successfully fought for access to abortion. Think about the short game as well as the long game. Do everything possible to ensure the next generation has the information they need. Build a pipeline to protect doctors and patients.
Finally, Muqaddam pushed for lawyers to use their platform to advocate for the law. “I call on lawyers to call out what is going on in our legal system.” A broken system in many ways is a “violation of the spirit of the Constitution,” she said.
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