Kentucky Senate President Robert Stivers, left, and House Speaker David Osborne are among the Republicans who declined to answer the Right to Life candidate survey this year. They conferred during the State of the Commonwealth address in the House chambers on Jan. 3, 2024. (Kentucky Lantern photo by Arden Barnes)

LOUISVILLE — Kentucky Right to Life is endorsing in fewer legislative races this year — 45 candidates for the General Assembly received an endorsement from the anti-abortion group, down from 86 in 2022 and 88 in 2020.

Addia Wuchner, Kentucky Right to Life executive director, did not respond to a voicemail and email from the Lantern last week.?

Planned Parenthood’s Tamarra Wieder said the decrease in endorsements is a sign that Kentucky politicians no longer want to take the unpopular stands required to win a Right to Life endorsement.??

Wieder, state director of Planned Parenthood Alliance Advocates Kentucky, said it’s an “incredible indictment on the brand and on the movement.”?

“What this shows is that they have become too extreme, even for their followers,” Wieder said. “They are out of step with Kentuckians, and I think it also shows the legislature is afraid of putting their name on anti-abortion policies.”?

In order to be considered for an endorsement, the Kentucky Right to Life Victory PAC requires candidates to answer questions about issues important to the group and sign the survey. The organization also considers voting record, a candidate’s involvement in organizations related to abortion, electability and background.?

In 2024, about 50 Republican candidates “declined” to answer the survey, according to the endorsement report. Right to Life endorsed 45 legislative candidates and “recommended” others based on their voting history.?

All 100 House seats and half of the 38 Senate seats are on the ballot every two years, although many seats go uncontested.

The Lantern used information from VoteSmart to count endorsements from earlier elections; Kentucky Right to Life Victory PAC’s voter guides from prior elections are not posted on its website.

It’s unclear if everyone marked as “declined” this year received the survey.?

Although endorsed by Right to Life at times in the past, the top Republicans in both chambers of the legislature are not endorsed this year. Among those listed as declining to answer the group’s questions: Senate President Robert Stivers, House Speaker David Osborne, Senate President Pro Tem David Givens and Speaker Pro Tem David Meade.

Other prominent Republicans listed as declining to respond are House Majority Floor Leader Steven Rudy and Senate budget committee chairman Chris McDaniel.?

All of them were still recommended by Right to Life based on their voting records.

A Senate GOP spokesperson said Stivers and Givens “agree that their voting record speaks for itself.”?

No Democrats answered the Right to Life survey this year and none were endorsed.

Candidates wary of surveys in general

Political considerations about abortion changed after the U.S. Supreme Court overturned the federally-guaranteed right to abortion in 2022. The ruling allowed a near-total abortion ban that Republican lawmakers had already put on the books to take effect in Kentucky. It has no exceptions for victims of rape or incest and a narrow exception to protect the life of a pregnant patient.?

Morgan Eaves, the executive director of the Kentucky Democratic Party, said the decline in candidates taking the Right to Life survey shows that “Kentucky Republicans know that their extreme anti-choice and zero exceptions policy is unpopular, and that’s why they’re running away from it now.”?

Republicans, however, gave little sign of backing off the abortion ban during this year’s legislative session. Although lawmakers of both parties sponsored bills to loosen abortion restrictions, none of the measures made any headway. Bills protecting in vitro fertilization also failed to advance, after the temporary suspension of the fertility treatment in Alabama stirred a political storm.?

Republican Trey Grayson, a former Kentucky secretary of state, was reluctant to say if the decline in GOP candidates responding to the Right to Life survey signaled a rift with the organization. Candidates, he said, have become more wary of surveys in general. Advocacy interest groups are trying to advance an agenda and elect people who are part of their causes, Grayson said. A? lawmaker seeking reelection recently complained to him about “gotcha” questions on candidate surveys.?

Challengers are more likely to respond to surveys, Grayson said, while incumbents can point to their voting records, floor speeches and websites.

‘ … not that much more to give’

Last year Democratic Gov. Andy Beshear used the abortion ban to his advantage against Republican challenger Daniel Cameron. Cameron had been endorsed by Right to Life but waffled on abortion after Beshear aired ads attacking him as extreme for opposing rape and incest exceptions. (Kentuckian Hadley Duvall, who spoke in a Beshear ad about being impregnated by her stepfather when she was 12, is now playing a prominent role in the campaign of Vice President Kamala Harris, the Democratic? candidate for president.)

The year before, in November 2022, Kentuckians had defeated an anti-abortion constitutional amendment that Republicans put on the ballot before Roe v. Wade was overturned.

Republican strategist Tres Watson, a former spokesperson for the Republican Party of Kentucky, said it’s not Republican politicians who have changed but Right to Life. Having gained its long-time goal of outlawing? abortion in Kentucky, the organization is “continuing to ask for more when there’s just not that much more to give.”

“I think that the leadership over there needs to reconsider their relationship with candidates and with the legislature if they want to continue to be an influencer in Frankfort,” Watson said of the group.?

Weider of Planned Parenthood said the Right to Life questionnaire “is more extreme than ever.”?

Watson said he thinks Republican lawmakers support adding exceptions for rape and incest to the abortion ban. “I think that if you were to remove elections from the equation, I think that an exceptions bill would pass easily among Republicans,” Watson said. “But I think that the threat of Kentucky Right to Life coming out and attempting to make pro-life legislators appear to be pro-abortion liberals is preventing that from passing.”?

Watson said when he worked for the state Republican Party candidates were advised not to respond to a survey from Northern Kentucky Right to Life “because it asked you to take extreme positions that didn’t sit well with independent voters and center right Republicans.”?

IVF among the questions

Kentucky Right to Life’s 2024 questionnaire asks candidates about their support for maintaining a ban on assisted suicide, banning mail-in abortion pills, adding a “Human Life” amendment to the U.S. Constitution to include “all human beings, born and unborn” and more. It highlights issues surrounding in vitro fertilization in which unused frozen embryos are discarded.?

Questions included:?

• If you are in a position to do so, would you advocate, support, sign into law and/or defend against legislation that would permit the cloning of human embryos or laboratory-created life for the purpose of the harvesting their stem cells for research or therapeutic cloning? (procedures requiring the creation and destruction of human lives)
• Do you believe that embryos created through IVF (in vitro fertilization) should be protected as all other lives??
• Do you believe medical schools and nursing programs operating in conjunction with universities in the Commonwealth of Kentucky that receive state funding should have mechanisms in place such as conscience exceptions that permit students to be excused from participating in specific curricular activities and training, i.e. abortion procedures that violate the student’s religious or ethical beliefs?
• Are you morally and/or medically opposed to chemical abortions, such as RU-486, the abortion pill, and other drugs known to prevent the newly created human being from attaching (implantation) to his/her mother’s womb or medications that cause the woman’s body to expel her developing child in the early stages of her pregnancy?
• Do you agree that the personal protection afforded to every member of the human race under the Fourteenth Amendment should be extended equally to the preborn?

Eaves, the Kentucky Democratic Party chief, said most Kentuckians and Americans “believe in some form of pro-choice policy.”

Is IVF protected in Kentucky? Depends on whom you ask.

In May, the Pew Research Center reported that 63% of Americans “say abortion should be legal in all or most cases, while 36% say it should be illegal in all or most cases.”?

Gallup polling also shows the majority of Americans think abortion should be legal in certain cases.?

Additionally, 54% of those surveyed by Gallup in May considered themselves “pro choice” and 41% considered themselves “pro life,” the largest gap since 1995.?

Weider of Planned Parenthood said the effects of the abortion ban on health care, especially for? people who are experiencing miscarriages or nonviable pregnancies, will continue to push politicians away from Right to Life.

?“You are starting to see pushback on what was once, I would say, a badge of honor for the majority of conservative politicians in Kentucky,” she said. “And I think it is an indictment on what has happened to Kentucky and health care. And we are seeing the daily fallout.”??

The U.S. Supreme Court decision in Dobbs v Jackson Women’s Health Organization, which was issued electronically, is seen on June 24, 2022 in Washington, D.C. The court’s decision overturned the landmark Roe v Wade case and erases a federal right to an abortion. (Photo by Chip Somodevilla/Getty Images)

This is one in a series of States Newsroom reports on the major policy issues in the presidential race.

WASHINGTON — This year’s election marks the first time voters are casting ballots for president since the U.S. Supreme Court overturned the constitutional right to an abortion and made reproductive rights a pivotal issue for many voters.

Democratic nominee Kamala Harris and Republican candidate Donald Trump have spoken about reproductive rights and abortion access numerous times during the last few months.

Trump’s stance has evolved during his bid for the White House. He now contends he wouldn’t sign legislation implementing nationwide abortion restrictions and wants regulation left up to the states.

Harris has consistently said a nationwide law guaranteeing access would ensure the choice is left up to women, not politicians.

“I pledge to you, when Congress passes a bill to put back in place the protections of Roe v. Wade, as president of the United States, I will proudly sign it into law,” Harris said during the September presidential debate.

Trump patted himself on the back during the same debate for nominating three justices to the Supreme Court who later ruled with their conservative colleagues that the Constitution didn’t provide the privacy rights that two former high court rulings said insulated women’s choices about abortion.

“I did something that nobody thought was possible,” Trump said about nominating the three justices. “The states are now voting. What she says is an absolute lie. And as far as the abortion ban, no, I’m not in favor of (an) abortion ban. But it doesn’t matter because this issue has now been taken over by the states.”

Harris had just said that Trump would sign a nationwide abortion ban if elected and cited Project 2025, the blueprint for a second Trump administration released by the conservative-leaning Heritage Foundation. Trump and his campaign have repeatedly tried to distance themselves from the document and many of its proposals.

Many politicians have misrepresented the Supreme Court’s ruling two years ago as sending abortion regulation back to the states. What the conservative justices wrote was that ending Roe v. Wade meant the “authority to regulate abortion is returned to the people and their elected representatives.”

That, of course, includes Congress and the president.

Trump position varies

Trump’s stance on abortion hasn’t always been linear or consistent. He told Republicans earlier this year that they should avoid discussing the topic in order to win elections, while also courting organizations that view him as one avenue to ending abortion outright.

Trump got himself into hot water with several anti-abortion organizations and conservative Republicans in April when he announced he didn’t want Congress to take action on a nationwide law.

Trump had previously said he would support a 16-week nationwide ban. He reiterated in his April announcement that he supported exceptions to state abortion bans in cases of rape, incest and the life of the pregnant patient.

Susan B. Anthony Pro-Life America President Marjorie Dannenfelser released a statement following Trump’s April announcement that she was “deeply disappointed.”

“Saying the issue is ‘back to the states’ cedes the national debate to the Democrats who are working relentlessly to enact legislation mandating abortion throughout all nine months of pregnancy,” Dannenfelser wrote. “If successful, they will wipe out states’ rights.”

About a month later, in May, Trump, Dannenfelser, President of the Family Research Council Tony Perkins and South Carolina Republican Sen. Lindsey Graham had a “terrific meeting,” according to a statement released afterward.

Then, this summer, Trump muddied the waters on his abortion stance yet more, when he spoke to an organization in June that describes abortion as the “greatest atrocity facing” the United States that should be “eradicated entirely.”

“These are going to be your years because you’re going to make a comeback like just about no other group,” Trump said to The Danbury Institute’s inaugural Life & Liberty Forum. “I know what’s happening. I know where you’re coming from and where you’re going. And I’ll be with you side by side.”

Then, most recently, Trump posted on social media during the vice presidential debate in early October that he would veto any nationwide abortion restrictions.

Trump wrote in all capital letters that he “would not support a federal abortion ban, under any circumstances, and would, in fact, veto it, because it is up to the states to decide based on the will of their voters (the will of the people!).”

Trump added that he didn’t support access to abortion during the seventh, eight or ninth months of pregnancy, nor did he support killing babies, which is already illegal.

During 2021, about 93% of abortions took place within the first 13 weeks of gestation, according to data from the Centers for Disease Control and Prevention analyzed by the Pew Research Center.

Another 6% of abortions took place between 14 and 20 weeks with the remaining 1% taking place after 21 weeks gestation, according to the data.

“Almost half of individuals who obtained an abortion after 20 weeks did not suspect they were pregnant until later in pregnancy, and other barriers to care included lack of information about where to access an abortion, transportation difficulties, lack of insurance coverage and inability to pay for the procedure,” according to analysis from KFF Health.

Harris position?

Harris has repeatedly criticized Trump for celebrating the Supreme Court’s decision to end Roe v. Wade and said during the presidential debate that state restrictions have harmed women in innumerable ways.

“Trump abortion bans that make no exception even for rape and incest,” Harris said. “Understand what that means — a survivor of a crime, a violation to their body, does not have the right to make a decision about what happens to their body next. That is immoral.

“And one does not have to abandon their faith or deeply held beliefs to agree the government, and Donald Trump certainly, should not be telling a woman what to do with her body.”

Harris has called for Democrats to eliminate the Senate’s legislative filibuster to ease the passage of a bill that would restore nationwide abortion protections.

That Senate rule requires at least 60 lawmakers vote to advance legislation before that bill can move on to a simple majority passage vote. It is different than the so-called talking filibuster, when one senator, or a group of like-minded lawmakers, talk on the floor for hours to delay a vote.

Democrats would have to maintain their majority in the Senate against long odds to actually carve out an exception to the legislative filibuster, in order to pass a bill restoring Roe v. Wade. Democrats would also need to regain control of the House of Representatives.

A divided Congress, or a few Democrats objecting to rule changes in the Senate, would hinder Harris’ efforts to sign nationwide abortion protections.

Democrats tried to pass legislation through the Senate that would have provided nationwide protections for abortion when they had unified control of government in 2022, but were blocked by the filibuster.

Maine Republican Sen. Susan Collins, Virginia Democratic Sen. Tim Kaine, Alaska GOP Sen. Lisa Murkowski and Arizona independent Sen. Kyrsten Sinema later introduced a bipartisan bill that would have had a similar result, but it wasn’t scheduled for a floor vote.

The legislation of two years ago likely would again fail to advance if Democrats sweep in the November elections, unless they carved out an exception in the Senate filibuster.

Swing state voters

Harris’ and Trump’s stance on abortion access will likely play a role in determining which candidate wins the Electoral College in crucial swing states like Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin.

Democrats are optimistic that abortion access ballot questions in 10 states will bolster Harris’ chances through increased voter turnout and higher spending by reproductive rights organizations.

While many of the referendums are in solidly blue or red states, the proposals in Arizona and Florida could affect turnout and motivation.

Louis Jacobson, senior columnist at Sabato’s Crystal Ball at the University of Virginia Center for Politics, wrote earlier this month that a key question on Election Day will be whether “abortion-rights advocates extend their perfect 7-for-7 record since Roe v. Wade was overturned.”

Voters will decide on numerous other ballot questions as well, including recreational cannabis, increases in the minimum wage and ranked-choice voting.

In an earlier post about the abortion ballot questions, Jacobson and Samantha Putterman wrote that “(e)very post-Roe measure has been on the ballot during a relatively low turnout election—either the November midterm, a primary ballot, or an off-year election.”

“Any measure that makes the ballot in 2024 will face voters in November of a presidential year, when turnout is far higher,” they wrote. “This has the potential to hurt abortion rights backers, because moderate and liberal voters have recently flexed their electoral muscles more when turnout is low.”

Public opinion polls conducted by the Pew Research Center for the past three decades have consistently shown support for keeping abortion legal outpacing support for making the procedure illegal in most or all cases.

The 2024 survey showed that 63% of people want abortion legal in most or all cases while 36% believe it should be illegal in all or most cases.

Medication abortion has become the most common method of abortion since the 2022 Dobbs decision ended the federal right to abortion. (Getty Images)

Researchers whose anti-abortion-funded studies were used to argue for restrictions on medication abortion — and then were retracted on methodological grounds — are now taking legal action against academic publisher Sage, which pulled their papers in February.

Represented by conservative law firms Consovoy McCarthy and Alliance Defending Freedom, the latter of which sued the Food and Drug Administration over abortion drugs in 2022, the researchers claim Sage’s retractions were unjustified and politically motivated and have led to “enormous and incalculable harm” to their reputations. They asked the Ventura County Superior Court in California to compel Sage to arbitrate with the researchers.

“Sage punished these highly respected and credentialed scientists simply because they believe in preserving life from conception to natural death. These actions have caused irreparable harm to the authors of these articles, and we are urging Sage to come to the arbitration table — as it is legally bound to do — rescind the retractions and remedy the reputational damage the researchers have suffered at the hands of abortion lobbyists,” said ADF senior counsel Phil Sechler in the recent announcement.

A representative for Sage declined to comment on the pending litigation.

A representative for the anti-abortion think tank Charlotte Lozier Institute, which employs the petitioning researchers, declined to comment. The nonprofit serves as the research arm of the influential Susan B. Anthony Pro-Life America, which works to elect federal and state anti-abortion lawmakers.

The three studies at the center of the dispute were published in the journal “Health Services Research and Managerial Epidemiology,” between 2019 and 2022. Two of them featured prominently in a federal lawsuit aimed at restricting abortion pills, which the U.S. Supreme Court rejected this summer but continues to make its way through the lower courts.

States Newsroom was the first to report last year that Sage had opened an investigation after pharmaceutical sciences professor Chris Adkins contacted the journal with concerns that the researchers had misrepresented their findings. In the 2021 paper, the researchers looked at Medicaid data in 17 states between 1999 and 2015 and tracked patients who had had a procedural or a medication abortion and counted each time they went to an emergency department in the 30 days following those abortions. Their finding that emergency room visits within 30 days following a medication abortion increased 500% from 2002 to 2015 was frequently cited by plaintiffs and judges in the FDA case and used to conclude that the abortion-inducing drug mifepristone is dangerous. But Adkins and other public health experts told States Newsroom that the researchers inflated their findings, and appeared to conflate all emergency department visits with adverse events.

These concerns prompted Sage to re-examine the peer review process and to identify that one of the initial peer reviewers was an associate scholar with the Charlotte Lozier Institute. The publisher then enlisted a statistician and two reproductive health experts to newly peer review all three articles.

“Following Committee on Publication Ethics (COPE) guidelines, we made this decision with the journal’s editor because of undeclared conflicts of interest and after expert reviewers found that the studies demonstrate a lack of scientific rigor that invalidates or renders unreliable the authors’ conclusions,” Sage said announcing the retractions, which notes that the experts found that the papers had “fundamental problems with the study design and methodology,” “unjustified or incorrect factual assumptions,” “material errors in the authors’ analysis of the data,” and “misleading presentations of the data.”

In a petition to compel arbitration filed late last week, the studies’ lead author James Studnicki and nine co-authors argue that Sage has delayed arbitration in violation of California contract law. They say they’ve had difficulty publishing new research since the retractions. As examples, the petition notes that in March a free online archive and distribution server for unpublished, non-peer-reviewed manuscripts refused to post one of the petitioners’ manuscripts and that in April a journal rejected the same manuscript, “citing similar pretextual reasons that HSRME used in its retraction.”

“These rejections are just the tip of the iceberg but reveal the enormous and incalculable harm that Sage’s retraction has inflicted on the Authors’ reputations and their ability to publish research and scholarship,” reads the court petition. “As scientists, the Authors’ credibility is their lifeblood, but Sage has destroyed the Authors’ hard-earned professional reputations.”

Studnicki, Charlotte Lozier’s vice president and director of data analytics, was on the editorial board of “Health Services Research and Managerial Epidemiology” until last fall, but the journal’s editor-in-chief dismissed him after the journal and Sage decided to retract the papers. The blog Retraction Watch reports that the journal is no longer accepting new submissions.

Medication abortion has become the most common method since the 2022 Dobbs decision ended the federal right to abortion.

Despite claims by the Charlotte Lozier Institute that medication abortion is unsafe, when administered at 9 weeks gestation or less, the FDA-approved regimen has a more than 99% completion rate, a 0.4% risk of major complications, and around 30 reported associated deaths over 22 years. Common symptoms include heavy bleeding and cramping, diarrhea, and nausea, and sometimes medical intervention is necessary to avoid infection. ProPublica recently reported on two women in Georgia who suffered rare complications of medication abortion, but whose deaths were ruled preventable and were attributed to the state’s near-total abortion ban.

An ultrasound machine sits next to an exam table in an examination room at a women’s health clinic in South Bend, Ind. A recent study shows that there was a spike in the number of women seeking sterilizations to prevent pregnancy in the months after the U.S. Supreme Court’s decision striking down the constitutional right to an abortion. (Scott Olson/Getty Images)

In the months after the U.S. Supreme Court struck down the constitutional right to an abortion, there was a spike in the number of women seeking sterilizations to prevent pregnancy, a recent study shows.

Researchers saw a 3% increase in tubal sterilizations per month between July and December 2022 in states with abortion bans, according to the study published in September in JAMA, a journal from the American Medical Association. The Supreme Court struck down Roe v. Wade in June 2022.

The study looked at the commercial health insurance claim records of 1.4 million people from 15 states with abortion bans (Alabama, Arizona, Arkansas, Idaho, Indiana, Kentucky, Mississippi, Missouri, Oklahoma, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming). The study also examined the records of about 1.5 million people living in states with some abortion restrictions and 1.8 million in states where abortion remains legal. The researchers excluded 14 states that didn’t have records available for 2022.

“It’s probably an indication of women [who] wanted to reduce uncertainty and protect themselves,” said lead author Xiao Xu, an associate professor of reproductive sciences at Columbia University. In the first month after the ruling, sterilizations saw a one-time increase across all states included in the study, Xu and her team found. Her team also found continued increases in states that limited abortion to a certain gestational age, but those were not statistically significant.

The researchers compared records for three groups: States with a total or near-total ban on abortion, including states where bans were temporarily blocked; states where laws explicitly recognized abortion rights; and limited states, where abortion was legal up to a certain gestational age.

While the study captures only the early months following the Dobbs ruling that overturned Roe v. Wade, experts say it’s part of an increasing body of evidence that shows a growing urgency for sterilization procedures amid more limited access to abortions, reproductive health care and contraception. Other studies have shown increases in tubal sterilization (commonly known as “getting your tubes tied”) and vasectomy requests and procedures post-Dobbs.

Diana Greene Foster, a professor and research director in reproductive health at the University of California, San Francisco, said the results are not surprising, given the negative repercussions for women who seek to end their pregnancies but are not allowed to do so.

Foster led the landmark Turnaway Study, which for a decade followed women who received abortions and those who were denied abortions. It found that women forced to carry a pregnancy to term experienced financial hardship, health and delivery complications, and were more likely to raise the child alone.

“We have found that women are able to foresee the consequences of carrying an unwanted pregnancy to term,” Foster told Stateline. “The reasons people give for choosing an abortion — insufficient resources, poor relationships, the need to care for existing children — are the same negative outcomes we see when they cannot get an abortion.

“So it is not surprising that some people will respond to the lack of legal abortion by trying to avoid a pregnancy altogether.”

As abortion bans delay emergency medical care, this Georgia mother’s death was preventable

Few doctors and services

States with abortion bans and other restrictions also tend to have large swaths of maternal health care “deserts,” where there are too few OB-GYNs and labor and delivery facilities. That creates greater maternal health risks.

One such state is Georgia where abortion is banned after six weeks. Georgia’s abortion ban was temporarily lifted last week by a Fulton County judge, but on Monday the Georgia Supreme Court reinstated the ban. Dr. LeThenia “Joy” Baker, an OB-GYN in rural Georgia, said she sees patients in their early 20s who have multiple children and are seeking sterilizations to prevent further pregnancies, or who have conditions that make pregnancy dangerous for them. Her state has one of the highest maternal death rates in the nation.

On Monday, a Georgia county judge struck down the state’s six-week abortion ban, meaning that for now, women have access to the procedure up to about 22 weeks of pregnancy. The state is appealing the decision, and it’s expected to eventually be decided by the state Supreme Court.

The county judge’s ruling comes two weeks after ProPublica reported that two women in the state died after they couldn’t access legal in-state abortions and timely medical care for rare complications from abortion pills.

Black and Indigenous women disproportionately experience higher rates of complications, such as preeclampsia and hemorrhage, which contributes to their higher maternal mortality and morbidity rates. Baker said some of her patients say they want to avoid risking another pregnancy because of those previous complications.

“I have had quite a few patients, who were both pregnant and not pregnant, who inquire about sterilization,” she said. “I do think that patients are thinking a lot more about their reproductive life plan now, because there is very little margin.”

Along with the state’s abortion restrictions, Baker said women in her Bible Belt community feel social pressure that can push them toward sterilization.

‘Between rock, hard place:’ Will anyone ever have standing to challenge Kentucky’s abortion ban?

“It is definitely more socially acceptable to say, ‘I’m going to get my tubes tied or removed,’ than to say, ‘Hey, I want to find abortion care,’” Baker said.

In states where lawmakers have proposed restrictions on contraception, women might feel tubal sterilization to be the most surefire way to prevent pregnancy. Megan Kavanaugh, a contraception researcher at the Guttmacher Institute, a reproductive health policy research center that supports abortion rights, said the research doesn’t say whether women who seek sterilization would have preferred another form of contraception.

“We need to both understand which methods people are using and whether those methods are actually the methods they want to be using,” said Kavanaugh, whose team studied contraceptive access and use in Arizona, Iowa, New Jersey and Wisconsin. “It’s really important to be monitoring both use and preferences in terms of heading towards an ideal where those are aligned.”

Tubal sterilizations can still fail at preventing a pregnancy, Foster said. One recent study noted that up to 5% of patients who underwent a tubal sterilization got pregnant later.

“If people are choosing sterilization who would otherwise pick something less permanent, then that is another very sad outcome of these abortion bans,” she added.

Another recent study, by Jacqueline Ellison, a University of Pittsburgh assistant professor who researches health policy, found that more young patients — both women and men — sought permanent contraceptive procedures in the wake of the Dobbs decision. The study focused on people ages 18 to 30 — the age group most likely to seek an abortion and the ones who previous studies suggest are most likely to experience “sterilization regret,” Ellison said.

A troubled history

The issue also can’t be disentangled from the nation’s history of coercive sterilizations, Ellison and other experts said. In the 1960s and 1970s, federally funded nonconsensual sterilization procedures were performed on Indigenous, Black and Hispanic women, as well as people with disabilities.

“People feeling pressured to undergo permanent contraception and people being forced into using permanent contraception are just two sides of the idea of reproductive oppression in this country,” Ellison said. “They’re just manifested in different ways.”

Medicaid, the joint federal-state health insurance program for low-income people, now has regulations designed to prevent coerced procedures. But the rules can have unintended consequences, said Dr. Sonya Borrero, an internal medicine physician and director of the University of Pittsburgh’s Center for Innovative Research on Gender Health Equity.

The process includes a 30-day waiting period after a patient signs a sterilization procedure consent form, Borrero noted. But pregnant women who want the procedure done right after delivery might not reach the 30-day threshold if they go into early labor, she said. She added that some patients are confused by the form.

Borrero launched a tool called MyDecision/MiDecisión, an English and Spanish web-based tool that walks patients through their tubal ligation decision and dispels misinformation around the permanent procedure.

“The importance and the relevance of it right now is particularly pronounced,” she said.

This article is republished from Stateline, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

Daniel Cameron looks over the crowd after conceding defeat on election night, Nov 7, 2023, in Louisville. (Kentucky Lantern photo by Matthew Mueller)

FRANKFORT — Kentucky’s attorney general and two University of Louisville physicians waged a legal battle for more than a year that almost no one knew about —? even though it involved the Republican candidate for governor and an issue of intense public interest.

The secrecy around the case – from its outset in June of 2023 – is highly unusual. It ended Monday when the file was unsealed under a Franklin Circuit judge’s order. The Lantern first revealed the case’s existence and reported many of its details in August based on a Court of Appeals ruling and sources with knowledge of the situation.?

The newly unsealed file provides further insights into what happened when the powers of Kentucky’s top prosecutor intersected with abortion politics in an election year.

The dispute involved then-Attorney General Daniel Cameron’s efforts to pursue a criminal investigation against the two U of L physicians who, when it was still legal to do so, performed abortions and trained medical students and residents at EMW Women’s Surgical Center in Louisville. Cameron also was Kentucky Republicans’ nominee for governor last year.

Kentucky appeals court rejects AG’s efforts to get employment records in abortion case

After the U.S. Supreme Court ended the constitutional right to abortion in the summer of 2022, the physicians testified in court against the near-total abortion ban that immediately took effect in Kentucky.

Cameron, whose office was defending the abortion ban, then sought the physicians’ pay, tax and other records from U of L through the civil discovery process. When that didn’t work he used a grand jury to subpoena the records as part of a criminal investigation that he said would discover whether public dollars had been misused.

In the end, the case turned on what two courts determined were Cameron’s misuse of the grand jury process and his lack of evidence of any crime.

Politics alleged

Lawyers for the physicians argued that Cameron’s actions were motivated by politics, that he was using abortion litigation “for political gain in his gubernatorial campaign” — a claim that Cameron’s office branded “offensive” and “slander.”?

The doctors’ lawyers said Cameron “apparently believes that depicting abortion providers as greedy profiteers advances his arguments that abortions should be outlawed.”?

It’s impossible to know how public knowledge of the case might have affected the 2023 race for governor. By September 2023 — less than two months before the gubernatorial election — the politics of abortion had changed in Kentucky.?

That month Democratic incumbent Gov. Andy Beshear began airing powerful commercials featuring a rape victim and a prosecutor criticizing Cameron for opposing exceptions for rape and incest in the abortion ban. And Cameron quickly modified his position, saying he would sign legislation creating exceptions for rape and incest if the Republican-controlled General Assembly approved it.

Franklin Circuit Judge Phillip Shepherd tried to unseal the case at that time, but was thwarted by Cameron who immediately appealed the ruling to quash the subpoena and successfully pleaded to keep the case secret at least until the appeals court ruled on its merits.

Beshear defeated Cameron in the governor’s race by about 5 percentage points, and Cameron has since taken a job as executive director of a non-profit group called 1792 Exchange. (That group’s website says it works to? protect small businesses, other non-profits and philanthropic organizations from “woke” corporations.)

AG Coleman ends appeals

Cameron did not respond to an email from the Lantern sent to 1792 Exchange seeking comment on the outcome of his ill-fated investigation.

Current Attorney General Russell Coleman did not ask the Kentucky Supreme Court to review the August Court of Appeals ruling that upheld Shepherd’s decision to quash the subpoena. Rewa Zakharia, chief of the criminal division in Coleman’s office, declined comment on Friday after a court hearing when Shepherd ordered the case finally unsealed. Zakharia referred questions to the office spokesman Kevin Grout, who did not return phone messages from Kentucky Lantern.

One of the attorneys for the doctors, William Brammell, released a statement that said, “We appreciate the judge’s thoughtful handling of this case and ultimate decision to unseal it, making it available to the public.? In a functioning democracy, it’s critical that citizens know what their government is doing and the judge’s decision in this case balances that right to access with our client’s understandable personal privacy interests.”

On Aug. 9 a three-judge panel of the Kentucky Court of Appeals unanimously affirmed Shepherd’s quashing of the subpoena. Its order said the subpoena amounted to a “fishing expedition” and that Cameron’s premise that tax dollars may have been illegally spent on abortions was not supported by the facts of the case.

The appeals court sent the question of whether the case should be unsealed back to Shepherd. On Friday Shepherd unsealed the case with the exception of one document, and he released 177 pages of records Monday with the names of the physicians redacted.

The U of L physicians and another physician who practiced at EMW Women’s Surgical Center initiated the case on July 21, 2023, asking Franklin Circuit Court to quash a subpoena seeking payroll, personnel and other records

They argued that Cameron unsuccessfully sought the same records in the civil case challenging the constitutionality of Kentucky’s abortion ban and that the material sought was not relevant to any possible criminal charges. They suggested a political motive which Cameron hotly disputed.

“It has become clear that Mr. Cameron will use abortion litigation, against providers and others, for political gain in his gubernatorial campaign.”

Cameron said the subpoena was issued as part of his office’s responsibility to investigate “crimes involving the use of public funds.”

The plaintiffs filed the case under the pseudonyms Jane Doe 1, Jane Doe 2 and John Row, and asked that the case be sealed to protect their privacy. Cameron offered no objection and Shepherd let the case initially proceed under seal.

As the case proceeded, Shepherd, over the objections of the doctors’ lawyers, gave Cameron the opportunity to present a confidential (“in camera”) written explanation “that will set forth the subject matter of the Attorney General’s investigation.”

Cameron did so. That record remains the only part of the file still sealed. But whatever is in it, it did not convince Shepherd.

Grand jury never asked for or asked for subpoena

The judge wrote a 16-page order quashing the subpoena. Shepherd agreed with nearly all points made by the physicians’ attorneys. He said even the confidential submission from the attorney general “provides no information which grants its office jurisdiction.”

Shepherd said the investigation was brought in the wrong county because the doctors work in Jefferson County. “There is no indication that any of the conduct under investigation took place in Franklin County. Nor is there any allegation that state funds were used directly in any manner that would violate the penal code,” he ruled.

Shepherd noted that while Cameron obtained the subpoena from the clerk of the Franklin Circuit Court, the grand jury never asked for the subpoena or voted to authorize it.

And because the subpoena sought the same records Cameron was unsuccessfully trying to get in the separate civil case, the judge concluded, “this subpoena appears to be a classic ‘fishing expedition.’”

He said the doctors had a right to be concerned the information might be used in a way that would “subject them to vilification or harassment by opponents of abortion.”

The judge also said he was inclined to open the case because the public should know what goes on in court. Shepherd issued a lengthy order in which he attempted to unseal the records. “The Court believes that the public has a right to know, and to decide for themselves, whether the Attorney General is wielding the authority granted to him appropriately and in accordance with the requirements of law.”

But Cameron filed an emergency request to keep the entire file sealed, which the appeals court granted.

In August, the Court of Appeals ruling against Cameron sent the case back to Shepherd to decide whether to unseal the case.

The Kentucky Lantern and Louisville Public Media filed briefs asking that the case be opened.?

Abortion politics: A Kentucky timeline

2019 – Kentucky’s legislature votes along party lines to enact two anti-abortion laws: A ban on abortions after six weeks of pregnancy. A ban on all abortions that would take effect only if the U.S. Supreme Court overturns Roe v. Wade, the so-called “trigger law.” Federal courts blocked the six-week ban.

Feb. 26, 2020 – The Family Foundation calls on Attorney General Daniel Cameron to investigate whether medical school faculty at the University of Louisville are violating state law through ties to what was then the state’s only abortion clinic, EMW Women’s Surgical Center in Louisville.

U of L President Neeli Bendapudi firmly rejects the allegations, saying U of L and EMW are separate entities. Residents in obstetrics and gynecology, as part of their training, must learn all aspects of reproductive health care, and abortion provider EMW is the only place they can learn the procedure.

March 30, 2021 – General Assembly approves putting an anti-abortion amendment on the 2022 ballot. It would add a new section stating Kentucky’s Constitution does not secure or protect a right to or funding of abortion.

June 24, 2022 – U.S. Supreme Court ends the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, overturning Roe.

EMW and Planned Parenthood, both in Louisville and Kentucky’s only abortion providers, stop performing abortions “out of an abundance of caution.”

June 27, 2022 – EMW and Planned Parenthood file suit in Jefferson Circuit Court seeking to block enforcement of the abortion ban.?

July 6, 2022 – Jefferson Circuit Judge Mitch Perry hears arguments from both sides with Attorney General Daniel Cameron’s office defending the abortion ban. Among those testifying are two University of Louisville OB/GYNs who provide abortions at EMW and say abortion is essential to health care.

July 7, 2022 – Republican lawmakers in Frankfort grill U of L medical dean Toni Ganzel about whether public funds have been used to provide abortions. He tells them U of L does not pay physicians to perform abortions. Rep. Jason Nemes, R-Louisville, tells Ganzel,? “If university funds are used for abortion, the taxpayers ought to know, and the legislature should take that into account when we’re talking about funding the university and other things.”

July 30, 2022 – Judge Perry issues a temporary order allowing abortions to resume in Kentucky.?

Aug. 2, 2022 – Legal abortions stop after the Court of Appeals grants Cameron’s emergency request to reinstate the two laws banning almost all abortions in the state.?

Aug. 3, 2022 – Two U of L professors suspend their work at EMW. U of L pauses its residency training affiliation with EMW until “we can determine the future of the relationship.”

Nov. 8, 2022 – Kentucky voters defeat the anti-abortion constitutional amendment by almost 5 percentage points, 52.3%? to 47.7% or 742,232 votes to 675,634 votes.

Nov. 15, 2022 – Kentucky Supreme Court hears arguments in abortion providers’ challenge of abortion ban.

Feb. 16, 2023 – Kentucky Supreme Court leaves abortion ban in place, saying abortion providers lack standing to challenge the law on behalf of their patients, leaving unanswered questions about the ban’s constitutionality. Calling it a “significant victory,” Cameron says, “We will continue to stand up for the unborn by defending these laws.”

May 16, 2023 – Cameron wins primary, becomes Republican candidate for Kentucky governor, challenging incumbent Andy Beshear, who opposes Kentucky’s no-exceptions abortion ban, calling it “extreme.”

June 2023 – Cameron issues a Franklin County grand jury subpoena for payroll and personnel information for two unnamed U of L employees, seeking evidence that state funds may have been misused. All parties agree to seal the case.

July 2023 – Jane Does and Roe ask Franklin circuit judge to quash the subpoena.

Sept. 1, 2023 – Democrat Beshear’s campaign airs an ad featuring Jefferson County prosecutor Erin White attacking Cameron for opposing abortion ban exceptions, even for rape and incest victims. ?“Cameron believes rapists deserve more rights than their victims. That’s extreme. And it’s dangerous,” she says.

Sept. 18, 2023 – Cameron changes his position on abortion, saying he would sign legislation creating exceptions for rape and incest if the Republican-controlled General Assembly approved it. He later appears to soften that statement to reassure abortion opponents.

Sept. 20, 2023 – Beshear campaign airs ad in which Hadley Duvall says, “This is to you, Daniel Cameron. To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable.”??

?September 2023 –? Franklin Circuit Judge Phillip Shepherd quashes the subpoena and tries to unseal the case records. Cameron appeals. Court of Appeals grants his emergency request to keep the case sealed, pending a final outcome.

Oct. 4, 2023 – Russell Coleman, the Republican nominee for attorney general says he supports exceptions for rape and incest and will “call on the General Assembly to take a hard look at that issue.”

Nov. 5, 2023 – Beshear and Coleman win their races by comfortable margins.

Aug. 9, 2024 – Kentucky Court of Appeals rejects the attorney general’s subpoena as an improper “fishing expedition” and outside the scope of the Franklin County grand jury because the records sought by the attorney general are from another county. Returns case to Franklin Circuit Court to consider unsealing the file.

Sept. 20, 2024 – Kentucky Lantern and Louisville Public Media file motion asking that records of the case be unsealed.

Sept. 27, 2024 – Shepherd orders the case unsealed with redactions and excluding an “in camera” filing.

EMW Women's Surgical Center in Louisville is now closed but before the abortion ban was one of two abortion providers in Kentucky. (Kentucky Lantern photo by Deborah Yetter)

FRANKFORT — Franklin Circuit Judge Phillip Shepherd said Friday he will make public nearly all of the records in a lawsuit stemming from former Attorney General Daniel Cameron’s attempt in June of 2023 to investigate two University of Louisville physicians who had performed abortions at EMW Women’s Surgical Center.

During a hearing on whether to unseal the case record, Shepherd said he will release an order early next week that will direct that documents in the case be released with the exception of one record filed with his office last year by Cameron. He also said names of the doctors would also remain confidential.

At issue is a sealed lawsuit brought by the doctors and an official of EMW to quash a subpoena issued by Cameron for payroll and personnel records of the doctors. Cameron sought the records in 2023, a year after almost all abortions had been outlawed in Kentucky and the state’s abortion clinics had closed.

A year ago Shepherd ruled in favor of the doctors, quashing the subpoena and ordering that most of the case file be unsealed. But Cameron blocked that order by immediately filing an appeal along with an emergency motion to keep the entire case a secret.

On Aug. 9 a three-judge panel of the Kentucky Court of Appeals unanimously affirmed Shepherd’s quashing of the subpoena. Its order said the subpoena amounted to a “fishing expedition” and that Cameron’s premise that tax dollars may have been illegally spent on abortions was not supported the facts of the case.

The appeals court ruling did not identify the physicians or U of L or EMW as their employers. Kentucky Lantern, based on information from knowledgeable sources and details in the appeals ruling, reported the case clearly involved the two U of L physicians and EMW, which was confirmed last week in a document filed by the parties in the case.

The case is now over. Current Attorney General Russell Coleman decided not to appeal the appeals court’s ruling.

But the appeals court referred back to Shepherd the matter of whether the file should remain sealed.

Shepherd scheduled Friday’s hearing to give the parties to the case – as well as the public and press – a chance to be heard on the matter. Kentucky Lantern and Louisville Public Media intervened in the case to argue for opening the file.

Near the end of the hearing Shepherd said he would issue an order early next week that largely conforms with the position jointly taken by all parties to the original case (the doctors and the Attorney General) that the file be unsealed except for the names of the doctors and a document filed by the Attorney General last year for Shepherd’s “in camera” review that dealt with the? subject of its investigation.

Tom Miller, a Lexington attorney who represented Kentucky Lantern and Louisville Public Media, argued Friday that this one document may be vital and should also be disclosed.? “All we’re asking is that the attorney general be required to disclose what it was that they thought they were investigating,” Miller said.

But Shepherd said that other documents that will be released will satisfy that concern. “I think that when you see the rest of the file that all of the questions that you’re identifying are going to be fully answered,” Shepherd said.

The U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization in June 2022 ended federal abortion rights. (Sofia Resnick/States Newsroom)

Editor’s note: This five-day series explores the priorities of voters in Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin as they consider the upcoming presidential election. With the outcome expected to be close, these “swing states” may decide the future of the country.

Dr. Kristin Lyerly’s placenta detached from her uterus when she was 17 weeks pregnant with her fourth son in 2007. Her doctor in Madison, Wisconsin, gave the devastated recent medical school graduate one option: to deliver and bury her dead child. But she requested a dilation and evacuation abortion procedure, knowing it would be less invasive and risky than being induced. And she couldn’t fathom the agony of holding her tiny dead baby.

But Lyerly’s doctor declined, giving her a direct window into the many ways Americans lack real choice when it comes to their reproductive health decisions. At the time of this miscarriage, Lyerly was getting a master’s degree in public health before beginning her residency. She was able to get a D&E at the same hospital by a different doctor. As an OB-GYN, she soon would learn how much abortion is stigmatized and limited throughout the country, but also regularly sought after and sometimes medically necessary, including among her many conservative Catholic patients in northeastern Wisconsin.

And then, on June 24, 2022, the U.S. Supreme Court ended federal abortion rights, prompting states such as Wisconsin to resurrect dormant abortion bans from the 19th and 20th centuries. Lyerly’s job changed overnight. She stopped working as an OB-GYN in Sheboygan and moved her practice to Minnesota. She became a plaintiff in a lawsuit over an 1849 Wisconsin feticide law being interpreted as an abortion ban, which has since been blocked.

When a congressional seat opened up in a competitive Wisconsin district this year, the 54-year-old mother of four joined the post-Dobbs wave of women running for office to restore reproductive rights, which this election cycle includes another OB-GYN and a patient denied abortion care. Lyerly’s decision to run is emblematic of the nationwide backlash against the Dobbs decision, which altered the reproductive health care landscape, with providers, patients and advocates turning to the ballot box to change the laws to restore and broaden access.

Wisconsin is among seven swing states expected to determine the country’s next president and federal leaders. And in many ways they’re being viewed as referendums on how much the right to have an abortion can move the needle in a tight presidential election.

“What we’ve seen in every election since the Dobbs decision is that abortion is at top of mind for voters — and it’s not just helping voters decide who or what to vote for. It’s actually a turnout driver,” said Ryan Stitzlein, vice president of political and government relations at national lobbying group Reproductive Freedom for All. The group is investing in down-ballot races in conservative districts such as Lyerly’s, buoyed by cash and momentum from Democratic presidential nominee Kamala Harris’ reproductive-rights-focused campaign.

Anti-abortion money is also flowing through the swing states, led by lobbying groups Susan B. Anthony Pro-Life America and Women Speak Out PAC. Some of their messaging, adopted by Republican presidential nominee Donald Trump and many GOP candidates, often paints Democrats as champions of infanticide, focusing on the rarest and most controversial type of abortions, those performed in the third trimester.

But aside from that rhetoric, many Republican candidates have been quiet on an issue that for years motivated their staunchest supporters.

SBA Pro-Life America declined an interview for this story but shared a press release outlining the organization’s strategy trying to reach 10 million voters in Montana, Ohio and all of the battleground states except for Nevada. The group endorsed 28 House candidates total this cycle, and a fifth of them are in North Carolina. One of North Carolina’s endorsed candidates in a toss-up race is Republican GOP challenger Laurie Buckhout, who does not mention her abortion stance on her campaign website, and did not return a request for comment.

“Our field team is talking to persuadable and low propensity pro-life voters to urge them to cast their votes against the party that endorses abortion in the seventh, eighth and ninth months,” said SBA’s national field team director Patricia Miles in the press statement.

But throughout this election cycle, polls in the swing states have shown bipartisan support for abortion rights, especially when voters are educated about what abortion bans do. Voters in more than half of the states expected to determine the presidential winner have, to varying degrees, lost access to abortion. And abortion-rights activists across these states told States Newsroom they are determined to protect that access, or to get it back.

Arizona sees backlash after GOP upholds Civil War-era abortion ban

In Arizona, the Dobbs decision resurrected a Civil War-era ban that allowed abortions only to save a pregnant patient’s life.

Legislators repealed the law, but abortion-rights supporters fought for more certainty. This fall, Arizonans will vote on a proposed ballot measure that would protect access until fetal viability, around 24 weeks of pregnancy.

Now, two of the judges who upheld the abortion ban — Justices Clint Bolick and Kathryn King — are up for reelection, in races infused with national cash by groups such as RFA and Planned Parenthood. Also on the ballot is Proposition 137, which would give lifetime appointments to state judges. The Republican-initiated measure has garnered controversy in part because it is retroactive to this year’s election, so if approved, any retention bids would be nullified even if the majority votes to unseat the judge.

Ballot organizers turned in more than 800,000 signatures, double the required number, and overcame opponents’ legal challenges to qualify the abortion-rights ballot measure, Proposition 139. Abortion is legal up to 15 weeks of pregnancy, but there are many state restrictions that the Arizona Abortion Access Act would eliminate, such as a ban on any abortions sought for fetal genetic abnormalities and a blocked law from 2021 granting personhood status to fertilized eggs.

Recent deaths reignite controversy over Georgia’s abortion ban

This month, ProPublica reported on the deaths in 2022 of two Georgia women who suffered rare complications after they obtained mifepristone and misoprostol for early-term medication abortions. Both were trying to navigate a new state law that banned abortions at about six weeks of pregnancy and threatened medical providers with up to a decade in prison.

In one case, doctors at an Atlanta-area hospital refused for 20 hours to perform a routine dilation and curettage, a D&C, to clear the patient’s uterus when her body hadn’t expelled all the fetal tissue. In the other, a woman who had ordered the pills online suffered days of pain at home, fearful of seeking medical care. Both women left children behind.

As abortion bans delay emergency medical care, this Georgia mother’s death was preventable

Georgia’s law permits abortion if the patient’s life is at risk, but medical providers have said the law’s language is unclear, tying their hands and threatening the health of patients who have high-risk pregnancies.

Their cases, which a state medical review committee found to be “preventable,” have galvanized activists in the state.

Harris spoke at length about the women, Amber Nicole Thurman and Candi Miller, at a recent campaign event in Atlanta. She blamed their deaths on Georgia’s law, calling it “the Trump abortion ban,” because the former president appointed three justices he’d promised would overturn Roe v. Wade.

“This is a health care crisis, and Donald Trump is the architect of this crisis,” Harris said. “Understand what a law like this means: Doctors have to wait until the patient is at death’s door before they take action. … You’re saying that good policy, logical policy, moral policy, humane policy is about saying that a health care provider will only start providing that care when you’re about to die?”

Trump has not commented on the deaths. He has repeatedly said this year that abortion access should be left to the states. He has dismissed the idea of a federal abortion ban, but during the presidential debate, he refused to say whether he would veto such legislation.

At a recent rally in North Carolina, Trump addressed “our great women” (a demographic he’s trailing among), saying, “you will no longer be thinking about abortion, because it is now where it always had to be, with the states, and with the vote of the people.”

Abortion was a driving concern in this spring’s qualifying process for Georgia’s 2024 legislative elections —?the first opportunity for aspiring state lawmakers to jump on the ballot in response to their state’s severe abortion restrictions.

Melita Easters, the executive director and founding chair of Georgia WIN List, which endorses Democratic women who support abortion rights, was already calling this year’s general election “Roevember” back when President Joe Biden was still the party’s nominee.

But Easters told States Newsroom that having Harris on the ticket instead has elevated the issue of reproductive freedom even more and “has breathed new life into down-ballot campaigns.” Easters said she is especially encouraged after a Democratic state House candidate in Alabama who ran on abortion rights flipped a Huntsville seat during a special election in March.

Michigan Democrats continue betting on abortion after 2022 successes

Michigan was one of the earliest states post-Dobbs to show that abortion rights could be a strong election-winning issue.

Months after the Supreme Court’s ruling, Michiganders overwhelmingly approved a ballot measure to protect abortion rights in the state constitution; reelected Democratic Gov. Gretchen Whitmer, who vowed to prioritize reproductive freedom; and voted for Democratic majorities in both chambers, giving the party a legislative trifecta for the first time in 40 years. In 2023, the legislature repealed a 1931 abortion ban that was still on the books and passed the Reproductive Health Act, expanding abortion access in the state.

This year, state and national abortion-rights groups have campaigned in toss-up congressional districts across Michigan, warning that a federal ban would supersede the state’s protections.

State judicial races, meanwhile, have attracted millions of dollars, as they could determine partisan control of the Michigan Supreme Court. Democrats secured a slim 4-3 majority on the state Supreme Court in 2020 after Republican-nominated justices controlled the court for most of the last few decades.

Nevada reproductive rights activists hope ballot initiative improves turnout

In Nevada, abortion remains legal through 24 weeks and beyond for specific health reasons. In 2023, the state’s Democratic-led legislature passed a law shielding patients and providers from out-of-state investigations related to abortion care; it was signed by Republican Gov. Joe Lombardo.

Seeking to cement these rights in the state constitution, reproductive health advocates mobilized a ballot initiative campaign, which they hope will drive voter turnout that would affect the presidential and down-ballot races. Constitutional amendments proposed through an initiative petition must be passed by voters twice, so if voters approve Question 6 in November, they will have to approve it again in 2026.

In the state’s closely watched U.S. Senate race, Democratic Sen. Jacky Rosen currently edges Republican Sam Brown, who has had inconsistent positions on abortion and reproductive rights but opposes the abortion-rights measure.

National anti-abortion groups Susan B. Anthony Pro-Life America and Students for Life of America have notably not focused on Nevada in their campaign strategies.

Growing Latinx voting bloc in North Carolina?

In North Carolina many Democrats are campaigning in opposition to a 12-week abortion ban that the Republican-majority legislature passed last year after overriding Democratic Gov. Roy Cooper’s veto.

In a high-profile race for governor, Democratic Attorney General Josh Stein faces Republican opponent Lt. Gov. Mark Robinson, who has previously said he believes “there is no compromise on abortion,” according to NC Newsline. The lieutenant governor is now facing calls to withdraw from the race over comments made on a pornography website years ago, and Stein has started racking up endorsements from prominent state Republicans.

Iliana Santillan, a political organizer who supports abortion rights, has focused on mobilizing Latinos, a growing voting bloc in the state. The executive director of progressive nonprofit El Pueblo and its political sister group La Fuerza NC told States Newsroom she’s talked to many young women motivated to secure their own reproductive rights, including her college-age daughter. She said the Latinx community faces additional reproductive care barriers such as language and transportation, with undocumented immigrants scared to cross state lines without a driver’s license.

Santillan also said there’s a misconception that all Latinos are against abortion because they’re Catholic, when in reality opposition to abortion skews among older voters.

“With older folks, the messaging that we’ve tested that has worked is: ‘We don’t want politicians to have a say in what we do with our bodies,’” Santillan said.

Motivated voters in Pennsylvania

Pennsylvania, with its 19 electoral votes, is the largest swing state and considered essential to win the White House.

In a poll conducted this month by Spotlight PA and MassINC Polling Group, abortion ranked as the fifth most-important concern in the presidential race for likely voters, with 49% naming it as among their top issues.

The issue is far more important to Democrats, however, with 85% calling it a top issue compared with 17% of Republicans. Among those who aren’t registered with either major party, 49% called it a top issue.

In 2022, voters surprised pundits by sending enough Democrats to the state House to flip it blue. Voters were responding to the Dobbs decision, Democratic Gov. Josh Shapiro told Pennsylvania Capital-Star at a recent Harris campaign event.

Shapiro also won in 2022, and so far his administration has supported over-the-counter birth control pills and ended the state’s contract with a network of anti-abortion counseling centers. He said his administration would not defend a current state law that prohibits state Medicaid funding from being used for abortions.

Abortion isn’t protected under Pennsylvania’s state constitution, but it remains legal up to 24 weeks’ gestation, and clinics there have seen an influx of out-of-state patients.

Wisconsin abortion services resume

After more than a year without abortion access, reproductive health clinics in Wisconsin resumed abortion services in September 2023, shortly after a judge ruled that the 1849 state law that had widely been interpreted as an abortion ban, applied to feticide and not abortion. A state Supreme Court race a few months earlier saw Justice Janet Protasiewicz win in a landslide after campaigning on reproductive freedom.

Seven months later when Republican U.S. Rep. Mike Gallagher announced his resignation, Lyerly threw her hat in the ring, running as the only Democrat in the 8th District. She now faces businessman Tony Wied. Although in the past it was considered a swing district, it has leaned conservative in recent election cycles. With the redrawn maps and national support, Lyerly said it’s a competitive race.

“We have the potential to really fix, not just reproductive health care, but health care,” Lyerly told States Newsroom. “Bring the stories of our patients forward and help our colleagues understand, build those coalitions and help to gain consensus that’s going to drive forward health care reform in this country.”

Wied’s campaign website does not mention abortion or his policy proposals related to health care, though the words “Trump-endorsed” appear prominently and abundantly throughout the site. Wied hasn’t said much about the issue beyond it should be a state issue, but the two are scheduled to debate this Friday night. His campaign declined an interview.

Currently the only OB-GYNs who serve in Congress oppose abortion. If Lyerly wins in November, she would not only change that (potentially alongside Minnesota Sen. Kelly Morrison) but also could help flip party control in the U.S. House of Representatives.

Most Wisconsin voters oppose criminalizing abortion before fetal viability, according to a poll this year by the University of Maryland’s Program for Public Consultation.

Patricia McFarland, 76, knows what it’s like to live without abortion access. For more than 50 years, the retired college teacher kept her pre-Roe abortion a secret, having grown up in a conservative Irish Catholic family like many of her suburban Milwaukee neighbors.

McFarland told States Newsroom she has been politically active most of her life, but the Dobbs ruling dredged up the physical and emotional trauma from the illegal procedure she had alone in Mexico City. Now, McFarland rarely leaves home without her “Roe Roe Roe Your Vote” button, engaging anyone who will talk to her about the dangers of criminalizing pregnancy.

The mother and grandmother said she’s been canvassing and doing informational sessions with her activist group the PERSISTers, as well as the League of Women Voters. As she has warned fellow Wisconsities about the federal power over their reproductive freedom, she said the enthusiasm for abortion rights in her state is palpable.

“For women my age,” McFarland said, “we don’t want our grandchildren to lose their ability to decide when to become a mother.”

Georgia Recorder’s Jill Nolin contributed to this report.

Oklahoma Republican Sen. James Lankford speaks with reporters outside the U.S. Capitol about border policy negotiations on Thursday, Dec. 7, 2023. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — Senate Democrats attempted to pass a resolution Tuesday addressing abortion access in emergency medical situations, but Republicans blocked it from moving forward.

The floor action followed months of unsuccessful attempts by congressional Democrats to approve legislation on various reproductive rights, including access to birth control and in vitro fertilization.

Sen. Patty Murray, D-Wash., said Tuesday she introduced the resolution to clarify what Congress’ objective was several decades ago when lawmakers approved the Emergency Medical Treatment and Active Labor Act, or EMTALA.

“We want to make it clear that Congress’s intent is that women can get life-saving care when they go to an emergency room anywhere in this country,” Murray said.

Oklahoma Republican Sen. James Lankford blocked Murray’s unanimous consent request to approve the resolution, saying that doctors in emergency departments are able to act in cases of miscarriage, ectopic pregnancy and life-threatening situations.

“This is a false claim that somehow what happened in the Dobbs decision and what’s happening in states is limiting that,” Lankford said. “It’s actually the political rhetoric that’s making people afraid.”

Lankford objected to another of Murray’s unanimous consent requests in March, blocking approval of legislation that would have expanded access to in vitro fertilization for military members and veterans.

No recorded vote

Unanimous consent is the fastest way to approve legislative items in the Senate. Under the process, any one senator can ask to approve a bill or resolution and any one senator can object. There is no recorded vote that puts all senators on the record.

Murray’s two-page resolution, which had the backing of 40 cosponsors, would have expressed “the sense of the Senate that every person has the basic right to emergency health care, including abortion care.”

The resolution also expressed that “State laws that purport to ban and restrict abortion in emergency circumstances force medical providers to decide between withholding necessary, stabilizing medical care from a patient experiencing a medical emergency or facing criminal prosecution, and put the lives, health, and futures of patients at risk.”

This resolution wouldn’t have actually changed the text of EMTALA.

The 1986 law states that hospital emergency departments must treat or transfer patients who have emergency medical conditions, regardless of their health insurance status or ability to pay.

It defines an emergency medical condition as something that could result in the health of the patient being in “serious jeopardy,” such as the patient “experiencing serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”

Dobbs decision

The federal law has been the center of political and legal debate since the U.S. Supreme Court struck down the constitutional right to abortion two years ago in the Dobbs v. Jackson Women’s Health Organization ruling.

The Biden administration issued a public letter shortly afterward saying EMTALA protected doctors and other qualified health care providers who ended a pregnancy to stabilize the patient if their life or health was at risk.

Republican attorneys general in several states challenged that view of the law and the U.S. Department of Justice later sued Idaho over its abortion law.

That case made its way to the U.S. Supreme Court earlier this year, but the justices ultimately decided to send it back to the 9th U.S. Circuit Court of Appeals. The high court said it should have waited to hear the case until after the lower court ruled.

At the center of the disagreement between Republican state attorneys general and the Biden administration is that the federal law applies when a pregnant patient’s life or health is at risk; many of the conservative state laws only allow abortions after a certain gestational age when a woman’s life is at risk.

Exactly when a woman’s life becomes at risk due to pregnancy complications has led to dozens of stories from women throughout the country, who say they had to wait for treatment until their health deteriorated further.

Analysis from the Associated Press released in August found that more than 100 women experiencing medical distress during pregnancy were turned away from hospitals or negligently treated during the last two years.

ProPublica recently obtained reports “that confirm that at least two women have already died after they couldn’t access legal abortions and timely medical care in their state.”

‘This cruelty is unforgivable and unacceptable’

The Senate resolution that Republicans rejected Tuesday is nearly identical to one House Democrats introduced earlier this month.

Murray said ahead of her UC request that women and their families will not forget about being denied medical care due to Republican state restrictions on abortion access.

“No woman is ever going to forget when she was sent off to miscarry alone after her doctor said, ‘Look, I know your life is in danger, but I’m not sure I’m allowed to save you right now,’” Murray said. “No husband is going to forget calling 911 in a panic after finding his wife bloody and unconscious. No child is going to forget, for a single day of their life, the mother that was taken from them by Republican abortion bans.

“This cruelty is unforgivable and unacceptable. Democrats will not let it become settled status quo.”

Vice President Kamala Harris departs Milwaukee Mitchell International Airport aboard Air Force 2, after speaking at a campaign rally inside West Allis Central High School on July 23, 2024 in Milwaukee, Wisconsin. (Photo by Jim Vondruska/Getty Images)

WASHINGTON — Democratic presidential candidate Kamala Harris said Tuesday during a radio interview that she supports changing a Senate procedure in order to codify the right to an abortion.

Vice President Harris said she is in favor of ending the 60-vote threshold in the Senate, known as the filibuster, to advance abortion rights legislation. But that task would hinge on Democrats agreeing to do so and holding on to majority control in the Senate, a difficult feat this November as Republicans appear potentially poised to take back the upper chamber.?

McConnell says GOP control of the U.S. Senate would protect the filibuster

“I think we should eliminate the filibuster for Roe, and get us to the point where 51 votes would be what we need to actually put back in law the protections for reproductive freedom and for the ability of every person and every woman to make decisions about their own body and not have their government tell them what to do,” she said during an interview with Wisconsin Public Radio.

Harris in 2022 said she would cast a tie-breaking vote in favor of abortion rights in her role as vice president. She has often pledged to sign into law a codification of Roe v. Wade, the constitutional right to an abortion struck down by the conservative U.S. Supreme Court in 2022.

Senate Majority Leader Chuck Schumer, a New York Democrat, said in August that Democrats would talk about rules changes to codify abortion rights, NBC reported.

Trump in Pennsylvania

At a Monday rally in Pennsylvania, Republican presidential candidate Donald Trump referred to himself as a “protector” of women. Trump said women no longer needed to think about abortion and it is “now where it always had to be, with the states.”

“All they want to do is talk about abortion,” the former president said at the rally, referring to Democrats. “It really no longer pertains because we’ve done something on abortion that no one thought was possible.”

Trump has called for Senate Republicans to dismantle the filibuster, but GOP Senate Minority Leader Mitch McConnell of Kentucky and other Republican leaders like No. 2 Sen. John Thune of South Dakota have vowed to keep the procedure in place.

Current Senate projections indicate Republicans are likely to gain control of the Senate. Republicans are also expected to pick up a seat in West Virginia, and only need to hold on to seats in Florida, Texas and Nebraska.

Democrats will need to secure wins in Arizona, Michigan, Montana, Nevada, Ohio, Pennsylvania and Wisconsin. Additionally, Senate Democrats would need to break a possible 50-50 tie through a Democratic presidency — if they want to remain the majority party and change the filibuster.

If Harris wins, and Democrats hold 50 seats in the Senate, then Gov. Tim Walz of Minnesota, the vice presidential nominee, would be the tie-breaking vote.

During a Tuesday Senate press conference on abortion, Democratic Sen. Patty Murray of Washington said she was supportive of Harris’ stance and that it would be a carve-out of the filibuster, rather than an elimination of it.

“What we are talking about is a simple procedure to allow, whenever rights are taken away from someone, that the U.S. Senate can, without being blocked by a filibuster, be able to restore those rights,” she said.

Harris, Trump and the economy

The Harris campaign hosted a Tuesday press call with business owner and? “Shark Tank” investor Mark Cuban, to advocate for Harris’ economic policies.

Polls have found that voters view Trump as better for the economy. Pew Research found that Trump’s key advantage is the economy, with 55% of voters viewing the former president as making good economic decisions, and 45% of voters viewing Harris as making good decisions about the economy.

“In a nutshell, the vice president and her team thinks through her policies,” Cuban said. “She doesn’t just off the top of her head say what she thinks the crowd wants to hear, like the Republican nominee.”

Battleground states still the favorite spot

The candidates will continue to campaign and travel, especially around battleground states this week.

Trump is scheduled Tuesday to visit Savannah, Georgia, where he will give an afternoon campaign speech about lowering taxes for business owners.

Walz is scheduled to head back to his home state of Minnesota Tuesday?for a campaign reception there.

Harris is heading to Pennsylvania Wednesday for a campaign rally and then she’ll travel to Arizona on Friday and Nevada on Sunday.

Trump is stopping in Mint Hill, North Carolina, on Wednesday to give remarks about the importance of making goods in the U.S. His running mate, Ohio Sen. J.D. Vance, will travel to Traverse City, Michigan, on Wednesday to rally supporters.

Vance on Thursday will give a campaign speech on the economy in Macon, Georgia, and then host a voter mobilization drive in Flowery Branch, Georgia.

On Friday, Trump is scheduled to rally supporters in Walker, Michigan and in the evening hold a town hall in Warren, Michigan.

?Jennifer Shutt contributed to this report.

The gravesite of Amber Thurman, at Rose Garden Cemetary in McDonough, Georgia on August, 13th 2024.

The Georgia hospital that failed to save Amber Thurman may have broken a federal law when doctors there waited 20 hours to perform a procedure criminalized by the state’s abortion ban, according to Sen. Ron Wyden, chair of the Senate Finance Committee.

The Emergency Medical Treatment and Labor Act, or EMTALA, requires hospitals to provide emergency care to stabilize patients who need it — or transfer them to a hospital that can. Passed nearly four decades ago, the law applies to any hospital with an emergency department and that accepts Medicare funding, which includes the one Thurman went to, Piedmont Henry in suburban Atlanta. The finance committee has authority over the regulatory agency that enforces the law.

In a letter sent Monday, Wyden, an Oregon Democrat, cites ProPublica’s investigation into Thurman’s death, which was found preventable by a state committee of maternal health experts. The senator’s letter asks Piedmont CEO David Kent whether the hospital has delayed or denied emergency care to pregnant patients since Georgia’s abortion ban went into effect. (Kent did not respond to requests for comment.)

“It is my duty to conduct oversight of potential violations of patients’ rights under these laws,” Wyden wrote. The senator asked for the hospital’s policies covering treatment of patients with emergencies that require abortion care. He also asked for a list of personnel involved in making those decisions. He gave the hospital a deadline of Oct. 24 to provide those and other requested records and answers.

Wyden sent the same letter citing ProPublica’s reporting on Thurman to seven hospitals in North Carolina, Florida, Missouri, Louisiana and Texas. One letter seeks information from a Texas hospital where Yeniifer Alvarez-Estrada Glick died in 2022 from complications of pregnancy including hypertension, as reported by The New Yorker. Other letters seek information from hospitals where women have reportedly been turned away or experienced delayed care.

The hospitals’ answers could lead to proposed legislation or executive actions to strengthen compliance. The federal Centers for Medicare and Medicaid Services investigates complaints and can take actions including levying fines against hospitals that violate EMTALA.

Wyden’s committee held a hearing Tuesday morning, saying in a news release it would “examine how Donald Trump’s successful overturn of Roe v. Wade and subsequent state abortion bans have threatened access to life-saving medical care for women nationwide.”

Piedmont did not respond to multiple requests seeking comment about Wyden’s letter or whether it is aware of an investigation into an EMTALA violation. Doctors who handled Thurman’s care have previously declined to explain their thinking and did not respond to questions from ProPublica.

A spokesperson for the U.S. Department of Health and Human Services, which oversees the regulatory agency that enforces the law, said in an email: “No woman or her family should have to worry that she could be denied life-saving treatment. While we can’t comment on complaints or investigations, we are committed to ensuring that every woman gets the care she needs.”

But some hospitals in abortion-ban states continue to deny or delay emergency care to pregnant women.

A recent Associated Press review of federal investigations found that more than 100 pregnant women in medical distress who sought help from emergency rooms were turned away or treated negligently since 2022, when the Supreme Court overturned Roe v. Wade. Last year, a federal investigation found that hospitals in Missouri and Kansas involved in the care of a patient, Mylissa Farmer, violated the law.

Vice President Kamala Harris has singled out Thurman’s case as evidence that a national law is needed to restore the right to abortion. Harris’ office didn’t respond to ProPublica’s questions about what federal actions she might pursue as president apart from signing a law, which would have to be passed by a divided Congress.

Former President Donald Trump has bragged about appointing three Supreme Court justices who voted to overturn Roe. Project 2025, the controversial playbook and policy agenda for a right-wing presidential administration, calls for doing away with Biden administration guidance that EMTALA requires hospitals to provide abortion care in emergency situations, even in states that ban it, or transfer the patients to a hospital that can provide the needed care.

Trump’s campaign pointed to previous statements by the former president that Project 2025 does not represent his plans for a second term. Leavitt said the former president “has always supported exceptions for rape, incest and the life of the mother, which Georgia’s law provides. With those exceptions in place, it’s unclear why doctors did not swiftly act to protect Amber Thurman’s life.”

Georgia Gov. Brian Kemp, too, has said his state’s six-week ban has clear exceptions to protect the “life of the mother.” In a statement, he blamed “partisan activists and so-called journalists” for spreading “misinformation and propaganda that fostered a culture of fear and confusion.”

But doctors have warned for years that these laws use language not rooted in science and begged for clearer exceptions. The confusion is apparent: In the wake of the bans, some hospitals have refused to even issue written policies informing doctors when and how to provide emergency abortions.

Legal reproductive rights scholars told ProPublica they believe Thurman’s treatment is a clear violation of EMTALA.

“It’s not even a question,” said Sara Rosenbaum, a George Washington University health law and policy professor and former adviser to President Bill Clinton. She helped develop EMTALA while at the Children’s Defense Fund. “I think the hospital, like all hospitals in these situations, is caught between violating EMTALA and state prosecution,” she said.

Thurman was rushed to the hospital on Aug. 18, 2022, in need of immediate care. Days earlier, she had taken abortion medication to end her pregnancy but was facing a rare complication: Some of the tissue remained inside her body, causing a grave infection.

To clear the infected tissue, she needed a dilation and curettage, or D&C, a procedure used to empty the uterus for both abortions and routine miscarriage care. Medically speaking, Thurman’s pregnancy had already ended. But the state’s abortion ban had criminalized performing a D&C and threatened doctors with up to 10 years in prison if prosecutors decided they violated it.

Records obtained by ProPublica show doctors discussed the procedure at least twice as Thurman’s condition deteriorated over 20 hours. Experts on the state maternal mortality review committee agreed there was a “good chance” Thurman would have survived if the D&C was provided sooner.

After the Supreme Court overturned the constitutional right to abortion, the federal government reminded hospitals and doctors they had to follow EMTALA and provide abortion procedures to patients if necessary in emergency situations, regardless of abortion bans. Some Republican officials have aggressively pushed back and said hospitals do not need to follow EMTALA, even for high-risk situations.

In Texas, Attorney General Ken Paxton threatened to prosecute a doctor for providing an emergency abortion to a woman with a high-risk pregnancy, whose fetus had a fatal anomaly and whose pregnancy threatened her health and future ability to have children.

He argued in court that she did not meet the state ban’s criteria. He also filed a lawsuit arguing the federal government cannot force Texas to follow the guidance on providing emergency abortions to patients.

In an opinion written by a Trump-appointed judge, a federal appeals panel agreed. That means enforcement of EMTALA in emergency abortion cases is barred in that state.

The Supreme Court last summer considered a lawsuit brought by the Biden administration challenging Idaho’s abortion ban, which lacks health exceptions and appears to conflict with EMTALA. A lawyer for the state acknowledged that Idaho’s abortion ban was written to prevent doctors from offering abortions even if the woman could suffer a serious medical complication like losing an organ.

Conservative justices in that case raised arguments about the rights of the fetus. The court issued a ruling that meant the case would be returned to a lower court, which upheld EMTALA while the case continues.

Rosenbaum said the federal government is not doing enough to require hospitals to follow EMTALA in states that banned abortion: “The federal government has no resources. It was only recently that the Biden administration has made it clear how to file complaints. The complaints go uninvestigated or poorly investigated.”

Wyden’s letters sum up the perilous landscape for patients and doctors.

“Across the country, there are reports that women are being turned away by emergency departments when they seek emergency reproductive health care, even in instances where medical professionals determine that, without such care, the patient is at risk of serious complications, infection, or even death. These women are caught between dangerous state laws that are in clear conflict with — and preempted by — EMTALA.”

On Tuesday, Thurman’s sister, Cjauna Williams, visited Thurman’s grave near Atlanta. She arrived to find fresh flowers and birthday balloons left there by people she and her family had never met. Thurman would have turned 31 the day before, and the story of her desperate wait for the medical care she needed had reverberated across the country.

“Hopefully her death won’t be in vain and something good can come of it,” Williams said.

Amber Nicole Thurman and her son in a selfie she posted online in 2020, two years before her death. (Photo via Facebook)

In her final hours, Amber Nicole Thurman suffered from a grave infection that her suburban Atlanta hospital was well-equipped to treat.

She’d taken abortion pills and encountered a rare complication; she had not expelled all of the fetal tissue from her body. She showed up at Piedmont Henry Hospital in need of a routine procedure to clear it from her uterus, called a dilation and curettage, or D&C.

But just that summer, her state had made performing the procedure a felony, with few exceptions. Any doctor who violated the new Georgia law could be prosecuted and face up to a decade in prison.

Thurman waited in pain in a hospital bed, worried about what would happen to her 6-year-old son, as doctors monitored her infection spreading, her blood pressure sinking and her organs beginning to fail.

It took 20 hours for doctors to finally operate. By then, it was too late.

The otherwise healthy 28-year-old medical assistant, who had her sights set on nursing school, should not have died, an official state committee recently concluded.

Tasked with examining pregnancy-related deaths to improve maternal health, the experts, including 10 doctors, deemed hers “preventable” and said the hospital’s delay in performing the critical procedure had a “large” impact on her fatal outcome.

Their reviews of individual patient cases are not made public. But ProPublica obtained reports that confirm that at least two women have already died after they couldn’t access legal abortions and timely medical care in their state.

There are almost certainly others.

Committees like the one in Georgia, set up in each state, often operate with a two-year lag behind the cases they examine, meaning that experts are only now beginning to delve into deaths that took place after the Supreme Court overturned the federal right to abortion.

Thurman’s case marks the first time an abortion-related death, officially deemed “preventable,” is coming to public light. ProPublica will share the story of the second in the coming days. We are also exploring other deaths that have not yet been reviewed but appear to be connected to abortion bans.

‘Bleed a little bit more’

Doctors warned state legislators women would die if medical procedures sometimes needed to save lives became illegal.

Though Republican lawmakers who voted for state bans on abortion say the laws have exceptions to protect the “life of the mother,” medical experts cautioned that the language is not rooted in science and ignores the fast-moving realities of medicine.

The most restrictive state laws, experts predicted, would pit doctors’ fears of prosecution against their patients’ health needs, requiring providers to make sure their patient was inarguably on the brink of death or facing “irreversible” harm when they intervened with procedures like a D&C.

“They would feel the need to wait for a higher blood pressure, wait for a higher fever — really got to justify this one — bleed a little bit more,” Dr. Melissa Kottke, an OB-GYN at Emory, warned lawmakers in 2019 during one of the hearings over Georgia’s ban.

Doctors and a nurse involved in Thurman’s care declined to explain their thinking and did not respond to questions from ProPublica. Communications staff from the hospital did not respond to multiple requests for comment. Georgia’s Department of Public Health, which oversees the state maternal mortality review committee, said it cannot comment on ProPublica’s reporting because the committee’s cases are confidential and protected by federal law.

The availability of D&Cs for both abortions and routine miscarriage care helped save lives after the 1973 Supreme Court ruling in Roe v. Wade, studies show, reducing the rate of maternal deaths for women of color by up to 40% the first year after abortion became legal.

But since abortion was banned or restricted in 22 states over the past two years, women in serious danger have been turned away from emergency rooms and told that they needed to be in more peril before doctors could help. Some have been forced to continue high-risk pregnancies that threatened their lives. Those whose pregnancies weren’t even viable have been told they could return when they were “crashing.”

Such stories have been at the center of the upcoming presidential election, during which the right to abortion is on the ballot in 10 states.

But Republican legislators have rejected small efforts to expand and clarify health exceptions — even in Georgia, which has one of the nation’s highest rates of maternal mortality and where Black women are three times more likely to die from pregnancy-related complications than white women.

When its law went into effect in July 2022, Gov. Brian Kemp said he was “overjoyed” and believed the state had found an approach that would keep women “safe, healthy and informed.”

After advocates tried to block the ban in court, arguing the law put women in danger, attorneys for the state of Georgia accused them of “hyperbolic fear mongering.”

Two weeks later, Thurman was dead.

Thurman, who carried the full load of a single parent, loved being a mother. Every chance she got, she took her son to petting zoos, to pop-up museums and on planned trips, like one to a Florida beach. “The talks I have with my son are everything,” she posted on social media.

But when she learned she was pregnant with twins in the summer of 2022, she quickly decided she needed to preserve her newfound stability, her best friend, Ricaria Baker, told ProPublica. Thurman and her son had recently moved out of her family’s home and into a gated apartment complex with a pool, and she was planning to enroll in nursing school.

Pregnancy was just past six weeks

The timing could not have been worse. On July 20, the day Georgia’s law banning abortion at six weeks went into effect, her pregnancy had just passed that mark, according to records her family shared with ProPublica.

Thurman wanted a surgical abortion close to home and held out hope as advocates tried to get the ban paused in court, Baker said. But as her pregnancy progressed to its ninth week, she couldn’t wait any longer. She scheduled a D&C in North Carolina, where abortion at that stage was still legal, and on Aug. 13 woke up at 4 a.m. to make the journey with her best friend.

On their drive, they hit standstill traffic, Baker said. The clinic couldn’t hold Thurman’s spot longer than 15 minutes — it was inundated with women from other states where bans had taken effect. Instead, a clinic employee offered Thurman a two-pill abortion regimen approved by the U.S. Food and Drug Administration, mifepristone and misoprostol. Her pregnancy was well within the standard of care for that treatment.

Getting to the clinic had required scheduling a day off from work, finding a babysitter, making up an excuse to borrow a relative’s car and walking through a crowd of anti-abortion protesters. Thurman didn’t want to reschedule, Baker said.

At the clinic, Thurman sat through a counseling session in which she was told how to safely take the pills and instructed to go to the emergency room if complications developed. She signed a release saying she understood. She took the first pill there and insisted on driving home before any symptoms started, Baker said. She took the second pill the next day, as directed.

Deaths due to complications from abortion pills are extremely rare. Out of nearly 6 million women who’ve taken mifepristone in the U.S. since 2000, 32 deaths were reported to the FDA through 2022, regardless of whether the drug played a role. Of those, 11 patients developed sepsis. Most of the remaining cases involved intentional and accidental drug overdoses, suicide, homicide and ruptured ectopic pregnancies.

Baker and Thurman spoke every day that week. At first, there was only cramping, which Thurman expected. But days after she took the second pill, the pain increased and blood was soaking through more than one pad per hour. If she had lived nearby, the clinic in North Carolina would have performed a D&C for free as soon as she followed up, the executive director told ProPublica. But Thurman was four hours away.

On the evening of Aug. 18, Thurman vomited blood and passed out at home, according to 911 call logs. Her boyfriend called for an ambulance. Thurman arrived at Piedmont Henry Hospital in Stockbridge at 6:51 p.m.

ProPublica obtained the summary narrative of Thurman’s hospital stay provided to the maternal mortality review committee, as well as the group’s findings. The narrative is based on Thurman’s medical records, with identifying information removed. The committee does not interview doctors involved with the case or ask hospitals to respond to its findings. ProPublica also consulted with medical experts, including members of the committee, about the timeline of events.

Within Thurman’s first hours at the hospital, which says it is staffed at all hours with an OB who specializes in hospital care, it should have been clear that she was in danger, medical experts told ProPublica.

Her lower abdomen was tender, according to the summary. Her white blood cell count was critically high and her blood pressure perilously low — at one point, as Thurman got up to go to the bathroom, she fainted again and hit her head. Doctors noted a foul odor during a pelvic exam, and an ultrasound showed possible tissue in her uterus.

‘Acute severe sepsis’

The standard treatment of sepsis is to start antibiotics and immediately seek and remove the source of the infection. For a septic abortion, that would include removing any remaining tissue from the uterus. One of the hospital network’s own practices describes a D&C as a “fairly common, minor surgical procedure” to be used after a miscarriage to remove fetal tissue.

After assessing her at 9:38 p.m., doctors started Thurman on antibiotics and an IV drip, the summary said. The OB-GYN noted the possibility of doing a D&C the next day.

But that didn’t happen the following morning, even when an OB diagnosed “acute severe sepsis.” By 5:14 a.m., Thurman was breathing rapidly and at risk of bleeding out, according to her vital signs. Even five liters of IV fluid had not moved her blood pressure out of the danger zone. Doctors escalated the antibiotics.

Instead of performing the newly criminalized procedure, they continued to gather information and dispense medicine, the summary shows.

Doctors had Thurman tested for sexually transmitted diseases and pneumonia.

They placed her on Levophed, a powerful blood pressure support that could do nothing to treat the infection and posed a new threat: The medication can constrict blood flow so much that patients could need an amputation once stabilized.

At 6:45 a.m., Thurman’s blood pressure continued to dip, and she was taken to the intensive care unit.

At 7:14 a.m., doctors discussed initiating a D&C. But it still didn’t happen. Two hours later, lab work indicated her organs were failing, according to experts who read her vital signs.

At 12:05 p.m., more than 17 hours after Thurman had arrived, a doctor who specializes in intensive care notified the OB-GYN that her condition was deteriorating.

Thurman was finally taken to an operating room at 2 p.m.

By then, the situation was so dire that doctors started with open abdominal surgery. They found that her bowel needed to be removed, but it was too risky to operate because not enough blood was flowing to the area — a possible complication from the blood pressure medication, an expert explained to ProPublica. The OB performed the D&C but immediately continued with a hysterectomy.

‘Promise me you’ll take care of my son’

During surgery, Thurman’s heart stopped.

Her mother was praying in the waiting room when one of the doctors approached. “Come walk with me,” she said.

Until she got the call from the hospital, her mother had no idea Thurman had been pregnant. She recalled her daughter’s last words before she was wheeled into surgery — they had made no sense coming from a vibrant young woman who seemed to have her whole life ahead of her:

“Promise me you’ll take care of my son.”

There is a “good chance” providing a D&C earlier could have prevented Amber Thurman’s death, the maternal mortality review committee concluded.

Every state has a committee of experts who meet regularly to examine deaths that occurred during or within a year after a pregnancy. Their goal is to collect accurate data and identify the root causes of America’s increasing maternal mortality rate, then translate those lessons into policy changes. Their findings and recommendations are sent to the Centers for Disease Control and Prevention, and their states publish an annual report, but their reviews of individual cases are never public.

Georgia’s committee has 32 regular members from a variety of backgrounds, including OB-GYNs, cardiologists, mental health care providers, a medical examiner, health policy experts, community advocates and others. This summer, the committee reviewed deaths through Fall 2022, but most states have not gotten that far.

After reviewing Thurman’s case, the committee highlighted Piedmont’s “lack of policies/procedures in place to evacuate uterus immediately” and recommended all hospitals implement policies “to treat a septic abortion on an ongoing basis.”

It is not clear from the records available why doctors waited to provide a D&C to Thurman, though the summary report shows they discussed the procedure at least twice in the hours before they finally did.

Piedmont did not have a policy to guide doctors on how to interpret the state abortion ban when Thurman arrived for care, according to two people with knowledge of internal conversations who were not authorized to speak publicly. In the months after she died, an internal task force of providers there created policies to educate staff on how to navigate the law, though they are not able to give legal advice, the sources said.

In interviews with more than three dozen OB-GYNs in states that outlawed abortion, ProPublica learned how difficult it is to interpret the vague and conflicting language in bans’ medical exceptions — especially, the doctors said, when their judgment could be called into question under the threat of prison time.

Take the language in Georgia’s supposed lifesaving exceptions.

It prohibits doctors from using any instrument “with the purpose of terminating a pregnancy.” While removing fetal tissue is not terminating a pregnancy, medically speaking, the law only specifies it’s not considered an abortion to remove “a dead unborn child” that resulted from a “spontaneous abortion” defined as “naturally occurring” from a miscarriage or a stillbirth.

Thurman had told doctors her miscarriage was not spontaneous — it was the result of taking pills to terminate her pregnancy.

There is also an exception, included in most bans, to allow abortions “necessary in order to prevent the death of the pregnant woman or the substantial and irreversible physical impairment of a major bodily function.” There is no standard protocol for how providers should interpret such language, doctors said. How can they be sure a jury with no medical experience would agree that intervening was “necessary”?

ProPublica asked the governor’s office on Friday to respond to cases of denied care, including the two abortion-related deaths, and whether its exceptions were adequate. Spokesperson Garrison Douglas said they were clear and gave doctors the power to act in medical emergencies. He returned to the state’s previous argument, describing ProPublica’s reporting as a “fear-mongering campaign.”

Republican officials across the country have largely rejected calls to provide guidance.

When legislators have tried, anti-abortion groups have blocked them.

Possibility of prosecution looms over physicians

In 2023, a group of Tennessee Republicans was unable to push through a small change to the state’s abortion ban, intended to give doctors greater leeway when intervening for patients facing health complications.

“No one wants to tell their spouse, child or loved one that their life is not important in a medical emergency as you watch them die when they could have been saved,” said Republican Rep. Esther Helton-Haynes, a nurse who sponsored the bill.

The state’s main anti-abortion lobbyist, Will Brewer, vigorously opposed the change. Some pregnancy complications “work themselves out,” he told a panel of lawmakers. Doctors should be required to “pause and wait this out and see how it goes.”

At some hospitals, doctors are doing just that. Doctors told ProPublica they have seen colleagues disregard the standard of care when their patients are at risk of infection and wait to see if a miscarriage completes naturally before offering a D&C.

Although no doctor has been prosecuted for violating abortion bans, the possibility looms over every case, they said, particularly outside of well-funded academic institutions that have lawyers promising criminal defense.

Doctors in public hospitals and those outside of major metro areas told ProPublica that they are often left scrambling to figure out on a case-by-case basis when they are allowed to provide D&Cs and other abortion procedures. Many fear they are taking on all of the risk alone and would not be backed up by their hospitals if a prosecutor charged them with a crime. At Catholic hospitals, they typically have to transfer patients elsewhere for care.

When they do try to provide care, it can be a challenge to find other medical staff to participate. A D&C requires an anesthesiologist, nurses, attending physicians and others. Doctors said peers have refused to participate because of their personal views or their fear of being exposed to criminal charges. Georgia law allows medical staff to refuse to participate in abortions.

Thurman’s family members may never learn the exact variables that went into doctors’ calculations. The hospital has not fulfilled their request for her full medical record. There was no autopsy.

For years, all Thurman’s family had was a death certificate that said she died of “septic shock” and “retained products of conception” — a rare description that had previously only appeared once in Georgia death records over the last 15 years, ProPublica found. The family learned Thurman’s case had been reviewed and deemed preventable from ProPublica’s reporting.

The sting of Thurman’s death remains extremely raw to her loved ones, who feel her absence most deeply as they watch her son grow taller and lose teeth and start school years without her.

They focus on surrounding him with love but know nothing can replace his mother.

On Monday, she would have turned 31.

EMW Women's Surgical Center before it closed. (Photo by Deborah Yetter)

Franklin Circuit Judge Phillip Shepherd has scheduled a hearing Sept. 27 on whether to unseal a case that appears to involve efforts by the Kentucky attorney general’s office to subpoena employment records of two University of Louisville physicians who previously provided abortion services at a private clinic in Louisville.

Shepherd’s order Thursday comes a month after the Kentucky Court of Appeals rejected the attorney general’s efforts to obtain the employment records through a grand jury subpoena, calling it a “fishing expedition.”

Kentucky appeals court rejects AG’s efforts to get employment records in abortion case

While the appeals court identified the plaintiffs only by pseudonyms Jane Doe 1 and Jane Doe 2, and the employer as John Roe, the Kentucky Lantern, citing sources with knowledge of the case, reported Aug. 9 that the case involved two U of L physicians, and their part-time employer, EMW Women’s Surgical Center, where the physicians provided abortion care and trained medical residents.

Parties have not commented on the details of the case, which remains sealed.

Abortion services have been largely banned in Kentucky under state law since the U.S. Supreme Court in 2022 overturned the 1973 landmark Roe v. Wade decision which had established abortion as a constitutional right. Kentucky law now permits abortion only to save the life of a patient or prevent disabling injury.

Shepherd’s order Thursday said secrecy prevented the press or public from getting involved in the proceedings because “they had no knowledge of the pendency of the case.”

“Members of the public or press who might have objected to the sealing of the record had no notice or opportunity to be heard … nor was any party who might have objected to the sealing of the record able to participate in the appeal,” he said.

Shepherd has directed that any party, including the press or public, who wants to intervene in the case or be heard over the matter of keeping the record sealed, file a motion with the court by Sept. 20.

“The Kentucky Supreme Court has held that the public and the press have a right to be heard in connection with any decision to close judicial proceedings,” his order said.

The dispute arose last year under former Attorney General Daniel Cameron, an anti-abortion Republican, who sought a subpoena for employment records of Jane Doe 1 and 2. The effort followed a call from some Republican legislators for an investigation into whether the public salaries of the doctors, on the faculty at U of L medical school, overlapped with any payments they received for their work at EMW.

But the clinic and the doctors went to Franklin Circuit Court to quash the subpoenas as improper, initially asking the case be sealed to protect their privacy. Cameron’s office also asked that it be sealed to protect the secrecy of the investigation.

The judge agreed to quash, or reject the subpoenas, but the attorney general appealed the decision and also asked the appeals court to order that the case remain sealed while an appeal was pending.

Shepherd’s order notes that the parties — Jane Does 1 & 2 and the employer — took no position on whether the records should remain sealed at that point.

Meanwhile, Cameron left office? at the end of 2023 and Republican Russell Coleman took over as attorney general in 2024, taking over the case.

On Aug. 9, the appeals court rejected the attorney general’s efforts to obtain the employment records of the two Jane Does with a subpoena, saying it was outside the scope of his office.

It also sent the case back to Shepherd to determine whether the case should now be unsealed, which he will take up at the hearing Sept. 27.

U.S. House Democrats introduced a resolution Thursday, Sept. 12, 2024, that would clarify when health care providers can use abortion as emergency medical care. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON —? U.S. House Democrats introduced a resolution Thursday that would clarify when health care providers can use abortion as emergency medical care amid a patchwork of state laws that have led to dozens of stories of women being turned away from emergency departments when experiencing complications or miscarriages.

The two-page resolution would express “the sense of the House of Representatives” that abortion is a form of stabilizing care under the Emergency Medical Treatment and Active Labor Act, a law from the 1980s.

“Since the overturn of Roe v Wade, more than two years ago, we’ve heard horrifying stories of pregnant women being turned away from emergency rooms or unable to receive the life-saving care that they need due to cruel state abortion bans, even though the federal Emergency Medical Treatment and Labor Act, also known as EMTALA, requires emergency rooms to treat and stabilize pregnant patients,” Ohio Democratic Rep. Emilia Sykes said during a press conference just outside the U.S. Capitol.

The resolution, Sykes said, would clarify that women have access to the full slate of reproductive health care “in a life or death situation.”

New Jersey’s Mikie Sherrill cited analysis from The Associated Press that more than 100 women have been turned away from emergency departments or negligently treated while experiencing pregnancy distress since 2022.

“It’s an outrage,” Sherrill said. “Lives are at risk. And despite clear federal law and additional guidance from the Biden administration, states across the country are refusing to treat pregnant women in emergencies.”

The resolution wouldn’t actually change the language of EMTALA or enact any new laws, but would express “the sense of the House of Representatives that every person has the basic right to emergency health care, including abortion care.”

The Biden administration issued a public letter two years ago, after the U.S. Supreme Court overturned the constitutional right to an abortion, that EMTALA protected doctors and qualified health care professionals who perform abortions to preserve the health of a pregnant patient or save a patient’s life.

U.S. Health and Human Services Secretary Xavier Becerra wrote at the time that “no matter where you live, women have the right to emergency care — including abortion care.”

That interpretation of EMTALA was challenged by numerous Republican states, eventually reaching the U.S. Supreme Court this year.

The justices, however, decided in June to send the case back to the 9th Circuit Court of Appeals, writing that the high court took the case too early and should have waited until after the lower court had heard the case and issued its ruling.

The appeals court is scheduled to hear oral arguments in the case in early December.

House Democratic Whip Katherine Clark said during the press conference the resolution is necessary to ensure women in states with bans or significant restrictions on abortion can consider all their options with their doctor when their life or health is at risk.

“We’re here because emergency health care is a legal right and a moral obligation,” Clark said. “This is a straightforward resolution. For Democrats, it’s common sense.”

Doctors are dealing with 'moral distress' as they try to determine care for pregnant patients in states with abortion ban, particularly those facing medical emergencies, according to the Care Post Roe study led by Dr. Daniel Grossman at the University of California San Francisco. (Kieferpix/Getty Images)

In the two years since the U.S. Supreme Court started allowing states — what has become almost half of the country — to ban all or most abortions, doctors continue to report that these laws have detrimentally changed their jobs and the quality of care they can provide pregnant patients.

A research team led by Dr. Daniel Grossman at the University of California San Francisco has been studying the impacts on medical care of the Dobbs v. Jackson Women’s Health Organization decision that overturned the federal right to abortion under Roe v. Wade. On Monday they released their latest Care Post Roe findings. Having grown from 50 to 86 submissions since the preliminary findings were released in May 2023, the survey details medical situations gone wrong because of legal concerns over a state’s abortion ban.

When Grossman — a clinical and public health researcher who specializes in abortion and contraception — talked to States Newsroom last year about the early findings, he emphasized the patient fear palpable in the narratives of their doctors. They told stories about women traveling outside their ban states just to check if they could be pregnant, or during a medical emergency. But as more submissions continue to flow in, Grossman recently said he’s struck by the distress coming from the medical community.

“One thing that was notable in some of these more recent submissions,” Grossman told States Newsroom, “is how moral distress is being incorporated into medical education, like medical students and residents are essentially now learning about the moral distress as part of their medical education, as they’re learning about the care that they can’t provide.”

The Care Post Roe study details 86 submissions received between September 2022 and August 2024 from health professionals recounting cases involving patients from 19 states that, during the study’s time frame, fully or partly banned abortion. Participants described cases that “deviated from the usual standard” of care because of a state abortion ban, some that resulted in preventable complications like severe infections or the placenta growing too deep into the patient’s uterine wall. The participants were directed not to give details that could identify themselves or their patients.

Grossman said the study was designed this way to protect the identity of health providers and patients, many of whom currently fear prosecution for their medical decisions. Researchers also conducted optional in-depth interviews with more than 30 of the participants, but those findings were not included in Monday’s report.

The majority of submissions so far have come from Texas, Grossman said, the largest of the states and where abortion has been illegal the longest. According to the study, the narratives represent a range of different ages, income levels and racial and ethnic backgrounds, though a high proportion are Black and Latinx. Submissions were also reviewed by two physicians and were rejected if they did not contain information about a specific case or did not relate to a change in care since the Dobbs ruling.

Grossman said the study is limited in size and scope and doesn’t say how common these medical situations are or how they will trend over time. But he said the stories are consistent with ongoing news reports and lawsuits wherein doctors and patients describe denying and being denied care because of abortion bans. He said the study, which includes excerpts from health providers’ narratives, serves as a qualitative representation of the types of medical emergencies that doctors all over the country have been reporting.

The submissions were organized into several categories, including:

Second-trimester obstetric complications

The most common type of reported scenario involving second-trimester complications is the preterm prelabor rupture of membranes (PPROM). A doctor described treating a patient who had ruptured membranes at 16-18 weeks’ gestation but instead of being offered an abortion procedure or an induction termination, she had been sent home, where she had developed a severe infection.

“I meet her 2 days later in the ICU. She was admitted from the ER with severe sepsis…and bacteremia. Her fetus delivers; she is able to hold [the fetus]. We try every medical protocol we can find to help her placenta deliver; none are successful,” the physician writes. “The anesthesiologist cries on the phone when discussing the case with me — if the patient needs to be intubated, no one thinks she will make it out of the OR. I do a D&C.”

Ectopic pregnancies

Ectopic pregnancies occur when a fertilized egg implants outside the uterus. They are medical emergencies, but study participants reported cases of ectopic pregnancy requiring extra steps, such as consulting multiple physicians, as well as patients delaying care because they were too scared to be seen in their home states where abortion is banned.

“If [the patient] had seen [a] provider in [her home state] when bleeding started,” one doctor wrote, “she would have had the ectopic diagnosed about 6 weeks earlier, potentially eligible for [methotrexate] and therefore potentially avoided surgery, and even if [she] needed surgery [it] would have been at home with her family and support. Instead [she] had to… recover alone in a hotel room in a random state she had never been to before.”

Underlying medical conditions?

Some physicians described cases where patients had underlying medical conditions that complicated their pregnancies. In some cases, patients were delayed or denied treatment, worsening their conditions.

“She was mid-second trimester [16-18 weeks] when she presented. She has [more than 5] children at home and had severe postpartum cardiomyopathy when she gave birth a year ago, which has persisted,” a doctor wrote. “The risk of her dying from childbirth would have been extremely high — but she was unable to find anyone in her state willing to do the procedure.”

Miscarriage

Respondents also reported challenges with miscarriage management in states with abortion bans.

“The pharmacy refused to fill the medication until they had confirmation of its use but was unable to list what that confirmation needed to include,” one clinician wrote. “The back and forth delayed the care and ultimately the client could no longer face attempting to pick up the medication and decided to utilize expectant management [i.e. waiting for the tissue to pass naturally] due to the trauma of being refused her prescribed treatment.”

Fetal anomalies

Several submitted narratives involved patients whose pregnancies were complicated by fetal anomalies, many of which were described as being incompatible with neonatal life, though termination was not possible in their state.

“Due to the anencephaly, as soon as the umbilical cord was cut, the pink skin of the baby rapidly progressed to navy, only for the baby to be completely dark navy by the time they were wrapped in a blanket and handed to the mom,” a medical student physician wrote. “The patient was letting out a loud scream throughout the labor due to the sheer pain of giving birth, but the scream and wailing she let out once she saw the baby was soul-crushing.”

Denied other types of medical care?

One of the more shocking examples for Grossman involved a patient with a postpartum hemorrhage who needed a common procedure known as dilation and curettage, or D&C, which is used for abortions, miscarriages and sometimes to empty the uterus after the baby has been born. But according to the narrative submitted, a patient had been told by the labor and delivery staff that “D&Cs were now illegal for any reason.”

In another case, an abortion ban allegedly led to the cancellation of a patient’s liver transplant.

“Patient with… [an intrauterine device (IUD)] in place came in for liver transplant after there was a donor match found,” the physician wrote. “On routine pre-surgical testing she had a positive urine pregnancy test, and her bHCG quant was in the 1000s. Her transplant was cancelled because of her positive pregnancy test despite it being an undesired, very early pregnancy.”

Carceral system

Three submissions highlighted how patients in detention, awaiting trial, or on parole faced additional obstacles obtaining an abortion in states with bans.

“Asked for permission to leave her county (and state) to receive abortion care and was told NO,” a physician wrote. “Patient left the state for abortion care anyway. Given 24-hour waiting period in [state with legal abortion] and need for a 2-day procedure, was away for 3 days (2 separate trips). She also refused any sedation because she needed to be drug tested and couldn’t admit to leaving the state for a procedure.”

Researchers predict more poor-quality care if EMTALA ruled to exclude abortion care

“It is notable that the narratives reported here describing delayed and denied care have occurred with EMTALA still intact and hospitals required to provide emergency abortion care,” the study’s authors write, referring to the federal Emergency Medical Treatment and Labor Act, which the federal government has stipulated includes emergency abortion care, and which states with abortion bans have sued over. The U.S. Supreme Court this summer declined to rule on Idaho’s lawsuit challenging the federal requirements, allowing doctors to provide emergency abortions while litigation continues.

“Although it is difficult to assess from the narratives, some … may have been EMTALA violations since stabilizing care was not provided,” the researchers write. “Other cases, such as those where the patient was admitted to a hospital for observation or those involving a patient pregnant with a fetus with an anomaly incompatible with life, are likely not EMTALA violations. Regardless, we anticipate these cases of poor-quality care would become even more common if the Supreme Court were to rule that EMTALA does not apply to emergency abortion care.”

Overall, participants reported that their patients suffered emotionally and financially, sometimes even insured patients having to pay out of pocket for medical care because it was in another state. Grossman also noted that affected patients could face long-term physical and mental-health consequences because of the medical care they did or did not receive.

“When we came out with our first report, maybe I was a little bit more optimistic and thought that perhaps this information could be used to help streamline care, reduce these delays, and identify workarounds,” Grossman said. “And perhaps that has happened in some places, but I think it’s really clear now, more than two years out, that those kinds of fixes or Band-Aids on a bad policy just aren’t going to work, and that really it’s not possible to provide evidence-based care in these states. These bans need to be repealed.”

Effective Oct. 1, misoprostol, used to treat post-delivery hemorrhages, will become a Schedule IV controlled dangerous substance in Louisiana under a new law. The designation means the medicine will have to be securely stored, raising concerns among doctors who say they rely on immediate access to the medication in life-threatening situations. (Photo illustration by Anna Moneymaker/Getty Images)

Louisiana doctors say they still have plenty of questions about how they will be able to access a lifesaving drug once it’s placed under restricted access starting next month — even after state health officials provided them with new guidance on the law.

On Friday afternoon, the Louisiana Department of Health released a memo with instructions to doctors about how they can use misoprostol in hospitals. Misoprostol has long been one of the go-to options for women who experience excessive bleeding after delivery.

The new law was intended to curtail the use of misoprostol and mifepristone for medical abortions, although they are also used to treat other conditions such as ulcers or some pituitary disorders, respectively. Misoprostol, in particular, is used quite frequently by OB-GYNs to soften the cervix for endometrial biopsies, to induce labor or to insert an intrauterine device.

The health department’s outreach to physicians followed a Louisiana Illuminator report that details “confusion and angst” among health care providers over a new law that reclassifies the misoprostol and mifepristone as controlled dangerous substances. It goes into effect Oct. 1, and doctors have expressed concern that the changes will lead to the vital drug being pulled from postpartum hemorrhage carts.

So far, the LDH memo has done little to reassure the medical community.

It’s “not at all” helpful, said a New Orleans OB-GYN who spoke on the condition of anonymity because she hadn’t received clearance from her hospital to speak to a reporter.

“Whoever wrote this has not spent time on a labor unit,” she said. “This gives no actual guidance to the people who are trying to revise the protocols because it doesn’t actually tell me how to keep track of the drugs on the carts, how often to count them, what to do if we need them, etc.”

The memo tells doctors that mifepristone and misoprostol “may be utilized” to treat postpartum hemorrhage — even though mifepristone is not used for hemorrhaging. The two drugs can be used together for medical abortions but are not interchangeable for other indications.

Doctors grapple with how to save women’s lives amid ‘confusion and angst’ over new Louisiana law

Setting that error aside, doctors’ main concern with the new law is delays in having access to misoprostol because it would have to be stored as a controlled substance. Any holdup in administering the medicine when a patient is bleeding profusely could significantly worsen outcomes.

“Saying that it’s permissible to have them available is actually kind of offensive — we know that,” the New Orleans-based OB-GYN said. She added that it’s also confusing that LDH uses the term “crash cart” because it could be confused for a maternal code blue cart, which is completely distinct and is not related to postpartum hemorrhage medication.

“We were hoping for more guidance on how to have miso available at the bedside because no other controlled substances can ‘float around’ in the hospital like that,” the OB-GYN said. “We were hoping to have guidance on what diagnosis codes are required in order to fill a prescription [for misoprostol] based on the document from the Louisiana Board of Pharmacy that was released this summer.”

‘Unlikely to be a viable solution‘

The state’s board of pharmacy referred to the law in its July newsletter, explaining that the reclassification is part of a law that created the crime of coerced abortion, when a pregnant woman is drugged with abortion medication without her consent.

“A diagnosis or a diagnosis code shall be written on the prescription by the prescriber indicating that the drug is intended for a purpose other than to cause an abortion in violation of this Section of law,” the newsletter states.

Dr. Jennifer Avegno, health director for the City of New Orleans, received a copy of the memo from LDH after speaking to a reporter. She said she doesn’t know how the information will be shared with doctors across Louisiana.

The state health department has two main ways to communicate quickly with providers when they need to, Avegno said. One is a Health Alert Network message that immediately alerts physicians. Another is through the Louisiana State Board of Medical Examiners, which has a database of all licensed physicians in the state. Neither has been used thus far to her knowledge.

The new law requires the state to educate health care providers on how the reclassification of the two drugs will affect their treatment protocols.

“It’s not helpful,” Dr. Stacey Holman, division director at Touro’s maternal child services, said after reviewing the document.

Secure storage not practical

The memo suggests securing misoprostol and mifepristone, the latter of which is not used for postpartum hemorrhages, in a secured automated dispensing system. Holman said these very large machines are not housed inside patient rooms.

“This still creates a delay for a patient who needs the drug urgently as many of the patient rooms are not close to these systems,” she said.

The LDH’s suggestion that scheduled drugs be stored in a locked area of an obstetric hemorrhage cart “may be good in theory.”

“But to do this safely, in accordance with the additional rules now imposed for these drugs, an oversight process requiring more extensive record keeping and pharmacy manpower will be required,” Holman said. “This is unlikely to be a viable solution for most hospitals, especially those in critical access areas.”

After being contacted by a reporter, a family medicine OB practicing at a rural Louisiana hospital reviewed the letter. She asked not to be identified because she wasn’t authorized to speak on the hospital’s behalf.

“That’s all so confusing,” she said. “I don’t even understand most of that document. Nothing is made clear really. What is a secure area?”

She referred to an auto-dispensing system, which in her hospital is called a Pyxis, and said it is an extremely expensive piece of equipment. It wouldn’t be economically feasible to have multiple Pyxis machines on a hospital floor, she said.

“We cannot afford hospital beds with proper stirrups or to even have lidocaine always available,” she said. Her hospital currently uses what she called a “bleed box” — a small plastic box shut with zip ties.

The rural doctor added that her department’s Pyxis is down the hall from the delivery unit in a locked room. The machine won’t open without an order verified by a pharmacy. On nights and weekends, her hospital has to call out to a remote pharmacy.

“Even an in-house pharmacy would take more time, when a lady is gushing liters of blood,” she said. “I often get covered in it.”

Avegno said she hopes more guidance is coming from LDH. She was among 50 doctors who signed an Aug. 22 letter to the department requesting more information on the new law, which Gov. Jeff Landry signed in May.

“They addressed some of the questions that we raised in our letter, but they did not address others,” said Avegno, an emergency room physician. “We asked for specific guidance on prescriptions … in order to make sure that it complied with the act and had the highest chance of being filled for a medically necessary use — and they did not address that at all.

Harris campaign reacts to Louisiana hospitals pulling life-saving drug from post-delivery access

“They appear to address some of the issue of inpatient access, but I am checking with some pharmacy colleagues to see if some of the things that they suggest can happen readily or are going to require a lot of work on each individual hospital’s part.”

Touro’s Holman said she would also like more guidance.

“Creating policies and procedures to explain this could take weeks to months to write and approve,” Holman said. “We have 23 days to figure this out. Just 23 days to test and implement solutions as well as educate physicians on how we are going to continue to provide safe care for our OB patients.”

Pressure on LDH to provide guidance increased this week after the Illuminator’s report, which prompted a statement from Vice President Kamala Harris’ campaign, blaming former President Donald Trump for Louisiana’s law further restricting access to reproductive health care.

“Because of Trump, doctors are scrambling to find solutions to save their patients and are left at the whims of politicians who think they know better,” Harris-Walz spokeswoman Sarafina Chitika said.
This story is republished from the Louisiana Illuminator, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

Ohioans United for Reproductive Rights field staff member Carlos Ortiz delivered boxes of petitions to the secretary of state’s office in Columbus on July 5, 2023. Advocates behind abortion initiatives often look to votes in Kansas and Ohio as harbingers of success. (Graham Stokes/Ohio Capital Journal)

After abortion rights were upended federally in June 2022, Kansas voters got a chance to weigh in on a ballot measure that was something of a test balloon just a couple of months later. Defying expectations, nearly 60% of voters rejected an anti-abortion constitutional amendment.

Since then, voters in states with both conservative- and liberal-leaning electorates have either rejected abortion restrictions or secured the right to an abortion. The majority of these successful campaigns were spearheaded by coalitions of doctors, advocates and everyday people who disagreed with the Supreme Court’s decision to upend federal abortion rights.

The issue was on the ballot in five states in November 2022. Americans in California, Michigan and Vermont enshrined the right to a host of reproductive health care services into their state constitutions during the midterms, while voters in Montana defeated a measure containing anti-abortion rhetoric and Kentucky voters soundly rejected an amendment seeking to declare that nothing in the state constitution guaranteed abortion rights.

Then, last year, faced with a Republican trifecta in state government where many lawmakers harbored anti-abortion positions, Ohio reproductive rights advocates took matters in their own hands and launched an effort to codify the right to abortion, contraception, fertility treatments, miscarriage management and pregnancy care.

Despite roadblocks thrown up by GOP officials who tried to increase the threshold for an amendment to be added to the Ohio Constitution, Issue 1 succeeded in November. Nearly 57% of Buckeye State voters cast ballots in favor of reproductive rights.

Elected officials elsewhere are playing a role in thwarting abortion ballot petitions, too. Missouri’s attorney general tried to push the state auditor to inflate the estimated cost of an initiative, and the secretary of state offered up ballot summaries that judges dismissed as partisan last year. (Abortion-rights proponents are suing again over the same issue, Missouri Independent reported.)

In Arkansas, Republican Secretary of State John Thurston refused to count all of the signatures for an abortion-rights ballot petition, citing technical paperwork errors, according to Arkansas Advocate. After a five-week legal battle — on the day of the deadline for Thurston to distribute certified ballots to counties — the state Supreme Court affirmed his position. Arkansans for Limited Government, the group behind the ballot measure, said the justices’ recent 4-3 ruling silenced more than 102,000 people who signed on to the effort, the Advocate reported.

Another strategy being deployed by opponents: “decline-to-sign” campaigns popped up in Arkansas, Arizona, Missouri and South Dakota.

Democrats have pledged to restore the right to an abortion nationally if they retain the White House and gain seats in Congress in the coming election, and Republican leaders have said they don’t support a national ban.

Still, as things stand today, 10 states have confirmed abortion-rights questions for Nov. 5 ballots. Lawsuits to invalidate them are pending across the nation.

Arizona?

Abortion is illegal after 15 weeks in Arizona, unless the patient’s life is at risk. There are no exceptions for rape, incest or genetic abnormalities.

Proposition 139 will ask voters if they want to allow abortion up to fetal viability with exceptions later in pregnancy for the patient’s life, or physical or mental health. The amendment would also prevent any penalties for someone who helps a person get an abortion. Arizona for Abortion Access is behind the initiative.

Colorado

Abortion is legal throughout pregnancy in Colorado, but the state enacted a ban on public funds being used for abortions in 1984. Government employees’ insurance does not cover abortion care.

Initiative 89, titled “Right to Abortion,” could effectively repeal that 40-year-old coverage ban if 55% of voters approve the amendment. Coloradans for Protecting Reproductive Freedom is leading the effort.

Florida?

Abortion is illegal after six weeks in Florida with exceptions for rape, incest and to save the patient’s life.

Amendment 4 would bar government interference in abortion access before fetal viability or when a provider deems the procedure necessary to save a person’s health. Sixty percent of voters have to approve the measure, which wouldn’t remove the parental notification requirement for minors seeking abortions. Floridians Protecting Freedom is behind the campaign.

Maryland?

In March 2023, the Democratic-controlled Legislature voted in favor of a referendum that put the “Right to Reproductive Freedom Act” before voters this fall. Abortion is broadly legal in Maryland.

Question 1 would reify the right to “reproductive freedom,” including the right to make “decisions to prevent, continue, or end” a pregnancy. The proposed amendment would also prevent the state from interfering in the right for the most part.

Missouri?

Abortion is only permitted in Missouri for medical emergencies. Restrictions on clinics and providers hindered access in the state before the Dobbs decision, Missouri Independent reported.

Amendment 3, if approved by a simple majority, would legalize abortion up to fetal viability with exceptions later in pregnancy to protect the life or physical or mental health of a pregnant person. It also states patients and providers cannot be prosecuted for abortion. Missourians for Constitutional Freedom is the political action committee behind the initiative.

Montana?

A 1999 Montana Supreme Court ruling solidified abortion access based on the state’s constitutional right to privacy, and a 2023 decision reaffirmed the precedent, while also ruling that advanced practice nurses can provide abortions. Still, the Republican-controlled legislature advanced abortion restrictions, which are largely blocked by the courts, Daily Montanan reported.

CI-128 asks voters to further enshrine into the state’s constitution the right to make decisions about one’s pregnancy, including abortion up to fetal viability, without government regulation. The amendment would include exceptions later in pregnancy to protect the life or health of the patients, as determined by providers. Montanans Securing Reproductive Rights headed the ballot effort.

Nebraska?

A 12-week abortion ban was enacted last year. Protect Our Rights launched a campaign in November for an amendment that would expand access up to viability, as determined by a provider, with later exceptions for a mother’s health.

Protect Women and Children announced a counter-effort in the spring for a competing constitutional amendment that would ban abortions after the first trimester (12-14 weeks), with later exceptions for rape, incest or the life of a mother. It would allow the legislature to pass stricter bans in the future.

If both questions make it to the ballot and both are approved by voters, the one with the most votes wins, Nebraska Examiner reported.

Nevada?

In 1990, Nevada voters secured the right to an abortion through 24 weeks of pregnancy, or later if the mother’s life is at risk. Question 6 will ask voters to ensure similar rights constitutionally — making them harder for lawmakers to modify. If passed, this amendment would protect abortion access up to fetal viability, or later to protect the life or health of the patient, Nevada Current reported.

The coalition Nevadans for Reproductive Freedom is behind the proposal, which will have to be approved twice — once this year and again in 2026.

New York

Abortion is legal in New York up to 24 weeks of pregnancy, and abortions after that point must be approved by providers who decide whether a fetus is viable, or if a patient’s life or health is at risk.

Proposal 1, a legislatively referred referendum, asks voters if they want to add an equal rights amendment to the constitution. If approved, it would bar discrimination based on sex, including “pregnancy, pregnancy outcomes and reproductive health care and autonomy.” Supporters say this would add protection for the right to an abortion.

South Dakota?

Abortion is banned in South Dakota unless it’s necessary to save a patient’s life. Dakotans for Health led an effort to expand access.

Amendment G asks voters whether to ban legislators from regulating abortion until the end of the first trimester, allow regulations during the second trimester “in ways that are reasonably related to the physical health of the pregnant woman” and let the state prohibit abortion in the third trimester unless the procedure is necessary to save the life or health of a pregnant patient.

Vice presidential candidate Minnesota Gov. Tim Walz celebrates with his daughter Hope, son Gus and wife Gwen at Democratic National Convention on Wednesday, Aug. 21, in Chicago. The Walzes clarified this week that they didn’t use IVF but another kind of fertility treatment to grow their family. (Justin Sullivan/Getty Images)

The broader scope of fertility treatments entered the spotlight this week after Minnesota Gov. Tim Walz and his wife Gwen shared that they had children through a less commonly known procedure.

Since Vice President Kamala Harris selected Gov. Walz as her running mate, he has discussed his family’s fertility journey during speeches in Pennsylvania, Nebraska and mostly recently at the Democratic National Convention in Chicago, Illinois.

“It took Gwen and I years,” Walz said on Wednesday night. “But we had access to fertility treatments. And when our daughter was born, we named her Hope.”

This week, the Walzes clarified that they conceived via intrauterine insemination, not in vitro fertilization.

IUI involves injecting sperm into the uterus during or just before ovulation to increase the chances of fertilization and pregnancy.

“Our fertility journey was an incredibly personal and difficult experience. Like so many who have experienced these challenges, we kept it largely to ourselves at the time — not even sharing the details with our wonderful and close family,” Gwen Walz said in a statement provided to States Newsroom. “The only person who knew in detail what we were going through was our next door neighbor. She was a nurse and helped me with the shots I needed as part of the IUI process.”

During IVF, eggs and sperm are combined in a lab and an embryo is inserted into the uterus. IVF has been drawn into national reproductive rights debates for much of this year, and Walz has been talking about it on the campaign trail while discussing his family’s fertility journey.

U.S. Ohio Sen. J.D. Vance, the Republican vice presidential candidate, accused his opponent of lying about how he and his wife had children. In an Aug. 20 social media post, Vance said, “Today it came out that Tim Walz had lied about having a family via IVF. Who lies about something like that?” He also shared a clip of Walz talking about fertility care and families on Aug. 9.

In a statement, Harris-Walz campaign spokesperson Mia Ehrenberg said, “Governor Walz talks how normal people talk. He was using commonly understood shorthand for fertility treatments.”

Experts said that patients commonly get IUI and IVF confused or refer to them interchangeably, given that in vitro fertilization is more popular.

“There’s such a huge sort of alphabet soup that comes along with assisted reproduction,” said Kimberly Mutcherson, a professor at Rutgers University-Camden who specializes in reproductive justice, bioethics, and family and health law.

Dr. Kelly Acharya, a fertility physician and assistant professor of obstetrics and gynecology at Duke University, said patients’ partners are more likely to mix up the two treatments or rope related procedures into IVF.

“A lot of times in my line of work, I see people that are referring to other things, like egg freezing, they call that IVF, even though technically it’s not,” she said.

Both Acharya and Mutcherson said the main differences between IUI and IVF are where fertilization occurs, the price and effectiveness.

“Intrauterine insemination or IUI is basically less invasive. It’s typically less expensive, and it is often what is recommended as the first thing that somebody tries,” Acharya said. “When somebody has mild forms of infertility, like if there are mild differences in the semen analysis, or if somebody is young and they’re not quite sure why they’re not getting pregnant, then often a provider will recommend that they do IUI as a first step to help things along.”

IUI is performed during or near ovulation, and it typically takes 10 minutes and is a minor procedure, according to Acharya. The price of IUI varies, depending on insurance coverage, from a few hundred dollars to several thousand dollars.

Mutcherson noted that some people also confuse IUI with intracervical insemination, or ICI. During this method, the sperm is inserted into the cervix — the passageway to the uterus, according to the Carolina Fertility Institute.

Doctors often recommend ICI or IUI as a precursor to IVF, which Mutcherson said can cost $12,000 to $15,000 per cycle — or more with grading and genetic testing. During IVF, “fertilization happens outside of the body,” Acharya said.

IUI, the treatment the Walz family used to have children, is not under the same scrutiny as IVF, which has faced opposition from anti-abortion hardliners. “It sometimes is listed as being less controversial than IVF, because it’s just helping along the natural process of getting the sperm inside the uterus and then expecting fertilization to happen inside the body,” Acharya said.

But Mutcherson said that could also be attributed to the fact that it’s a less well-known procedure.

“I think the really big issue when it comes to something like artificial insemination is that it allows people to create families that a lot of these folks — unfortunately, in the Republican Party and folks who are evangelicals — don’t approve of: families with two moms, families with two dads, single women who are having children,” she said.

Price is a significant barrier to fertility care. Only 21 states require insurers to cover fertility procedures, Stateline reported. A successful birth via IVF can cost more than $60,000, according to a 2022 study published in Reproductive Biology and Endocrinology.

“It requires a lot more physically, emotionally and economically to be able to do IVF,” Mutcherson, who conceived via IUI, said.

IVF became a national reproductive rights issue in February after the Alabama Supreme Court likened frozen embryos to “unborn children” in a ruling. The plaintiffs were couples who sued for damages under an 1872 wrongful death of children law after their embryos were accidentally destroyed in a clinic four years ago, Alabama Reflector reported. Alabama’s fertility clinics temporarily closed after the ruling until Republican Gov. Kay Ivey signed legislation in March shielding providers from criminal and civil liabilities, the Reflector reported.

But there’s still uncertainty over whether embryos and fetuses in the state have legal “personhood” rights. Despite the new law, two fertility clinics in Alabama announced plans to close by the end of the year, though one denied the decision was related to the? ruling.

Since the Alabama ruling, polls have shown most Americans back IVF. A survey conducted by Pew in April found that 70% said IVF is a good thing, while 22% said they’re not sure, and 8% said it’s a bad thing. Awareness is growing, too: 42% of Americans said they or someone they know have had fertility treatments, according to a 2023 Pew poll.

Nationally, Republicans and Democrats condemned the Alabama Supreme Court’s ruling and filed bills seeking to protect IVF this spring, though all of them stalled in Congress. The Republican Party’s platform featured support for both IVF and the equal protections clause of the 14th Amendment, which conservative legal scholars argue can be used to solidify “fetal personhood” along with effectively banning abortion. And in June, the Southern Baptist Convention — the largest Protestant denomination in the U.S. — voted to condemn IVF, particularly the destruction or donation of embryos that are not implanted in the uterus.

“People who believe that life begins at conception, people who believe that an embryo is no different than a 5-year-old sitting in a kindergarten classroom, those are people who have really deep and abiding principles related to procedures like in vitro fertilization,” Mutcherson said.

The number of babies born in the U.S. using assisted reproductive technology has increased in recent years: 2.5% of newborns were conceived using fertility treatments in 2022, according to the American Society of Reproductive Medicine. That’s up from 2.3% in 2021, per federal data.

Hadley Duvall, a sexual assault survivor, speaks onstage during the first day of the Democratic National Convention at the United Center on Monday, Aug. 19, in Chicago. She appeared alongside reproductive rights advocates from states with post-Roe abortion restrictions. (Joe Raedle/Getty Images)

Most major party leaders who took the stage at the Democratic National Convention in Chicago, Illinois, mentioned that Vice President Kamala Harris would work to restore federal abortion rights if elected president.

But the most poignant remarks about the issue on the DNC’s first day came from Southern women who had traumatic pregnancies and spoke about the erosion of abortion rights since the U.S. Supreme Court overturned Roe v. Wade more than two years ago.

Kaitlyn Joshua of Louisiana, Amanda Zurawski of Texas and Hadley Duvall of Kentucky spoke at the convention on Monday night. Joshua and Zurawski were denied care for pregnancy complications in 2022. Duvall, a 22-year-old who became pregnant as a child after she was raped by her stepfather, has called for exceptions to Kentucky’s abortion ban for sexual assault survivors.

Woman in Beshear’s abortion ad says she wants to give voice to victims

“At age 12, I took my first pregnancy test, and it was positive,” Duvall told the DNC crowd. “That was the first time I was ever told, ‘You have options.’ I can’t imagine not having a choice, but today, that’s the reality for many women and girls across the country because of Donald Trump’s abortion bans.”

Trump, the Republican presidential candidate, nominated three of the Supreme Court justices who voted to overturn Roe v. Wade during his first term as president.

Joshua spoke about being denied miscarriage treatment when she was pregnant with her second child. “Two emergency rooms sent me away. Because of Louisiana’s abortion ban, no one would confirm that I was miscarrying,” she said.

Appearing alongside her husband, Zurawski said delayed pregnancy care threatened her life. “Every time I share our story, my heart breaks for the baby girl we wanted so desperately, for the doctors and nurses who couldn’t help me deliver safely, for Josh who feared he’d lose me too,” she said.

All three women have campaigned in battleground states such as Florida, Michigan and Wisconsin this year for Harris, the Democratic Party’s presidential nominee, and President Joe Biden before he suspended his reelection bid. Like Biden, Harris has pledged to sign legislation codifying the federal right to an abortion if she’s elected and if Congress passes such a bill.

“Our daughters deserve better. America deserves better,” Joshua said.

During a campaign stop in Florida last week, she told the story of how she was 11 weeks pregnant when she drove herself to an emergency room in Baton Rouge after experiencing heavy bleeding, Florida Phoenix reported. Providers said her fetus stopped growing but sent her home and said they would pray for her. Joshua went to a different hospital after her bleeding worsened, but she was told to go home again until her pregnancy passed.

“I no longer feel safe being pregnant in Louisiana,” Joshua wrote in an opinion piece for Louisiana Illuminator this spring. “Not as a Black woman who received inadequate and delayed medical care while enduring a painful miscarriage because of my home state’s abortion ban.”

When Zurawski learned her state enacted its trigger law after the Dobbs v. Jackson Women’s Health Organization ruling in June 2022, she was in the intensive care unit of a hospital dealing with septic shock, according to Texas Tribune. Days earlier, she found out she had premature prelabor rupture of the membranes at 18 weeks of pregnancy. Zurawski was initially denied an abortion — her fetus had cardiac activity — until she went into sepsis.

“What I went through was nothing short of barbaric, and it did not need to happen,” Zurawski said in May while campaigning for Biden in Madison, Wisconsin. “It was completely avoidable. It was preventable.”

Zurawski is one of the plaintiffs who sued Texas last year asking for clarity on what type of medical emergency warrants abortion under the state’s bans. The state Supreme Court rejected the challenge in May, ruling that medical exceptions in the law were broad enough, the Tribune reported.

While Joshua and Zurawski have often traveled together in swing states to share their stories of denied care in a post-Roe United States, Duvall rose to prominence after she appeared in an ad for Kentucky Democratic Gov. Andy Beshear’s reelection campaign last year.

Duvall, who miscarried a pregnancy resulting from assault, criticized Beshear’s opponent and former Republican Attorney General Daniel Cameron for his lack of support for adding rape and incest exceptions to the state’s ban, Kentucky Lantern reported. “To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable,” she said.

She has since become a reproductive rights advocate and hit the campaign trail for national Democrats, appearing alongside Harris on MSNBC in June and in an ad for Biden last month.

“There are other survivors out there who have no options,” Duvall said Monday before introducing Beshear’s DNC speech. “And I want you to know that we see you. We hear you.”

Abortion fund directors nationwide have been raising the alarm for months about declining donations and their struggles to meet the needs of those seeking help with the financial burdens of finding abortion care, especially those who live in one of?22 states?with near-total bans or severely restrictive abortion laws. (Photo by Scott Olson/Getty Images)

Advocates for abortion access say compounding crises of abortion bans, rising economic costs and systemic health care issues are beginning to cause significant funding challenges and potential disruptions to reproductive care of all kinds.

Several people described it as a “perfect storm” of problems with the U.S. health care system, particularly post-pandemic, and the rise of abortion bans and other reproductive care restrictions in the wake of the Dobbs v. Jackson Women’s Health Organization decision in June 2022. Many individuals must now travel hundreds or thousands of miles to seek abortion care, and the consolidation of demand at a smaller number of clinics is increasing wait times, which means pregnancies progress to a more advanced stage and the costs balloon further. According to leaders of Planned Parenthood affiliates and abortion funds, there simply aren’t enough dollars right now to support the need at any level. A recent report from #WeCount showed the number of abortions nationwide started to increase in 2017 and has continued to increase post-Dobbs, with more than 102,000 abortions in January alone.

Abortion fund directors nationwide have been raising the alarm for months about declining donation revenue and their struggles to meet the needs of those seeking help with the financial burdens of finding abortion care, especially those who live in one of 22 states with near-total bans or severely restrictive abortion laws. That includes every state in the Southeast.

Planned Parenthood of Northern New England announced at the beginning of the month a projected funding shortfall of about $8.6 million over the next three years, and Planned Parenthood of Greater New York announced just a few days later that it would pause abortion care at or beyond 20 weeks because of financial struggles that began earlier this year. The National Abortion Federation runs America’s largest financial assistance program for abortion patients and said that just in the first half of this year it has partially funded more than 60,000 people’s abortions — a total of around $6 million per month — but has now had to reduce patient grants from 50% of the cost of care to 30%.

Even in areas with new abortion restrictions, such as Florida, donations have declined significantly. Stephanie Loraine Pi?eiro, executive director of Florida Access Network, said during a June press conference that the month after the Dobbs decision ended federal abortion rights, the fund received $200,000 in individual donations — but after the state supreme court decision in April 2024 reduced the state’s abortion ban from 15 gestational weeks to six weeks, the fund received just $40,000 in donations.

“That is a stark difference, and it has everything to do with donors feeling burnt out,” Loraine Pi?eiro said.

States with abortion access face hostile political winds?

Planned Parenthood Federation of America told States Newsroom it is meeting its fundraising goals, but the organization’s local health centers and regional affiliates are struggling to provide care in the current climate.

Nicole Clegg, interim CEO of Planned Parenthood of Northern New England, told States Newsroom the affiliate has always been under-resourced and under-reimbursed for the care it provides, which includes birth control, testing for sexually transmitted diseases and routine gynecological care in addition to abortion services. But now that the region, which includes Maine, Vermont and New Hampshire, is taking on more patients from states with abortion bans, it is reaching a tipping point.

“The services we provide are just not valued by the insurance industry, or Medicaid and Medicare — they have always been poorly reimbursed,” Clegg said. “Once costs really started to skyrocket, the margin we were operating with disappeared.”

According to an analysis of health care spending and costs by KFF, health spending tripled between the year 2000 and 2022, from $1.4 trillion to $4.5 trillion. The pandemic accelerated that spending, but the analysis also said the aging population of the U.S., rising rates of chronic conditions, inflation, and expansions of insurance coverage have also driven up costs.

A bill that would have provided nearly $3.4 million to Maine’s family planning centers got caught in legislative wrangling that affected many appropriations bills at the end of the session.

In New Hampshire, which allows abortions until 24 weeks of pregnancy, the affiliate had nearly secured a multi-year grant of more than $2 million total, with the support of Republican Gov. Chris Sununu. However, Clegg said that when the grant went before an executive council for final approval in 2023, the members struck it down, saying they didn’t want taxpayer dollars to fund abortions. Both led to the projected $8.6 million shortfall over the next three years.

“The executive council has become increasingly hostile to Planned Parenthood,” Clegg said.

Planned Parenthood Great Northwest, which includes northwestern states as well as Hawaii, Alaska, Indiana and Kentucky, also said it is facing financial challenges that put access to care at risk. Lisa Humes-Schulz, vice president of policy and communications for Planned Parenthood Alliance Advocates, said in a statement that the affiliate is facing the same health care cost challenges, an underfunded federal family planning program, workforce shortages and rising labor costs. Great Northwest includes Idaho, where there is a near-total abortion ban and which was at the center of a recent U.S. Supreme Court case over whether emergency room physicians could be prosecuted under the state law for providing an abortion in the case of a medical emergency. The affiliate’s clinics in Washington have seen an influx of patients from Idaho as a result of the abortion ban over the past two years, including some emergency patients that were airlifted out of Idaho.

“Unlike other safety net providers, we are trying to navigate these business challenges on top of the unprecedented political attacks focused on providers of abortion care and gender-affirming care,” Humes-Schulz said.

For Planned Parenthood of Greater New York, financial struggles have already prompted a change in care. After the state legislature failed to increase Medicaid reimbursement rates for medication abortion, the affiliate said it implemented executive pay cuts, consolidated job functions and closed small health centers to make up deficits. More than half of the patients that visit Planned Parenthood centers rely on Medicaid.

But it took another step in temporarily stopping abortions at 20 or more weeks starting Sept. 3 because it can’t afford to cover the vendor costs for anesthesia. Only one Planned Parenthood location in New York City will offer deep sedation and abortions at 20 or more weeks for now.

‘Unprecedented is not even the word anymore’

The struggles also extend to organizations that provide more basic infrastructure for abortion clinics, such as the Abortion Care Network, which started a campaign called Keep Our Clinics to raise funds for independent abortion clinics. Independent clinics make up 55% of abortion providers, according to the network, while Planned Parenthood comprises 41%, and the remaining 4% occur at physicians’ offices and hospitals. The vast majority of clinics offering abortion care after 22 weeks — about 86% — are also independent.

Erin Grant, co-executive director of the Abortion Care Network, told States Newsroom the organization’s mission is to provide grant funding for independent clinics to support infrastructure needs — such as supplies, equipment, building repair, security, and litigation support — rather than patient care. The network has supported 32 clinics, and gave out $700,000 to providers in recent months.

But for the network too, donations are down by one-third. The full amount of donations to the Keep Our Clinics campaign goes to clinic members, and the organization granted nearly $5 million to clinics in 2022, but only $3.4 million in 2023. The requests for support did not go down during that time, but donations did.

Grant said it’s important to support the infrastructure of independent abortion clinics because once they close, it is extremely difficult to work through the bureaucratic process again to reopen them. In areas with newly instituted six-week abortion bans, such as Florida, Iowa and South Carolina, more clinics have closed their doors.

“We are in times where ‘unprecedented’ is not even the word anymore, and there is so much happening that calls for our attention. … There’s a need in this moment for us to hold multiple crises across communities,” Grant said. “… This isn’t something we get to say we did as an immediate need, because there’s decades of work ahead to build the actual infrastructure to have health care access, let alone abortion access in this country.”

During a June press call, several leaders of state abortion funds discussed funding struggles. Oriaku Njoku, executive director of the National Network of Abortion Funds, said the funds provided more than $36 million in abortion funding and $10 million in logistical support in 2023.

“This is not the same movement that it was five years ago, let alone 50 years ago, and yet we’re still operating and funding as if it were the same issue as it was before,” Njoku said.

There are nine clinics in Ohio, where voters affirmed their desire to keep access to abortion in 2023, but it is surrounded by three states with near-total bans — Indiana, Kentucky and West Virginia. Lexis Dotson-Dufault, executive director of the Abortion Fund of Ohio, said during the press conference that her organization averaged about 100 patients per month in 2022, but now it averages more than 500.

“While abortion funds have a huge increase in need, we are not seeing a huge increase in money coming in to support this need,” Dotson-Dufault said.

National Abortion Federation: Without cutbacks, funding would run out by fall?

Planned Parenthood Federation of America, the national organization, did not directly address whether it would provide more support to the affiliates facing significant financial troubles.

“While issues around funding are a concern, it is important to note that the reproductive health care ecosystem is straining under the weight of the post-Dobbs crisis,” a Planned Parenthood spokesperson said in a statement. “PPFA is working to support affiliates as they take action to adapt and continue to provide care.”

The organization’s comments came a few days after 41 abortion funds from around the country signed on to an op-ed in The Nation saying there is a disconnect between the most visible national reproductive rights organizations, like Planned Parenthood and the National Abortion Federation, and grassroots groups working to directly support those who need care. The op-ed called out the National Abortion Federation for cutting back its financial assistance program in July, from 50% of the cost of seeking care to 30%. Signers included the Abortion Fund of Ohio and the Florida Access Network.

Brittany Fonteno, CEO and president of the National Abortion Federation, called the change an “incredibly heartbreaking and difficult” decision that had to be made despite an “incredible and generous budget” that is the largest it has ever been. She said that in the first half of this year, NAF was funding at $6 million per month for abortion care, and then upwards of $200,000 per month in patient assistance funds to help with associated travel costs. These patient assistance funds are completely funded by foundation and individual donors, Fonteno said, noting that individual donations dropped nearly 40% in 2023 from the previous year after the Dobbs decision leaked.

In 2023, NAF said it funded 106,865 people with an average amount of $519 per patient. So far in 2024, the hotline has funded 66,330 people at an average of $541 per patient.

“We’re truly in a public health emergency right now, and unfortunately, we just can’t keep pace with the patient need,” Fonteno told States Newsroom. “We had to make this decision in order to make sure that we could stretch our funds and make sure that we could help as many people as possible for the rest of this year. If we hadn’t made this decision, then we would have run out of funding in the fall.”

The changes include no longer making exceptions for those in later stages of pregnancy who face higher costs — sometimes as much as $10,000, Fonteno said — because the procedure costs more or they have to travel further to find a clinic that can provide it. That “exception budget,” which was also used for patients facing extreme circumstances like intimate partner violence, will not exist for the remainder of the year, according to Fonteno.

“Of course, we’re working incredibly hard to try to fundraise, to try to get the word out and bring awareness to this issue. And if we’re able to fundraise, we may be able to consider increasing the funding that we’re able to do,” she said.

Presidential election matters, director says?

Clegg, interim CEO of Planned Parenthood of Northern New England, said the problems will only get exponentially worse if the presidential election in November breaks for Republicans over Democrats. Project 2025, the blueprint document produced by the Heritage Foundation for the next Republican presidential administration to follow, calls for the federal government to prohibit Planned Parenthood from receiving any Medicaid funds (for non-abortion reproductive health services; federal funding of abortion is currently prohibited) and issue guidance to states that says they are free to defund Planned Parenthood in their state Medicaid plans as well.

Instead, it calls for the funding to be redirected to “health centers that provide real health care for women.” The anti-abortion organizations involved in crafting the document, such as Susan B. Anthony Pro-Life America, often promote funding for crisis pregnancy centers, which counsel pregnant patients against abortion and are known to spread misinformation about the procedure. A recent analysis from reproductive rights advocacy group Equity Forward showed nearly $490 million was allocated in 23 state budgets over the past two years for crisis pregnancy centers, most of which were in the same states that restrict abortion access.

“It’s not just making sure the public understands that we need them to engage and partner with us to make sure we can keep providing the care; it’s also having them connect the dots to the November election and understand that who they vote for, who they put in office is going to determine our future,” Clegg said.

Hundreds of people rallied at the Alabama State House in Montgomery, Ala., in February in support of legislation to protect in vitro fertilization. Democrats are hoping that increased engagement on the issue of in vitro fertilization will translate into voter turnout at the polls in November. (Brian Lyman/Alabama Reflector)

Marilyn Gomez was sitting at her kitchen table in Charlotte, North Carolina, on Feb. 16 when news alerts and friends’ texts began pinging her phone: The all-Republican Alabama Supreme Court had ruled that frozen embryos created through in vitro fertilization were children under state law. That meant providers could be held liable for discarding them, a common part of the IVF process.

As Alabama clinics began suspending IVF services and public outrage mounted, politicians on both sides scrambled to distance themselves.

In Gomez’s quiet kitchen, it all felt deeply personal.

“I remember thinking, this is the only way I was able to become a mother,” Gomez told Stateline. She and her husband went through years of fertility treatments and multiple rounds of IVF before the birth of their daughter in 2016. Without freezing her embryos and going through IVF, she said, “I would not be a mom. My 8-year-old would not be here.”

Gomez owns a small business, called Infertile Tees, where she designs and sells shirts and accessories aimed at people experiencing infertility. Less than two hours after hearing about the Alabama court ruling, Gomez, who describes her political views as Democratic-leaning, had created a new set of T-shirt designs featuring the slogan “Protect IVF.”

In the wake of the Alabama ruling, potential threats to IVF access have become an election-year issue, pushing many political novices toward involvement and activism. Reproductive rights groups say they’ve seen unprecedented interest in protecting IVF access, and Democrats hope it will motivate voters in the swing states that will decide the election, including North Carolina.

At least 19 states — either through state law, criminal statutes or case law — have declared that fetuses at some stage of pregnancy are people, according to a 2023 report by Pregnancy Justice, a nonprofit that conducts research and advocates for the rights of pregnant people, including the right to abortion. Such statutes could, in theory, be used to restrict or ban IVF by classifying the destruction of embryos as causing the death of a child. The Alabama high court cited so-called fetal personhood language in the state constitution when it issued its decision.

North Carolina isn’t one of those 19 states, but conservatives there have been testing the waters.

A bill proposed last year by three Republican state representatives would have banned abortion from the moment of fertilization, and last year an appeals court judge terminated a woman’s parental rights for conduct during her pregnancy because “life begins at conception,” though the opinion was later withdrawn.

Michigan, Pennsylvania and Wisconsin, all swing states, do have laws that include references to “unborn children.” And in Georgia, another contested state, the state’s abortion ban defines a person as “any human being including an unborn child.”

Democrats are eager to highlight the issue. The newly minted Democratic vice presidential candidate, Minnesota Gov. Tim Walz, has been outspoken about the seven years of fertility treatments he and his wife, Gwen, went through before conceiving.

“This is very personal for my wife and I,” Walz told a crowd in Eau Claire, Wisconsin, last week. “I remember each night praying that the call was going to come, and it was going to be good news. The phone would ring, tenseness in my stomach, and then the agony when you heard the treatments hadn’t worked.”

Republicans say the idea that IVF is under threat is overblown, and dismiss Democratic warnings as scare tactics.

“There is no concerted Republican, conservative, pro-life effort mounting against IVF,” said Cole Muzio, executive director of Frontline Policy Action, a Georgia organization that lobbies for abortion restrictions and other conservative policies.

“I think this is something the left largely has tried to use as a wedge issue, but I don’t think most people are buying it as something that’s a real threat,” he said.

But Muzio acknowledged that some anti-abortion advocates have asked his organization to talk more publicly about IVF. And he predicted that eventually, more conservative lawmakers will turn their attention to the issue.

“Long term, we believe in the value of human life, and that’s my concern with IVF, that it results in the discarding of human life,” he said. “Now that Roe has been overturned and we’re able to have legislative conversations and think about where life begins, it’s an important conversation to have.”

Following public backlash over the Alabama court decision, lawmakers in a dozen states, including Alabama, introduced bills to protect IVF, according to the Guttmacher Institute, a research organization that supports abortion rights.

But so far, only Alabama has enacted a law. In March, Alabama’s Republican-majority legislature hastily passed a measure shielding IVF providers from criminal and civil liability. The only other bill that gained traction was one in Louisiana, where both legislative chambers approved it. However, it was scuttled in May after the state’s powerful anti-abortion lobby opposed the removal of fetal personhood language that would have left IVF providers open to criminal prosecution and civil lawsuits.

Far-reach consequences

For many people, the IVF issue illustrates how fetal personhood laws can have consequences far beyond abortion. And it has energized them.

The National Infertility Association, which goes by the name Resolve, has held a national advocacy day annually for more than two decades. This year, after the Alabama Supreme Court decision, more than a thousand people attended the event virtually, twice the number that attended last year, said Barbara Collura, CEO of Resolve.

“We ended up with our largest advocacy day ever,” she said. “More than half of the people attending were brand new to the event. We feel very much that what happened in Alabama motivated people to figure out a way for themselves to get involved.”

In North Carolina, Gomez sold out her “Protect IVF” T-shirts within 24 hours. She launched a new batch a week later, and sold out again. Since then, she’s continued selling new “Protect IVF” designs, donating a portion of her proceeds to Resolve.

Before getting involved in IVF advocacy, Gomez said she barely paid attention to politics. Now, she’s been active in supporting pro-IVF legislation and contacting her state lawmakers. And she often fields Instagram messages from customers in other states who are scared, she said, and want to know what they can do.

“People are saying to me they didn’t know IVF was on the line, that they were surprised it wasn’t protected in every state,” said Gomez, who sends them links to sites where they can learn more about the state of IVF access where they live. “Customers are saying their parents and grandparents are having these conversations in their social circles, saying they wouldn’t be grandparents without IVF.”

She added: “I think we forget how much power we have. Regardless of what happens with the presidency, we have so much control over what happens in our state.”

‘New territory’

Less than two weeks after the Alabama court decision, Jamie and Dontez Heard stood at one end of a long hallway on the fourth floor of the Alabama State House, staring nervously at all the doors of state lawmakers’ offices. They considered turning around and going back home.

“It was intimidating, and it was scary, not knowing what to say, thinking, ‘I’m going to stumble over my words,’” Jamie said. “What if I say the wrong thing? Neither one of us has ever been in any type of advocacy role, so this was new territory.”

The couple had driven down to Montgomery that morning from their home in Birmingham, anxious but determined to defend their chance at having another baby by convincing their legislators to save in vitro fertilization.

The court decision had landed just two days after the couple met with a specialist in Birmingham to begin a new round of IVF. They’d conceived their son, Legend, now 2, through IVF in 2022 after years of struggling through infertility. They’d hoped to add another child to their family this year.

“It was devastating,” said Jamie. “We didn’t understand what it meant for us and our family.” But a few days after the ruling, she saw a social media post that her fertility clinic had shared about a gathering of IVF families and supporters at the state Capitol.

“I knew then that we needed to be there,” she said. “We couldn’t afford to sit on the couch and wait and see how this plays out.”

Since speaking to Alabama lawmakers, Heard has testified before Congress and traveled to other states to advocate for federal and state laws that would protect access to IVF.

Next door in the battleground state of Georgia, one of the biggest reproductive justice advocacy organizations in the Southeast recently launched its first-ever Black (in)Fertility Awareness Week. SisterSong, which is focused on reproductive rights for women of color, hosted a panel, documentary screening, online discussions and a raffle of $40,000 in fertility services for Black Georgia families.

Leah Jones, director of maternal health and birth equity at SisterSong, said the new initiative had been in the works for a while, but the Alabama ruling highlighted for people how IVF access is connected to other reproductive health issues, from preconception through pregnancy to postpartum.

“What we realized when we started this conversation around infertility in Black communities and listening to their stories, these are the same people talking about maternal health, abortion, mental health, birth justice,” said Jones. “Once you make the connection that this is part of an attack on overall bodily autonomy, I think that’s when it clicks for people.”

Even in Minnesota

As Minnesota’s governor, Walz in 2023 signed a law confirming the right to abortion and other reproductive health care in Minnesota.

And yet Minnesotans like Miraya Gran felt the shockwaves from the Alabama court decision. Gran and her husband struggled for years with infertility before finally conceiving their daughter Isla, now 3, through IVF.

Gran advocates for a Minnesota law that would require health insurers to cover fertility treatments.

“We saw some great momentum after the Alabama decision,” said Gran. “It didn’t really matter which political party you were a part of. If you believed in access to IVF, you joined our group.”

Gran said she considers Minnesota a “safe state” for IVF access and other reproductive rights, at least for now. “But we look to our neighbors in Iowa, where they introduced some personhood bills recently. It’s terrifying. It’s too close to home.”

Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: [email protected]. Follow Stateline on Facebook and X.

As Attorney General Dan Cameron sought to get the employment records of two University of Louisville physicians who performed abortions at the EMW Women's Surgical Center in Louisville. (Kentucky Lantern photo by Deborah Yetter)

FRANKFORT — The Kentucky Court of Appeals has rejected efforts by the office of the state Attorney General to use a Franklin County grand jury subpoena to get employment records in a case that appears to involve two University of Louisville physicians who performed abortions at EMW Women’s Surgical Center and trained residents at the clinic.

Because the case is sealed, the appeals court decision does not identify the parties by name, using pseudonyms Jane Doe 1 and 2 and the employer, Roe, as those seeking to quash the subpoena.

But the details closely track a dispute that arose in 2022 when Republican lawmakers sought an investigation of whether the public salaries of physicians at U of L overlapped with their work at EMW, which paid them separately.

Sources with knowledge of the case told The Lantern the appeals decision involved the attorney general’s efforts to obtain the physicians’ employment records including personnel files, job descriptions and payroll records from EMW.

The appeals court, in an order issued Friday, rejected those efforts as a “fishing expedition” and said further, that the subpoena filed by former Attorney General Daniel Cameron, is outside the scope of the Franklin County grand jury because the information and records the attorney general sought are from another county.

The matter should be left to prosecutors in the county where the records and activities occurred, the order said.

“While we do not wish to overuse the hackneyed phrase of a ‘fishing expedition,’ we reiterate that the (attorney general) was fishing in the wrong pond,” the order said.

The appeals court upheld the decision of Franklin Circuit Judge Phillip Shepherd to quash the subpoena but ordered the case to remain sealed pending his further review.

Since leaving office at the beginning of this year Cameron has been working as chief executive of 1792 Exchange, a nonprofit that says it aims to “steer public companies back to neutral on divisive, idealogical issues.” He did not respond to requests for comment about the case that Kentucky Lantern sent to that organization on Friday and in a phone message.

Kevin Grout, the spokesman for Attorney General Russell Coleman, who is now handling the case, said “We have received the opinion. We are reviewing it to decide next steps.” Grout declined to respond to questions seeking details about the case.

William Brammell Jr., identified in the opinion as an attorney representing Jane Doe 1, said, “We appreciate and agree with the court’s thoughtful opinion.”

But because the case remains under seal, Brammell said he could make no further comment. Other lawyers representing parties in the case did not respond to requests for comment.

Abortions largely ended in Kentucky after the June 2022 Supreme Court ruling overturning the landmark, 1973 Roe v. Wade decision returned control to the states. Kentucky already had laws on the books banning all or most abortions except in life-threatening circumstances.

GOP lawmakers called for investigation

But some Republican lawmakers had questioned the role of U of L physicians at EMW, citing U of L’s public funding, and called for an investigation.

“If university funds are used for abortion,” said Rep. Jason Nemes, R-Louisville at a legislative hearing in 2022, “the taxpayers ought to know, and the legislature should take that into account when we’re talking about funding the university and other things.”

Nemes and other lawmakers said further investigation was warranted.

Cameron filed a grand jury subpoena in June 2023 seeking payroll and personnel information of the two Jane Does, the appeals opinion said. At the time, Cameron, a Republican, was running for governor against incumbent Gov. Andy Beshear, a Democrat, who won a second term.

Through the subpoena, the attorney general “sought to compare the employees’ records for evidence that unspecified and indirect state funds may have been related to some malfeasance connected with their work,” the opinion said.

In July 2023, the Jane Does and Roe asked the Franklin circuit judge to quash the subpoena and in September, the judge did so, the appeals opinion said

But the judge also unsealed a portion of the record, it said.

The attorney general appealed the decision and asked that the case remain sealed, which the appeals court agreed to do, it said.

Friday’s 23-page opinion is the first public record in the case filed more than a year ago, and said it tries to strike a balance between “the necessary secrecy of grand jury proceedings and the right of the public to know what its government is doing.

“We conclude that the public issuance of this opinion with appropriate pseudonyms for most participants will achieve the proper balance,” it said.

But in its description of the case, the appeals court leaves clues that indicate the conflict pits the Attorney General’s Office against EMW and its doctors. For instance, it states that the doctors have two employers, and the second employer gets a small percentage of its funding from the state.

U of L gets some, though not the majority, of its funding from the state. EMW, a private clinic, received no public funds.

The attorney general had argued it should have access to the information it sought through subpoena because state funds may be involved.

The appeals court rejected that argument, saying of the Jane Does, “They are employees, and their employers, not the Commonwealth, are responsible for their paychecks.”

The Appeals court order is written by Judge Kelly Mark Easton with Judges Glenn Acree and Pamela R. Goodwine concurring in the decision.

It vacates the order by Shepherd, the trial judge, to unseal some of the records in the case and sends the case back to him “for further proceedings on the sealing of the record.”

“All of this court’s record, except for this opinion, will remain sealed recognizing the authority of the circuit court to first decide what, if any, further information should be made public,” the order said.

Abortion ban factors into governor’s race

EMW was one of two Louisville clinics that provided abortions in Kentucky until the U.S. Supreme Court struck down Roe v. Wade and a pair of laws passed by the state’s Republican-controlled General Assembly took effect, banning almost all abortions in Kentucky.

The two laws, one the “trigger law” banning abortion and the other, banning abortions after six weeks — before many women realize they are pregnant — took effect after the high court ruling.

They permit abortions only to save the life of or prevent disabling injury to a patient, with no exceptions for rape or incest — which became a heated issue in Cameron’s unsuccessful run last year for governor against Beshear.

Cameron, an anti-abortion Republican who defended the laws in court, was criticized in a Beshear campaign ad by a young woman who had been raped and impregnated at age 12 by her stepfather and said laws Cameron defended would have forced her to bear the child.

Hadley Duvall, an Owensboro native who is now in her early 20s, told?the Kentucky Lantern last year that she began sharing her story about the sexual abuse she experienced as a child after the U.S. Supreme Court overturned Roe v. Wade in 2022.

She recently went national with her story through a campaign ad supporting President Joe Biden on the same issue. Biden dropped his bid for re-election July 21 and his vice-president and abortion rights advocate Kamala Harris is now seeking the Democratic nomination for president.

In 2020, the conservative Family Foundation of Kentucky questioned U of L’s arrangement with EMW, suggesting public money might be going to fund abortions services.

They called on Cameron to investigate and a spokeswoman for Cameron said at the time he would consider doing so.

The spokeswoman said Cameron was committed to enforcing the state’s laws, “which prohibit the use of public funds for abortions. We will review any information provided to determine whether a further inquiry is warranted.”

At the time, then-U of L President U of L President Neeli Bendapudi firmly rejected such allegations, saying “we comply, not just in this program, but in every program with all federal and state laws.”

Kentucky’s non-doctor health care workforce is on the mend, though state hospitals still have thousands of unfilled positions.?(Warodom Changyencham/Getty Images)

Both the overall number of abortions and the use of telehealth abortion care continue to increase in the United States, according to the latest #WeCount report released Wednesday.

Telehealth made up 20% of all abortion care in the first three months of 2024, and the monthly total of abortions exceeded 100,000 for the first time since the group began tracking abortion data in 2022.

#WeCount is a collaborative group of researchers who collect national abortion data from clinics every month and is a project of the Society of Family Planning, a membership organization focused on abortion and contraception science. Dr. Alison Norris, co-chair of the group, said the data captures about 80% of abortion clinics nationwide. Using that data, the group makes estimates to account for clinics that do not provide reports.

From January to March 2024, there were about 19,700 telehealth abortions per month, according to the report. The states with the biggest jumps in the average number of abortions per month compared with the first three months of 2023 include New York, California, Virginia, Kansas and Pennsylvania. Kansas saw 59% more telehealth abortions and 29% more in-person abortions each month.

Norris said the use of telehealth has continued to grow, particularly now that five states — New York, Massachusetts, Washington, Vermont and Colorado — specifically shield those who provide telehealth abortions from legal ramifications if they work with patients from states with abortion restrictions. Maine will become the sixth state when its shield law takes effect on Friday. Fourteen states in the U.S. have a near-total ban on abortion.

“There was already a move toward telehealth (during the COVID pandemic), but I think it was accelerated by the need,” Norris said.

Telehealth abortions provided by clinicians in states with shield laws averaged 9,200 per month from January to March 2024, according to the report. That’s an increase of about 1,200 per month from the last report that showed data from October to December 2023.

In the nine months from July 2023 to March 2024, over 65,000 people in states with near-total or six-week bans and states with telehealth restrictions have accessed medication abortion provided under shield laws.

But the vast majority of abortions still take place in person, Norris said, in part because medication abortion can only be prescribed via telehealth through 10 weeks’ gestation, and because some people just prefer to be seen in person.

The overall number of abortions per month has grown as well, with a high of 102,350 in January. The average over the first three months of 2024 was 98,990 — the highest monthly number during the last quarter of 2023 was 91,470.

Norris said the data shows the number of abortions began to rise nationally in 2017, and while it’s hard to pinpoint the cause, there are new factors that could be contributing. Some people who needed an abortion before the Dobbs decision in 2022 could get them once states passed legislation to remove barriers. And for those who faced financial issues obtaining an abortion, she said, there is more awareness of abortion funds and other sources of support.

“There’s a lot more information in the ecosystem, there’s better resources on the internet, and there’s potentially been a destigmatization of abortion, given how much it’s in the media and being talked about by politicians,” Norris said.

Although she views it as a positive that many people who live in states with near-total bans or six-week bans are able to access abortion via telehealth, she said it’s still an unfair situation.

“Those bans and those restrictions are not evidence-based in terms of public health science, and the fact that thousands and thousands of people don’t have access to ordinary and safe health care that’s time-sensitive just because of the state where they live, it is an injustice that I hope people keep their eyes on,” Norris said. “It’s important that people maintain the will to keep advocating for access for all people in the U.S., no matter where they live.”

Elizabeth Ha created the privacy-minded menstrual tracking app Monthly last year, after failing to find an option that felt safe enough to her following the Dobbs decision. (Courtesy of Elizabeth Ha)

After the Supreme Court overturned the constitutional right to abortion in 2022 and abortion was banned in the state of Tennessee, Dr. Danielle Kelvas quit using an app that tracked her menstrual cycle.

“It frightened me … I actually got frightened because it tracked me for like, a week,” Kelvas said of the Oura Ring feature Cycle Insights. “And I thought, where’s this information going?”

Immediately following the Dobbs V. Jackson Supreme Court decision which struck down the constitutional right to abortion, data privacy experts cautioned to take a closer look at menstrual cycle tracking apps. Information logged into these apps, or tracked via wearable devices like a Fitbit or an Oura Ring, have the potential to be used in prosecuting those who seek abortions in states which criminalize it.

Kelvas, a former emergency room physician, is a big fan of her Oura Ring. She researched the device — which gives insight to users about their biometric data like heart rate and sleep quality — thoroughly before buying it.

When the company rolled out its menstrual tracking feature, called Cycle Insights, she was excited to try it. But when she started reading more into the terms of agreement, she couldn’t find clear cut information about how the data was stored, how secure it was, or if it was encrypted.

States Newsroom reached out to Oura for clarification on its privacy policy for Cycle Insights, but the request for comment was not returned.

Kelvas, 34, lives in Chattanooga, Tennessee, where abortion is banned, with only the exception of preventing death for the expectant person. The law, a trigger ban that went into effect in August 2022, also makes obtaining or performing an abortion a criminal offense.

“So I deleted it,” Kelvas said of the app.

Opal Pandya is in the same boat. The 25-year old Philadelphian deleted the app Flo, after reading case studies about data releases to external third parties. She also took note when she started suddenly getting targeted ads on Instagram for products that would help soothe period symptoms she’d just logged in Flo.

“I realized my data was flowing across multiple platforms,” she said.

She didn’t feel comfortable with that, and didn’t have the time to figure out who had access to that data. The final straw was learning that third-party data could be available to states in prosecuting abortions banned under their laws.

Pandya also opted out of her Apple Watch’s cycle tracking after trying it for a while, and has stopped wearing it to bed, as it tracks ovulation cycles via temperature at night while sleeping.

Healthcare privacy has always been something Pandya’s been wary of, she said, and while there’s benefits of tracking menstrual information, the Dobbs decision showed her there could be “serious consequences” of that data being vulnerable.

“I have always been sensitive about my health information and understand there’s a strong distrust of the medical system as a whole,” Pandya said. “And overturning Roe v. Wade did nothing but solidify and spread that distrust, especially among minority women.”

Kelvas, who now owns a medical writing service and is a consultant for software company IT Medical, is acutely aware of those delicacies of navigating menstrual tracking.

As a physician, she said she can’t emphasize enough how important it is that people have access to cycle tracking. It’s one of the few tools people have to be in more control of family planning and their reproductive health, as some states attack access to birth control.

But her experience in health care IT has highlighted how easy it is for sensitive data to go unprotected. Many people think all healthcare information is protected under the federal privacy law, known as HIPAA. But menstrual cycle tracking apps, along with other healthcare technologies, like texting platforms that patients can use with doctors, are not.

In highly restrictive states, Kelvas said it’s challenging to navigate your reproductive rights — “It doesn’t really matter what we do, we’re always in trouble,” she said.

“For a lot of women, suddenly becoming pregnant means that they are illegal,” Kelvas said. “And what do you do after that? You know, for a lot of people, the reality is that they just don’t own their uterus anymore.”

What data is up for grabs?

There haven’t been any cases where a menstrual tracking app’s data has been subpoenaed yet, but that’s probably due to the slow speed of which cases proceed through the court system, said Jake Laperruque, deputy director of the Center for Democracy and Technology’s Security and Surveillance Project. There have been few cases of electronic data of any form being subpoenaed yet, but via their terms and conditions, many companies leave themselves vulnerable to having to hand data over to prosecutors or courts.

Laperruque warned that the data that could be used to prosecute abortion cases could be more far-reaching than just what’s logged in a period tracking app.

“There are a lot of really innocuous seeming data in healthcare — location information, communications, metadata patterns and even information you don’t know you’re generating,”

Laperruque said.

If social media apps have access to your location, for example, prosecutors could timestamp your visit at an abortion provider’s office through the location data of any number of apps.

“Data collected by apps, wearables, could potentially now be used by law enforcement or even private individuals, seeking to sue or target people for exercising reproductive choice and seeking out information or care around abortion,” he said.

Digital footprints have been used in prosecuting reproductive cases even before the Dobbs decision.

In 2018, a woman in Mississippi was charged with second-degree murder after she gave birth to a stillborn baby at home. Part of the prosecution’s case noted that she had researched how to terminate a pregnancy in the past.

Last year, a teenager in Nebraska was convicted for terminating a pregnancy after prosecutors subpoenaed Facebook messages between her and her mother.

How to assess data privacy

For now, most of the responsibility to protect a user’s data falls on the user themselves, said Andrew Crawford, a healthcare privacy-focused senior counsel with the Center for Democracy and Technology.

“It really is incumbent on users to do their homework,” Crawford said. “And unfortunately, sometimes that means reading really dense privacy policies and looking for keywords.”

The terms and conditions of an app or a wearable device need to spell out what data it’s collecting, what it does with that data and who else may have access. An app may automatically seek access to things like your contacts, your geolocation, or photos, but you may not have to give it those full permissions. Period tracking apps often share information with data brokers, advertisers or third parties that are hard to track.

Users should also pay attention to how an app treats the data it gets. A keyword to look for is “encryption,” or data that’s changed into a secret code that can only be unlocked with a unique digital key.

Data that’s stored locally on your device also tends to be safer than data that’s stored in a cloud, Crawford said. It would be a lot harder for law enforcement to access encrypted data stored only on your device rather than if they can subpoena a company for it.

There’s always risk as long as data is logged somewhere, Laperruque said.

“But police are only going to be able to search your phone if they hand you a warrant and seize the phone,” he said.

Most wearable devices that collect biometric data have some encryption aspect. Apple’s privacy policy says that when your device is locked, all your health and fitness data that’s on the device and synced to iCloud is encrypted.

“This means that when you use the Cycle Tracking feature and have enabled two-factor authentication, your health data synced to iCloud is encrypted end-to-end and Apple does not have the key to decrypt the data and therefore cannot read it,” the company said.

Fitbit and Oura Ring say they use encryption measures, too. All three companies say that they have to comply with subpoena requests by law enforcement agencies.

The cost of your data

App developer Elizabeth Ha, 27, of Los Angeles, built cycle tracking app Monthly in response to the Dobbs v. Jackson decision. All of the health data inputted into the app is stored privately on your device, and doesn’t enter a database. You can delete your app (and subsequently, your data) at any time, and Monthly does not make your data available to anyone but the user.

Ha had been a long-time user of one period tracker app, but the Dobbs decision and the attention that data privacy was getting at the time, forced her to take a harder look at where she was logging her information.

“Once your data gets sent to these data warehouses, it’s like a little bit of a black box,” she said.

She feels pretty secure about her reproductive rights in California, but you never know what’s going to happen or who else might need a more secure option, she said of Monthly, which released on the app store late last year.

The field of mobile apps is so new, developing in the last decade or so, she said, and it evolves so quickly. The reason so many period trackers are free is that they’re built by larger companies that can collect and sell your data, Ha said.

“For them to be a business, a lot of the business is selling the data,” she said.

Many Americans are waiting for a comprehensive, federal data privacy overhaul. The American Privacy Rights Act was proposed in congress in May, which would require covered entities to be transparent about how they use consumer data and give consumers the right to access, correct, delete, and export their data, as well as opt out of targeted advertising and data transfers.

It would also mandate that a covered entity could not collect or transfer to a third party biometric data “without the individual’s affirmative express consent.”

For now, those who wish to keep data related to their reproductive health safe, should be vigilant about the terms and conditions of the devices and the platforms they use.

“It just kind of speaks to the importance of both the surveillance and consumer data side of upgrading the laws,” Laperruque said. “We have to be more protective.”

Supporters respond as U.S. Vice President Kamala Harris delivers remarks on reproductive rights at Ritchie Coliseum at the University of Maryland on June 24, 2024. Harris spoke on the two year anniversary of the Dobbs decision, the Supreme Court ruling that overturned Roe v. Wade and struck down federal abortion protections. (Photo by Kevin Dietsch/Getty Images)

The Democratic Party kicked off its virtual roll call on Thursday to formally nominate Vice President Kamala Harris as its pick for the next commander-in-chief. Harris is expected to announce her running mate soon.

Speculation over her vice presidential nominee has run rampant. States Newsroom’s Washington, D.C.,?bureau?recently spoke with political experts who suspect Harris is looking for someone outside the Beltway to connect with voters.

According to media reports, she has narrowed her choices to four male governors and a U.S. senator — all white — who represent a mix of competitive and solidly, left-leaning states:?Govs. Andy Beshear of Kentucky, J.B. Pritzker of Illinois, Josh Shapiro of Pennsylvania, Tim Walz of Minnesota and Sen. Mark Kelly of Arizona.

All five men have criticized the U.S. Supreme Court’s decision to overturn the federal right to abortion, and they’ve backed policy to secure or expand reproductive rights in the two years since the Dobbs v. Jackson Women’s Health Organization ruling. (The governors are also members of the?Reproductive Freedom Alliance, a nonpartisan coalition of leaders dedicated to preserving the right to abortion and reproductive health post-Dobbs.)

Here’s a look at what Harris’ possible vice president picks has said — and done — on reproductive rights:

Kentucky Gov. Andy Beshear?

As a Democratic governor in a conservative-leaning state, Beshear has pushed for lawmakers to add rape and incest exceptions to abortion laws. The commonwealth enacted a trigger law and a near-total abortion ban after Roe v. Wade fell in June 2022. During his reelection campaign last year, Beshear?ran ads featuring Hadley Duvall, underscoring the lack of reprieve for sexual assault survivors?under bans,?Kentucky Lantern?reported. Duvall was raped and impregnated by her stepfather when she was 12. The?pressure?from the ads led Beshear’s opponent, former Republican Attorney General?Daniel Cameron, to say he would sign legislation adding rape and incest exceptions to Kentucky’s ban if elected governor.

Beshear?won?52% of the vote in November 2022, and he thanked Duvall in his victory speech, according to the?Lantern. “What a brave, courageous young woman that she is,” Beshear said. “We believe she and everyone else should have options, and the legislature should make that change as quickly as they come in.” In April, the?Senate GOP blocked a vote?on legislation that would have addressed the issue.

Arizona Sen. Mark Kelly?

A former astronaut and Navy captain, Kelly has been in office since 2020 and was reelected in 2022. He voted in favor of the?Women’s Health Protection Act?in May 2022, legislation that would codify the federal right to an abortion. “We’ve got to codify Roe at the federal level,” Kelly said in May, according to?Arizona Mirror. “I think that is truly the path forward.” Ahead of the second anniversary of the Dobbs decision, Kelly?highlighted?how?abortion bans?have affected the full scope of reproductive health care and?led some doctors to flee Arizona, which has a 15-week ban.

Kelly has also?backed protective IVF measures?in Congress. In June, he and his wife?Gabby Giffords, a former congresswoman who survived an assassination attempt in 2011, wrote in? an essay for?People?magazine about their?struggles with fertility. Two days after Giffords was shot the couple was supposed to have an appointment for embryo implantation. They wrote: “Our dream of having a child together was taken away by a gunman. The dreams of Americans to have a child together could be taken away by politicians.”

Illinois Gov. J.B. Pritzker

Pritzker leads a state that has become an abortion access point in the Midwest. Illinois borders Indiana, Kentucky and Missouri — all have abortion bans — and Iowa, which enacted a six-week ban this week. He recently signed legislation that will require insurers to cover postpartum care — doulas, midwives, lactation consultants — up to a year after birth,?Capitol News Illinois?reported. The?law?also ended abortion copays and deductibles.

He?signed?a budget in June that allocates more than?$23 million for a slew of maternal health care programs that will invest in community-based providers, home nurse programs and free diapers. “There is no freedom of choice without access to a full spectrum of reproductive healthcare for women and new mothers,” Pritzker?said?in February when announcing the initiative.

Pennsylvania Gov. Josh Shapiro?

Formerly the state’s attorney general, Shapiro was elected governor in November 2022. Last month,?Pennsylvania Capital-Star?reported that?he would not defend the state’s ban on the use of Medicaid funds for abortion. “Pennsylvania’s Constitution prohibits discrimination on the basis of sex — and as our State Supreme Court ruled earlier this year, the state ban on Medicaid coverage for abortion services is sex-based discrimination,” Shapiro said in a statement.

He?ended?the state’s contract with Real Alternatives, a group that funds?anti-abortion pregnancy centers, in December 2023, Capital Star reported. The organization received more than $30 million in state funding between?2012 and 2017. Shapiro also signed legislation last year to?improve tracking of pregnancy-related deaths. He is facing?criticism?because his office paid $295,000 to settle a female employee’s sexual harassment complaint against his former cabinet secretary.

Minnesota Gov. Tim Walz

Even though a 1995 state Supreme Court ruling guaranteed the right to abortion in Minnesota, Walz has signed legislation that widened access in the state. Last?year, lawmakers?removed the 24-hour waiting period for abortions,?ended extensive abortion reporting, and?removed the requirement that abortions be performed in hospitals.

He signed the?Protect Reproductive Options Act?in January 2023, which?codified the right to reproductive health care and abortion with no limits or exceptions,?Minnesota Reformer?reported. “The message that we’re sending Minnesota today is very clear. Your rights are protected in the state. You have the right to make your own decisions about your health, your family and your life,” Walz said during a ceremonial bill signing.

Speaking in Bowling Green against Kentucky's abortion laws, Dr. Janet Wygal said: “No physician should be forced to wait until someone becomes sick enough to intervene with basic necessary health care because the government says so.” (Getty Images)

Kentucky Reproductive Freedom Fund members, who in June announced a pro-abortion access messaging campaign, gathered at the Warren County Courthouse in Bowling Green Thursday to say their campaign has reached 1.8 million people through digital ads.?

Ona Marshall, who founded KRFF and co-owned one of Kentucky’s last two abortion clinics, also criticized Kentucky’s lack of avenues for citizens to put abortion access on the ballot.?

“We could follow the lead of other states that are moving to protect reproductive rights,” she said. “These are states that have citizen-led ballot initiatives to protect abortion access in their state constitutions. But that choice isn’t possible in Kentucky.”?

Nevada, Colorado, South Dakota, Florida and Maryland will have abortion-related questions on the ballot this November, States Newsroom has reported. Others are working to qualify and follow suit, including Arizona, Montana, Missouri and Arkansas. Kentucky is one of 24 states that do not allow citizen-led ballot initiatives.?

Thursday’s event came two years after a judge reinstated Kentucky’s abortion ban — after a brief injunction following the fall of Roe V. Wade and subsequent trigger law.?

“Kentucky is in a health care crisis, and our choices to reverse this dire situation are being limited by lawmakers,” Marshall said. “Our freedom in Kentucky is not being protected, our freedom is being denied. Our lawmakers can repeal the abortion bans and restore our freedom.” Marshall co-owned Louisville’s EMW Surgical Center, which provided abortions Louisville’s but closed when the abortion ban took effect..?

After the U.S. Supreme Court overturned Roe v. Wade, which had guaranteed the constitutional right to abortion, in 2022, a “trigger law” went into effect in Kentucky that banned abortions. Another law bans abortions after six weeks. Doctors have previously said many people don’t know they’re pregnant at the six-week mark.?

Later that year, Kentucky voters rejected an anti-abortion amendment that would have stated there is no right to an abortion in Kentucky’s Constitution. Only the legislature has the power to put constitutional amendments on the ballot in Kentucky.

Kentucky does not have abortion exceptions for rape or incest, though both Republican and Democratic lawmakers have filed unsuccessful bills to change that in recent years.?

Kentucky has an exception in cases where the life of the pregnant person is at risk. Dr. Janet Wygal, an OB-GYN who spoke alongside Marshall Thursday, said that’s not enough.?

“No physician should be forced to wait until someone becomes sick enough to intervene with basic necessary health care because the government says so,” said Wygal. “These laws create an environment of fear and uncertainty, not only for doctors and their patients seeking abortion care, but also for those needing the full spectrum of reproductive health care, including IVF (in vitro fertilization), contraception and cancer screenings.”?

Lisa Sobel says she has put her hopes for having another child on hold because of uncertainties around Kentucky's abortion law. (Photo provided)

LOUISVILLE — Lisa Sobel thinks any Kentuckian who has a uterus should have standing to challenge the state’s abortion ban.?

The Kentucky Supreme Court and, more recently, a judge in Louisville, disagree.?

Meanwhile, Sobel, one of three Jewish women challenging the ban on religious grounds, says she’s left in a “holding pattern.” She is afraid to risk having another child in a state where physicians must wait to terminate a pregnancy until a patient is at risk of dying.?

Sobel’s lawsuit is the second challenge to Kentucky’s abortion ban to run aground on the issue of standing without advancing to an examination of the laws’ merits or constitutionality. Standing is the question of whether plaintiffs’ circumstances meet legal standards entitling them to challenge the law.?

Jefferson Circuit Judge Brian Edwards ruled in June that Sobel and her co-plaintiffs — Jessica Kalb and Sarah Baron — lack standing because they are not pregnant or currently trying to conceive by in vitro fertilization (IVF). Therefore, he said, the harms they allege in their lawsuit are “speculative” or “hypothetical.”?

That followed the Kentucky Supreme Court’s ruling in 2023 that abortion providers could not challenge the ban on behalf of their patients.?

The Supreme Court ruling poses “a massive hurdle,” said Angela Cooper of the American Civil Liberties Union of Kentucky, “by asking someone who is navigating an unwanted pregnancy to pause pursuit of their medical care to file a lawsuit.”

The rulings have left the ban in place and the path for its opponents unclear but still open.

Edwards, in ruling against Sobel and her co-plaintiffs, also acknowledged “serious concerns regarding the substantive constitutionality” of Kentucky’s abortion laws — concerns that he said “will ultimately need to be revisited and addressed by the Kentucky Supreme Court.”

Sobel’s lawyers, Benjamin Potash and Aaron Kemper, have filed an appeal that could return the larger questions to the state Supreme Court, which will soon have a new member.

Chief Justice Laurance VanMeter isn’t seeking reelection this year. His 5th Supreme Court District seat will be filled either by Pamela Goodwine, a Kentucky Court of Appeals judge and former circuit and district judge in Lexington, or Erin Izzo, an attorney from Lexington. The race is nonpartisan but Democratic Gov. Andy Beshear, who opposes Kentucky’s abortion ban and calls it extreme, has endorsed Goodwine, and his political action committee has contributed $2,100 to her campaign.

University of Louisville constitutional law professor Sam Marcosson said Edwards and the state Supreme Court took a “very narrow” view of standing — and that there is room in the law for the new Supreme Court to relax its standing demands if the justices have the appetite to do so.

“I think that’s certainly possible, at least something the Supreme Court could do,” he said. “Whether it will or not, whether the makeup of the court will make that more likely? Impossible to say at this point.”

Marcosson noted the U.S. Supreme Court that overturned abortion rights has recently avoided ruling on the merits in two abortion cases. The court had the chance to limit access to mifepristone, which is used in medication abortions, but did not. On the other hand, the court had a chance to “protect abortion rights” in an Idaho case and did not.

Marcosson said the decisions suggest “the court doesn’t want to continue, at least for the time being, having abortion on its docket and reaching cases on the merits, the way they did when they overruled Roe.”

Who has standing to challenge Kentucky’s abortion ban??

There are a few scenarios in which a person would have clear standing to challenge Kentucky’s abortion law, said Marcosson.?

“A woman who is, in fact, pregnant and and wants to obtain an abortion that would be, or might be, illegal under Kentucky law — that’s the obvious scenario,” he said. Such a person could later miscarry or have the baby and “standing wouldn’t change.”?

Another scenario, hinted at by the Edwards decision, is if a person is actively undergoing IVF while suing, Marcosson said.?

But, it’s unclear if she would need to be actively taking injections to release eggs and trigger ovulation. “I think that’s the weakest part of the opinion to me,” Marcosson said.?

Someone who is at risk of injuries could have legal standing, he explained.?“The law of standing has always said that injuries … don’t have to actually have already been incurred,” he said. “You can sue to prevent injuries.”?

So, one could sue based on a hypothetical, and different judges and a different court could see it differently than Edwards did.?

“Anytime you have a case involving prevention of future injury, the question is always going to be, well, how certain does the court have to be that the injury will occur, and how soon will it occur?” Marcosson said. “There’s no bright line for that.”?

Potash and Kemper take issue with the judge basing part of his rejection of their lawsuit on a reading of Roe V. Wade. Marcosson said that while this is “noteworthy and eye popping” it’s “not unprecedented.” A decision can be overruled for one purpose while the reasoning behind other parts of the decision remains valid for use in future cases, Marcosson said. ?

Sobel thinks only one thing should determine standing. “Anybody who has a uterus in the state of Kentucky should have standing on this issue,” she said.?

IVF is not a ‘fairy tale’?

Unlike Judge Edwards, the women and their lawyers do not see theirs as a hypothetical situation at all.?

Kentucky abortion law states that an embryo is an “unborn human being” from egg fertilization to birth, a Christian belief not shared by Jewish people. The women argue the abortion law violates the Kentucky Religious Freedom Restoration Act. That definition in Kentucky law also makes them uneasy about trying to conceive through IVF, which involves destroying or indefinitely storing fertilized eggs; they also fear what would happen if a wanted pregnancy went wrong and they lacked access to abortion.

The lawyers say the courts and legislature have not offered the reassurance the women and others like them need that IVF is protected.?

One of the plaintiffs, Kalb, has nine frozen embryos right now that she’s paying thousands of dollars annually to preserve. The 33-year-old doesn’t plan to carry nine children, and worries about what she can legally do with the rest of the embryos at a time when Kentucky lawmakers disagree on what protections exist for the IVF process.?

In the 13 months while she waited for a ruling, Sobel, who conceived her three-year-old daughter through in vitro and would like to have another child, said, “I have met with multiple doctors for gynecological procedures.”?

“So, to just write me off because … I’m not currently paying to move forward with IVF, and saying that I’m not seeking it, is really unfair,” she said.?

The process takes a lot of time, and she also has to make sure her body is “ready to accept” the treatments.?

“At any given time, you could be happily going along and then your doctor says, ‘hey … we have to push pause,’ or ‘we need to make a change because your hormones are out of whack,’ or ‘your lining isn’t perfect,’ and so then you have to go and take a side road before you can get back on the main track.”?

Potash acknowledges that Attorney General Russell Coleman has said that IVF is protected in Kentucky but points out that local prosecutors are not bound by Coleman’s statement.?

Sobel’s interpretation of Edwards’ June ruling is “the judge doesn’t understand what the process of IVF and being part of the infertility community is like.”?

IVF isn’t the “fairy tale” way of starting a family, she said, in which “you went out for a nice, romantic night, you had sex, and magically, six weeks later, you find out you’re pregnant.”?

It involves an intricate process involving shots, egg retrievals, mixing eggs with sperm in a lab and implantation. There are usually eggs leftover in this process, which can be donated, stored or discarded.?

“I don’t want to get to the point,” Sobel said, “where I’m stuck paying indefinitely for embryos I can’t use because I don’t want to face criminal prosecution.”?

Storing them can cost thousands annually.? The women fear prosecution if they are forced to discard embryos, a common part of the IVF process.?

“I’m still young enough that should I choose to do more rounds of (in vitro fertilization) I could,” said Sobel, 40. “That might not be the same in five, six years. But right now, my safest option for my health and my well being is to continue to wait to get clarity from the court system on whether or not IVF is truly protected, and the only way to do that is to take out the fetal personhood laws that are on the books.”?

Addia Wuchner, a former legislator and the executive director of the Kentucky chapter of Right to Life, which opposes abortion, sees IVF as being protected in the state, in line with the attorney general’s position.?

“If anyone is projecting fear or concerns,” she told the Lantern, “it’s misplaced.”?

What happens next

“A random bank of judges” within the Court of Appeals will consider arguments from both sides, Potash said, who added “we’re looking forward to some review.”?

Meanwhile, Marcosson said the state Supreme Court does have a pathway to change its rules of standing, if the appeal of the Edwards ruling or someone with a “stronger case for standing” reaches the high court.

But since “two judges can take a very different view of how speculative the harm really is, and how impending it really is,” the appeals panel could side with the women on the issue of standing and return their case to the circuit judge for further consideration.

The American Civil Liberties Union of Kentucky is still looking for an opening and plaintiffs to challenge the law. ?Cooper said that despite the state Supreme Court’s “unprecedented and impractical demand” on standing, “we are undeterred in our commitment to restoring access to abortion care in the Commonwealth, and the legal path remains open, however fraught with obstacles it may be.”?

Meanwhile, Sobel feels she must wait out the case before making decisions to expand her family because of the potential harm to her health.?

“My one option is … not to take the risk of dying,” she said. “Which is really what I’m faced with here, is that I’m stuck between a rock and a hard place.”??

Medication abortion has been the most common way to terminate a pregnancy since 2020, when pills accounted for 53% of all pregnancy terminations, according to the Guttmacher Institute. (Getty Images)

Reproductive rights has taken center stage in the first post-Roe presidential election that presently features a longtime advocate for reproductive rights in possible Democratic nominee Vice President Kamala Harris, opposite former Republican President Donald Trump, whose three appointed U.S. Supreme Court justices helped overturn federal abortion rights.

Although Trump’s former health staffers have co-authored the Heritage Foundation’s conservative anti-abortion policy blueprint for a future Republican administration, called Project 2025, Trump, his outspoken anti-abortion running mate Ohio U.S. Sen. J.D. Vance, and many GOP candidates have attempted to soften their abortion stances while also adopting the longtime movement narrative that abortion is dangerous to women and equivalent to infanticide.

As the first presidential election season since the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision heats up, here are the facts behind the most commonly touted myths about abortion.

1. Abortion is safe.

The National Academies of Sciences, Engineering, and Medicine (NASEM) concluded in a comprehensive review of the safety and quality of abortion care in the U.S. in 2018 that complications from abortion are rare, especially when compared to the complications of pregnancy and childbirth. The anti-abortion movement falsely claims abortions are more dangerous than childbirth, and tried unsuccessfully to legally force the U.S. Food and Drug Administration to revoke its approval of the abortion medication mifepristone. Meanwhile, a new Louisiana law will, starting this fall, classify mifepristone as “dangerous,” despite opposition from state doctors.

Medication abortion has been the most common way to terminate a pregnancy since 2020, when pills accounted for 53% of all pregnancy terminations, according to the Guttmacher Institute. When administered at 9 weeks gestation or less, the FDA-approved regimen has a more than 99% completion rate, a 0.4% risk of major complications, and a reported 32 associated deaths over 22 years. Common symptoms include heavy bleeding and cramping, diarrhea, and nausea.

2. Abortion can reduce health risks and infertility and save lives.

There are many conditions that can develop during pregnancy — such as ectopic and molar pregnancies, severe preeclampsia, and preterm premature rupture of membranes — that can put the pregnant person at risk of death, serious health complications, and future infertility, as well as make it unlikely the fetus would survive even if the pregnancy continued. Though anti-abortion activists do recognize this reality, they use the political term “separation of a mother and her unborn child” to obfuscate that abortion is sometimes necessary. And even in emergency cases, they advocate for riskier procedures like C-sections to avoid performing less invasive abortion procedures. Meanwhile, the future legality of emergency abortions in states like Idaho remains uncertain.

3. Abortion is not infanticide.?

Candidates have been campaigning on rhetoric that abortion is infanticide and happens “post birth,” “up until the moment of birth,” or “after birth,” as Trump alleged in the June debate with President Joe Biden. However, abortion does not happen “after birth.” That would be categorized as murder, as it was in the case of former Philadelphia abortion doctor and convicted murderer Kermit Gosnell.

4. “Late-term” and “partial-birth” abortions are political terms not grounded in science.

According to the Centers for Disease Control and Prevention, more than 93% of abortions occur within the first trimester, and less than 1% after 21 weeks’ gestation. Still, anti-abortion groups and candidates emphasize the idea of “late-term” abortions, which is not a medical term. Susan B. Anthony Pro-Life America, which helps elect anti-abortion candidates, has begun calling the vice president an “abortion czar,” with president Marjorie Dannenfelser claiming Harris wants to “impose on all 50 states all-trimester abortion without any limits, even painful late-term abortions in the 7th, 8th, and 9th month of pregnancy.” Though abortions do occur later in pregnancy, they are rare and typically involve nuanced and heartbreaking circumstances. The GOP’s national platform opposes “late term abortion.”

Sometimes anti-abortion activists also refer to “partial-birth” abortions, a non-medical term for a procedure known as dilation and extraction (D&X), which is already banned under federal law.

5. Abortion exceptions for rape, incest, fetal anomalies, and health risks do not exist in most states where abortion is totally banned.

Despite Republicans’ oft-touted support for rape and incest exceptions in abortion bans, many currently on the books don’t include them. Of the 14 states with near-total abortion bans, only Idaho, Indiana, and North Dakota’s maintain some exceptions for survivors of rape and incest. Indiana also allows for abortion if there is a fatal fetal anomaly. Reproductive health experts say abortion exceptions are rarely granted even when they exist.

6. The terms “heartbeat bill” and “six-week abortion bans” are misleading.?

Currently Florida, Georgia, South Carolina, and soon Iowa will ban abortion at the moment embryonic cardiac activity can be detected on an ultrasound, which typically occurs around six weeks’ gestation. This type of law is often referred to as a “heartbeat bill,” but reproductive health experts say the term is misleading because the heart is not fully developed at that stage. These laws are also referred to as six-week bans, which is also misleading, given how gestational age is calculated: by counting from the first day of one’s last menstrual cycle. This is an approximate estimate and varies depending on when conception officially occurs. For many, a six-week ban is closer to four weeks or less of pregnancy, before many people realize they’re pregnant.

7. The GOP platform contradicts promises to leave abortion to the states and to protect IVF.

The Republican Party’s recently unveiled “Make America Great Again!” policy platform does not explicitly call for a federal ban on abortion and expresses support for birth control and in vitro fertilization. But it simultaneously supports states establishing “fetal personhood” under the U.S. Constitution’s 14th Amendment, which legal experts warn could lead to the criminalization of pregnancy and implicate abortion, contraception, and IVF.

A nationwide concern about Americans’ access to IVF kicked off this winter after the Alabama Supreme Court ruled that embryos are “children,” leading IVF clinics in Alabama to shutter temporarily. In the aftermath, some states, including Alabama, have taken steps to ensure access to the fertility treatment, but future access remains largely uncertain, especially as congressional bills to protect IVF nationally have failed to advance.

8. Emergency contraceptives are not abortifacients but could be impacted by personhood laws.

Emergency contraceptives like Plan B and ella are designed to be taken shortly after sex, to delay or prevent ovulation. They are not abortifacients, according to the American College of Obstetricians and Gynecologists, and they don’t work on someone who is already pregnant. Anti-abortion activists largely oppose emergency birth control (and many other contraceptives), based on outdated drug labeling that Plan B might work by preventing the implantation of a fertilized egg, which many in the movement say should be treated in law as a person. The FDA revised the label in December 2022, following additional scientific evidence concluding Plan B works before fertilization.

Research on ella also indicates it likely does not prevent implantation, but Project 2025 includes a proposal to exclude ella from contraceptives currently covered under the Affordable Care Act, referring to it as “a potential abortifacient.”

A new paper from researchers whose abortion-pill studies were retracted touts C-sections and induced labor as alternatives for pregnant patients in medical emergencies as a federal appellate court revisits a pivotal case in Idaho. (Getty Images)

The day the U.S. Supreme Court overturned Roe v. Wade in 2022, the medical board that certifies OB-GYNs in America released a statement calling legal pregnancy termination and knowledge of abortion procedures “essential to reproductive health care.”

But a small number of influential anti-abortion doctors have spent the last two years trying to change the reproductive health care standards in state and federal health policy, in a way that is potentially dangerous, doctors representing major medical institutions say.

The question of when abortion is essential health care that states can’t ban is central to several ongoing lawsuits, including Moyle v. United States, a case about whether emergency rooms receiving federal funding have to treat pregnant patients with stabilizing care if it might result in the end of the pregnancy. The U.S. Supreme Court recently kicked the case back to the appellate court, a move that newly allows doctors in Idaho to perform emergency abortions. But the issues remain unresolved, with doctors in Idaho (as in other states) still seeking clarity about whether what they’ve long considered necessary care is legal.

Now as the case returns to the U.S. 9th Circuit of Appeals, researchers behind retracted studies claiming abortion drugs are dangerous are out with new policy recommendations that say when pregnancy termination is necessary, doctors should opt for procedures considered by the wider reproductive health community to carry bigger health risks, such as cesarean sections, rather than less invasive abortion procedures.

“[M]any physicians argue that it is almost never necessary to end the life of a child directly and intentionally by an abortion procedure,” public health researcher James Studnicki and OB-GYN Dr. Ingrid Skop, of the Charlotte Lozier Institute, wrote in a paper published this summer in Medical Research Archives, a journal of the European Society of Medicine. “[W]hen a pregnancy endangering the life of the mother requires termination, a direct ‘dismemberment’ dilation and evacuation (D&E) abortion may be unnecessary, as delivery can usually be performed with a standard obstetric intervention such as labor induction or cesarean section (if indicated).”

Experts told States Newsroom that Charlotte Lozier’s claims contradict national standards of care. And they come at a time when states with strict abortion bans like Texas and Louisiana are seeing a rise in surgical incisions like C-sections and hysterotomies to end pregnancies, even though they carry higher risk, delay future pregnancies, and can affect fertility.

“The end goal of doing a medical intervention to end a pregnancy and save a patient’s life is the same as when we do an abortion. They are just calling for more complicated, sometimes invasive procedures to get to that same end goal,” said Atlanta-based OB-GYN and complex family planning specialist Dr. Nisha Verma. “I think this is really dangerous — it creates confusion. It prevents the public from understanding that abortion is a necessary life-saving procedure.”

The Charlotte Lozier Institute has for more than a decade worked to build the anti-abortion movement’s credibility, by providing research and data to defend anti-abortion laws in the legislature and in the courts. Their claims frequently contradict major American medical institutions on abortion science and safety, and their research methods have faced academic scrutiny — while continuing to wield influence.

Between 2019 and 2022, Studnicki and Skop co-authored three papers in the journal “Health Services Research and Managerial Epidemiology,” two of which were used by anti-abortion plaintiffs and judges to argue for the restriction of abortion pills in a lawsuit against the U.S. Food and Drug Administration, which the Supreme Court rejected this term for lack of standing. But earlier this year, Sage Journals retracted these studies following a reader-prompted investigation, in part for methodological flaws and data misrepresentation. The Charlotte Lozier researchers have insisted the retractions were meritless and politically motivated.

Skop, an OB-GYN from San Antonio, Texas, and Charlotte Lozier’s director of medical affairs, now has even more influence, after her controversial appointment to Texas’s maternal mortality review committee. Skop has made unfounded claims, including that abortion bans will improve maternal mortality rates and that rape or incest victims as young as 9 can “safely give birth to a baby.” But experts say minors are at increased risk for serious complications like preeclampsia and likelier to give birth to low-birth-weight babies.

Last year the San Antonio-based OB-GYN served as a state expert witness when Kate Cox from Dallas asked a Texas judge to grant her an abortion for a nonviable pregnancy. Skop’s sworn affidavit alleged Cox was not at risk of death or “substantial impairment of a major bodily function,” though Cox’s doctor recommended an abortion to preserve her health and future fertility. Denied the abortion in her home state, Cox aborted in New Mexico, and is newly pregnant again.

As a fellow for the American College of Obstetricians and Gynecologists, which has more than 60,000 members, Verma said she has regularly testified before Congress alongside OB-GYNs with minority-held positions on reproductive health policy like Skop and Dr. Christina Francis, the CEO of the anti-abortion American Association of Pro-Life Obstetricians and Gynecologists, which comparatively has approximately 7,500 members.

“It can be really deceptive and confusing for the public who just hear different things coming from two OB-GYNs,” Verma said.

Studnicki and Skop argue that abortion is “not evidence-based” because many people do not seek abortions for physical health reasons, and because much of the existing abortion-safety and efficacy data does not involve randomized controls, i.e., comparing groups of people receiving abortion procedures with those delivering unwanted or nonviable pregnancies to term.

“Based upon the research standard of the Cochrane guidelines, our study shows the science required to consider abortion ‘evidence-based’, alone or in comparison to other interventions, does not exist,” said Studnicki in an written statement, referring to guidelines for systematic reviews, named after British medical researcher Archie Cochrane. “All of us who want the best for women should desire better quality data, including comparison of abortion to other pregnancy outcomes like childbirth, so we can best address the needs of women in heartbreaking circumstances.”

They do not mention the longitudinal Turnaway Study, produced at the University of California San Francisco, which found short- and long-term improved health and socioeconomic outcomes for women who received versus were denied wanted abortions. (Editor’s note: Reporter Sofia Resnick contributed proofreading and editing to UCSF professor Diana Greene Foster’s 2020 book about the study she led.) Anti-abortion activists have criticized that study, including in a published critique that was retracted following concerns about its peer review.

Studnicki and Skop did not agree to an interview but provided a fact sheet for their claims, which notes that OB-GYNs should adhere to guidelines set by ACOG when it comes to life-threatening situations, but also asserts that existing abortion bans do not preclude necessary care.

Claim: “Almost all induced abortions demonstrate no therapeutic intent or medical necessity.”

That abortion is not legitimate health care is a similar argument that a coalition of anti-abortion doctor groups including AAPLOG (of which Skop is a member) made in the abortion-pill case. It’s an argument Charlotte Lozier advanced in an amicus brief submitted to the Supreme Court in Moyle v. United States.

And it’s an argument featured in Project 2025, the Heritage Foundation’s blueprint for a potential future GOP presidency, which says that the federal Emergency Medical Treatment and Labor Act? should not be interpreted to cover abortions. Republican presidential nominee former President Donald Trump has attempted to distance himself from Project 2025’s proposed federal abortion restrictions, though they were authored by officials from his previous administration.

But decades of research have established the high safety record and medical benefits of termination.

“Data from the Centers for Disease Control and Prevention (CDC) clearly shows that pregnancy is a condition that can kill you,” said Dr. Sarah Horvath, an OB-GYN and complex family planning subspecialist and researcher at Penn State University’s Hershey Medical Center, in an email. “As a mother, I can tell you that the benefits of a wanted child often, but not always, outweigh the risks of pregnancy complications and death.”

According to the CDC, the U.S. has the highest maternal mortality rate in the developed world at 22.3 deaths per 100,000 live births as of 2022, with rates for Black women more than double, at 49.5 deaths per 100,000 live births. Research in the journal Obstetrics & Gynecology shows that by contrast the risks from an induced abortion are smaller than the continuing a pregnancy: In the first trimester (more than 90% of all abortions), the rate of maternal death is less than 1 per 100,000, and for abortions at 18 weeks gestation or higher, the risk of death is 6.7 per 100,000.

In the two years since the Dobbs decision overturned federal abortion protections, OB-GYNs in states with near or total abortion bans have reported denying critical care because of these new laws. Many have become politically active, trying to impress upon lawmakers and the public that pregnancy is highly variable and vague exceptions to prevent death are impossible to interpret medically, especially as complications are not always immediately deadly but could become so if not treated promptly.

Claim: When the ‘separation of a mother and her baby’ is necessary, C-sections and inductions should be prioritized over induced abortion to allow parents to ‘express appropriate grief.’?

Referring to a medically indicated abortion as the “separation of a mother and her baby,” which is not a medical term, Studnicki and Skop pose labor induction or cesarean section as the ethical choice.

“Beyond 22 weeks’ gestation, the baby will often survive separation from the mother if given active medical intervention, and even if too young or sick to survive, the family can show the child love and express appropriate grief with the assistance of supportive palliative care,” Studnicki and Skop write. “No study has compared the well-being of a woman and family who end their child’s life in these tragic circumstances to those who continue to allow their child to live until a natural death.”

Verma said depending on the situation and especially before 20 weeks, induction or a C-section could introduce unnecessary risks and delays of care. And the patient would have to wait longer to try to get pregnant again.

“I have a hard time even understanding this claim that a C-section is equally invasive and morbid to abortion procedure,” Verma said. “That’s a major abdominal surgery. We are making a large incision in the abdomen, making incisions in the tissue below the skin, pulling apart the muscles, going into the abdominal cavity, the peritoneal cavity, cutting open the uterus and removing a pregnancy. … If the patient wants to get pregnant again, after a D&E procedure, they can start trying a month later, whereas after a C-section, you have to wait months to be able to safely start trying again without as much risk of your uterus rupturing in the next pregnancy.”

Verma said that sometimes C-sections do make sense in these cases, and that many of her patients do opt for labor and delivery to hold their dead or dying child, but she doesn’t believe these options should be forced on patients.

Claim: Rape and incest victims — who are often adolescents and children – don’t need abortions.

“The emotionally provocative scenario of a young adolescent girl seeking to abort a pregnancy conceived in rape or incest is repeated in the media at a rate which is grotesquely disproportionate to the rarity of its occurrence,” Studnicki and Skop write. “The question of importance is whether an abortion in this circumstance improves the mental or physical health status of the victimized girl. Understandably, there have been no clinical trials addressing this question, so even an abortion in this tragic circumstance cannot be characterized as an evidence-based medical intervention.”

But there is evidence that children and teens face greater physical health risks from pregnancy and childbirth than adults. And Verma noted that the incidence of young children getting pregnant, often by rape or incest, is small but real.

“I have treated young kids in, like the 10-, 11-year-old range,” Verma said. “It’s not something that’s happening every day, but there are many reasons why people need abortions, and that is something that we see and it is terrible.”

Lauren Ralph, an epidemiologist and associate professor at UCSF who specializes in the impact of abortion policies on young people, told States Newsroom that initial research out of Texas is showing fewer young people able to access abortions. According to a national 2021-2022 patient survey, about 10% of abortion seekers were 19 and younger, and about 2% were 17 and younger. Ralph noted that many rape and incest cases among young people are likely underreported.

“The rarity of it, I don’t think diminishes its importance in conversations around the reasons why people seek abortion, for young people in particular, who are victims of sexual assault,” Ralph said. “We know that they’ve had their autonomy violated once, and then if you deny them access to a wanted abortion and force them to continue a pregnancy and give birth, that violates their autonomy yet again.”

According to 2017 data from the Guttmacher Institute, 88% of abortions took place before the end of the first trimester of pregnancy at 12 weeks. (Getty Images)

It’s an oft-repeated talking point of anti-abortion rights groups and Republican politicians, before and after the June 2022 Dobbs decision — that those who are supportive of abortion rights also must be in favor of abortions that happen during the last weeks of pregnancy, or even “after birth.”

Former President Donald Trump brought it up in the June debate against President Joe Biden, saying Biden’s position on restoring abortion access would lead to doctors being able to “take the life of the baby in the ninth month, and even after birth.”

Trump’s newly announced vice presidential running mate, Republican Sen. J.D. Vance of Ohio, told Fox News this week that Biden “wants taxpayer-funded abortions up until the moment of birth.”

And candidates in states such as North Dakota and Montana have campaigned on that rhetoric in recent months, saying some states allow “post-birth abortions” or abortion “the day before” a due date.

In reality, abortion “after birth” does not happen, because it would be categorized as murder under all state laws. And while abortions do occur later in pregnancy, they are exceptionally rare and happen for many diverse reasons, such as a fatal fetal diagnosis and financial or travel barriers that extend timelines.

Abortion-rights advocates say the rhetoric is used because public opinion polls show support becomes more mixed for abortion after 24 weeks, which is the second trimester of pregnancy and the medically recognized point of viability, when a fetus can reasonably be expected to survive outside of the womb with medical interventions. That argument was seemingly bolstered by an anti-abortion group’s campaign strategy meeting against Amendment 4 in Florida this week, a ballot question that would restore abortion access to 24 weeks in the state where a six-week ban is currently the law, before many people know they’re pregnant. During a presentation, the campaign organizers displayed a slide that said, “How we win: We win by talking about late-term abortion.”

Even before Roe v. Wade was overturned by the Dobbs decision, abortion was only protected as a federal right until viability, at which point it could be restricted by states. So if a Democratic presidential administration or Congress were to re-establish and codify Roe as the standard, third-trimester abortion would likely remain restricted in many states. In some states where abortion is legal and there is no restriction by gestational age, such as Alaska, it is still unavailable past the second trimester because there are no clinics that provide it.

According to 2017 data from the Guttmacher Institute, an abortion-rights organization that gathers provider-specific data from across the country, 88% of abortions took place before the end of the first trimester of pregnancy at 12 weeks. A little over 10% happened between 13 and 20 weeks, and 1.3% occurred after 21 weeks, about halfway through the second trimester. Out of 862,320 abortions tracked that year, that means 11,210 happened after 21 weeks. The Centers for Disease Control and Prevention shows a slightly lower number of 1.1% after 21 weeks, but does not receive abortion data from Maryland, as it is voluntary reporting. Guttmacher reaches out to individual clinics to collect data, and several of the small number of clinics that take patients later in pregnancy are located in Maryland.

‘I don’t need people to feel comfortable with it’

The time between 21 and 40 weeks is a long span in a pregnancy, and in 20 states, abortion is generally banned after 22 or 24 weeks. Only nine states and the District of Columbia don’t ascribe gestational limits to their abortion laws, and of those, only four — Maryland, New Mexico, Oregon and Colorado — and the District of Columbia have clinics that openly say they will take patients past 28 weeks.

One of those is Partners in Abortion Care in Maryland, where Dr. Diane Horvath is chief medical officer. That clinic opened in October 2022, and saw about 500 patients in its first year of operation. Horvath told States Newsroom that because there are so few clinics that will take patients at an advanced stage of pregnancy, the people who come to them have generally had to make it through many barriers to access care. That includes their home state laws, travel barriers, time restrictions and costs. In 14 states, a near-total ban on abortion is the law, and five others have bans before 12 weeks.

“Nobody ever thinks they’re going to need a later abortion, but when you need it, you need it 100%,” Horvath said. “Just like you’d never imagine yourself needing a later abortion, this could happen to you or anybody that you love.”

The idea of an abortion happening in a person’s third trimester of pregnancy can be uncomfortable for the average person, Horvath said, and for some physicians. Some doctors? may have their own objections to it, or they may just choose not to make their feelings known about it at all for fear of being targeted by anti-abortion activists. Nobody should have to participate in that type of care, she said. But when a position is open at her clinic, she receives hundreds of applications.

Horvath said in all the time she’s been practicing abortion care, she’s never seen a patient who walked in during their third trimester of pregnancy who wanted to terminate simply because they were tired of being pregnant, as some anti-abortion groups might suggest. The idea that people are choosing that path “carelessly” is just wrong, she said.

“The circumstances in which people are seeking abortions later in pregnancy are really dire. This is not to say every abortion has horrible circumstances, but by the time you find yourself later in pregnancy, lots has gone wrong for you, and this may be due to something that was completely out of your control,” Horvath said. “It’s so easy to demonize when you don’t want to understand something.”

The most important point, she said, is that there isn’t a line in pregnancy where the government becomes more well-equipped to make decisions about a pregnancy than the person carrying it, and there is no possible way to fully understand what a person making that decision is going through.

“It’s possible to feel uncomfortable about this care and the circumstances under which it occurs and still support someone’s ability to get that care when they need it,” Horvath said. “I don’t need people to feel comfortable with it.”

Women interviewed about abortions had fetal anomalies, financial difficulties

As States Newsroom has reported through a series called “When and Where: Abortion Access in America,” there are many situations when a clinical diagnosis of severe fetal anomalies happens at a routine anatomy scan, which is typically scheduled at 20 weeks. That leaves only two weeks to get an appointment in a majority of states with legal access — and post-Dobbs, it can be a tall order to get an appointment that quickly, as clinics have been inundated with patients from other states where no access is available at any stage.

Katrina Kimport, a professor at the Advancing New Standards in Reproductive Health program at the University of California San Francisco, has published at least two studies about abortions that take place in the third trimester, including one that detailed interviews with 28 women of different races between the ages of 18 and 46. Their gestational ages ranged between 24 and 35 weeks.

One woman in Kimport’s study who had already had a complication with a previous pregnancy was assured at 20 weeks that everything was going well this time. But at 29 weeks, her doctors observed problems with the fetus’ brain and initially said she shouldn’t worry too much. But further testing showed pieces of the brain were missing or concave, and specialists eventually told her there was no possibility it was compatible with life.

“There’s a heartbreaking number of ways that pregnancy can go wrong,” Kimport said.

Two women didn’t know they were pregnant until their third trimesters — both of whom were still having regular menstrual cycles, indicating they were not pregnant.

Others reported significant financial difficulties affording the procedure, which can cost at least $500 during the first trimester and increase to tens of thousands of dollars in late stages of pregnancy, on top of the costs of? out-of-state travel for some of the women. One of the women reported that she and her boyfriend were living on the street. To the extent any of them received financial assistance to obtain the abortion, according to Kimport’s research, it was through local or regional abortion funds. Many insurance providers do not cover out-of-state abortion care.

Anti-abortion physician says there is ‘never’ a reason for abortion late in pregnancy

The Charlotte Lozier Institute, a research arm of anti-abortion rights organization Susan B. Anthony Pro-Life America, did not grant an interview for this story, but sent along its own prepared papers on the subject. In one of those papers, the Institute points out there is some research that indicates fetal anomalies or maternal health conditions make up a minority of abortions that happen late in pregnancy, and more often it is because of unplanned pregnancy, economic considerations and relationship issues.

Horvath said it is true that the circumstances include people who are dealing with complex situations in their own lives, like one patient she could remember whose house burned down. That patient was already in a shelter with her children, Horvath said, and could barely provide for them.

While some might suggest having the child anyway and putting it up for adoption at that point, Horvath said that isn’t something that should be forced on a person.

“The idea that somebody owes society or an infertile couple a baby is not just,” she said. “We have one of the worst maternal and infant mortality rates in the world, so to force someone to continue a pregnancy beyond the point they’ve decided is not the right time is putting them at risk to give a baby to someone else.”

The Institute also quotes an anti-abortion rights physician who says there is never an appropriate situation for an abortion at that stage of pregnancy to take place.

“The infant may need to be delivered prematurely and die as a result of that, but it is not necessary to take the infant’s life,” said Dr. Byron Calhoun, a known anti-abortion activist perinatologist. “Further, if a fetus has an adverse prenatal diagnosis, all patients should be offered perinatal hospice care since this is far better for maternal health than any elective abortion. Perinatal hospice allows the parents to be parents and provide all the love they can for their child.”

The Institute did not provide evidence that hospice care is better for maternal health, but perinatal hospice is an option for anyone who wants to do that rather than have an abortion, when the fetus is typically given an injection to stop the heart and then removed from the uterus. Kimport said she has also interviewed women who could not deliver a baby vaginally because of a health condition, and would be forced to have a Cesarean section surgery if abortion was not available.

Physicians who are affiliated with the Lozier Institute have also told news outlets such as the Washington Post that “up to the moment of birth” means any stage of pregnancy past 22 weeks, whereas others would think of it as the last two to three weeks of a 40-week pregnancy.

“Some of the failure to push back on these really outrageously false claims comes from the fact that there are so many things that are wrong about it and it’s hard to know where to start,” Kimport said.

Hadley Duvall speaks in a campaign ad for Democratic President Joe Biden called "They Don't Care." (Screenshot)

A Kentucky woman who talked about abortion in a pivotal campaign ad for Democratic Gov. Andy Beshear last year is now up on airwaves supporting President Joe Biden on the same issue.

Hadley Duvall, an Owensboro native who is now in her early 20s, told the Kentucky Lantern last year that she began sharing her story about the sexual abuse she experienced as a child after the U.S. Supreme Court overturned Roe v. Wade in 2022.?

Woman in Beshear’s abortion ad says she wants to give voice to victims

In the ad for the Biden reelection campaign, text appears between clips of Duvall applying makeup in a mirror to tell the viewer that she was was raped by her stepfather as a child. At the age of 12, she became pregnant by him. She later miscarried.?

“When Roe v. Wade was overturned, immediately I just thought about being 12, and first thing that was told to me when I saw that positive pregnancy test was, ‘you have options,’” Duvall tells the viewer. “And you know, if Roe v. Wade would have been overturned sooner, I wouldn’t have heard that. And then it had me thinking that there’s someone who doesn’t get to hear that now.”?

She then calls out Biden’s opponents, former Republican President Donald Trump and running mate Ohio U.S. Sen. J.D. Vance.?

“Trump and J.D. Vance don’t care about women. They don’t care about girls in this situation,” Duvall says. “They will continue to take our rights away. In this election, we have a choice.”?

The ad is similar to the one aired by Beshear’s reelection campaign last year about two months before the 2023 election. In it, Duvall pushed Beshear’s Republican opponent, then-Attorney General Daniel Cameron on his stance on abortion access.?

Cameron said in September as governor, he would support adding exceptions in cases of rape and incest to Kentucky’s abortion ban? —?if the General Assembly would approve them. He had previously signaled support for the current state law as it is, without exceptions.?

Beshear on the other hand has a history of supporting the standard set by Roe v. Wade. The governor has said the Republican-controlled General Assembly has “given rapists more rights than their victims.” Lawmakers approved a “trigger law” in 2019 that went into effect immediately after the U.S. Supreme Court’s 2022 ruling.?

Kentucky’s law has very narrow exceptions to save the life of the mother. It only allows abortions up to six weeks of pregnancy and does not include exceptions in cases of rape and incest.?

On election night, Beshear thanked Duvall in front of a crowd of supporters in Louisville after defeating Cameron. The following day, Beshear called on the legislature to add exceptions to Kentucky’s abortion ban in cases of rape and incest. While Republican and Democratic lawmakers did file bills to do so, they did not get a committee hearing during the 2024 legislative session.?

Recently, Duvall has appeared in an MSNBC interview alongside Biden’s running mate, Vice President Kamala Harris, and at a campaign event with First Lady Jill Biden.

Kentucky had many fewer maternity care providers than the national average in 2022 — 69 per 100,000 women ages 15–44 compared with an average of 79 nationally.?(Getty Images)

As the worst of COVID-19 subsided in 2022 and a trigger law banning most abortions went into effect upon the fall of Roe v. Wade, Kentucky was already among the worst-performing states for women’s health.?

This insight comes from The Commonwealth Fund’s 2024 State Scorecard on Women’s Health and Reproductive Care, a first-of-its kind ranking that examined health outcomes, insurance coverage, abortion restrictions and other measures in all states and Washington D.C.?

Data is mostly from 2021 and 2022 and was collected primarily from public sources like the Centers for Disease Control and Prevention.?

Released Thursday, the report shows Kentucky had many fewer maternity care providers than the national average in 2022 — 69 per 100,000 women ages 15–44 compared with an average of 79 nationally.?

Kentucky women between the ages of 18 and 44 are also less likely than the national average to report seeing a medical provider for a routine checkup, the report shows.?

“Based on the evidence and data, one thing is absolutely clear: women’s health in the U.S. is in a very fragile state,”? Dr. Joseph Betancourt, the Commonwealth Fund president, said during a Wednesday press call.?

“There are stark disparities in women’s access to quality health care among states, across racial, ethnic and socio economic lines,” Betancourt said. “These inequities are long standing no doubt, but recent policy choices and judicial decisions for restricting access to reproductive care have and may continue to exacerbate them.”??

The report’s goal, Betancourt said, is to offer states and the nation a “vital baseline for tracking the ripple effects” of the United States Supreme Court’s 2022 decision to overturn the constitutional right to abortion as well as “impacts of new policy restrictions on reproductive care.”?

Researchers said Wednesday on a national press call that where a woman lives can indicate a lot about her ability to access and afford all kinds of health care.?

“We are seeing a deep and likely growing geographic divide in U.S. women’s ability to access vital health services and maintain their health, particularly among women of reproductive age,” said Sara Collins, one of the research authors.?

In Kentucky, a“trigger law” went into effect upon the high court’s Roe reversal. Now, abortions in the state are banned in most cases.?

Also in 2022, Kentucky voters rejected an anti-abortion amendment that would have stated definitely that? there is no right to an abortion in Kentucky’s Constitution.

Kentucky does not have exceptions for rape or incest, though both Republican and Democratic lawmakers have filed unsuccessful bills to change that in recent years. There is an exception in cases where the life of the pregnant person is at risk.

The scorecard report is “generally reflecting what was happening in 2022,” explained David Radley, one of the research authors. “So, after the main impacts of COVID, but largely before or concurrent … with the implementation of state abortion bans immediately following the Dobbs decision.”?

“We expect to update this report over time to track how state policy actions — specifically how new restrictions on access to abortion services — impact women’s health and the care they receive,” Radley said during a Wednesday press call.?

Maternal, infant death rates higher in Kentucky than nation

Some key takeaways from the report include:

• From 2020-2022, Kentucky had a rate of 31.4 maternal deaths while pregnant or within 42 days of termination per 100,000 live births. That’s higher than the national average of 26.3.?
• In 2021, Kentucky’s infant mortality rate was higher than the national average — 6.2 per 1,000 live births compared with 5.4 nationally.?
• All-cause mortality among women ages 15-44 in 2022 was 176.3 per 100,000, far higher than the national average of 110.3. Kentucky is one of the worst in the nation on this point. “Suicide, cancer and complications from pregnancy are among the leading causes of death for women in this age range,” Radley said. If you or someone you know is contemplating suicide, call or text the Suicide Prevention Lifeline at 988.?

Some data was not available for Kentucky, including the percentage of women who were asked about depression in their postpartum care or the percentage of women who got a flu shot within a 1-year time span before or after delivery.?

The report also does not show the percentage of women who self-reported having postpartum depression symptoms or the percentage of women who experienced intimate partner violence around delivery.?

Other takeaways from the report include:?

• 73% of Kentucky women between the ages of 50-74 reported getting a mammogram in the last two years compared with 77% nationally.?
• 80% of Kentucky women ages 21-65 reported getting a pap smear in the past three years, compared with 82% nationally.?
• 69% of Kentucky women 65 and older received a pneumonia vaccine, compared with 73% nationally.?
• 33% of Kentucky women between the ages of 18-64 have received an HIV or AIDS test, compared with 44% nationally.?
• 65% of Kentucky women between 45-74 reported getting a sigmoidoscopy or a colonoscopy in the past decade or a fecal occult blood test in the past two years, compared with 60% nationally.

Bright spots

While Kentucky performed poorly overall, data shows a few points where the state did better than the national average.

In 2022, for example, 6% of women in Kentucky between 19-64 reported not having health insurance. That’s lower than the 10% national average.?

Additionally, 12% of Kentucky women between 18-44 said in 2022 they’d needed to see a doctor in the past year but couldn’t afford to. That’s lower than the national average of 17%. Kentucky also has a higher rate of women in this age group who have someone they think of as their health care provider.?

Dr. Laurie C. Zephyrin, one of the study authors and the senior vice president for advancing health equity at The Commonwealth Fund, said in a statement that “it is disheartening to see the rising disparities in women’s health across the nation.”?

“Our country’s fractured landscape of reproductive health access will make it even more difficult to close these widening gaps, especially for women with low incomes and women of color in states with restricted access to reproductive care,” said Zephyrin. “Instead of limiting care, federal and state policymakers should work to ensure that women have access to the full continuum of care throughout their lives.”

The Commonwealth Fund, founded in 1918, is a charitable foundation focused on promoting “a high-performing, equitable health care system that achieves better access, improved quality, and greater efficiency, particularly for society’s most vulnerable, including people of color, people with low income, and those who are uninsured.”

Protesters gather outside the U.S. Supreme Court on Wednesday, April 24, 2024, while justices hear oral arguments about whether federal law protects emergency abortion care. (Sofia Resnick/States Newsroom)

WASHINGTON — The U.S. Senate gridlocked over reproductive rights on Wednesday, when Republicans blocked Democrats from advancing a measure that would have expressed support for abortion access.

The failed 49-44 procedural vote was just one in a string of votes Senate Democrats are holding this summer to highlight the differences between the two political parties on contraception, in vitro fertilization and abortion ahead of the November elections.

Maine Sen. Susan Collins and Alaska Sen. Lisa Murkowski were the only Republicans to vote to move the bill toward final passage.

“This is a plain, up-or-down vote on whether you support women being able to make their own reproductive health care decisions,” Washington Democratic Sen. Patty Murray said during floor debate. “It doesn’t enforce anything. It doesn’t cost anything. It’s actually just a half-page bill, simply saying that women should have the basic freedom to make their own decisions about their health care.”

Minnesota Democratic Sen. Amy Klobuchar said that women and their doctors, not politicians, should make decisions about abortion and other reproductive health choices.

“This is our current reality, but it doesn’t have to be our future,” Klobuchar said. “This is a pivotal moment for America: Are we going to move forward and protect freedom, which has long been a hallmark of our nation, or are we going to go further backwards in history — not just to the 1950s but to the 1850s.”

Michigan Democratic Sen. Debbie Stabenow urged support for the legislation, saying women should be able to make decisions about their own health care, lives and futures.

“That’s what this vote is about and we’re not going to give up until we have those freedoms fully protected,” Stabenow said.

No Republican senators spoke during debate on the bill ahead of the vote.

The two-page bill would not have actually changed or provided any nationwide protections for abortion access.

The legislation, if enacted, would have expressed a “sense of Congress” that abortion rights “should be supported” and that the nationwide, constitutional protections for abortion established by Roe v. Wade “should be restored and built upon, moving towards a future where there is reproductive freedom for all.”

The Biden administration released a Statement of Administration Policy earlier in the week, backing the bill.

“Today, more than 20 states have dangerous and extreme abortion bans in effect, some without exceptions for rape or incest,” the statement said. “Women are being denied essential medical care, including during an emergency, or forced to travel thousands of miles out of state for care that would have been available if Roe were still the law of the land. Doctors and nurses are being threatened with jail time.”

Trio of bills offered, blocked

The blocked procedural vote on Wednesday came just one day after Democrats went to the floor in an attempt to pass three other bills on reproductive rights through the fast-track unanimous consent process.

That involves one senator asking “unanimous consent” to pass legislation. Any one senator can then object, blocking passage of the bill. If no one objects, the bill is passed.

The maneuver is typically used to approve broadly bipartisan measures or for lawmakers to bring attention to legislation without moving it through the time-consuming cloture process that can take weeks in the Senate.

Nevada Sen. Catherine Cortez Masto on Tuesday tried unsuccessfully to pass her bill, which would have barred the government from preventing travel “to another state to receive or provide reproductive health care that is legal in that state.”

Forty Democratic or independent senators co-sponsored the legislation.

During brief floor debate, Cortez Masto said the bill “reaffirms that women have a fundamental right to interstate travel and makes it crystal clear that states cannot prosecute women — or anyone who helps them — for going to another state to get the critical reproductive care that they need.”

“Elected officials in states like Tennessee and Texas and Alabama are trying to punish women for leaving their state for reproductive care, as well as anyone who helps them, including their doctors or even their employers,” Cortez Masto said. “Why? Because for these anti-choice politicians, this is about controlling women.”

Mississippi Republican Sen. Cindy Hyde-Smith objected to the unanimous consent request, saying that while members of the anti-abortion movement “most certainly do not oppose any individual’s freedom to travel across this great country,” they do have concerns the measure would hinder prosecution of crimes, like human trafficking.

Bill would ‘take us backward,” Budd says

Republicans blocked a second bill, sponsored by Murray, that would have blocked state governments from preventing, restricting, impeding, or disadvantaging health care providers from providing “reproductive health care services lawful in the state in which the services are to be provided.”

The bill was co-sponsored by 30 Democratic or independent senators.

“When I talk to abortion providers in Spokane, where they see a lot of patients fleeing restrictive abortion bans from states like Idaho, they are terrified that they could face a lawsuit that will threaten their practice and their livelihood, just for doing their jobs, just for providing care their patients need — care that is, once again, completely legal in my state,” Murray said. “We are talking about people who are following the law and simply want to provide care to their patients. This should be cut-and-dried.”

North Carolina GOP Sen. Ted Budd objected to the request, arguing the bill “would make it easier for unborn life to be ended.”

“The Supreme Court’s Dobbs decision brought renewed hope to Americans who believe in the sanctity of each and every life, including life in the womb,” Budd said. “But this bill would take us backward.”

Following Budd’s objection to passing the bill, Murray said his actions “made clear” that GOP lawmakers “have no problem whatsoever with politicians targeting doctors in states like mine, where abortion is legal.”

“I think that pretty much gives the game away,” Murray added.

Grant program

Democrats also tried to pass legislation from Wisconsin Democratic Sen. Tammy Baldwin that would have established a federal grant program to bolster the number of health care providers who receive “comprehensive training in abortion care.”

That bill had seven Democratic or independent co-sponsors in the Senate.

“For our top-ranked medical schools, a post-Roe reality sowed chaos as students and their instructors wondered how future doctors in our state would have access to the full slate of training necessary to safely practice obstetrics and gynecology,” Baldwin said.

Kansas Republican Sen. Roger Marshall, an OB-GYN, blocked the request, saying that the federal government “should not be spending taxpayer dollars to encourage medical students and clinicians to take life when their principal duty, their sacred oath, is to protect life and to do no harm from conception to natural death.”

Repeated attempts throughout 2024

Democrats sought to advance legislation on access to contraception and in vitro fertilization despite the 60-vote legislative filibuster earlier this year, and failed to get the necessary Republican support each time.

In early June, Democrats tried to advance legislation that would have protected “an individual’s ability to access contraceptives” and “a health care provider’s ability to provide contraceptives, contraception, and information related to contraception.”

A week later, Democrats tried again, this time with legislation that would have provided a right for people to access IVF and for doctors to provide that health care without the state or federal government “enacting harmful or unwarranted limitations or requirements.”

Collins and Murkowski were the only Republicans to vote to move the bills toward a final passage vote.

Alabama GOP Sen. Katie Britt attempted to pass an IVF access bill through the unanimous consent process in mid-June, but was unsuccessful.

That measure, which she co-sponsored with Texas Republican Sen. Ted Cruz, would have blocked a state from receiving Medicaid funding if it prevented IVF.

The legislation, which had three co-sponsors as of Wednesday, didn’t say what would happen to a state’s Medicaid funding if lawmakers or a state court defined life as starting at conception.

That’s what led IVF clinics in Alabama to temporarily shut down earlier this year after the state Supreme Court ruled that frozen embryos at IVF clinics constitute children under state law.

The Alabama state legislature has since provided civil and criminal protections for IVF clinics.

Some anti-abortion organizations call Plan B, which is an emergency contraceptive designed to prevent pregnancy after unprotected sex, an abortion drug because it can prevent the implantation of a fertilized egg. (Photo illustration by Justin Sullivan/Getty Images)

Clinic closures in the wake of the Dobbs decision and questions about the legality of emergency contraceptives, including disinformation that some are abortion drugs, may have contributed to a sharp drop in the rate of prescriptions for contraceptives in states with the most restrictive abortion bans, according to a University of California study.

The decline was significant in most states with restrictive bans following Dobbs in June 2022 that returned regulation of abortion procedures to the states, the study found. The group of researchers, led by pharmacy professor Dima Qato, used data from national prescription audit databases to estimate the monthly volume of prescriptions dispensed at pharmacies nationwide and state-by-state. It represents estimates from more than 93% of retail pharmacies.

“Given that abortion would be restricted in many states even more after Dobbs, I wondered whether now more people would get covered through contraception to prevent pregnancy and the need for an abortion,” Qato said.

Over the past six months, especially in states with near-total abortion bans, lawmakers have discussed proposals that would protect access to contraception, but those efforts have largely failed because of concern over whether that would include emergency contraception. Some anti-abortion organizations call Plan B, which is an emergency contraceptive designed to prevent pregnancy after unprotected sex, an abortion drug because it can prevent the implantation of a fertilized egg.

The researchers think those conversations have led to confusion among residents who aren’t sure if emergency contraceptives are still legal in their state. That confusion could also extend to pharmacists. While Plan B is available over the counter at many retail stores and pharmacies, including Amazon, it can also be obtained by prescription, which is the only data point the study captured. According to the research, the rate of obtaining it through prescription between 2021 and 2023 dropped more than 70% in four states with near-total bans — Arkansas, Kentucky, Louisiana and Tennessee. It declined by about 60% in Missouri.

The increases peaked in July 2022 and then dropped to levels lower than the pre-Dobbs period, Qato said.

“For patients that are seeking emergency contraception but can’t get it prescribed or filled, that’s where it matters,” Qato said. “They want to take it, they know it’s an option, and now they’re faced with hesitant prescribers and pharmacies.”

Half of women surveyed in ban states are unsure if Plan B is legal

A Kaiser Family Foundation poll released in early 2023 found that more than 30% of adults surveyed were unsure if Plan B was legal in all 50 states and over the counter — and half of women living in states with abortion bans were under the impression that emergency contraceptives were illegal or were unsure if they were legal.

Conversely, in two states with near-total bans, Idaho and South Dakota, the rate of prescriptions for emergency contraceptives increased by 148% and 182%, respectively. Those numbers were attributed to increases in ulipristal, which is also known as Ella, rather than levonorgestrel, known as Plan B. Ella can be effective at preventing pregnancy up to five days after unprotected sex, while Plan B is most effective within three days and is also less effective in people who weigh more than 165 pounds, while Ella does not have that limitation.

Between the 12 states with the most restrictive bans, the combined decline of emergency contraceptive prescriptions was 60%, and the decline for oral contraceptives was 24%.

Qato said she expected to see lower rates of emergency contraceptive use in the most restrictive states, particularly with the conversations likening them to abortion drugs, but she wasn’t expecting to also see a drop in monthly oral contraceptive prescriptions. Among states with the most restrictive bans, the largest decrease of 28% was in Texas, while most other states had decreases of about 20%, including Kentucky, Louisiana, Alabama and Tennessee.

Qato also theorized that the closure of abortion clinics in those states with bans contributed to the decreases, since most clinics that provided abortions prior to Dobbs also offered prescriptions for oral and emergency contraceptives, IUDs and other family planning services such as screenings for sexually transmitted diseases. The study found no change in the use of IUDs and other forms of contraception such as the patch or vaginal ring.

Over-the-counter options only help certain people?

In her research, Qato noted that two years after Iowa imposed Medicaid coverage restrictions on family planning clinics that provided abortions, the use of contraceptives declined by two-thirds.

A report from the Guttmacher Institute released this week showed 42 clinics that provided abortions nationwide closed their doors between 2020 and 2024. The number of abortions have also increased during that time, and more than 80% still take place at brick-and-mortar clinics rather than via telehealth or by mail.

While Plan B and Opill — an oral contraceptive — are available over the counter, Qato said those options are still untenable for some people who need contraceptives the most, including low-income women and women of color.

“Opill is convenient for those who don’t want to go to the doctor and have that discretionary income to purchase it, but low-income women relied on clinics that are now closed, they relied on prescriptions that they now don’t have,” Qato said. “Those options are accessible, but not affordable to women who could really benefit from it.”

While Qato said there should be a focus on restoring and protecting access to abortion, there should also be efforts to protect contraception in the most restrictive states. She is alarmed to see initial increases after Dobbs and then such steep declines.

“It suggests that we may observe increases in live births from unintended pregnancies in women who were forced to have a child that wasn’t planned because the state didn’t protect or introduced fear of criminalization or liability for patients, doctors, or pharmacists,” she said. “A woman may not feel safe choosing emergency contraception in those states anymore.”

This story has been updated to correctly identify the University of Southern California as the institution that conducted a study that found a sharp drop in the rate of prescriptions for contraceptives in states with the most restrictive abortion bans.

Mark Lee Dickson (far right), director of Right to Life East Texas, prays in front of the U.S. Supreme Court on April 21, 2023 in Washington, DC. (Chip Somodevilla/Getty Images)

Mark Lee Dickson says he’s been home maybe once in the two years since the U.S. Supreme Court vanished federal abortion rights in Dobbs v. Jackson Women’s Health Organization.

The 38-year-old director of Right to Life of East Texas in Longview has been on an endless road trip trying to set legal traps for people who are driving someone out of state to get an abortion. The native Texan said he drives from town to town attending pregnancy-center banquets, men’s prayer breakfasts, Republican women’s club meetings, Catholic fish fries and the rodeo, trying to convince local lawmakers and potential citizen petitioners to make their cities and counties so-called “sanctuaries for the unborn,” stretching local law to restrict abortion in as many ways as possible — such as restricting travel and medical waste disposal — to potentially provoke an eventual lawsuit.

“I find myself in a variety of different places, wherever the Lord takes me,” Dickson told States Newsroom.

Many of the pregnant residents in the rural areas Dickson goes to struggle with lack of access to maternal care, but Dickson likens himself to Batman on a vigilante quest to save embryos and fetuses from abortion. Reproductive justice organizers and attorneys who’ve spent the last two years fighting to restore reproductive health care access throughout the U.S. liken Dickson to a reincarnated version of 19th century anti-vice crusader Anthony Comstock, whose eponymous anti-obscenity law Dickson has been wielding as one of many tools to fast-track a national abortion ban.

Two years since Roe v. Wade was overturned and four months away from a presidential election, one of the biggest threats to abortion rights is a federal administration willing to enforce and reinterpret the dormant Comstock Act to criminalize the mailing of abortion-related drugs, medical equipment and information. But abortion providers and advocates say that even without Comstock, monitoring and policing of pregnant women and information is already here, thanks to activists like Dickson, whose proposed city ordinances allow residents to sue anyone suspected of helping someone get an abortion.

“I have a whole lot of friends that spend time on the sidewalks of abortion facilities throughout America,” Dickson said. “And I’ve told these friends, if you ever meet someone from Abilene, Texas, that is seeking out an abortion in New Mexico, use the sanctuary city ordinance as a deterrent as much as you can.”

Rising Comstocks?

Dickson’s partner in the endeavor to broadly criminalize abortion in every state, one city at a time, is Jonathan F. Mitchell, the onetime solicitor general of Texas, who is also counsel for former President Donald Trump. Along with these sanctuary cities ordinances, together they helped draft Senate Bill 8, a blueprint for largely banning abortion in Texas in 2021 by authorizing citizens to sue those suspected of providing or assisting with an abortion.

And since Roe fell, they have been pushing a version of the Comstock Act that historians and legal scholars say never existed.

Legal scholars Reva Siegel and Mary Ziegler in their forthcoming article about the old law write that Anthony Comstock was focused on preventing illicit sex and pornography, not on preserving fetal life. The religious zealot was known for bringing dildos, contraceptives, and pornography to testify before state and local lawmakers about the need for anti-obscenity laws.

“The statute is a ban on obscenity, not criminalization of health care,” Siegel, a professor at Yale Law School, told States Newsroom. “And when you listen to the revivalists, they just talk about Comstock as an absolute ban as if it has no exceptions. That’s just not true — in light of the text or the history.”

But that doesn’t really matter to Dickson and Mitchell.

Through their Sanctuary Cities for the Unborn project, Dickson and Mitchell have helped pass approximately 80 ordinances in cities and counties in seven states, mostly in Texas, but also in strategically located cities in abortion-access states, like New Mexico, where a challenge to ordinances that cite the Comstock Act currently awaits a ruling from the state supreme court and could eventually make its way to the U.S. Supreme Court.

Where Anthony Comstock had the financial backing of the YMCA and was elevated to power as a special agent of the U.S. Post Office, the influential conservative think tank Heritage Foundation is pushing Mitchell and Dickson’s version of Comstock in its plan for a potential future Trump administration to go after providers and distributors of abortion pills. Mitchell has received some financial support in 2023 and 2022 from the Christian right law firm Alliance Defending Freedom, which brought the recent abortion pill case before the Supreme Court.

Dickson said he wants these ordinances to go even further, such as opening up lawsuits to rideshare companies. But immediately on the agenda, he said, is to try to use Comstock to challenge state abortion-rights ballot initiatives.

“There are many ways the Comstock Act can be used to help inoculate pro-abortion ballot initiatives in states like Arizona and Nebraska,” Dickson said. “A lot is planned between now and November, I can say that.”

Mitchell, who did not respond to an interview request, is currently defending the right of Texas professors to penalize students who miss class to obtain an abortion. That new lawsuit will be heard by U.S. District Judge Matthew Kacsmaryk, whose opinion last year advanced a challenge to an abortion pill and cited Comstock as a valid argument. Though the U.S. Supreme Court recently rejected the mifepristone case, new challenges to the abortion pill continue, as does increased support for anti-abortion Comstock arguments from federal judges like 5th Circuit Court of Appeals Judge James Ho and Supreme Court Justices Samuel Alito and Clarence Thomas.

Meanwhile, longtime anti-abortion groups like Operation Rescue, which led clinic blockades in the 1980s and 1990s, continue to apply old-school surveillance and monitoring tactics. Based in Wichita, Kansas, president Troy Newman said his group maintains a sidewalk presence at abortion clinics in Wichita, and regularly files public records requests for 911 calls, which they post online. They also publish detailed reports on thousands of abortion providers in the U.S., referring to them as “the abortion cartel.”

Newman told States Newsroom that the goal is not to target women getting abortions, but to report potential abortion-clinic violations in order to shut down clinics that since Dobbs have relocated to states without abortion bans.

“I don’t think we can keep track of them all, but we have people feeding us information on a daily basis,” Newman said.

Siegel and Ziegler argue “comstockery’’ is a threat to democracy, as it depends on suppressing freedom and promoting government censorship. Comstock famously helped imprison women who disseminated information about birth control and abortion, some who later died by suicide.

“Revivalists hope to chill the exercise of rights already recognized in positive law, including state constitutional protections and the right to travel,” Siegel and Ziegler write. “Further, by disparaging reproductive rights and intimidating those who seek to exercise them, Comstock revivalists seek to short circuit an ongoing process of popular constitutional meaning-making that has unfolded in state ballot initiatives, state courts, and grassroots movements.”

Resisting Comstocks

Many legal experts argue that Comstock would be a difficult law to defend even with a partially willing U.S. Supreme Court; however, the effects of even temporary enforcement could rock reproductive health care throughout the U.S. even more than it has since Dobbs. After initial discouragement from national reproductive rights groups, Democrats in Congress this month finally introduced a bill to repeal Comstock, though it is unlikely to advance before the election.

New Republic staff writer Melissa Gira Grant and Harvard Law lecturer Kendra Albert last month coalesced historians, attorneys, organizers, and journalists at a one-day summit at Harvard Law School called ComstockCon to unite against modern-day Comstocks from further constricting abortion rights. Grant said the criminalization of sex and pregnancy has long been borne by more marginalized groups, including people of color, sex workers and people who are trans or living in poverty. She said that the reproductive justice movement now more than ever needs solidarity.

“We know that those eager rising modern-day Comstocks, the Jonathan Mitchells of the world and others, they’re in this fight for the long term,” Grant said. “We know that they regard so many of us as obscene for who we are, how we are, and how we want to be. … If they see the suppression of all of us as one fight, then that should be a point of solidarity for us.”

And many called for resistance to the dead letter and legally dubious anti-abortion deterrent laws.

“You have to keep pushing now,” said one of the panelists, Renee Bracey Sherman, founder of We Testify, which lifts up people’s abortion stories. “There will always be another ban. It’s not going to stop us from talking, from sending pills.”

Ban by deterrence

To date, no civil lawsuit has been filed under SB 8 or a sanctuary city ordinance, Dickson said.? But, as the Texas Tribune has reported, Mitchell has filed petitions (under a little-known state rule) to depose abortion funds, providers, researchers and — despite assurances that these laws won’t punish women having abortions — women who left the state to get an abortion.

These past few months, Dickson has been in Amarillo mobilizing anti-abortion activists to make their high-trafficked roads illegal for the purposes of interstate abortion-related travel. Embedded in the Amarillo ordinance is a reference to the Comstock Act. Petitioners gathered enough signatures to force the city council to vote on the measure, but abortion-rights advocates fiercely campaigned against the ordinance. After the council rejected the proposal earlier this month, Amarillo Mayor Cole Stanley said the city doesn’t have the authority to enforce the ordinance — a point with which Dickson vehemently agrees and said he spent hours explaining to the mayor.

The whole point of these ordinances, Dickson said, is that they allow for citizen lawsuits, not government enforcement. He admits that they function largely as deterrents, to chill abortion-related activity even in states where it’s legal. And it’s working, he said, noting that in the year before Dobbs, most doctors stopped providing abortions in Texas after the 2021 so-called vigilante law. One who didn’t was Dr. Alan Braid, and though he was sued, those lawsuits were dismissed.

After Dobbs, however, Braid relocated his abortion practice to New Mexico and told NPR earlier this year that his Albuquerque clinic had higher no-show rates, which he partially attributed to people scared to drive through Lubbock because of its abortion-travel ban.

“These ordinances are doing exactly what they’re intended to do,” Dickson said. “I liken it to an armed security officer at the bank who serves as a deterrent. He doesn’t have to fire his gun in order for him to be viewed as an effective method of protecting the interest of the bank.”

But there’s another purpose to these ordinances, too, particularly Amarillo’s, which anti-abortion petitioners are still trying to get on the November ballot.

Amarillo is the home of Kacsmaryk’s court, where anti-abortion attorneys have been filing their strategic lawsuits since Dobbs. Dickson said he and Mitchell are eager to make it a so-called sanctuary city as a way of arguing for legal standing in the cases to come.

Lindsay London, a nurse who co-founded the Amarillo Reproductive Freedom Alliance, which has been fighting the ordinance, said she resents having her native city used as a “strategic chess piece.” She said her coalition includes Amarillo Republicans skeptical of government overreach and is confident that, if given the opportunity, her fellow residents will vote down this law, which she said would be harmful to the community.

“It creates a culture of fear and mistrust,” London said. “The last thing that people need to be concerned about when they’re moving through a difficult situation is, is someone that they trust or a neighbor or anything like that going to use that vulnerable situation to try and sue them? Positing neighbor upon neighbor is not how we create healthy communities.”

Elisha Brown contributed to this report.

From left, Jessica Kalb, Sarah Baron and Lisa Sobel are challenging Kentucky's abortion ban. (Kentucky Lantern photo by Sarah Ladd)

Jefferson Circuit Court Judge Brian Edwards has ruled against a motion made by three Jewish women seeking to challenge Kentucky’s abortion ban on religious grounds.?

In a 9-page Friday night opinion, Edwards wrote the women do not have standing and that their concerns are “hypothetical.”

Citing several precedential cases, the judge said the issue was not yet a concrete problem and lacked “ripeness.”?

“Individuals cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending,” Edwards wrote.

Louisville judge hears arguments in Jewish women’s challenge of Kentucky’s abortion ban

Therefore, he wrote, “plaintiffs have failed to demonstrate the existence of a justiciable controversy as defined by generations of case law.”?

This comes more than a month after the judge heard oral arguments, which heavily focused on in vitro fertilization (IVF) and the extent to which it overlaps with the state’s abortion ban.?

One of the plaintiffs has nine frozen embryos that she’s paying thousands of dollars annually to preserve, just as Kentucky lawmakers are split on what protections exist for IVF in the state.?

The women’s lawyers — Benjamin Potash and Aaron Kemper — argued that by banning most abortions, Kentucky had imposed and codified a religious viewpoint that conflicts with the Jewish belief that birth, not conception, is the beginning of life.?

They also said their plaintiffs — Lisa Sobel, Jessica Kalb and Sarah Baron — feel Kentucky’s current laws around abortion inhibit their ability to grow their families.?

Benjamin Potash, one of the lawyers for the plaintiffs, told the Lantern in a text that the decision “makes numerous obvious errors,” such as basing part of the ruling on a reading of Roe V. Wade, which had established the constitutional right to abortion but was overturned in 2022 by the United States Supreme Court.?

Assistant Attorney General Lindsey Keiser defended the law on May 13 for the state attorney general, who praised Friday’s decision “to uphold Kentucky law.”?

“Most importantly, the Court eliminates any notion that access to IVF services in our Commonwealth is at risk,” Attorney General Russell Coleman said in a statement. “Today’s opinion is a welcome reassurance to the many Kentuckians seeking to become parents.”

Potash said the judge’s decision is “disappointing” and said “we look forward to review by higher courts.”??

“After 13 months of waiting, we received a nine page decision that we feel fails to comport with the law,” he said. “Our nation is waiting for a judiciary brave enough to do what the law and our traditions require.”?

A protester at a Planned Parenthood Great Northwest rally in Boise, Idaho, holds up a sign about the EMTALA case on April 21, 2024. (Otto Kitsinger/Idaho Capital Sun)

As expected after the court said it inadvertently uploaded the opinion prematurely on Wednesday, the U.S. Supreme Court issued a decision Thursday remanding a case about emergency abortions in Idaho back to the Ninth Circuit Court of Appeals for now.

The decision was 6-3, with conservative Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissenting. It was issued “per curiam,” meaning there is no lead author of the overall opinion.

The justices affirming the decision wrote that they determined the court took the case too early in the process. It granted the request to hear the case in January before the Ninth Circuit Court of Appeals could hold its own hearing on an injunction that blocked enforcement of the law against emergency room physicians who might need to perform an abortion to prevent a pregnant patient from experiencing significant health effects from infection or other conditions. The government argued Idaho could not enforce its criminal abortion ban in emergency rooms because it would violate a federal law known as the Emergency Medical Treatment and Labor Act, or EMTALA, which requires Medicare-funded hospitals to treat patients who come to an emergency room regardless of their ability to pay.

Loss of federal protection in Idaho spurs pregnant patients to plan for emergency air transport

When justices agreed to hear the case, the court also dropped the injunction, leaving doctors in Idaho open to prosecution under its criminal abortion ban, which carries penalties of jail time, fines and the loss of a medical license. Idaho’s civil law also allows immediate and extended family members to sue the doctors for up to $20,000 over an abortion procedure.

Idaho’s ban contains only an exception to save the pregnant patient’s life, not to prevent detrimental health outcomes, including the loss of future fertility, which is a risk with severe infection or bleeding. Without further clarity written into the law, doctors have said they can’t confidently assess when to safely intervene to save someone’s life. Rather than take the chance, high-risk obstetric specialists have airlifted patients to a facility out of state that can freely perform the procedure before it’s too late. In 2023, the state’s largest hospital system said at their facilities such transfers happened once, but occurred six times between January and April, when the injunction was lifted.

Justice Amy Coney Barrett, who is typically conservative in her rulings, said the court’s decisions to hear the case and drop the injunction were premised on the belief that Idaho would suffer “irreparable harm” under the injunction and that the cases were ready for the court’s immediate determination. She wrote that the briefings and oral argument in April shed more light on the case, and made it clear that conscience objections were covered under EMTALA and other concerns about an interpretation that would include emergency mental health concerns did not apply.

“I am now convinced that these cases are no longer appropriate for early resolution,” Barrett wrote.

Dr. Caitlin Gustafson, president of a group of Idaho physicians who have spoken out against the ban and submitted a brief to the court in the case, said the decision is not the end of her coalition’s work.

“We are relieved by the Supreme Court’s decision,” Gustafson said. “However, this ruling addresses only a small part of the ever-increasing barriers across the health care landscape. The coalition remains committed to advocating for comprehensive policy updates to fill the gaps in healthcare access created by Idaho’s restrictive laws, which jeopardize patient safety. We will not relent until private healthcare decisions are once again at the discretion of patients and their physicians, free from political interference.”

Ahead of the decision, more than 6,000 doctors from around the country also appealed to the court to protect ER physicians, along with medical professionals in Idaho and advocacy organizations.

The case now returns to the Ninth Circuit to resume the process, but it could ultimately return to the Supreme Court at a later date.

Protesters gather outside the U.S. Supreme Court on Wednesday, April 24, 2024, while justices hear oral arguments about whether federal law protects emergency abortion care. (Sofia Resnick/States Newsroom)

A document inadvertently uploaded to the U.S. Supreme Court’s website on Wednesday appears to indicate the court will send a case regarding emergency abortion care in Idaho back to the Ninth Circuit Court of Appeals rather than make a decision, according to reporting from Bloomberg Law.

Rather than rule on the merits, the unofficial opinion, as cited by Bloomberg, essentially says the court took the case too soon in the process. The court acknowledged the document was accidentally uploaded for a short period of time on Wednesday, and told Bloomberg an official opinion will be released “in due course.”

“The Court’s Publications Unit inadvertently and briefly uploaded a document to the Court’s website,” said Patricia McCabe, the court’s public information officer. “The Court’s opinion in?Moyle v. United States?and?Idaho v. United States?will be issued in due course.”

According to the unofficial opinion, the decision is 6-3, with Justices Samuel Alito, Neil Gorsuch and Clarence Thomas dissenting.

The opinion, if it holds true, would reinstate the lower court’s injunction that blocked enforcement of the law as it relates to Idaho’s emergency room physicians who might need to perform an abortion when a pregnant patient is at risk of potentially serious health problems. The U.S. Justice Department sued Idaho over its near-total abortion ban in 2022 and said prosecuting physicians under those circumstances would violate the federal Emergency Medical Treatment and Labor Act, or EMTALA, which requires Medicare-funded hospitals to treat patients who come to an emergency room regardless of their ability to pay.

The Ninth Circuit Court of Appeals had scheduled an “en banc” hearing for the case in January, but after attorneys for the state of Idaho and religious conservative law firm Alliance Defending Freedom asked the Supreme Court to hear the case, the Ninth Circuit hearing was vacated and so was the injunction.

Without the injunction, ER doctors are subject to the full extent of Idaho’s abortion ban, which carries penalties of jail time, fines and the loss of a medical license. Those doctors are also subject to Idaho’s civil law that allows immediate and extended family members to sue for up to $20,000 over an abortion procedure.

Idaho’s ban contains only an exception to save the pregnant patient’s life, not to prevent detrimental health outcomes, including the loss of future fertility, which is a risk with severe infection or bleeding. Without further clarity written into the law, doctors in Idaho have said they can’t confidently assess when to safely intervene to save someone’s life and avoid losing their medical license or face between two and five years in prison. Rather than gamble with someone’s life, States Newsroom reported high-risk obstetric specialists have airlifted patients to facilities out of state that can freely perform the procedure before it’s too late. In 2023, such transfers happened once, but occurred six times between January and April, according to the chief medical officer of one of Idaho’s largest health systems.

Those transfers were cited by Justices Elena Kagan and Ketanji Brown Jackson as reasons for their decision to send the case back to the Ninth Circuit.

“As a practical matter, this Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of ldaho,” Brown Jackson wrote in the unofficial opinion.

At a scheduled event in Boise, Idaho, on Wednesday, U.S. Health and Human Services Secretary Xavier Becerra said it was important to wait and not speculate about the opinion until it was official. But if true, Becerra said it affirmed the government’s position that anyone in America who is at risk of health problems or death should be able to seek care in an emergency room.

“Whether the care that a professional says you need to stabilize your health or to save your life is an abortion or not, the bottom line is none of us wants to be denied access to an emergency room when we need it,” Becerra said. “And (it’s) why I continue to say when Roe v. Wade was struck down, it impacted more than just abortion care — it impacted access to care, period.”

Dr. Loren Colson, a family physician in Idaho, said at the event that if the opinion holds true, it is only a small comfort to doctors in the state.

“This teeny tiny little carveout allows us as physicians in very specific scenarios to provide the care and hopefully not Life Flight people out of the state so they can go somewhere else to get the care that we can easily provide here, but it does not fix our problem here,” Colson said. “We still have a huge problem when it comes to being able to access abortion.”

The court is scheduled to release more opinions Thursday and Friday morning, and the official ruling could come on either of those days.

The news was happier for supporters of reproductive rights in Kentucky as they celebrated the defeat of an anti-abortion constitutional amendment in November 2022. Less than five months earlier the Dobbs decision has allowed a near-total ban on the procedure to take effect in Kentucky. (Photo for Kentucky Lantern by Arden Barnes)

LOUISVILLE — Two years to the day after the United States Supreme Court overturned the constitutional right to abortion, advocates and physicians in Louisville and Lexington slammed the fallout from Kentucky’s almost total ban on the procedure.

Kentucky’s U.S. Rep. Morgan McGarvey was in Louisville Monday morning alongside Planned Parenthood and others to say “the law in Kentucky is extreme; it is cruel, and it is harming women and families.”?

In Lexington, abortion access advocates with the Kentucky Reproductive Freedom Fund (KRFF) announced a campaign that will include billboards, trucks and digital ads to “call attention to the harmful effects these bans have on the medical community and all Kentuckians,” said Ona Marshall, who founded KRFF and co-owned Louisville’s EMW Surgical Center, which provided abortions but closed after the ban took effect.

The billboards will go up early next month, she said.?

The campaign will also urge “Kentuckians to sign a pledge calling for an end to the state’s restrictive abortion laws.” Republicans have a supermajority in the state’s legislature, and haven’t appeared willing as a caucus to loosen the abortion restrictions.?

Several physicians who spoke out Monday against the abortion ban said Kentucky’s law is forcing them to delay care and to make decisions that are not the best for patients. Also, they said, the ban is disproportionately burdening lower-income Kentuckians who can’t afford to travel to other states where abortion is legal.

Dr. Alecia Fields, an OB-GYN and fellow with Physicians for Reproductive Health, said in Lexington that “the aftermath” of the 2022 SCOTUS decision “has been terrifying to witness.”?

“As a doctor, I have been faced with decisions that I never thought possible,” Fields said. “Decisions that are not based on good medicine, but are driven by state law.”?

Dr. Caitlin Thomas, another OB-GYN, said unplanned and unwanted pregnancies can put Kentuckians in difficult situations.?

“Individuals who are not in physical, financial or emotional states to continue pregnancies are left with a difficult decision on whether they need to travel out of state for abortion or to continue pregnancy and suboptimal conditions,” Thomas said. “Furthermore, this creates a dichotomy where only those with means are able to have full control of their reproductive decisions, leaving those most vulnerable without appropriate options.”??

Dr. Callyn Samuel, an OB-GYN who spoke in Louisville, said she’s seeing high risk women forced to carry a complicated pregnancies to her. Providers, she said, greatly fear “legal ramifications” for treating complicated conditions.?

“We as providers now also have to fill out quite lengthy paperwork for patients who come in with simple things (like) ectopic pregnancies — that are emergencies at times — and even to the point where we’re having to fill this paperwork out before we’re able to provide care to them, which has halted their care and definitely caused harm…by not allowing their care to be performed as soon as possible,” Samuel said.?

‘Fear and intimidation’

Rebecca Gibron, the CEO of the Planned Parenthood chapter that includes Kentucky, said the ban is forcing survivors of rape into difficult decisions.?

“These survivors are forced to stay pregnant here if they can’t afford to find care outside of Kentucky,” Gibron said in Louisville.?

After the U.S. Supreme Court overturned Roe V. Wade, which had guaranteed the constitutional right to abortion, in 2022, a “trigger law” went into effect in Kentucky that banned abortions. Another law bans abortions after six weeks. Doctors have previously said many people don’t know they’re pregnant at the six-week mark.?

That same year, Kentucky voters rejected an anti-abortion amendment that would have stated definitely that? there is no right to an abortion in Kentucky’s Constitution.

Kentucky does not have exceptions for rape or incest, though both Republican and Democratic lawmakers have filed unsuccessful bills to change that in recent years. There is an exception in cases where the life of the pregnant person is at risk.?

Physicians bring message to Frankfort: Abortion bans forcing us to violate our oath to do no harm

Lawyers for the American Civil Liberties Union (ACLU) and others have argued to no avail that the restrictions Kentucky has in place are unconstitutional.?

Amber Duke, the executive director of Kentucky’s ACLU chapter, said her goal is to “keep fighting until our right to access the full range of care is restored.” The ACLU represented an anonymous plaintiff in December who said she was pregnant but didn’t want to be.?

Jane Doe and the ACLU sued then-Attorney General Daniel Cameron in an effort to access abortion in the state. Her case was dismissed a week before Christmas after her fetus lost cardiac activity and the pregnancy became nonviable.?

Marshall with KRFF said the abortion law in Kentucky is “incredibly vague related to when an abortion can be provided to save a patient’s life.”?

“Why should politicians decide how far her health must deteriorate before physicians can act? The laws create an environment of fear for doctors and hospitals alike,” Marshall said. “How do you practice medicine in an atmosphere of intentional fear and intimidation?”?

An abortion rally in downtown Nashville took protesters on a route to the Tennessee Capitol and the federal courthouse in June 2022. (Photo by John Partipilo/Tennessee Lookout)

In Arizona, the state’s highest court upheld a Civil War-era abortion ban. Florida and South Carolina moved to restrict abortion to six weeks — before many people know they are pregnant. The Alabama Supreme Court ruled that frozen embryos are “children,” temporarily throwing fertility treatments, such as IVF, into uncertainty and igniting a national debate.

Meanwhile, anger and fear unleashed citizen-driven ballot initiatives around the nation that sought to protect abortion access, and in some cases, competing efforts to codify no right to abortion in some state constitutions.

And amid all of that, emergency room physicians in Idaho and other states nationwide are still waiting for the U.S. Supreme Court to decide whether they are subject to criminal penalties for providing an abortion even during a medical emergency.

It has been two years since the U.S. Supreme Court overturned the landmark Roe v. Wade decision after 50 years and ushered in the Dobbs era, allowing states to freely regulate abortion access for the first time since 1973. Dobbs triggered confusion and chaos in the reproductive health care landscape as patients and providers attempted to parse an ever-changing patchwork of laws around the country during considerable legal wrangling.

Some trends have emerged with particular salience and offer a possible preview of what is to come before and after the November election.

Ban states see as much as 26% reduction in medical residency applications

One of the most significant effects of Dobbs is among obstetric providers in the 14 states with abortion bans. The Association of American Medical Colleges published data in May showing fewer new graduates of U.S. medical schools applied to residency programs in states with bans. The decreases were particularly noticeable in ban states such as Tennessee and Alabama, with decreases of about 20% in both between 2023 and 2024.

Missouri showed one of the largest decreases at 25.7%, a drop from the previous year, which was still down almost 11%. Arizona experienced an even steeper decline of 26.4%, even though it is a state with a 15-week ban rather than a near-total ban.

Kendal Orgera, lead research analyst at the Association’s Research and Action Institute, said the data is collected between September and May 31 each year, and overall, there was an increase of just eight applicants for OB-GYN specialties nationwide.

“The biggest thing is the areas that already have problems with access to care are going to feel the impact first and foremost,” Orgera said.

Some ban states, such as Idaho and Mississippi, do not have residency programs specifically for OB care and have to rely on outside recruitment. That can make it especially difficult to fill positions in those states, Orgera said, in part because many people who match with a residency program tend to stay in that state to practice full time.

“People (who are in residency programs) are in their 20s and 30s, and they want to choose a home for the long term,” she said. “These are people who want to settle down and have families. Would a physician who wants to become pregnant choose a state with ban laws?”

It was the reason Dr. Leilah Zahedi-Spung left her job in Chattanooga, Tennessee, after her fellowship. In January 2023 she moved to Denver, Colorado where abortion is legal. “It became abundantly clear I had a giant target on my back as the only person doing this kind of care,’’ she told Tennessee Lookout last year. “There was nothing that anyone, including the hospital, could do to protect me from criminal prosecution.”

For now, Orgera said she can’t say with certainty whether the restrictive abortion laws are actually the reason for the drop in applications, but the Association is working on a survey that would be given to prospective residency applicants in September asking them to give those reasons.

“I’m hoping the sample size is large enough to give us some good data to work from,” she said.

Infant, maternal mortality rates expected to rise in states with restrictions

Prior to the Dobbs decision, maternal and infant mortality rates were already higher in states that attempted to restrict abortion access as much as possible without outright bans, including placing limits on who could provide an abortion and instituting waiting periods.

Now, as physicians in some states struggle to determine sometimes vague language in the law about when an abortion is deemed acceptable, pregnant patients have been forced to wait to receive care, resulting in near-catastrophic consequences. A doctor in a rural area of Idaho said in a brief to the U.S. Supreme Court that after a patient of hers experienced a very premature rupture of membranes, when the amniotic sac breaks, she felt forced to wait until the patient developed a serious infection called chorioamnionitis before she felt safe to intervene and terminate the pregnancy.

Florida resident Anya Cook had a similar story of her water breaking at 16 weeks — just after the deadline of 15 weeks for an abortion that existed in Florida at the time — and she was sent home. She later miscarried and hemorrhaged so much blood she nearly died.

A group of women in Texas sued the state over its abortion ban because they experienced serious medical complications and said they couldn’t receive proper treatment. The Texas Supreme Court rejected the lawsuit at the end of May, but similar lawsuits are still pending in Tennessee and Idaho.

Maternal mortality rates across the country decreased between 2021 and 2022, the last year of available data from the Centers for Disease Control and Prevention, but it remains much higher among Black women and higher in states with more abortion restrictions. As of 2022, the rate for Black women was 49.5 deaths per 100,000 live births, compared to 19.0 among white women and 16.9 for Hispanic women.

Cumulative data from the CDC between 2018 and 2022 showed Tennessee with the highest maternal mortality rate of 41.1 deaths per 100,000 live births, followed by Mississippi with 39.1 and Alabama at 38.6. All three states have high Black populations and are often classified as maternity care deserts, with entire counties that do not have hospitals or providers for obstetric care. Research has shown that maternal mortality increased between 1995 and 2017 in states that increased their abortion restrictions.

The numbers are much lower in states with broad abortion access, including California with the lowest number at 10.5 deaths per 100,000 live births, followed by Minnesota at 12.3.

The data for post-Dobbs years is still undetermined, but experts have predicted those numbers will increase further now that the procedure is criminalized for providers in 14 states. Some experts have also speculated that the data in states with bans may become less reliable as well because of fears of prosecution.

Numbers for infant mortality are consistent with the maternal mortality trends as well. The same set of CDC data between 2018 and 2022 shows the highest infant mortality rate in Mississippi, with a death rate of 8.7 infants per 1,000 births. The next highest is in Arkansas, with a rate of 7.63, followed by Louisiana with 7.56. Inadequate access to prenatal care is again cited as a contributing factor, and one recent study from the American Journal of Preventative Medicine linked abortion restrictions with an increase in unintended pregnancies among families that already struggle to access adequate health care.

“With the widening gap in comprehensive reproductive care access across the U.S., it is very concerning to consider that the current disparities in maternal and infant health outcomes will likely be exacerbated,” the study said. “Unless policies are implemented to improve the equitable access to and provision of comprehensive reproductive care, birthing individuals will have very different experiences of care and health outcomes depending on geography. This includes not only access to abortion facilities but to health insurance and access to care in rural areas.”

‘We are still in the very nascent stages’ of abortion ballot initiatives

With lawmakers and special interest groups continuing to pass abortion bans and restrictions, some citizens have taken matters into their own hands and asked voters to weigh in on what state policy on abortion should be.

So far, four state ballot initiatives meant to enshrine abortion access have officially qualified for the November ballot, in Colorado and Maryland, where access is already broadly legal, and in Florida and South Dakota, where a six-week ban and near-total ban are in effect, respectively. As of Friday, the organizers working to ensure abortion access remains in Montana said they collected more than enough signatures to qualify for the ballot there as well.

Arizona, Arkansas and Nebraska face deadlines for signatures in July, according to the Fairness Project, a ballot initiative-focused group that has been assisting volunteers with financial and organizational resources in Arizona, Florida, Montana and Missouri. The Project also worked on the successful ballot initiatives in Michigan and Ohio over the past two years.

Kelly Hall, executive director of the Fairness Project, said the initiatives require significant financial resources. Even if it looks like abortion-rights advocates have a lot more funding than the anti-abortion rights side, as was the case in Ohio and Kansas, the resources required to pass an initiative are vast in order to gather enough signatures and reach out to voters ahead of the election.

“They aren’t in a place where they’ve had to show any of their cards,” Hall said. “Their side is just getting to sit on whatever war chest they have to use later this year.”

Kansas was the first testing ground for a ballot measure focused on abortion in the wake of the Dobbs decision. That election took place on Aug. 2, 2022, less than two months after the opinion was released. It would have amended the state constitution to say there is no right to an abortion and given the legislature authority to then pass laws regulating and potentially banning it. It was resoundingly defeated by a nearly 59-41 point spread, and abortion is still legal in Kansas until 22 weeks.

However, legislators in Kansas have continued to pass anti-abortion measures, including a bill in April that requires providers to ask patients for the “most important reason” for their abortion before the procedure. The Center for Reproductive Rights and Planned Parenthood Great Plains are suing the state over the law.

Although some could take that as a negative sign of the effectiveness of successful ballot initiatives, Hall said that initiative was different because it was not affirming access to abortion. In Ohio, voters gave explicit approval to add reproductive rights to the state constitution.

“Ohio had a six-week abortion ban that was poised to go into effect,” Hall said. “The courts dismissed that ban and now … Ohio lawmakers (are) saying, ‘The voters have spoken, and you need to recalibrate your expectations. So Kansas is not the right comparator, because their lawmakers still do feel that they have a lot of wiggle room about what they can do because there’s no explicit constitutional protection.”

Hall said for as many states as there are already going after initiatives, she thinks this is just the beginning.

“We are still in the very nascent stages of reproductive rights ballot measures being a thing in this modern era,” she said.

Litigation overload is a strategy for a national ban, ACLU attorney says

One thing that’s certainly been difficult to keep track of in the post-Dobbs era is how many cases are pending in courts nationwide at the state and federal level, including two recent cases before the U.S. Supreme Court involving access to mifepristone and emergency abortion care.

Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union, said the firestorm of litigation is part of the overall strategy of anti-abortion activists.

“In the Dobbs majority opinion, there was this notion that the decision would somehow end litigation, and the briefs on our side certainly said that wasn’t true, that wasn’t going to happen, in part because the other side — this was never their endgame,” Dalven said. “The endgame is to ban abortion nationwide and not to stop there. Abortion is obviously at the forefront of what we’re seeing most often but we’re seeing other aspects of reproductive care, including IVF and contraception, under threat.”

While the mifepristone and ER abortion care cases are examples of anti-abortion litigation, many more lawsuits are taking place at the state and district court levels to challenge the bans and other abortion-related laws that have passed since 2022. Many challenges to the overall abortion bans have been unsuccessful, while others are still pending. Other lawsuits are still underway to preserve access to the abortion pill, to challenge abortion laws meant to restrict interstate travel, or to clarify that an abortion is permitted in medical emergencies to preserve a patient’s health, not just to prevent death. Another recent lawsuit is challenging Kansas’ recent law requiring providers to gather information about a patient’s “most important reason” for getting an abortion.

If former President Donald Trump wins in November, Dalven said she expects anti-abortion litigation and lawmaking to increase, especially if Trump follows the outline of the Heritage Foundation’s abortion and reproductive health care wish list in Project 2025.

“It’s incredibly important that people know that when they are thinking about casting their ballot in November,” she said.

Some advocates find silver linings in the past two years

Some reproductive rights scholars, even those who have been researching the issue for more than 30 years like Tracy Weitz, have found reasons to hope in the post-Dobbs era.

“I think what’s inspiring is the extent to which the resilience of the abortion delivery system has shown up,” Weitz said.

During the COVID pandemic, access to medication abortion through the mail rapidly expanded, she said, and it made it easier to ramp up that system further when the Dobbs decision came in June 2022. Now, about 18% of all abortions in the U.S. are obtained through telemedicine, particularly in states that have passed shield laws to protect providers from prosecution by other state governments where abortion is banned.

“Many of us knew that before Dobbs, access was terrible,” Weitz said. “Even in states where access was good before Dobbs … we’re seeing increased utilization of abortion because some of the barriers in those states have been reduced.”

She added that more people are realizing there is more than just one type of abortion patient — not just those who don’t want to have a baby — and both populations are hurt by abortion bans.

“I think people who banned abortions really thought you could distinguish between the kind of OB care that’s necessary when someone has a wanted pregnancy and the kind of OB care that you do in abortion, and they didn’t understand that it’s the same medical intervention,” Weitz said. “You can’t ban one without impacting the other.”

Hadley Duvall, left, a Kentucky woman who has emerged as an abortions rights advocate, and Vice President Kamala Harris discuss abortion access on MSNBC’s Morning Joe. (Screenshot via MSNBC)

An Owensboro woman who appeared in a pivotal campaign ad for Gov. Andy Beshear’s reelection appeared on national television with Vice President Kamala Harris Monday morning.?

Hadley Duvall, who has emerged as an abortions rights advocate, sat next to the vice president to discuss abortion access in an exclusive interview that aired on MSNBC’s Morning Joe. ?

“Women today, if they’re walking in the shoes that I was in, which was pregnancy from rape, then they don’t have any option in a lot of states, and they’re at risk for having no options after the election,” Duvall said. “And that’s very terrifying.”?

Duvall and Harris spoke on the second anniversary of the U.S. Supreme Court overturning the constitutional right to abortion in the Dobbs v. Jackson Women’s Health Organization, a decision that ushered in near-total abortion bans in 14 states, including Kentucky.

After her campaign ad for Beshear aired last fall, Duvall told the Kentucky Lantern she initially wanted to share her story to help other survivors of abuse. At the age of 12, she was raped by her stepfather and became pregnant, but latered miscarried. She said at the time that she immediately began “thinking about your options” after looking at a positive pregnancy test.?

“Think about what these extremists are saying to a survivor of a crime of violence to their body, a survivor of a crime that is a violation of their body, and to say to that survivor, ‘And you have no right or authority to make a decision about what happens to your body next,’” Harris said. “That’s immoral.”?

Harris said Duvall is “doing such important work to be a voice” on this topic.?

The interview aired ahead of the first 2024 presidential debate scheduled for this Thursday on CNN. Democratic President Joe Biden will face former Republican President Donald Trump, who recently said states should make decisions on abortion policies.?

Beshear, who is increasingly stepping onto a national stage, appeared with Duvall at a reproductive rights event in Nashville over the weekend and decried “extremism” in state abortion bans.?

Duvall then appeared with First Lady Jill Biden at a campaign event in Pennsylvania on Sunday.

After the Supreme Court overturned Roe v. Wade in 2022, Kentucky’s “trigger law” immediately went into effect and banned most abortions in the state. While there are no exceptions in the law for cases of rape or incest, there are very narrow exceptions to save the life of the mother. Kentucky voters later rejected a proposed constitutional amendment to specify the state constitution does not include the right to an abortion.?

Senate Democratic Whip David Yates, of Louisville, filed a bill to add exceptions in cases of rape and incest to Kentucky’s abortion law earlier this year, but the measure did not pass. He called it “Hadley’s Law” in honor of Duvall.

A blanket given to Anne Angus at the Boulder Abortion Clinic in Colorado, one of the only clinics in the country that offers termination after the second trimester. Angus said a former patient makes the blankets, called Bananas for Annie, for others who had to terminate for medical reasons.?(Courtesy of Anne Angus)

This is the fifth installment of an occasional States Newsroom series called When and Where: Abortion Access in America, profiling individuals who have needed abortion care in the U.S. before and after Dobbs. The first installment can be found here, the second installment is here, the third is here, and the fourth is here.

Anne Angus has been ready to start growing her family for years now.

She got pregnant on her first try and felt lucky to escape the morning sickness and extreme fatigue that often comes with the first trimester of pregnancy. She quit her job in anticipation of being a full-time mom.

“It was so exciting, I was so ready,” said Angus, who lives in Montana.

She’d bought a few items off Facebook Marketplace by the time she was close to the halfway point, including a bassinet, some toys, a bouncer — and the teddy bear onesie that she holds onto when she tells the story of her doomed pregnancy.

At her routine 19-week anatomy scan, Angus’ doctor said something didn’t look right with the abdomen. But that could mean any number of things with varying degrees of severity, according to her doctor, and they wouldn’t know more until further tests could be completed. And those tests would need to be done by a team of specialists almost 700 miles away, at a children’s hospital in Denver, Colorado. Her appointment was four weeks out from the anatomy scan.

At the end of a series of tests, she met with a team of doctors at the children’s hospital to discuss the diagnosis and next steps. It was called Eagle-Barrett Syndrome, a rare genetic defect that can cause the partial or complete absence of stomach muscles, urinary tract malformations and abnormalities of the testes.

“The little glands running from the kidney to the bladder — his were three times the size of an adult’s,” Angus said. “You’re not even supposed to be able to see them at an ultrasound, let alone have them be very obvious.”

There’s a 50-50 chance her future pregnancies would have the same mutation, which led her to decide in vitro fertilization was the safer way to get pregnant and be able to test embryos prior to implantation in the uterus. But like abortion, access to IVF treatments is becoming another political argument at the state and federal level, leaving Angus to worry that her remaining option for having a child is also at risk.

Following Dobbs decision, clinic was overrun with patients

Before arriving in Denver, Angus had told her husband that even if the diagnosis was severe, she didn’t want to terminate. He understood and supported whatever decision she wanted to make, she said.

But after determining the status of the fetus’ condition, the Denver doctors started to discuss dialysis, kidney transplants, and a variety of other courses of treatment that would be needed after birth.

“All of which sounded to me like they would just be experimenting on my baby, with the experiment being, ‘How long can we keep him alive?’” Angus said. “That did not feel loving and compassionate to me.”

While talking it over with her husband, Angus said they discussed a family member who had a terminal illness.

“It has been devastating to the family to watch this person’s pain increase as they slowly fall apart over the years,” she said. “We didn’t want that for our son.”

It was at that time that they made the decision to let him go without the medical interventions and the idea that he might just slowly slip away in a neonatal intensive care unit, she said.

By that time, it was mid-October 2022, four months after the Dobbs decision that allowed states to once again regulate access to abortion and the ensuing legal and legislative chaos. One of the only places in the country where Angus could terminate at her stage of pregnancy was a clinic in Boulder, Colorado. Montana has a gestational age limit of 21 weeks for termination, so she knew she couldn’t go back home.

“That clinic (in Boulder) was overrun because all of the states that used to have access now didn’t have it, or they were being pushed until much later,” Angus said. “We had a two-week wait from when we made the decision.”

By the time she got to the intake appointment, she was at 26 weeks. There were protesters outside of the clinic, so an escort with an umbrella covered Angus and her husband as they walked inside.

“I remember feeling so much anger and rage at them. You have no idea what’s going on,” she said. “You don’t care at all about my baby’s suffering if he’s born.”

The termination was a few days later. Angus said it was difficult to face the reality of letting go of any shred of hope she had left.

“That was probably the most scared I’ve ever been. Nobody talks about what it’s like to get an abortion at the end of your second trimester. What am I supposed to feel? What’s going to happen? Who do I talk to about this?” she said.

After the procedure, the doctor told her it was a difficult process because of the amount of water retention in the fetus’ body. Angus said she could tell just by looking at him.

“I didn’t see his whole body just because of how medically fragile he was, but you could just tell that it would’ve been a really ugly death for him earthside,” she said.

Insurance didn’t cover the costs. With the travel, lodging and the price of the procedure, Angus and her husband spent $10,000 of their savings.

Frustration continues for Angus as IVF becomes new political target

Throughout 2023, Angus had many appointments for egg retrievals, but she said the process has been emotionally and financially draining.

“We are extremely lucky that my husband has benefits through his work, but we’re also at the end of (those benefits), which is why this is our last IVF retrieval cycle,” she said.

She has a planned embryo transfer in September, but if it’s not successful, she worries about future political decisions around IVF limiting her options. There is only one clinic that offers IVF treatment in Montana.

The Alabama Supreme Court ruled in February that embryos are “children” and several IVF clinics in the state closed their doors over liability concerns. In the months since, some states have taken steps to ensure access to the treatment, but congressional bills to protect IVF federally have failed to advance and a politically influential religious sect came out against it for ethical reasons, potentially igniting more ideological battles.

The new political fight over IVF on top of her experience getting an abortion has made Angus fearful about not having explicit protection for the treatment in her state. It has also made her passionate about telling her story, including at the Montana Legislature in early 2023, when legislators did not advance a bill that would have eased some of the remaining restrictions to abortion access in the state.

Although access is still broadly available in Montana, Republicans have tried to change that since the Dobbs decision. Gov. Greg Gianforte signed several anti-abortion bills in 2023, including a 20-week ban, but they’ve so far been blocked in the courts. Gianforte continues to use executive authority to try to limit Medicaid funding and who can perform abortions.

Republicans in the legislature have also made it clear they don’t support a November ballot initiative to amend the state constitution with a right to abortion access, and at least one candidate endorsed by a national anti-abortion group is running for a congressional seat.

“I’m so angry that politicians are inserting themselves into an extremely intimate part of my life. I am trying to grow my family in a way that I can and in a way that is loving and sustainable, and they think they know better than me, and I am so insulted by that,” she said.

Mifepristone, FDA-approved for pregnancy termination up to 10 weeks gestation, is used in about 63% of U.S. abortions. (Photo by Chris Coduto/Getty Images)

In the aftermath of the U.S. Supreme Court’s unanimous ruling Thursday to maintain current access to the abortion medication mifepristone, abortion-rights advocates and opponents vowed to continue their respective battles over the drug.

Mifepristone is one of two drugs used to treat miscarriages and terminate a pregnancy during the first trimester, and is the most common method of abortion in the U.S. Anti-abortion groups, in conjunction with conservative religious law firm Alliance Defending Freedom, sought to revert the FDA guidelines to 2016, when the prescribed gestational time frame was three weeks shorter and there were more requirements around who could prescribe it and where and when provider visits had to take place. The case made its way to the nation’s highest court after outspoken anti-abortion U.S. District Judge Matthew Kacsmaryk in Texas ruled that mifepristone’s approval should be revoked, followed by a Fifth Circuit Court of Appeals opinion that agreed in part, saying the restrictions should revert to pre-2016 rules.

In a unanimous decision rejecting the anti-abortion groups’ challenge to the U.S. Food and Drug Administration’s regulation of the drug, justices agreed that the case lacked standing, saying there was no clear injury to the plaintiffs to warrant reinstating the restrictions.

“The plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain,” Justice Brett Kavanaugh wrote in the opinion. “Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue.”

Wendy Heipt, attorney for advocacy organization Legal Voice, said the fact that the unanimous ruling is focused on standing is helpful, because that’s an area of law that has been in question in many reproductive rights-related cases since the Dobbs decision in 2022.

“I’m not relaxing; it’s not over. But the fact that this one rogue judge in Texas opened the courthouse doors to people who had no right to be there was a real challenge to the way our judicial system works, so I am reassured that there are still rules,” Heipt told States Newsroom.

Many reproductive rights and medical organizations issued statements following the ruling, including the Guttmacher Institute, a reproductive rights research organization that has closely tracked abortion pill use in the two years since the Dobbs decision.

“We are relieved by this outcome, but we are not celebrating,” said Destiny Lopez, acting co-CEO of the Institute, in a statement. “From the start, this case was rooted in bad faith and lacking any basis in facts or science. This case never should have reached our nation’s top court in the first place and the Supreme Court made the only reasonable decision by leaving access to medication abortion using mifepristone unchanged.”

Nikki Madsen, co-executive director of the Abortion Care Network, said she wasn’t surprised by the ruling, but noted it only preserves the status quo.

“It’s just not enough,” Madsen told States Newsroom. “We know that the anti-abortion extremists are relentless, and their goal is to truly chip away at any abortion access. So today’s decision just preserves access, but it’s really not enough for the people across the country who are truly navigating a human rights crisis right now.”

Three intervenor states expected to continue fight at district court level

Alliance Defending Freedom, the conservative law firm that argued the case, is the same organization that argued in favor of the Dobbs decision that returned abortion regulation to the states. In a statement, ADF attorney Erin Hawley said the ruling was disappointing, but that they will continue to “advocate for women’s health.”

“The FDA recklessly leaves women and girls to take these high-risk drugs all alone in their homes or dorm rooms, without requiring the ongoing, in-person care of a doctor,” Hawley said, adding that ADF is grateful to attorneys general in Idaho, Kansas and Missouri who successfully intervened in the case at the district court level with Kacsmaryk’s approval, because they intend to keep litigating the case there.

In a statement posted on X on Thursday, Missouri Attorney General Andrew Bailey wrote, “Today’s ruling only applies to standing; the court did not reach the merits. My case is still alive at the district court. We are moving forward undeterred with our litigation to protect both women and their unborn children.”

Bailey’s spokesperson did not give any further details about what that case would look like, and Idaho Attorney General Raúl Labrador’s office did not respond to a request for comment.

According to Susan B. Anthony Pro-Life America, a national anti-abortion organization, those attorneys general will move forward with the case “based on harms suffered by women in their states.”

Abortion opponents target abortion drugs from multiple angles?

Anti-abortion opponents have been fighting against the expansion of access to medication abortion since the FDA first approved the regimen in 2000, and they say they are not deterred by Thursday’s ruling.

“The Justices simply discussed the issue of legal standing and did not reach the merits of the case,” Carolyn McDonnell, litigation counsel at national anti-abortion policy shop Americans United for Life, told States Newsroom in a statement. “It’s still an open question whether the FDA unlawfully deregulated mifepristone.”

Longtime anti-abortion activist Rev. Pat Mahoney, chief strategy officer for the Stanton Public Policy Center, said the Supreme Court’s decision in this case was instructive, if not what abortion opponents wanted.

“There’s, I think, a misconception that a loss is a loss, and that isn’t always the case,” Mahoney told States Newsroom. “Sometimes a loss helps define the parameters for bringing the next case and next case, and believe me, there are going to be next cases on medical and chemical abortions. So now we know this isn’t a route to go.”

Mahoney said that like past legal defeats for the anti-abortion movement, this ruling offers at least a partial road map, such as the one abortion opponents followed after the Supreme Court ruled in 1992’s Planned Parenthood v. Casey that abortion until fetal viability was a federal right but that states could pass regulations that didn’t create an “undue burden” for people seeking abortions.

That ruling led to hundreds of restrictions and regulations around the country that kept nudging the viability and undue burden lines — limiting abortion access even before Roe v. Wade was overturned. Mahoney said his organization and others are pursuing various legislative proposals, such as regulating the disposal of embryonic and fetal remains following a medication abortion, which most people have at home or in private settings.

Americans United for Life said in a statement following the ruling that it “will continue to offer legal prescriptions for the strengthening of protections for unborn children from abortion pills through action on the federal and state levels in both executive and legislative branches of government, including through executive enforcement of the Comstock Act and RICO Act.”

Ever since Roe v. Wade was overturned, resurrecting the long-dormant Comstock Act to ban the mailing of abortion drugs and equipment (something legal scholars and historians say is an inaccurate interpretation of the law and how it was applied) has been the long-term focus of East Texas pastor Mark Lee Dickson and his partner Texas attorney Jonathan Mitchell.

They have been pushing various legal and legislative strategies to prevent people from obtaining abortions in states where it’s still legal. They have helped pass dozens of local ordinances in Texas and other states with restrictions that challenge current federal law, such as banning interstate travel to obtain an abortion. In New Mexico, where abortion is legal and largely unrestricted, a challenge to two local ordinances based on the Comstock Act await a ruling from the New Mexico Supreme Court.

The U.S. Supreme Court did not address the Comstock Act in its opinion, but Kascmaryk cited the old law in his initial ruling last year. Major conservative groups are pushing former President Donald Trump, if reelected this fall, to enforce the Comstock Act along with other federal abortion regulations. Trump has stayed silent about what he will do.

In the meantime, anti-abortion groups have not stopped pursuing other cases.

“I can confirm that there are several attorneys in the pro-life movement that are planning on bringing a number of different lawsuits relating to abortion-inducing drugs and the harm that they cause to mothers and their unborn children,” Dickson told States Newsroom.

Mahoney also said groups like his are working with attorneys on a potential class-action lawsuit against abortion-pill manufacturers. He said they are “actively gathering testimony and information from women who have been hurt through medical chemical abortions.”

“We’re working on it,” said Mahoney, adding, “It took us 50 years to overturn Roe.”

As states pass laws mandating more information, experts warn of privacy concerns. (Getty Images)

Years before the Dobbs decision, providers like Dr. Kylie Cooper were already uncomfortable with some of the reporting requirements for abortion procedures in states where they practiced.

Cooper was a maternal-fetal medicine specialist for several years in Idaho before she reluctantly left the state in 2023 because of the near-total abortion ban that is now in place. But when abortion was still legal, she was required to fill out a form and submit it to the state with information about the patient and the procedure, including the physician’s name and when it occurred. While the law said that the information would be aggregated and could not identify individual patients, Cooper never felt sure about how it would be used or how secure the data would be kept.

“It was supposed to be anonymous, but they asked for patient identifiers on it, so I was like, ‘Could this get tracked back to them?’” she said.

In April, TIME magazine interviewed former President Donald Trump, who is the presumptive Republican nominee for president, about his goals in office if he is elected. He was asked whether he would be comfortable with states monitoring women’s pregnancies to determine whether someone may have received an abortion despite a ban. Trump responded that it didn’t matter if he was comfortable with it or not, because the U.S. Supreme Court’s Dobbs decision allowed states to dictate abortion policy.

Although it was posed as a hypothetical and limited to states with abortion bans, there are efforts underway at the legislative and congressional levels — and in the blueprint for the next Republican presidential administration — to track abortion and pregnancy data. Some have already become law, and some are pending in the U.S. Congress, including a bill that would mandate that the Centers for Disease Control and Prevention collect more abortion data from all 50 states. At the same time, there are renewed concerns about deceptive practices around data privacy at crisis pregnancy centers nationwide, which are receiving large infusions of taxpayer dollars from some state governments such as Louisiana, Arkansas and Kansas.

“I don’t think most people recognize the way that we are currently being surveilled in our health care system,” said Jennifer Driver, senior director of reproductive rights for a policy advocacy organization called State Innovation Exchange. “People need to be talking to their providers about what information is shared, how it’s shared, and start reading the forms.”

Patients misunderstand how protective HIPAA is, researcher says

Carmel Shachar, a Harvard law professor with research experience in data privacy and health policy, said people typically think of the Health Insurance Portability and Accountability Act — better known as HIPAA — as fully protective of medical records, but that’s not the reality.

“HIPAA is protective of what’s in your medical records, but it’s a little more like Swiss cheese than I think people understand. There are a lot of exceptions,” Shachar said.

Two of the big exceptions are for law enforcement, when it is conducting an investigation, and the other is for public health reporting, she said. Public health data reports can be positive in terms of understanding what’s happening in hospitals and clinics, but on the law enforcement end, the exception in the law could be used by state governments with anti-abortion laws to prosecute those seeking and facilitating care in other states. That’s the loophole that President Joe Biden’s administration sought to close with a recent rule that was enacted after the Dobbs decision to address patient privacy specifically around procedures related to reproductive care. It does not allow law enforcement to seek those records for that particular type of care if it was obtained in a state where it was legal.

But that hasn’t stopped one attorney in Texas from trying. Jonathan Mitchell, the state’s former solicitor general, has filed two petitions seeking legal action against women he says traveled out of state to obtain an abortion. Courts are still considering whether he can proceed with depositions against those women.

Meanwhile, 17 Democratic-led states and Washington, D.C., have passed laws protecting providers and patients from out-of-state investigations for reproductive health care and gender-affirming care. Governors in Arizona, Michigan, North Carolina, Pennsylvania and Rhode Island have also issued executive orders declaring that state agencies won’t cooperate in extraditions or investigations involving reproductive care.

Shachar said some laws are also made under the guise of public health reporting when they’re more about political tactics.

One example is a recent law passed in Kansas, where voters overwhelmingly rejected abortion bans in a 2022 referendum. Lawmakers overrode Democratic Gov. Laura Kelly’s veto at the end of April to pass House Bill 2749, which Kansans for Life asked a legislator to introduce. It requires providers to ask patients for the “most important factor” in their decision to terminate a pregnancy. Kansans for Life is the same group that led the failed referendum.

On May 20, the Center for Reproductive Rights and Planned Parenthood Great Plains announced it is challenging the law in court, adding it to an ongoing case from 2023, according to Kansas Reflector.

Although the bill says a patient can decline to answer the questions, Center for Reproductive Rights staff attorney Alice Wang said that isn’t enough, because it doesn’t require the provider to tell the patient they don’t have to answer. Especially now that patients are coming to Kansas for an abortion from states where the procedure is banned and criminalized, Wang said, the bill is designed to intimidate providers in particular, since they are the ones subject to criminal penalties, not the pregnant person.

“When patients are confronted with these questions, then that raises questions of what this deeply personal information is going to be used for in an atmosphere where anti-abortion extremists have already threatened to come after activities that should be perfectly legal,” she said.

The list of reasons includes whether the patient already has “enough, or too many, children,” whether they cannot provide for another child, that the pregnancy was a result of rape or incest or that it threatens their health to be pregnant. The data must be reported biannually to the legislature.

Shachar said the reporting of abortion procedures is not in itself shocking, but asking for reasons why is alarming.

“It feels like it’s trying to lay the groundwork to separate out ‘good’ or ‘permissible’ abortions from ‘bad’ abortions,” she said.

One of the reasons listed is that “The child would have a disability,” but there is no reason in the list for a pregnancy with a fatal or severe life-limiting fetal anomaly. Organizations such as Susan B. Anthony Pro-Life America and Live Action often refer to severe fetal abnormalities as “disabilities,” even if the patient chose to continue the pregnancy and the infant died hours after birth.

Abortion survey bill advances in New Hampshire legislature

While Kansas’ law is one of the most recent, it is not a new concept. According to the Guttmacher Institute, 15 states already require providers to gather information about a patient’s reason for seeking an abortion, with varying degrees of specificity. Many of those states now have near-total abortion bans or six-week bans, which is before many people know they are pregnant.

In Oklahoma, before its ban went into effect, reporting requirements included a list of 40 reasons that could be identified, whereas the Kansas list is 11 reasons. Seven other states that asked for reasons in their reporting requirements now have a near-total abortion ban or severe restrictions, including Arizona and Florida.

A similar reporting bill is advancing in the New Hampshire legislature, where abortion is still broadly legal, and another failed to pass in the Michigan legislature in 2023. In Indiana — a state with a near-total ban — an anti-abortion group is suing the state to make abortion records public information.

Another misunderstanding of HIPAA, according to Shachar, is that people can’t be identified through public health information as long as enough data points are removed.

“That theory is totally wrong,” she said.

She pointed to a story from 1997, one year after HIPAA became law, when a computer scientist named Latanya Sweeney was able to identify the medical records of the governor of Massachusetts at the time even though the dataset she was working from had been de-identified.

“It makes it more difficult to figure out who we’re talking about, but it doesn’t make it impossible, especially if someone is motivated to re-identify the data,” Shachar said.

Heritage Foundation outlines steps to federal abortion regulation

There are also national policy advocates prescribing the next actions to take in the fight over abortion rights. A document produced by conservative interest group the Heritage Foundation called Project 2025 details a wish list of priorities and approaches for many sectors of the federal government to be carried out by the next Republican president. The document, called “Mandate for Leadership, The Conservative Promise” is 920 pages and references abortion nearly 200 times.

Project 2025’s advisory board includes staff from the Alliance Defending Freedom, a religious conservative law firm that represented the clients at the center of the Dobbs decision overturning Roe v. Wade, and is arguing for the U.S. Supreme Court to restrict access to mifepristone, part of a two-step drug regimen to terminate a pregnancy. The firm’s senior counsel, Erik Baptist, is listed as a contributor to the document.

The board also includes anti-abortion groups such as the Family Research Council, the Family Policy Alliance and Susan B. Anthony Pro-Life America. As part of its overall guidance, the document calls for the next Republican president to remove all references to abortion and reproductive health and appears to suggest a nationwide abortion ban.

Driver, senior director of reproductive rights for State Innovation Exchange, said Project 2025 is the foundation for the recent state-level legislation.

“It would be na?ve to think this was not a design behind those with Project 2025,” Driver said. “Even if there’s not this conservative federal administration that comes, we’re already seeing Project 2025 elements and have for a long time at the state level.”

The plan states that federal abortion reporting data is “woefully inadequate.” California, Maryland and New Hampshire, where abortion access is broadly legal, do not submit abortion data to the federal government at all. The plan’s authors contend all 50 states must mandatorily report to ensure reliable public health and policy.

“Because liberal states have now become sanctuaries for abortion tourism, (the agency) should use every available tool, including the cutting of funds, to ensure that every state reports exactly how many abortions take place within its borders, at what gestational age of the child, for what reason, the mother’s state of residence, and by what method,” the plan states.

Project 2025 suggests rescinding HIPAA rule regarding abortion investigations?

Republican South Carolina Rep. Ralph Norman introduced a bill in Congress in January 2023 — about nine months after the Heritage Foundation established Project 2025 — that would require the Centers for Disease Control and Prevention to fulfill those data-tracking plans. It’s titled the “Ensuring Accurate and Complete Abortion Data Reporting Act of 2023,” and contains the exact language used in Project 2025’s outline. The bill has 29 co-sponsors and the support of the anti-abortion organizations on Project 2025’s advisory board. It has not advanced in the Subcommittee on Health. In a statement, Norman said current data collection “severely underestimates the number of abortions taking place” and tax dollars are being allocated to family planning programs without clear data.

Mandatory factors for reporting would include the pregnant person’s age, race, ethnicity and state of residence, the “abortion method type,” the person’s marital status, and the number of times they have been pregnant, including the number of previous live births, induced abortions and miscarriages.

Those factors — except for the number of previous abortions and miscarriages, which was less common — have been part of the data the CDC collected for many years, but the reporting was voluntary. What’s new is that the required data would also have to indicate “whether the child survived the abortion.” The agency head could also add questions at any time, according to the bill text. All states would have to report this data or lose federal Medicaid funding for family planning services.

The document’s authors also call for the federal government to rescind the HIPAA rule protecting those who seek abortion procedures in legal states from law enforcement action. Project 2025 calls the rule a “politicized statement in favor of abortion and against Dobbs.”

Crisis pregnancy centers imply they are subject to HIPAA law, but most are not

Amid the passage of new laws like the one in Kansas, an organization called the Campaign for Accountability filed complaints in April with attorneys general claiming that crisis pregnancy centers in five states — Idaho, Minnesota, New Jersey, Pennsylvania and Washington — are using deceptive language about HIPAA. Crisis pregnancy centers are often formed as nonprofit organizations with a stated mission to support pregnant women who are unexpectedly pregnant and a goal of dissuading them from seeking an abortion. Many of the centers have been criticized for promoting or providing false information related to abortion, such as claims that having an abortion increases a person’s risk of cancer or future fertility issues, or that the abortion pill is dangerous.

The centers almost always offer their services for free, which means they do not bill insurance providers and are therefore not subject to penalties under the federal HIPAA law for disclosing a patient’s health information. However, some of the centers claim on their websites that they are required by law to keep health information protected.

One of the clinics named in a complaint filed with the attorney general’s office in Pennsylvania uses the same type of language in the notice of privacy practices portion of the website. There are links to the federal HIPAA informational page, with one reference stating a person can file a complaint with the HIPAA office if they feel their data privacy was violated. Another section states the organization is “required by law to maintain the privacy and security of your protected health information” with a link to the HIPAA website.

The Pennsylvania clinic is part of a network of crisis pregnancy centers called Heartbeat International, one of two organizations targeted by the complaints, with Care Net being the second. Heartbeat has more than 2,000 affiliates in the U.S., and Care Net has 1,200.

Heartbeat International told States Newsroom in an email that while the organization could not speak for individual affiliates, all affiliates in the network adopt a commitment to hold client information in “strict and absolute confidence” and is only disclosed when required by law or “when necessary to protect the client or others against imminent harm.”

“Pregnancy help centers provide that protection to their clients, even when the law does not explicitly require them to do so,” said Andrea Trudden, vice president of communications for Heartbeat International. “Confidentiality is of the utmost importance to pregnancy help centers, and the forms women sign before receiving services provide them legal protection of their confidential information. Pregnancy, abortion, STDs/STIs, and other circumstances that might bring a woman to a pregnancy help center or abortion facility should be handled with the greatest confidentiality.”

Trudden added that the Next Level CMS system uses the same software platforms used by hospitals and doctor’s offices nationwide.

Michelle Kuppersmith, executive director of the Campaign for Accountability, said some of the centers state they can disclose health information for “moral reasons.” Heartbeat International also maintains a data management system called Next Level CMS for all of its centers, which it says follows privacy standards according to HIPAA law.

“Our fear is that the data collected at these centers are laddering up to much more sophisticated operations,” Kuppersmith said. “Every single woman who is thinking about going to one of these places because it seems like a friendly place should know that their personal health information is not required by any federal medical law to be protected, and they should be enormously careful what information they give to these places.”

Women work in a restaurant kitchen in Chicago in March 2023. The Pregnant Workers Fairness Act, a new workplace anti-discrimination law that was passed by Congress with wide bipartisan support, has become fodder in the abortion rights battle between Republican-led states and the federal government. Nam Y. Huh/The Associated Press

Natasha Jackson was four months pregnant when she told her supervisor she was expecting. It was 2008, and Jackson was an account executive at a rental furniture store in Charleston, South Carolina — the only female employee there.

“I actually hid my pregnancy as long as I could because I was scared about what could happen,” she said.

When her doctor recommended that she not lift more than 25 pounds, her employer wouldn’t let her move temporarily to a role where she didn’t need to lift furniture, even though those roles were available, she said. She was forced to go on leave and then lost her job. Her marriage unraveled and she spent time after the birth in emergency housing.

“That hardship affected me years on, and it took away the joy of being pregnant,” said Jackson. “They made me feel guilty and ashamed for having a baby.”

Pregnant workers have new protections. Here’s what to expect from your boss.

Jackson, now 41 and a mother of four who owns her own cleaning company, has spent years working with advocacy groups to fight for better laws to protect pregnant workers. Last year, she was invited to speak at a White House event celebrating the passage of the Pregnant Workers Fairness Act, a new workplace anti-discrimination law for which she had advocated.

But now this law, passed with wide bipartisan support, has become fodder in the bitter battle over abortion rights between Republican-led states and the federal government.

The act fills gaps in state and federal protections by requiring employers with 15 or more employees to provide “reasonable accommodations” for pregnant workers and those who have recently given birth or have related medical conditions — unless the employer can prove it would cause “undue hardship” on the business.

Accommodations can include allowing an employee to take additional bathroom breaks, carry a water bottle, or sit instead of stand while on the job. After years of lobbying by nonprofit organizations and business groups, the federal law passed in December 2022. It went into effect last June.

In its rulemaking process, the Biden administration included abortion as a “related medical condition” covered by the law. That means employees seeking abortion care can ask for accommodations from their employers, such as time off work for an appointment or recovery.

This year, 19 Republican attorneys general — including from Jackson’s home state of South Carolina — have sued the administration over that interpretation.

“It seems quite ridiculous to me that some employers want so much control over employees to the point that they feel like they have the right to threaten their job security because of pregnancy or anything associated with it.” – Natasha Jackson, mom of four who once lost her job after asking for pregnancy accommodations? ? ?

The AGs argue the Biden administration is forcing abortion accommodations even in states where abortions are illegal.

“Under this radical interpretation of the PWFA, business owners will face federal lawsuits if they don’t accommodate employees’ abortions, even if those abortions are illegal under state law,” Arkansas Republican Attorney General Tim Griffin said in a statement last month announcing the lawsuit filed by Arkansas and 16 other Republican-led states.

But some advocates say the lawsuit threatens protections for all pregnant workers covered under the new law — not just the small subset who need abortion care.

“These states are cutting off their noses to spite their faces,” said Elizabeth Gedmark, an attorney and vice president of A Better Balance, a national nonprofit advocacy organization that provides legal services and has long pushed for a national Pregnant Workers Fairness Act.

“These attacks have very real consequences for peoples’ lives and for their economic security and health,” she said.

Jackson fears the lawsuit could lead to fewer workers accessing the care they need to be healthy.

“[Workers] should have the right to proper medical care during pregnancy, after childbirth, after having a miscarriage, or having an abortion,” she said. “It seems quite ridiculous to me that some employers want so much control over employees to the point that they feel like they have the right to threaten their job security because of pregnancy or anything associated with it.”

Into the fray

After Congress passed the Pregnant Workers Fairness Act, the U.S. Equal Employment Opportunity Commission, a federal agency known as the EEOC, had to hammer out a set of rules that clarify what employers can and can’t do under the law.

So last summer, the EEOC sought public comment on its proposed rules for how the new law would work. More than 100,000 comments were submitted over a two-month period.

The flood of comments stemmed from opinions about whether the EEOC should include abortion in its definition of “pregnancy, childbirth or related medical conditions” that are covered under the new law.

The vast majority were nearly identical form comments, according to the EEOC. About 54,000 of the comments urged the EEOC to exclude abortion, while about 40,000 supported its inclusion.

In a 3-2 vote, the EEOC ultimately adopted new rules that included abortion care in its definition of conditions covered under the law. The rules are set to go into effect June 18.

But in April, a week after the EEOC announced its final rules, the 17-state coalition of GOP attorneys general argued in its lawsuit that the agency’s “erroneous interpretation” of the Pregnant Workers Fairness Act creates an “abortion accommodation mandate.”

“When the law was passed by Congress, it was explicitly understood not to address abortion at all, and the text of the statute does not address abortion,” said Tennessee Attorney General Jonathan Skrmetti, who is co-leading the lawsuit with Arkansas’ Griffin.

Skrmetti and the other Republican attorneys general point to comments made by lawmakers during debate on the measure that appear to signal Congress’ intent was not to impose abortion-related requirements in states where those abortions would be illegal.

Pennsylvania Democratic U.S. Sen. Bob Casey, who sponsored the pregnant workers bill, said during debate that the EEOC “could not issue any regulation that requires abortion leave, nor does the act permit the EEOC to require employers to provide abortions in violation of state law.”

The 15 other states joining the lawsuit are Alabama, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Utah and West Virginia.

More states have jumped into the fray. In mid-May, Louisiana’s and Mississippi’s attorneys general, both Republicans, filed their own lawsuit challenging the same provision.

And in February, a federal judge in Texas blocked the EEOC from accepting complaints filed by Texas state employees under the Pregnant Workers Fairness Act. It was a win for Texas Republican Attorney General Ken Paxton, who had sued the Biden administration last year.

Protections at risk

Skrmetti, the Tennessee attorney general, believes the Pregnant Workers Fairness Act is a good law.

“It was passed with a degree of bipartisanship that you rarely see,” he told Stateline, “and it undermines the efforts of Congress and the popular will when agencies take laws and change them without the authority of the people’s representatives.”

But Gedmark, of A Better Balance, said decades of legal precedent support including abortion as a related medical condition for pregnant workers. The Pregnancy Discrimination Act, a federal law passed in 1978, prohibits sex discrimination based on pregnancy, childbirth or related medical conditions — a definition that the EEOC has long interpreted to include abortion.

Proponents of the new Pregnant Workers Fairness Act and the EEOC’s rules worry the lawsuits will sow confusion among employers and employees. There’s concern, Gedmark said, that a court could render more of the regulations invalid, beyond those that mention abortion.

Skrmetti doesn’t think the 17-state lawsuit will hurt the law’s protections for pregnant, postpartum and lactating workers.

“The optimal outcome would be for the abortion-related pieces of the rule that aren’t supported by the statute to be vacated,” he said. “But the law remains the law regardless of what the [EEOC’s] rules are.”

While states and the feds clash in court, Jackson said she’s focused on making sure as many women as possible know about their new rights.

Whenever she’s out shopping and spots a pregnant store employee, she asks how they’re doing. She asks if they know about their workplace rights, and how to ask their employers for the accommodations they need.

“Whether a mother decides to have an abortion or not, she still needs medical care after the procedure, the same as she would need medical care if she had a miscarriage or regular childbirth,” Jackson said. “I believe that employers need to know the difference between personal [ideology] and business.”
This story is republished from Stateline, a sister publication to the Kentucky Lantern and part of the States Newsroom network of nonprofits.

This story is republished from Stateline, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.

Washington state Democratic U.S. Sen. Patty Murray speaks during a press conference on reproductive rights on Tuesday, May 21, 2024. Also pictured from the left are Dr. Raegan McDonald Mosley, CEO of Power to Decide, and Karen Stone, vice president of Public Policy & Government Relations at Planned Parenthood. (Photo by Jennifer Shutt/States Newsroom)

WASHINGTON — Bans or severe restrictions on abortion access enacted by Republican state lawmakers have led to a downturn in medical students seeking to practice in those states, and a handful of Democratic U.S. senators said Tuesday those laws must be reversed.

During a press conference just steps from the U.S. Capitol, the lawmakers and reproductive rights advocates cited a study released in early May by the Association of American Medical Colleges Research and Action Institute.

The study “found that fewer new graduates of U.S. medical schools applied to residency programs in states that banned or restricted access to abortion than to residency programs in states where abortion remained legal.”

In Alabama, for example, the study found that applicants for OB-GYN residency programs in the state dropped 21.2% in 2023-24, the Alabama Reflector reported.

Medical residency programs begin after students graduate medical school and can last between three and seven years depending on what specialty the doctor is training in, according to AAMC.

The AAMC Institute’s website says it takes “a novel and nonpartisan approach to policy challenges, redefines complex problems, and offers feasible solutions to improve U.S. health care among policymakers and the public.”

Washington state Democratic Sen. Patty Murray said the downward trend could exacerbate physician shortages in those states, given that OB-GYNs are leaving them as well.

“It should not be surprising to anyone because after all, why go somewhere politicians and judges can overrule your medical degree and force you to put your patients in harm’s way?” Murray said. “Why practice in a state that threatens you with the loss of your license, heavy fines and even prison time if you dare to help the patient get the abortion care that they need?”

Congress, she said, must work to restore nationwide abortion protections that were in place for nearly 50 years until the Supreme Court overturned the landmark Roe v. Wade case less than two years ago.

Wisconsin could lose critical care, Baldwin warns

Wisconsin Democratic Sen. Tammy Baldwin said during the press conference that fewer doctors are choosing her home state to start their careers.

“Universities in states with abortion bans have been forced to send students out of state to receive reproductive care training,” Baldwin said. “I’ve heard from doctors who are commuting across state lines, because they can no longer provide comprehensive care in their own communities.”

The decision by some medical students to seek out residency programs in states with protections for abortion access, could lead to states like Wisconsin “losing critical care for half our population,” Baldwin said.

“Fewer OB-GYNs means fewer doctors to deliver babies and perform prenatal and postnatal check-ups to ensure moms and babies get the healthy start that they deserve,” Baldwin said.

“It means fewer doctors performing routine productive reproductive care, like administering mammograms and connecting women with safe and reliable birth control,” Baldwin said. ‘It means more women in reproductive care deserts unable to find treatment in case of emergencies.”

Baldwin said it “makes sense” that medical residents were seeking to learn and practice in states with protections for abortion access.

“If you were a medical student or doctor, would you rather work in a state that limits the science-backed care that you can provide, or one that has taken politicians out of the doctor’s office?” Baldwin said.

Arizona ‘whiplashes between two abortion bans’

Arizona Democratic Sen. Mark Kelly said that doctors and patients in his state “are living with uncertainty and chaos as our state whiplashes between two abortion bans.”

“I’ve spoken to several doctors who are thinking of leaving the state and many who have already left,” Kelly said. “I’ve been on Zoom calls and seen the cardboard boxes piled up in the back. And it’s because they can’t practice under these current circumstances.”

Doctors applying to residency programs in Arizona “decreased by nearly 20% from 2023 to 2024. And for OB-GYNs, applications dropped by more than 25%,” Kelly said.

The only way to reverse the situation, Kelly said, “is by codifying abortion rights into law, once and for all.”

Dr. Raegan McDonald Mosley, CEO of Power to Decide and a practicing physician in Maryland, said during the last two years she’s treated “patients who’ve traveled hundreds and even thousands of miles to get care with me.”

The restrictions or bans on abortion access, she said, have led to longer wait times in states that have protected access, leading to complicated situations for doctors and patients.

The AAMC Institute’s study “shows that students graduating from U.S. medical schools are less likely to apply for residency positions in states with abortion bans and restrictions,” Mosley said.

“These consequences will only exacerbate health inequities across the country,” Mosley said. “As health care providers, we trust our patients to know what they need. We also know that abortion is health care. And yet too many of us are being prevented from providing that care and too many people are suffering as a result.”

Abortion pills sent to patients in states with bans

Senate Majority Leader Chuck Schumer, a New York Democrat, said he “just heard last week about a young doctor, who left his home state of Oklahoma to come to New York to begin his OB-GYN residency at our state university system.”

New York, he said, has passed so-called “shield laws” that protect doctors within the state borders “to prescribe and send abortion pills to patients in states that have outlawed abortion.”

The U.S. Supreme Court is set to decide in the coming weeks whether access to medication abortion, a two-drug regimen approved for up to 10 weeks gestation, will remain as it is now or revert to the prescribing guidelines that were in place before changes began in 2016.

The case could significantly change when and how doctors can prescribe mifepristone and misoprostol for abortions as well as miscarriage care. The justices heard oral arguments in the case in March.

A majority of the nine justices deciding to roll back the prescribing guidelines to what was in place eight years ago would mean that doctors can no longer prescribe the two pharmaceuticals via telehealth and patients would no longer be able to receive them in the mail.

Schumer said during Tuesday’s press conference that restricting abortion access is “cruel” and has led to “chaos for patients and doctors.”

Children watch as rescue personnel carry a manatee to the water during a mass release of rehabilitated manatees at Blue Spring State Park in Orange City, Fla., in February 2023. The fast-growing state of Florida saw a relatively small birth rate decline of 1% from 2022 to 2023, according to a Stateline analysis. (Phelan M. Ebenhack/Associated Press)

Births continued a historic slide in all but two states last year, making it clear that a brief post-pandemic uptick in the nation’s birth numbers was all about planned pregnancies that had been delayed temporarily by COVID-19.

Only Tennessee and North Dakota had small increases in births from 2022 to 2023, according to a Stateline analysis of provisional federal data on births.

Kentucky’s 51,830 births in 2023 represented a decline of 0.9% from the year before.

In California, births dropped by 5%, or nearly 20,000, for the year. And as is the case in most other states, there will be repercussions now and later for schools and the workforce, said Hans Johnson, a senior fellow at the Public Policy Institute of California who follows birth trends.

“These effects are already being felt in a lot of school districts in California. Which schools are going to close? That’s a contentious issue,” Johnson said.

In the short term, having fewer births means lower state costs for services such as subsidized day care and public schools at a time when aging baby boomers are straining resources. But eventually, the lack of people could affect workforces needed both to pay taxes and to fuel economic growth.

Nationally, births fell by 2% for the year, similar to drops before the pandemic, after rising slightly the previous two years and plummeting 4% in 2020.

“Mostly what these numbers show is [that] the long-term decline in births, aside from the COVID-19 downward spike and rebound, is continuing,” said Phillip Levine, a Wellesley College economics professor.

To keep population the same over the long term, the average woman needs to have 2.1 children over her lifetime — a metric that is considered the “replacement” rate for a population. Even in 2022 every state fell below that rate, according to final data for 2022 released in April. The rate ranged from a high of 2.0 in South Dakota to less than 1.4 in Oregon and Vermont.

Trends for Latina women

The declines in births weren’t as steep in some heavily Hispanic states where abortion was restricted in 2022, including Texas and the election battleground state of Arizona. Births were down only 1% in Arizona and Texas. When health clinics closed, many women might have been unable to get reliable birth control or, if they became pregnant, to get an abortion.

Hispanic births rose in states where abortion is most restricted, even as non-Hispanic births fell in the same states, according to the Stateline analysis. It’s hard, however, to tell how much of a role abortion access played compared with immigration and people moving to growing states such as Texas and Florida.

In states where abortion access is most protected, births fell for both Hispanic and non-Hispanic women.

“The big takeaway to me is the likely increase in poverty for all family members, including children, in families affected by lack of access [to abortion and birth control],” said Elizabeth Gregory, director of the Institute for Research on Women, Gender & Sexuality at the University of Houston.

Many of the nation’s most Hispanic states where abortion and birth control are more freely available saw the biggest decreases in births: about 5% in California, Maryland, Nevada and New Mexico.

“Hispanic women as a group are facing more challenges in accessing reproductive care, including both contraception and abortion,” Gregory said in a university report earlier this year. “Unplanned births often directly impact women’s workforce participation and negatively affect the income levels of their families.”

Hispanic women on average have more children than Black or white women. Their fertility rates rose throughout much of the 1980s and 1990s, then fell in the late 2000s to near the same level as other groups. That’s because both abortion and more reliable birth control became more widely available, Gregory said.

The fact that some of the steepest drops were in heavily Hispanic states outside of Arizona and Texas suggests that Latina women are continuing a path toward smaller and delayed families typical of other groups.

Kentucky’s population shifted older in a decade. Here’s how and why it matters.

Most of the decline in California has been associated with fewer babies born to Hispanic women, especially immigrants, said Johnson, of the Public Policy Institute of California.

“California has a high share of Latinos compared to other states, and so fertility declines in that group have a huge effect on the overall decline in California,” he said. California was above replacement fertility as recently as 2008, he added, and would still be there if Hispanic fertility had not dropped. California is about 40% Hispanic, about the same as Texas and second only to New Mexico at 50%.

Birth rates also declined steeply in heavily Hispanic Nevada and New Mexico, with each dropping about 4% from 2022 to 2023. But Arizona, Florida and Texas, also in the top 10 states for Hispanic population share but faster-growing, saw relatively small drops of about 1%.

Texas banned almost all abortions after the U.S. Supreme Court overturned Roe v. Wade in 2022. The state also requires parental consent for birth control, a rule that’s included federally funded family planning centers since a lower court ruling that same year.

Arizona also saw the number of abortions drop in 2022. After the high court’s Dobbs v. Jackson decision, an Arizona judge revived enforcement of a near-total ban on the procedure that was enacted in the Civil War era. Many clinics closed and never reopened.

Abortions in the state plummeted from more than 1,000 a month early in 2022 to 220 in July 2022, and never fully recovered, according to state records. The rate of abortions dropped 19% for the year. Births that year increased slightly, by 500, over 2021.

In Texas, Gregory’s research at the University of Houston research saw an effect on Hispanic births when an abortion ban took effect in 2021. Fertility rates rose 8% that year for Hispanic women 25 and older, according to the report.

Both Texas and Arizona also are growing quickly, making the smaller decreases in births harder to interpret, Arizona State Demographer Jim Chang noted. Chang declined comment on the effect of abortion accessibility on state birth rates.

Budget effects

Overall, the continuing fall in birth numbers could have significant effects on state budgets in the future. The slide augurs more enrollment declines for state-funded public schools already facing more dropouts since the pandemic.

Births decline in most states, continuing a long-term trend

“The decline we see in enrollment since COVID-19 is a bigger problem than just the decline in birth rates,” said Sofoklis Goulas, an economic studies fellow at the Brookings Institution. Rural schools and urban high schools have been particularly hard hit, according to a Brookings report Goulas authored this year.

“We don’t have a clear answer. We suspect a lot of people are doing home education or going to charter schools and private schools but we’re not sure,” Goulas told Stateline.

Still, states need to recognize declining births as an emerging factor in state budgets to avoid future budget shortfalls, said Jeff Chapman, a research director who monitors the trend at The Pew Charitable Trusts.

Nationally, births did increase slightly for women older than 40, indicating a continuing trend toward delayed parenthood, said William Frey, a demographer at Brookings.

“The last two post-pandemic years do not necessarily indicate longer-term trends,” Frey said. “Young adults are still getting used to a recovering economy, including childbearing.

This story is republished from Stateline, a sister publication of Kentucky Lantern and part of the nonprofit States Newsroom network.

From left, Jessica Kalb, Sarah Baron and Lisa Sobel are challenging Kentucky's abortion ban. (Kentucky Lantern photo by Sarah Ladd)

LOUISVILLE — Jefferson County Circuit Court Judge Brian Edwards heard oral arguments Monday in the case of? three Jewish women who argue their religious freedom is violated by Kentucky’s abortion ban.?

Much of the arguments focused on in vitro fertilization (IVF) and the extent to which it overlaps with the state’s abortion ban. Several lawmakers filed bills to protect the process in Kentucky this session, but none became law. Some feel IVF is in limbo since the Alabama Supreme Court ruled in mid February that frozen embryos are children.?

Is IVF protected in Kentucky? Depends on whom you ask.

The oral arguments?

Aaron Kemper and Benjamin Potash, lawyers for the plaintiffs, argued Monday that Kentucky has imposed and codified a religious viewpoint that conflicts with the Jewish belief that birth, not conception, is the beginning of life.

They also said their plaintiffs — Lisa Sobel, Jessica Kalb and Sarah Baron — feel Kentucky’s current laws around abortion inhibit their ability to grow their families.?

One of the plaintiffs, Kalb, has nine frozen embryos right now that she’s paying thousands of dollars annually to preserve.?

“She’s 33 years old; she does not plan on having nine children,” Kemper said.?

“You have three women here who are not pregnant right now, all of whom want to be pregnant,” Potash said. “They’re not able to be pregnant because these laws get in the way.”??

As Kentucky law stands now, there is disagreement on what protections exist for unused frozen embryos and if discarding them is permissible. “We don’t know if terminating a fertilized egg is illegal on day zero,” Kemper said.?

Lindsey Keiser argued for the Kentucky Attorney General’s office — which is named as a defendant — that the “alleged injuries are hypothetical” since the plaintiffs are not pregnant.?

Keiser said “it’s not clear or imminent that (Kalb) will have to dispose (of) all of those” embryos since sometimes implantations fail.?

Furthermore, Keiser argued, since Kentucky’s law defines pregnancy as a fetus inside a woman, “the disposal of embryos that are created through the process of IVF but not yet implanted will not trigger criminal penalties under either the abortion statute or the fetal homicide statute.”??

Since the AG’s position is that IVF in Kentucky is not limited, Keiser said, the government isn’t restricting those rights.

When it comes to abortion, she argued Kentucky does have a “compelling interest” in restricting the practice, even in the context of opposing religious beliefs.?

“Kentucky’s interest in preserving potential life is not limited to preserving it only for those who live long and healthy lives,” Keiser said. “The commonwealth’s interest in preserving life encompasses fostering respect for the sanctity of human life.”?

‘The law is on our side’

Judge Edwards said he will “endeavor to get an opinion out quickly.”?

No matter what the opinion is, Potash said, he expects one side to appeal.

“Eventually, in all likelihood, it will make it up to the Kentucky Supreme Court, where the same issues will be discussed,” Potash said after Monday’s arguments. “What it all boils down to are the issues in our summary judgment motion, and whether we have standing around or our clients have standing to bring those claims.”?

The lawyers said they’re confident their clients have personal standing, or the right to bring this case.?

“If they don’t have standing, no one has standing to challenge abortion rights in America,” Potash said. “They actually have a dispute with the government that needs adjudication. If the courts are going to shut their doors on these women … they’re going to shut the doors on all of us.”?

Jewish women cite Kentucky’s Religious Freedom law in contesting state abortion ban

While waiting for the ruling, Potash said: “We’re confident that the law is on our side, and the facts are on our side.”?

‘I shouldn’t have to leave.’?

Kalb told reporters after Monday’s arguments that because of her condition — she has polycystic ovary syndrome (PCOS), which can cause cysts to form in the ovaries and lead to infertility — her pregnancies are more likely to end in miscarriage or abortion or need other complicated interventions.?

In June 2022,, the U.S. Supreme Court overturned Roe. V. Wade, which had established the constitutional right to abortion. Kentucky’s trigger law went into effect immediately, which bans abortion except when the mother’s life is at risk.?

Kalb, who moved to Kentucky in 2020, said the ruling put her plans to expand her family on hold. “Going through IVF again for me means that I have to put myself in that vulnerable situation of being pregnant, and possibly not being able to access care,” Kalb said. To get pregnant before, she said, she only needed one transfer.?

“It wasn’t like I went through four, five, six, seven. So right now, the way the law’s written, I could have to deal with nine pregnancies,” she said. “I’m 33, about to be 34. It’s a really scary situation, especially to have all of this publicly known. So, if the tides were to shift, I mean, there’s nothing protecting me right now.”?

Despite that, the women said it’s important for them to stay in Kentucky and fight to change the laws.?

“My family has been here since the early 1800s, and Jewish,” Sobel said. “I’ve always been a Kentucky Jew. … I always celebrated the Derby. I always cheered for the Louisville Cardinals. Being a Kentuckian is who I am. I shouldn’t have to leave in order to grow my family. I shouldn’t have to leave because the legislators don’t want to recognize that my faith matters too.”

It’s been one year since the U.S. Food and Drug Administration approved the first over-the-counter birth control pill, Opill, and less than two months since it hit store shelves. Advocates celebrate its availability but say access is still lacking in terms of cost barriers and insurance coverage. (Justin Sullivan/Getty Images)

Sriha Srinivasan remembers how surprised her mom was two years ago when she learned that birth control pills weren’t sold in stores without a prescription in the United States.

“My parents are immigrants from India, and it’s been over the counter there since my mom can remember,” said Srinivasan, a recent graduate of University of California Los Angeles.

More than 100 countries were already selling birth control without a prescription before the U.S. Food and Drug Administration Advisory Committee?recommended approval of the birth control pill for over-the-counter use in May 2023. Though?Opill was approved in July the same year, it didn’t reach online retailers or the shelves of major drug stores across the United States until a couple of months ago.

Opill is a progestin-only birth control pill, which is slightly different from the typical prescription of a progestin and estrogen combination pill. Dr. Kristin Lyerly, an OB-GYN in Green Bay, Wisconsin, said that means the oral contraceptive is still very safe and 98% effective, but the user has to be more diligent about making sure it’s taken at the same time every day. If the time window is missed by three hours or more, there is a higher chance of unintended pregnancy, so she recommends that people use a backup form of protection for the next 48 hours while they get back on schedule.

Srinivasan, 21, gets health care coverage through her parents’ private insurance, but she said when she called clinics to see if she could get a birth control prescription last year, the first appointment that was available was six months out.

She happened to be working with Free the Pill, a group of reproductive health advocates and health care providers, on getting Opill approved by the FDA, so she decided to hold off.

“Almost out of spite, I was like, ‘I’m going to wait and get this over the counter.’”

On March 22, just after Opill hit the U.S. market, Srinivasan drove with a friend to a nearby Walgreens to buy their first packs, which cost about $20 each. The two recorded a TikTok of themselves taking their first doses.

“It was a very joyous and empowering moment to be able to take that for the first time,” Srinivasan said.

Contraception access is key post-Dobbs, researcher says

Dr. Daniel Grossman, director of research at the Advancing New Standards in Reproductive Health program at the University of California San Francisco, has been at the forefront of the effort to get FDA approval for an over-the-counter birth control pill since 2004, leading Free the Pill. His research efforts included a study showing that women who had direct access to the pill in areas like Texas border towns where people could cross into Mexico to get it directly stayed on it longer than those who needed a prescription. His research also found that people generally didn’t support age restrictions, and the FDA approval for Opill does not have an age restriction.

Grossman said more access to contraception is important for overall reproductive health, but it’s especially important in the wake of the Dobbs decision in 2022 that overturned Roe v. Wade and led 14 states to enact near-total abortion bans.

“Improved access to contraception isn’t going to solve the crisis of abortion access that we’re currently facing, but that said, in this moment — when people in half of the states have very limited options for abortion care and there are growing threats on access to contraception — I think it’s important that we do everything we can to expand access to all methods of birth control where that’s possible,” Grossman said.

Aside from a few expected and manageable side effects, including headaches and light bleeding, Srinivasan said she’s had a good experience with the pills and their availability so far. But there’s room for improvement, she said, and Free the Pill is advocating for more cost assistance support and coverage from national private insurance companies.

Free the Pill launched an online petition this week to pressure President Joe Biden and his administration to require insurance plans to include coverage for Opill. It had 35,000 signatures as of Thursday afternoon.

Srinivasan said she tried to apply for assistance but wasn’t able to because she has insurance, and only those without any form of private or public insurance can apply. Qualifying applicants also have to have a household income at or below 200% of the federal poverty line, which is $15,060 for a single person. A 2022 survey from Advocates for Youth found that 1 in 3 of those surveyed cited affordability as one of the biggest barriers to accessing contraception.

“At a $20 price point, it’s something I can afford because I have a job and I live in California, where the minimum wage is over $17 an hour, but it’s definitely not something my peers in other states can afford that easily,” Srinivasan said. “I hope they adjust that, because it’s definitely not reaching the people that it should be reaching right now.”

Demonstrators at the Jewish Rally for Abortion Justice at Union Square near the U.S. Capitol on May 17, 2022, in Washington, D.C. (Anna Moneymaker/Getty Images)

Lawmakers who oppose abortion often invoke their faith — many identify as Christian — while debating policy.

The anti-abortion movement’s use of Christianity in arguments might create the impression that broad swaths of religious Americans don’t support abortion rights. But a recent report shows that Americans of various faiths and denominations believe abortion should be legal in all or most cases.

Jewish women cite Kentucky’s Religious Freedom law in contesting state abortion ban

According to a Public Religion Research Institute survey of some 22,000 U.S. adults released last week, 93% of Unitarian Universalists, 81% of Jews, 79% of Buddhists and 60% of Muslims also hold that view.

Researchers also found that most people who adhere to the two major branches of Christianity — Catholicism and Protestantism — also believe abortion should be mostly legal, save for three groups: white evangelical Protestants, Latter-day Saints and Jehovah’s Witnesses.

Historically, the Catholic Church has opposed abortion. But the poll found that 73% of Catholics of color — PRRI defines this group as Black, Asian, Native American and multiracial Americans — support the right to have an abortion, followed by 62% of white Catholics and 57% of Hispanic Catholics.

The findings show that interfaith views on abortion may not be as simple as they appear during political debate, where the voices of white evangelical legislators and advocates can be the loudest.

States Newsroom spoke with Abrahamic religious scholars — specifically, experts in Catholicism, Islam and Judaism — and reproductive rights advocates about varying perspectives on abortion and their history.

Abortion views in America before Roe v. Wade

The Moral Majority — a voting bloc of white, conservative evangelicals who rose to prominence after the U.S. Supreme Court Roe v. Wade ruling in 1973 — is often associated with spearheading legislation to restrict abortion.

Gillian Frank is a historian specializing in religion, gender and sexuality who teaches at the Stevens Institute of Technology in New Jersey. Frank said evangelical views on abortion were actually more ambivalent before the early ’70s Roe decision established the federal right to terminate a pregnancy. (The Supreme Court upended that precedent about two years ago.)

“What we have to understand is that evangelicals, alongside mainline Protestants and Jews of various denominations, supported what was called therapeutic abortion, which is to say abortion for certain exceptional causes,” Frank said, including saving the life or health of the mother, fetal abnormalities, rape, incest and the pregnancy of a minor. Religious bodies like the Southern Baptist Convention and the National Association of Evangelicals said abortion was OK in certain circumstances, he added.

Evangelical Protestants before Roe did not endorse “elective abortions,” Frank said, or what they called “abortion on demand,” a phrase invoked by abortion-rights opponents today that he said entered the American lexicon around 1962.

The 1973 ruling was seismic and led organizations opposing abortion, such as the National Right to Life Committee — formed by the Conference of Catholic Bishops — to sprout across the country, according to an article published four years later in Southern Exposure. Catholic leaders often lobbied other religious groups — evangelicals, Mormons, orthodox Jews — to join their movement and likened abortion to murder in their newspapers.

After Roe, “abortion is increasingly associated with women’s liberation in popular rhetoric in popular culture, because of the activism of the women’s movement but also because of the ways in which the anti-abortion movement is associating abortion with familial decline,” Frank said. Those sentiments, he said, were spread by conservative figures like Phyllis Schlafly, a Catholic opposed to feminism and abortion, who campaigned against and managed to block the Equal Rights Amendment in the 1970s.

Polls suggest the views of Catholic clergy and laypeople diverge

Catholicism is generally synonymous with opposition to abortion. According to the United States Conference of Catholic Bishops, the church has stood against abortion since the first century. The conference points to Jeremiah 1:5 in the Bible to back up arguments that pregnancy termination is “contrary to the moral law.”

But nearly 6 in 10 American Catholics believe abortion should be mostly legal, according to a Pew Research Center report released last month.

Catholics for Choice spokesperson Ashley Wilson said that there’s a disconnect between the church as an institution and its laity. “We recognize that part of the problem is that the Catholic clergy, and the people who write the official teaching of the church, are all or mostly white male — my boss likes to say ostensibly celibate men — who don’t have wives,” Wilson said. “They don’t have daughters. They have no inroads into the lives of laypeople.”

Her group plans on going to Vatican City in Rome this fall to lift up stories of Catholics who’ve had abortions. The organization is also actively involved in efforts to restore abortion access — 14 states have near-total bans — through direct ballot measures in Colorado, Florida and Missouri this year.

Catholic dioceses and fraternities are often behind counter-efforts to proposed ballot questions. They poured millions into campaigns in Kansas and Kentucky in 2022 to push anti-abortion amendments, and also in Ohio last year to defeat a reproductive rights ballot measure but they failed in each state.

Ensoulment and mercy in Islam

Tenets of Islam — the second largest faith in the world — often make references to how far along a person’s pregnancy is and whether there are complications. University of Colorado Law professor Rabea Benhalim, an expert on Islamic and Judaic law, said there’s a common belief that at 40 days’ gestation, the embryo is akin to a drop of fluid. After 120 days, the fetus gains a soul, she said.

While the Quran doesn’t specifically speak to abortion, Benhalim said Chapter 23: 12-14 is considered a description of a fetus in a womb. The verses are deeply “important in the development of abortion jurisprudence within Islamic law, because there’s an understanding that life is something that is emerging over a period of stages.”

In some restrictive interpretations of Islam, there’s a limit on abortion after 40 days, or seven weeks after implantation, Benhalim said. In other interpretations, because ensoulment doesn’t occur until 120 days of gestation, abortion is generally permitted in some Muslim communities for various reasons, she said. After ensoulment, abortion is allowed if the mother’s life is in danger, according to religious doctrine.

Sahar Pirzada, the director of movement building at HEART, a reproductive justice organization focused on sexual health and education in Muslim American communities, confirmed that some Muslims believe in the 40-day mark, while others adhere to the 120-day mark when weighing abortion.

“How can you make a black-and-white ruling on something that is going to be applied across the board when everyone’s situation is different?” she asked. “There’s a lot of compassion and mercy with how we’re supposed to approach matters of the womb.”

The issue is personal for Pirzada, who had an abortion in 2018 after her fetus received a fatal diagnosis of trisomy 18 when she was 12 weeks pregnant. “I wanted to terminate within the 120-day mark, which gave me a few more weeks,” she said.

She consulted scholars and Islamic teachings before making the decision to end her pregnancy, she said, and mentioned the importance of rahma — mercy — in Islam. “I tried to embody that spirit of compassion for myself,” she said.

Pirzada, who is now a mother of two, had the procedure at exactly 14 weeks on a day six years ago that was both Ash Wednesday and Valentine’s Day. She said she felt loved and surrounded by people of faith at the hospital, where some health care workers had crosses marked in ash on their foreheads. “I felt very appreciative that they were offering me care on a day that was spiritual for them,” she said.

Seeing the stories of people with pregnancy complications in the period since the Supreme Court overturned the federal right to an abortion has left her grief stricken. For instance, Kate Cox, a Texas woman whose fetus had the same diagnosis as Pirzada’s, was denied an abortion by the state Supreme Court in December. Cox had to travel elsewhere for care, Texas Tribune reported.

Benhalim, the University of Colorado expert, said teachings in Islam and Judaism offer solace to followers who are considering abortion, as they can provide guidance during difficult decisions.

No fetal personhood in Judaism?

In Jewish texts, the embryo is referred to as water before 40 days of gestation, according to the National Council of Jewish Women. Exodus: 21:22-23 in the Torah mentions a hypothetical situation where two men are fighting and injure a pregnant woman. If she has a miscarriage, the men are only fined. But if she is seriously injured and dies, “the penalty shall be a life for a life.”

Is IVF protected in Kentucky? Depends on whom you ask.

This part of the Torah is interpreted to mean that a fetus does not have personhood, and the men didn’t commit murder, according to the council. But this may not be a catchall belief — Benhalim noted that denominations of Judaism have different opinions on abortion.

Today, Jewish Americans have been at the forefront of legal challenges to abortion bans based on religious freedom in Florida, Indiana and Kentucky. Many of the lawsuits have interfaith groups of plaintiffs and argue that restrictions on termination infringe on their religion.

The legal challenge in Indiana has been the most successful. Hoosier Jews for Choice and five anonymous plaintiffs sued members of the state medical licensing board in summer 2022, when Indiana’s near-total abortion ban initially took effect.

Plaintiffs argued that the ban violated the state’s Religious Freedom Restoration Act, and the court later let the claim receive class-action status. Several Jewish Hoosiers said they believe life begins after a baby’s first breath, and that abortion is required to protect the mother’s health and life, according to court documents.

Last month, the Indiana Court of Appeals ruled that the plaintiffs have the right to sue the state but sent the request for a temporary halt on the ban back to a lower court.

While the decision was unanimous, Judge Mark Bailey issued a separate concurring opinion explaining his reasoning and criticizing lawmakers — “an overwhelming majority of whom have not experienced childbirth” — who assert they are protectors of life from the point of conception.

“In my view, this is an adoption of a religious viewpoint held by some, but certainly not all, Hoosiers,” he wrote. “The least that can be expected is that remaining Hoosiers of child bearing ability will be given the opportunity to act in accordance with their own consciences and religious creeds.”

Proposals from the 14 Wisconsin residents, brought together to come up with consensus solutions on abortion, arrived at proposals?designed to address the economic, health, and education disparities that can lead to people choose abortion. (Baylor Spears/Wisconsin Examiner)

Editor’s note: This story is the third in a series about a group of people from Wisconsin trying to come up with policies to address abortion and its root causes that could be applied nationwide. Their larger goal is to find common ground on one of the most divisive issues in America.?

MADISON, Wis. — The Starts With Us civic experiment on abortion began with a hypothesis that was reflected in the session’s first working title: Abortion Access & Limits.

And the experiment’s results, following heated discussions among 14 Wisconsin residents with divergent abortion beliefs, are reflected in the session’s final title: Abortion & Family Well-Being, whose just-released five proposed consensus solutions are designed to address the economic, health, and education disparities that can lead people to choose abortion. The group ultimately could not come to any consensus about abortion itself.

But they came very close.

Shortly before Starts With Us went live with its public feedback period on Wednesday, participant Dr. Kristin Lyerly experienced what facilitator Mariah Levison had throughout this session described as heartburn.

The OB-GYN and abortion provider told States Newsroom she couldn’t sign off on the final language of what would have been a sixth proposal titled, “Keep abortion available when a woman is experiencing a life-threatening medical risk.” She said she took issue with some of the non-medical terms like “unborn child,” but her bigger concern was that the proposal used Wisconsin’s definition of a life-threatening medical risk, which she said is poorly defined and does not explicitly include mental health emergencies.

“As a physician … I do this in practice, and everybody else is just talking about the theory of it,” said Lyerly, who has since stepped away from the Starts With Us project because her recently launched congressional campaign conflicts with its nonprofit status. “When I’m taking care of my patients, I’m focused on, what does my patient need medically right now? Not, hey, can you Google what current Wisconsin law says about when a mother’s life is in danger?”

Starts With Us communications manager Tori Larned told States Newsroom that despite high-level consensus on this issue, several participants — both who support and oppose abortion access — disagreed with this proposal’s final language, so they’ve scrapped it for now with the potential to revisit in the near future.

“For some, the language is still too permissive and for others it’s too restrictive,” Larned said in an email. “Citizen Solutions is about bringing more nuance to what is often a binary, overly simplistic conversation.”

Lyerly said she is excited about the proposals the group did achieve consensus on and the connections she made with people who disagree with her. But she remains firm in her view that a medical procedure shouldn’t be narrowly regulated.

“I think we made some important headway, and I think that the fact that we were not able to address the pressing issue of abortion itself really emphasizes how complicated this problem is, and how it belongs in the realm of medical practice, not politics,” Lyerly said. “It’s really hard to find that middle ground because there isn’t necessarily middle ground that applies universally. It’s a personal issue for you that affects your personal self and your personal family.”

Several of the participants on either side of the abortion access divide told States Newsroom that this civic experiment motivated them to keep engaging in discussions about abortion with people they disagree with. A couple said they were disappointed with the ultimate results. And some expressed improved understanding in the other’s point of view, but no major shifts in thinking.

“Initially, I just felt that, how could you want to kill a baby inside your womb? How could you ever come to that conclusion?” said participant Jeff Davis, 76, who has worked with crisis pregnancy centers for women who are contemplating abortion. “From just some of the experiences of people who were there who viewed things differently than I do, I could see why a person could come to those conclusions. And so even though I didn’t change my view, it’s like, okay, now how can these concerns be addressed so that a person would want to choose life?”

Davis also told States Newsroom that he was among those abortion opponents who initially agreed that pregnancy termination should be allowed to preserve the life of the woman but could not agree to include mental distress as part of that definition. The semi-retired bovine veterinarian said his reasoning revolves around the qualitative nature of mental distress.

“It seems to me that those who are pro-abortion want to set the bar very low,” Davis said. “As a result, almost every woman could claim mental distress as a reason for being able to have an abortion.”

Participant Ali Muldrow, the executive director of the abortion fund WMF Wisconsin, said she ultimately thinks theirs is a progressive set of policy proposals in what it doesn’t include: abortion-ban exceptions for rape and incest.

“The fact that we actually didn’t agree on an exception for rape and incest I think is a win,” Muldrow said. “We’re not oversimplifying hugely traumatic experiences as if they can be easily identified, proven, and used to access health care. We didn’t take the bait of compassion with a condition of extreme brutality. That’s something you’re seeing around the country right now and it’s really dangerous.”

She said that for her the group’s dynamics reflect what she sees in the U.S., that there is a majority broadly on the side of abortion access despite their diverse personal views, and a minority (in this case five white Christians) advocating for limits because of deeply held religious beliefs.

“When you pair people who represent 80% of the population with people who represent kind of a specific religious perspective and pretend that those sides are equal, while also failing to kind of acknowledge that one of those groups of people has had historically more power than the other group of people, it creates a pretty complex dynamic,” Muldrow said.

Abortion opponents also expressed disappointment at what they saw as an imbalance of abortion perspectives. Kateri Klingele said that ahead of the final session held in April she acted as spokesperson for the five abortion opponents, and said they would refuse to consider an abortion exception related to fetal health diagnoses. Lyerly noted that three of the nine abortion-access supporters were absent for the final in-person debate. Heather Martell and Ramona Williams were absent because of personal issues, and Monique Minkens started feeling sick and had to leave.

Proposed consensus solutions on abortion and family well-being

This group of 14 Wisconsinites live all across the state, including Milwaukee, Rock, Chippewa, Door, Brown, Grant, and Dane counties. But now residents from the entire state – and the nation – can vote and comment on the group’s proposals for state lawmakers to potentially consider. The proposals were evaluated by 14 health, legal, and policy experts with divergent views on abortion access, three of whom (a “Catholic marriage and family expert,” “pro-life OB/GYN,” and “professor of educational policy studies”) chose to remain anonymous.

In brief, they would:

• Require human development education in schools (and ensure that it’s medically accurate, developmentally appropriate, and state-funded);

• Require all options information at pregnancy centers, abortion clinics, and prenatal care providers (and to make sure it is standardized, medically accurate, and required for dissemination at centers that oppose abortion the same way it is at abortion clinics);

• Extend Medicaid 12 months postpartum (something that failed to pass in Wisconsin’s most recent legislative session);

• Provide a refundable state child tax credit (“While Wisconsin recently expanded its state-level child and dependent care tax credit, the state has no state-level child tax credit. Fifteen states do provide these additional state-level child tax credits, many of which come in at or above $1,000 per qualifying child.”); and

• Enact paid family leave, including foster and adoptive parents.

“We envision a world where Wisconsinites have greater support for planning and sustaining their families,” the participants write in their joint vision statement. “Unintended pregnancies and poor fetal and maternal health outcomes are experienced disproportionately by women of color and lower-income women. … Better community and social supports — including for children and families, as well as during pregnancy, childbirth, and the postpartum period — help those who become pregnant feel like they have options for continuing their pregnancy.”

Starts With Us head of programs Ashley Phillips said that after the public feedback period concludes on May 31, the participants will find out which proposals got the most support and then evaluate potential next steps, including bringing them to state lawmakers. She noted that for their first session, on gun rights and safety launched last year in Tennessee, more than 30,000 Tennesseans weighed in on eight proposals and five majority-supported proposals were ultimately brought to the state legislature.

Phillips said Starts With Us absorbed a lot of participants’ feedback (including hiring a mental-health counselor to help guide the final session in April) as they continue to iterate their Citizen Solutions sessions throughout the country. She said the results of this particular experiment, on abortion in Wisconsin, make her optimistic.

“If you look at the five [proposals], they’re much more about root causes of abortion,” Phillips said. “That’s the conversation that this group is trying to have. How can we expand the conversation on abortion, so it’s not just about weeks, and it’s not just about exceptions and carve-outs and bans and not bans and morality or not?”

Many of the participants said this experience was hard, but for most it was worthwhile.

“I think it’s important to hear where people are,” Muldrow said. “As important as the areas where we agree, I think the areas where we disagree are deeply important. If you want there to be this kind of happy Kumbaya ending to a conversation about abortion with people with very different beliefs, it’s a little disappointing that one of the more pronounced elements of that conversation is where people disagree, but people were able to disagree and stay in that space together. I think there’s a lot to learn from that.”

Milly Gonzales, 31, who works with?domestic violence, sexual assault, and human trafficking survivors, supports abortion rights. She said the repeal of Roe v. Wade in 2022 was “devastating.”?(Baylor Spears/Wisconsin Examiner)

Editor’s note: This story is the second in a series about a group of people from Wisconsin trying to come up with policies to address abortion and its root causes that could be applied nationwide. Their larger goal is to find common ground on one of the most divisive issues in America.

MADISON, Wis. — For the 14 abortion-rights opponents and supporters recently recruited to find consensus solutions on abortion and family well-being, their first major agreement was that Wisconsin has some of the best cheese in the nation.

Their second was that even where abortion is outlawed (currently in Wisconsin that’s after 20 weeks gestation), life-saving treatment for the pregnant person should not be.

“If the mother’s having to make a choice between do I live or does my child live, she gets to make that choice,” said Bria Halama, a 31-year-old white, Catholic clinical mental health counselor in Milwaukee. In the past, she said she struggled with her stance on bodily autonomy and faith, but now opposes abortion and seeks to honor both the mother and child.

Five of the participants in the Wisconsin Citizen Solutions on Abortion & Family Well-Being defend the concept of “consistent life ethic,” which opposes the intentional ending of human life from conception until natural death. One exception they account for is called the doctrine of double effect, a principle that says that sometimes doing something morally good (for example, saving a pregnant woman’s life) will have a morally bad side effect (ending the unborn’s life, for example), and that this is morally permissible as long as the bad effect was not intended.

All 14 Wisconsinites agreed that situations like ectopic pregnancies are medical emergencies that need to be treated regardless of any abortion ban. But there’s an ultimately unresolvable dispute over how to determine “life-threatening,” something that OB-GYN Dr. Kristin Lyerly told the group is rarely black and white and always unique to a particular pregnancy. (Lyerly has since stepped away from the Starts With Us project because her recently launched congressional campaign conflicts with its nonprofit status.)

However, there is a slight shift in some of the abortion opponents’ thinking on medical interventions to save the fetus when a pregnancy is terminated to preserve maternal life. When Halama suggested that within the exception for maternal health emergencies they include a caveat that all efforts should be made to save the baby, Lyerly pushed back.

“I really struggle with that, because there are babies that are born as a result of an abortion that are alive but are not likely to live,” Lyerly said. “And the parents … will wrap their babies and hold them until they die instead of taking them away and poking them with needles and putting a breathing tube down their throats and making them suffer and experience pain until they die. And I think that some people would choose one and other people would choose the other, and I can’t make that decision for my patients.”

Halama agreed with Lyerly that efforts to save fetal life may not always be the best option in all circumstances. And so did Thomas Lang, a Catholic from Janesville who opposes abortion.

“I really appreciate that,” Lang said. “Because we can bring that to end-of-life-care, too, where you know, the breaking of the ribcage, enough already. You’re prolonging death, you’re not prolonging life here.”

Another place of early agreement in the same realm involved miscarriage management. Stories of women being turned away from hospitals with non-viable pregnancies persist around the country and are the subject of the second major U.S. Supreme Court case since Roe v. Wade was overturned, which justices heard Wednesday. But there’s also a story around this table.

Participant Heather Martell shared with the group that her first pregnancy, at 19, ended in a miscarriage. She alleged that her doctor would not evacuate the pregnancy because of the doctor’s anti-abortion beliefs and that she bled for months before seeking treatment at a Planned Parenthood clinic.

“I almost died because of a pro-life agenda,” Martell told the group.

The participants initially agree on a proposal that says that receiving medical care for miscarriages should not be subject to a state’s abortion laws.

Dispute resolution on steroids

Facilitating these sessions were Mariah Levison and Kelly Wilder from Convergence Center for Policy Resolution, a Washington, D.C.-based nonprofit that for about a decade and a half has helped opposing groups in the public and private sectors find consensus on a range of policy issues like education, poverty, and health care. But what typically takes Convergence at least a year for each project, Starts With Us has asked them to do in three days (they will eventually add a fourth day in early April).

“This is the same methodology like on steroids,” Levison, Convergence’s CEO and president, told States Newsroom. The Minnesotan said she has worked in dispute resolution her whole career, but abortion is a new topic for both her and Convergence, which facilitated Starts With Us’s inaugural session, about gun rights and safety in Tennessee; a third session on immigration is being planned for later this year.

Beyond agreements on policy proposals, Levison said the larger goal is to help people build trust and understand each other.

And it’s the role of Starts With Us as a civic engagement nonprofit to elevate these examples of understanding and agreement and try to change the narrative that issues like abortion and guns and immigration are intractable. For the first three days of the session last December, camera operators filmed the participants, while the rest of the team watched in a makeshift video village in a drafty hallway space. In the months since, they’ve used the footage to help tell the group’s story and to give Wisconsin residents (and those in other states) a different option on abortion policy that isn’t just relegated to ban vs. no ban. They invited States Newsroom to observe the December sessions, though everything said was initially off the record unless participants gave permission to be quoted.

Levison told the participants they must find OPTIONS: Only proposals that include others’ needs succeed. She had them consider the example of a neighbor complaining about the other’s constantly barking dog. A real consensus solution, she explained, goes beyond keeping vs. getting rid of the dog. And she instructed them not to compromise; if a proposal would cause anyone “heartburn,” it didn’t go on the final list. As in a jury, even one dissenting vote can tank a proposal.

In the group, the biggest sticking points are: fetal health; maternal health that might not be immediately life-threatening; and sexual and domestic violence and whether someone should be forced to procreate with an abuser.

The teams are broken into two groups to facilitate better discussion. By the end, participants will raise their voices, burst into tears, slam a folder. Kai Gardner Mishlove, the executive director at Jewish Social Services, quickly becomes the group’s emotional stabilizer, guiding them through deep breathing during tense moments. But they keep showing up, and listening.

Walls coming down

Heading into the cold December night after the second day of heavy discussions, Thomas Lang told States Newsroom that his wife knows the very night their eldest of three was conceived. The 61-year-old property manager grinned as he remembered her reciting a prayer before being intimate on their honeymoon.

“There is a purpose and meaning of sexual intimacy,” said Lang, who supports the teaching of natural family planning as opposed to “artificial” birth control. He’s very much in love with Amy, who’s 11 years younger and whom he met on the dating site Ave Maria Singles 15 years after a divorce and annulment from a relationship with which he shares three adult children. “One of the basic principles behind the proper use of NFP is that married couples should always have an openness to life.”

Of the 14, Lang is among those on the most restrictive end of the spectrum, a stance informed by his deep Catholic faith, his mother’s abortion regret, his six living children, as well as two miscarriages and a stillbirth. To support his position, he repeatedly cites the 1968 papal encyclical “Humanae Vitae” and the legislative director of Pro-Life Wisconsin.

And unlike some of the other abortion opponents in the group, Lang is comfortable using the word murder to describe what Lyerly does for a living. He doesn’t expect to connect with her.

Throughout the initial three-day session, the OB-GYN from Green Bay patiently answered medical questions, described abortion procedures, and explained how she views abortion morally.

“My obligation to my patients is to make sure that I’m helping them with the right thing for them,” Lyerly said. “If I’m taking care of a woman from the Jewish faith, they have a very different perspective than my Catholic patients than my agnostic or atheist patients. So my job is to understand where they’re coming from and to make sure that they feel fulfilled and well taken care of and have what they need to be able to live their lives according to their morals.”

At one point Lyerly obliged Lang when he asked her to switch from clinical language (fertilization, products of conception) to his preferred terms (conception, baby), a move that frustrated several of the abortion-access participants but endeared her to him.

“I would have been repulsed to have met an abortionist before this meeting,” Lang told Lyerly on the second day of the session, “but I can’t tell you how much you enamor me with regards to the way you put yourself in your patients’ shoes. I would love you to be my wife’s doctor.” (He later acknowledged to States Newsroom that this could never happen because Lyerly’s “compassion is incoherent without principled procreative and life ethics.”)

With Lang and Lyerly at opposite ends of the spectrum, the 14 were able to come to only small agreements about when abortion should be legal and accessible, but found more common ground on how to mitigate some of abortion’s root causes, which many of the participants have experienced.

Kateri Klingele, 25, a white mental health professional and co-founder of Wisconsin Student Parents Organization at the University of Wisconsin-Madison, has two children. Not only was Klingele navigating poverty and school during her two unplanned pregnancies, but she was also incredibly sick. She was diagnosed with hyperemesis gravidarum, which resulted in her being fed intravenously during both pregnancies and delivering both her children early due to malnutrition. She said she also experienced partner abuse and was on every social support available, living in constant terror of falling off the so-called benefits cliff.

But she’s firm that abortion should rarely ever be an option because she believes that ending the life of a child is wrong and does not end other issues, like abuse and poverty.

“I am deeply troubled by this idea that providing an abortion and ending the life of a child is a way to stop domestic violence,” Klingele told the group. “As someone who’s experienced that, what’s harmful is the treatment of being abused. What’s harmful is that there’s insane wait lists for domestic abuse survivors’ housing. But my sons were not the problem here.”

Her life experience has brought her to the opposite conclusion to other participants who work with domestic and sexual violence survivors, like Monique Minkens and Milly Gonzales.

“In 2022 I could see both perspectives, especially as a person of faith,” Gonzales told the group. “But it scared me when Roe v. Wade was repealed. It was devastating, especially in my work, seeing how it affected women and all persons that are able to have children. Sometimes we don’t think through decisions that people have to make and how those decisions impact the babies that are being born.”

Meanwhile, Halama, who said she has counseled patients facing crisis pregnancies, began to grapple with the idea that maybe the hardline anti-abortion stance doesn’t reduce the most amount of harm.

“Am I coming from a place of pride? Am I coming from a place of rigidity and not loving compassion?” Halama told the group on the third day. “This is just like to challenge maybe us pro-lifers, but I don’t know, are we working so hard to eliminate this harm, and harming women who are in these positions of domestic violence, and in these positions of discrimination, when we know that we have a merciful God?? … I don’t know what to do with that because it’s so hard for me to concede on something that in my mind is harming, [but] I don’t know if having this harsh black-and-white stance on [abortion] is the right way to do it.”

Back in video village, the sometimes chatty or snacking Starts With Us staff are rapt looking at the screens. Someone whispers: “Wow.”

There’s also an understanding reached between Klingele and Ali Muldrow, a Black abortion fund director, where Muldrow agrees with Klingele about treating people with disabilities with compassion and not suggesting that they should not be born. “I want you to know with my whole heart and soul that I don’t think we should be universally killing people with Down syndrome,” Muldrow told Klingele.

“A variety of health factors inform why people terminate pregnancies, and to suggest that people simply don’t want children with disabilities is insensitive to the complexity of information people obtain about the health and quality of life that factor into people’s decisions around pregnancy,” Muldrow later clarified to States Newsroom. “I think folks who are anti-abortion access take disability into consideration when you’re talking about the fetus, but they don’t seem as willing to acknowledge disability as a factor for the pregnant person.”

Unlikely partnership

On the second day, during breakouts, Klingele smiles kindly at Lyerly and explains that the “intentional ending of a pregnancy” should not be legal.

“I think there should be no criminal charges on women for seeking that,” Klingele said. “But with regard to providers, I think there should be penalties. So, I want to look at you when I say this because I value you and I care about you and I know you care about your patients and about their children. But poisoning them and pulling them out of the womb and vacuuming, whatever terms you want to use, destroys their dignity.”

“I appreciate your perspective,” Lyerly replied. The next day she addressed some of the participants’ notions of her work. “I sit here with people who might be shouting at me as a doctor entering an abortion clinic. Someone who yesterday essentially said I should be in jail. I’m a murderer, right? But every time that I trust women and understand that they know what’s best for them, every time I perform an abortion for someone, we acknowledge that there’s a life there. And we honor that life. And I know that that sounds crazy. But we do the best that we can under every circumstance. And these are hard, hard decisions and everybody is different. But I would offer to you that we do love them both.”

And that’s the next point of common ground: Klingele clarifies that she doesn’t believe abortion providers should be incarcerated, which as Lyerly points out, they could have been under Wisconsin’s temporary abortion ban that went into effect after the Dobbs decision. Klingele ultimately can’t answer what it means for abortion providers if termination is illegal; she said she’s more concerned about making it easier for people to give birth and parent safely.

“I don’t have all the laws or regulations,” she told Lyerly. “But I see ending a life as wrong and there are consequences for doing something that’s wrong.”

But the two found that they agree on a lot more outside of abortion. Lyerly told States Newsroom that the two have agreed to work together in some capacity.

Starts With Us head of programs Ashley Phillips told States Newsroom she was heartened but not surprised to see participants agree and connect.

“It’s hard to hate up close,” Phillips said. “And when you have the opportunity to sit for three days across the table from one another and have nuanced discussions about both your lived experience and the issue at hand, it’s not surprising that you’re able to humanize and learn and grow. And it’s still beautiful to see.”

Tomorrow: A doctor gets heartburn.?

In this photo illustration, packages of Mifepristone tablets are displayed at a family planning clinic on April 13, 2023 in Rockville, Maryland. (Photo illustration by Anna Moneymaker/Getty Images)

WASHINGTON — Donald Trump is planning to release more details in the weeks ahead about how his administration would regulate access to medication abortion, according to comments he made during a lengthy interview with Time magazine published Tuesday.

Trump, the Republican Party’s presumptive nominee for president, said that he has “strong views” about access to mifepristone, though he declined to say exactly what those are. He did not rule out a nationwide ban, or imposing new restrictions.

“Well, I have an opinion on that, but I’m not going to explain,” Trump said, according to the transcript of the interview. “I’m not gonna say it yet. But I have pretty strong views on that. And I’ll be releasing it probably over the next week.”

Mifepristone is one of two pharmaceuticals used in medication abortions, which make up more than 63% of abortions nationwide, according to research from the Guttmacher Institute.

The U.S. Food and Drug Administration originally approved mifepristone in 2000 before updating prescribing guidelines in 2016 and during the COVID-19 pandemic.

The changes to when and how mifepristone can be prescribed are at the center of a U.S. Supreme Court case brought by anti-abortion medical organizations and doctors. A ruling is expected this summer on whether access to mifepristone will stay as it is now or go back to what was in place before 2016.

Reverting prescribing would mean that mifepristone would be approved up to seven weeks gestation, not the current 10-week ceiling; it could no longer be prescribed via telehealth and shipped to patients; patients would need to attend three in-person doctors’ office appointments; and only doctors would be able to prescribe it, not qualified health care providers with the authority to prescribe pharmaceuticals.

‘Big statement’ coming on Comstock Act

Trump was also asked about the Comstock Act, an 1873 anti-obscenity law that conservative organizations and anti-abortion groups believe a Republican attorney general could use to ban shipping of mifepristone nationwide.

Trump said, “I will be making a statement on that over the next 14 days,” when asked if his Department of Justice would try to enforce the Comstock Act to ban mailing of abortion pharmaceuticals.

The interview was on April 12, more than 14 days ago.

“I have a big statement on that,” Trump said. “I feel very strongly about it. I actually think it’s a very important issue.”

Trump said in a video released in early April that he believed regulating abortion access should be left up to state lawmakers, infuriating anti-abortion organizations and some members of his own party who believe there should be a nationwide law setting restrictions on access.

Trump said during the interview with Time that he didn’t have a strong viewpoint on states punishing women who seek abortion. Anti-abortion organizations generally have opposed penalties for women, though Trump has mentioned it in the past.

“I don’t have to be comfortable or uncomfortable,” Trump said of states punishing women who seek abortions. “The states are going to make that decision. The states are going to have to be comfortable or uncomfortable, not me.”

Trump said he thinks that some states might monitor women’s pregnancies, when asked about the issue.

Trump, who is registered to vote in Florida, repeatedly declined to say how he would vote on a ballot question this November that would add protections for abortion rights to the state’s constitution.

“I don’t tell you what I’m gonna vote for,” Trump said. “I only tell you the state’s gonna make a determination.”

Biden campaign reacts

Biden-Harris campaign manager Julie Chavez Rodriguez said in a written statement that a Trump reelection would be a threat to reproductive rights.

“Simply put: November’s election will determine whether women in the United States have reproductive freedom, or whether Trump’s new government will continue its assault to control women’s health care decisions,” Rodriguez wrote.

“With the voters on their side this November, President Biden and Vice President Harris will put an end to this chaos and ensure Americans’ fundamental freedoms are protected.”

Reproductive Freedom for All President and CEO Mini Timmaraju said in a written statement about Trump’s latest comments on abortion access that she has “zero doubt in my mind that Trump will choose anti-abortion extremists and their horrifying agenda over American families every single chance he gets, and this new interview proves that he will ban abortion in all 50 states.”

“It’s imperative that we double down on our mission to reelect the Biden-Harris ticket and deliver Congressional majorities to lock our right to abortion care into federal law.”

The Wisconsin Social Session on Abortion and Family Well Being has brought together 14 residents from a diversity of backgrounds and viewpoints to create proposals for state lawmakers on abortion. (Baylor Spears/Wisconsin Examiner)

Editor’s note: This is the first in a series about a group of Wisconsin residents trying to come up with policies to address abortion and its root causes that could be applied nationwide.

MADISON, Wis. — Thomas Lang, 61, is white, deeply Catholic and opposes abortion.

“Each one of us has a beginning, and that unique beginning … is conception,” Lang said. “And I would go back to the lack of personhood in slavery and how that personhood can be manipulated. … And I’m saying, no, that child has rights. … And yet we are going to allow for the killing, murder, because of this, this and this.”

Anti-abortion activists and legal scholars in the U.S. increasingly argue that denying the “personhood” of all unborn life is akin to slavery. It’s a comment that doesn’t sit well with the women of color in this room of people with different beliefs about abortion, including some with their own traumatic pregnancy experiences. The women repeatedly point out that white supremacy and racism are well rooted in every aspect of American life, including reproductive health care.

Ali Muldrow, who is Black, a mother of three girls, and runs an abortion fund in Wisconsin, told the group that the so-called father of gynecology, J. Marion Sims, invented tools like the speculum and surgical techniques after torturing enslaved women in horse stables. As someone who faced painful and medically complex pregnancies, Muldrow, 36, pointed out repeatedly that Black women are more likely to die in childbirth than white women, and more likely to experience criminalization because of their pregnancies. She said she was temporarily jailed while pregnant with one of her daughters after being beaten by an abusive boyfriend.

Muldrow’s first pregnancy was at 16, and she hired a lawyer to be able to have an abortion as a minor. She said she doesn’t regret that abortion or the one she had at 18, or her subsequent decisions to parent despite the varying medical, social, and economic perils she sometimes faced. But she’s firm that these were her decisions to make, and rejected Lang’s personhood argument.

“Our personhood is invalidated every day,” Muldrow said. “My health matters, and it’s a factor throughout the entirety of a pregnancy. My body as a tool for breeding, like a cattle animal that can be bred and forced to have kids, is something I’m really against, because I’m against slavery.”

In this room at a historic space in Wisconsin’s capital city, 14 people from around the state have been recruited to find common ground on abortion amid their deeply divergent stances. The Wisconsin Citizen Solutions on Abortion and Family Well Being is an experiment designed by Starts With Us, a nonprofit civic organization whose mission is to try to effect change through citizen solutions and show that people on opposite sides of controversial issues can come to a mutual understanding when they engage in guided mediation.

Founded in 2021, Starts With Us launched its first project last year on gun rights and safety in Tennessee, following a deadly school shooting in Nashville. KIND Snacks founder and “Shark Tank” entrepreneur Daniel Lubetzky has said that, as the son of a Holocaust survivor, he was motivated to co-found this nonprofit to address toxic polarization and extremist thinking. Other founding partners include renowned chef José Andrés, civil rights activist Bernice King, and hip-hop artist will.i.am.

For its second session, held for three days in Madison in December 2023 and for a final day this month, Starts With Us invited 14 Wisconsinites to tackle what has become a galvanizing political issue ever since the U.S. Supreme Court overturned federal abortion rights nearly two years ago.

“To us, the opportunity to build and to actually create solutions is the brass ring,” Starts With Us CEO Tom Fishman told States Newsroom. “But at minimum to have transformative experiences for 14 people in a room and then tell that story is such that it gives people hope and confidence … that at minimum we don’t have to … reduce each other as a caricature list of talking points on two sides of an issue that’s sold to us by algorithms and cable news.”

After months of processing the discussions from the sessions with health, legal and policy experts, Starts With Us on Wednesday unveiled what the group achieved consensus on. Wisconsin residents can now rank and comment on the proposals online. At the end of a monthlong public feedback period, the participants will see which proposals have majority support and evaluate next steps, including bringing some or all of the proposals to state lawmakers for consideration.

Why Wisconsin

The team chose Wisconsin because of its dynamic politics — a swing state with a Democratic governor, a GOP-controlled legislature, and a liberal-leaning state supreme court — and because it’s one of more than a dozen states that banned abortion in the wake of the historic Dobbs v. Jackson Women’s Health Organization decision. Abortion services resumed in Wisconsin last year, after a Dane County judge ruled that an 1849 feticide law does not apply to abortion, but litigation continues, as do further attempts to restrict abortion. Earlier this year the Wisconsin State Assembly passed a 14-week abortion ban that failed to advance in the Senate. As of now, abortion can be performed until 20 weeks post-fertilization.

The 1973 Roe v. Wade decision attempted to reconcile biological complexities and diverse moral worldviews regarding pregnancy, developing life, and reproductive autonomy. Dobbs changed that by letting states make their own abortion laws. And in many states that has meant conservative lawmakers pursuing hardline restrictions and even resurrecting laws from the 1800s, as in Arizona. These policy changes have broadly impacted maternal health care throughout the U.S.

A majority of voters post-Dobbs are showing they don’t want strict abortion bans. Already in six blue, purple, and red states voters have preserved abortion rights directly on the ballot, and about a dozen more are trying to do the same in November. Spurred by the fall of Roe, some have gotten into politics, like Wisconsin participants Heather Martell, now a Chippewa Falls alderman, and Dr. Kristin Lyerly, who this month launched a bid for Congress as a Democrat in Wisconsin’s 8th Congressional District (she has since stepped away from Starts With Us because her campaign conflicts with its nonprofit status). Lyerly is among several OB-GYNS around the U.S. who have sued their states for criminalizing pregnancy termination, which they believe cannot be divorced from standard medical care.

Starts With Us head of programs Ashley Phillips said they recruited individuals based on their nuanced public views on abortion and their willingness to come to the table with opponents on this issue. She said hundreds of Wisconsinites were contacted but many never responded. The selected participants were each paid travel expenses and a $900 honorarium for four days of their time and effort.

The chosen 14 consist of 11 women and three men. Five (three women, two men) mostly oppose abortion; they are white, range in age from 25 to 76, and identify as Catholic or Protestant. The remaining nine include four Black women, one Hispanic woman, and range in age from mid-30s to mid-70s, and identify as Unitarian, Jewish, and atheist. There’s a lot of overlap in the whole group. Several have experienced domestic violence, sexual abuse, and poverty. Most are parents.

How abortion views are born

From day one there is resounding agreement around the table that the current health, economic, and legal systems do not work for many families in Wisconsin or the country at large. Roe and Dobbs flipped the overall legality of abortion, but neither federal court decision addressed the underlying economic and social factors that, according to reproductive-health researchers at the University of California San Francisco, lead many to choose abortion — nor did they address the limited reproductive, prenatal and maternal care access around the U.S.

But the larger debate in the room, and outside of it, is who gets to make decisions in a given pregnancy: the person who is pregnant or the state? And at what point should the developing life be protected from termination?

Though life-of-the-mother exceptions exist in most of the current abortion bans, stories about women being denied health care pervade around the country. Patients who have been able to travel and survive their experiences have sued. On Wednesday morning, the U.S. Supreme Court heard arguments about whether doctors should be protected from prosecution under federal law if they provide abortion care to a patient in an emergency, even in a state with an abortion ban.

Also becoming more pervasive are stories about women denied abortions despite a fetus’s fatal anomalies. The same weekend the group met in Madison, the Texas Supreme Court overturned a court order that would have allowed Texan Kate Cox to terminate a non-viable pregnancy, forcing Cox to travel out of state. It’s a story that 37-year-old alderman and legal assistant Heather Martell is unfortunately familiar with.

As Martell explained to the other participants, in 2021, she went to her 19th week anatomy scan excited to see what would have been her second living child. But the ultrasound and subsequent detailed scans uncovered a rare disorder known as VACTERL association, which can affect multiple body systems and cause abnormalities in the vertebrae, anus, heart, trachea, esophagus, kidneys, and limbs. The disorder carries varying degrees of severity depending on how many systems are affected, according to the Cleveland Clinic. Martell said her baby’s case was incredibly rare in that it impacted nearly every part of his body. It was the worst possible prognosis: “incompatible with life.”

“This child would have needed open heart surgery before he was a year old, but wouldn’t have been able to have the surgery, because he would have been in late stages of kidney failure, having only one undersized kidney,” Martell told States Newsroom in an email after the sessions had concluded.

After a second opinion, Martell and her husband, who is Catholic and was at that time against abortion, sought a termination to spare the suffering of the baby they would name Oliver, which she learned was imminent if he continued to develop. They had to leave the state, because Wisconsin restricts abortion after 20 weeks.

“I Googled it, and I found studies that said the fetal nervous system develops fully by 24 to 26 weeks,” she told the group during their first day introductory discussions. “It gave me 14 days to get an abortion, or kill myself.”

Martell traveled to a Minnesota clinic, where she faced anti-abortion protesters telling her she had other options and where the type of abortion procedure she wanted — an induced stillbirth — was unavailable. That meant she couldn’t hold and bury Oliver, which remains a traumatic memory.

Her pregnancy and life experiences solidified Martell’s belief that reproductive health decisions should be left to patients and their families.

But it’s all about the child for Laura Brown, a 61-year-old chief financial officer for a nonprofit in West Allis, who’s on the board of an anti-abortion crisis pregnancy center.

“A concern I have is that in almost every discussion I don’t hear any mention of the child,’’ said Brown on the second day of the session.

“When I talk about abortion, I am talking about the child,” Martell said. “I’m talking about my child.”

Martell’s two previous pregnancies, when she was 19 and then 21, were marked first by a life-threatening miscarriage, and then by intimate partner abuse and extreme pressure to have an abortion, which she resisted. She told States Newsroom it was difficult to hear some of the statements from the abortion opponents at the sessions, including the implication that she didn’t consider the life of the child in her abortion decision.

“We would have had to pay millions of dollars out of pocket for Oliver to suffer and die. And in the meantime, our living child, Jack, would have become a glass child,” Martell said. “It isn’t easy to watch someone die. It’s even harder when it is your own child and sibling. I was not going to allow that to happen to my family. To be accused of not taking the child into consideration when I discuss abortion is a slap in the face, because I did.”

Brown’s view on abortion is also shaped by trauma.

At 20, her affair with a married man culminated in an unplanned pregnancy that she said she felt pressured to end. The man didn’t offer any support, she said, and though she didn’t want to end the pregnancy, she didn’t see other options. Brown alleges that a counselor at the Planned Parenthood sensed she was not sure about her decision and tricked her into believing she had an ectopic pregnancy that was not viable.

After the procedure began, Brown said she asked the doctor to stop and recalled him telling her, “You should have thought of that before.’’ The experience made her feel violated and eventually suicidal and informed her unbending view that “abortion is not health care,” she said.

Like Martell, Brown still mourns the baby that would never be born.

Brown said she turned to God and is now a regional coordinator for Silent No More Awareness Campaign, which shares stories of those who say they were harmed by abortion, and is affiliated with the national anti-abortion-rights group Priests for Life. She told States Newsroom that years ago, her daughter went into labor at 26 weeks and the medical care she received allowed her baby to be born very small but healthy. These life experiences have made it difficult for Brown to approve any reason for abortion, including if there’s a health risk, fetal anomaly, or the pregnant person is a child or victim of sexual abuse.

“Because abortion is traumatic, it’s also physically traumatic to force a young person to go through that. And then what happens is that the young person is a victim, and then they actually turn into a perpetrator,” Brown told States Newsroom in an interview. “Giving birth is less traumatic than having an abortion and later realizing what you did.”

The majority of those who oppose abortion in this group believe in the concept of “personhood” for all unborn children, starting at the early stages of fertilization. It is the principle behind banning some forms of contraception that can prevent implantation, as well as in vitro fertilization, which since the Alabama Supreme Court’s controversial ruling that frozen embryos are equivalent to human children, has proven to be very politically unpopular.

Martell told States Newsroom that hearing Brown’s story helped her understand how someone becomes an abortion-rights opponent.

“For me it was very interesting to see someone who regretted it, and how easily my life view could have been shaped by that one choice,” Martell said. “Had I not experienced that [pregnancy] loss in 2006, in 2008, I might have succumbed to that kind of peer pressure [to have an abortion], and who knows, I could have ended up like Laura, living with that shame and that regret. And if Laura had had a situation where she had put her foot down and said …? I’m having this kid, maybe she would have been pro-choice now.”

Brown said she agrees with “separation” of the embryo or fetus in life-threatening cases such as ectopic pregnancies, but she believes abortion is over-recommended and not always necessary to save maternal life. “With our medical advancements, high risk pregnancies can definitely be mitigated and cared for.”

But in this group, no one understands the medical nuance of pregnancy better than Dr. Kristin Lyerly, a white, 54-year-old OB-GYN and mother of four who has provided abortions throughout her career. When she herself needed a second-trimester abortion procedure after miscarrying years ago, she told the group she couldn’t find a doctor in Madison qualified to perform what she described as a complex and politicized procedure. Lyerly now commutes to Minnesota for work; she stopped performing abortions in her home state in 2023 while Wisconsin’s abortion ban was briefly in effect.

When gestational limits or narrow health exceptions are proposed, Lyerly consistently pointed out that things happen progressively in pregnancy and that each case is different. “We’re philosophizing. We’re not in the middle of it like my patients are,” she said. “When in the middle of it, you sometimes do things you wouldn’t expect.”

The only other doctor in the room is Jeff Davis, a white, semi-retired bovine veterinarian from southwest Wisconsin who has been involved with crisis pregnancy centers. He said his earliest defining moment on this issue happened on his family’s farm in Illinois.

“My whole pro-life view on life began when I was like 12 years old, and my hand was small enough to get inside the vagina of a ewe to pull out some twin baby lambs,” Davis told States Newsroom. “It was so exhilarating to be able to do that because if not, she might have had dead lambs.”

Davis believes that terminating pregnancies at any stage is wrong because it ends life. His belief was solidified by the birth of his children, the viewing of his first grandchild on an ultrasound, and his Catholic faith.

‘No magic solutions’

But when given the hypothetical, the majority of Americans take a middle position, explained Charles Franklin, a professor of law and public policy at Marquette University in Milwaukee, one of three subject-matter experts to address the group that weekend. The Marquette Law School Poll director has been polling Wisconsinites on abortion for years, and he said the overall numbers haven’t changed much.

Marquette’s most recent poll, from June 2023, finds that 32% of those polled believe abortion should be legal in all cases, 34% in most, 25% illegal in most, and 6% illegal in all.

A few in the group take that middle view, like Jacob VandenPlas, a white veteran and farmer who runs a rehabilitation farm for other veterans in Sturgeon Bay and has run for Congress (the same district as Lyerly, but as a Libertarian). The father of two said he thinks abortion should be allowed until approximately 15 weeks gestation and then qualified with exceptions for fetal and maternal health, rape and incest.

“I don’t believe the government has a place to dictate what someone can and can’t do,” VandenPlas said. “It doesn’t mean I have a disregard for life. I’m not happy about abortions and want to solve the root cause.”

“Morality is so personal; I struggle with assigning it,” said domestic violence advocate Monique Minkens. The 55-year-old Black mother and executive director of End Domestic Abuse Wisconsin told the group that she personally opposes abortion later in pregnancy, but that she doesn’t believe in imposing limits. She noted that she has worked with people trying to avoid being tethered to an abuser for life.

“Late-term abortion, that’s hard,” Minkens said. “I can’t see someone carrying a child, feeling it kicking, and then being given an abortion. And yet I know that there are times when someone says, your child is dead, you’re going to have to push out this child, or your child is going to die as soon as they’re born, or whatever it is, and your life is in danger. I’m not going to pull out my morality on them.”

Abortion polling numbers vary widely, Franklin explained to the group, depending on where people live throughout the state, their politics, their race, their religion, and when presented with real-life circumstances, like Martell’s husband.

“There’s no magic solutions here,” Franklin said. “I’m not trying to present you with solutions. But what I am trying to do is say we need to understand what the broad public is thinking when they think about these things and get a little bit away from the common impression that we have two monolithic, adamantly opposed groups. … We’re divided, though a majority in almost every measure say they favor legal abortion in at least some circumstances.”

As predicted, the solutions this group ends up with months later are not magical, though they are, the participants will eventually agree, positive steps toward improving reproductive health access and family well being in Wisconsin. They include standardizing and ensuring accuracy in pregnancy options information, and expanding health insurance coverage. The group is almost but ultimately unable to come up with abortion-specific policy agreements.

But while these participants were still in the thick of debating and trying to see past their own trauma-laced biases and experiences, consensus on this issue seemed far away.

“I think that we’ll go round and round and round, and I don’t know how we reach an understanding,” Minkens said at the end of the second day; on the third they would be expected to agree to a list of proposals. “I’m just thinking about … the history of harm that has happened over the years; it’s always been the Catholic Church or it’s always been a Christian state that has done the harm, and that is where I’m struggling. Your cold dead hands, my cold dead hands, I don’t know where we go from here.”

Tomorrow: The group struggles to find common ground.

Sidebar

Wisconsin Citizen Solutions on Abortion and Family Well Being participants

• Laura Brown — A 61-year-old white, Protestant nonprofit chief financial officer from West Allis, who opposes abortion rights.

• Jeff Davis — A 76-year-old white, Catholic semi-retired bovine veterinarian and widower with three daughters and eight grandchildren from southwest Wisconsin, who opposes abortion rights.

• Milly Gonzales — A Hispanic domestic violence, sexual assault, and human trafficking professional in Door County, who supports abortion rights.

• Bria Halama — A white, Catholic clinical mental health counselor in Milwaukee, who opposes abortion rights.

• Kateri Klingele — A 25-year-old white, Catholic clinical mental health professional and mother in Madison, who opposes abortion rights.

• Thomas Lang — A 61-year-old white, Catholic property manager from Janesville, who opposes abortion rights.

• Dr. Kristin Lyerly — A 54-year-old white OB-GYN, mother of four, and abortion provider from Green Bay. (She has since stepped away from Starts With Us because her campaign conflicts with their nonprofit status.)

• Heather Martell — A 37-year-old white mother, legal assistant, and Chippewa Falls alderman, who supports abortion rights.

• Kai Gardner Mishlove — A Black grief doula and the director of Jewish Social Services of Madison, who supports abortion rights.

• Patricia McFarland — A 75-year-old white abortion-rights activist, mother, grandmother, and retired college teacher.

• Monique Minkens — A 55-year-old Black executive director of End Domestic Abuse Wisconsin, who believes abortion should be available to everyone.

• Ali Muldrow — A 36-year-old Black mother of three daughters and the executive director of the abortion fund WMF Wisconsin in Madison.

• Jacob VandenPlas — A 39-year-old white veteran and farmer from Sturgeon Bay, who used to oppose abortion but now believes it should be available with limits later in pregnancy.

• Ramona Williams — A Black mother and regional nonprofit coordinator who supports abortion rights.

Protesters gather outside the U.S. Supreme Court on Wednesday, April 24, 2024, while justices hear oral arguments about whether federal law protects emergency abortion care. (Sofia Resnick/States Newsroom)

This story has been updated

U.S. Supreme Court justices spent two hours Wednesday morning debating whether a federal law about emergency treatment encompasses abortion care even in states with strict abortion bans, with no clear indication of how they may ultimately rule.

A decision could come as soon as the end of June whether Idaho’s near-total abortion ban means doctors who might need to terminate a pregnancy during a health emergency would be protected from prosecution under the Emergency Medical Treatment and Labor Act, or EMTALA, a federal law that requires hospitals to treat patients who come to an emergency room regardless of their ability to pay. That includes treatment to prevent serious damage to bodily functions.

If the court decides the law does not provide that protection, then hospitals and doctors in Idaho have said they will have to continue transferring patients out of state for that treatment. Since January, when the court decided to take the case and struck down an injunction that provided protection under EMTALA, transfers out of state for pregnancy complications that may require termination increased from one in 2023 to six over the course of four months.

The court’s liberal wing — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — ??questioned Idaho Deputy Attorney General Josh Turner about what EMTALA explicitly says about stabilizing treatment and whether abortion procedures fall into that definition when complications occur before a fetus can survive outside of the womb.

Turner argued that Idaho’s law should supersede federal law in the case of abortion procedures, even if it goes against commonly accepted medical care standards.

Sotomayor rejected that argument.

“There is no state licensing law that would permit the state to say, ‘Don’t treat diabetics with insulin. Treat them only with pills,’” Sotomayor said. “Federal law would say you can’t do that.”

She said federal law requires treatment of a person who is at risk of serious medical complications without that treatment, but Idaho’s law does not provide that much leeway.

“Idaho law says the doctor has to determine not that there’s really a serious medical condition, but that the person will die. That’s a huge difference, counsel,” she said.

Idaho’s abortion ban went into effect in August 2022, a few months after the U.S. Supreme Court issued its Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade, ending federal protection for abortion access and allowing states to regulate it instead. Providers who are prosecuted for performing an abortion are subject to two to five years in prison plus the loss of their medical license, and they are also subject to civil enforcement laws by any family members related to the person who had the abortion.

Doctors are subject to prosecutorial discretion in Idaho, deputy AG says

The justices repeatedly asked Turner to identify situations where a doctor might provide an abortion as part of stabilizing care and it would not be allowed under Idaho law. He continued to point to the state’s exception to save a patient’s life and referred to a doctor’s “good faith medical judgment” being enough to avoid prosecution.

The government listed nine emergency medical conditions where termination of the pregnancy may be the recommended treatment to stabilize a patient’s condition, including when the water breaks before a fetus is viable or when a patient experiences uncontrolled high blood pressure or bleeding. Idaho doctors identified one recent “traumatic” case when a patient had to wait until advanced infection set in before the doctor felt secure enough to end the pregnancy. Others are sending patients out of state as soon as termination might be needed to avoid having to wait until they meet qualifications under Idaho’s exception to prevent death.

Justice Amy Coney Barrett, considered one of the court’s more conservative members, said Turner was hedging in his answers and asked what happens if another doctor or prosecutor reaches a contrary conclusion about what the appropriate medical treatment should have been.

“That, your honor, is the nature of prosecutorial discretion,” Turner said.

Barrett also asked if Idaho had released any legal guidance about its abortion laws, the way a federal health agency might issue guidance. Turner said the “guiding star” is the Idaho Supreme Court’s opinion from August 2022 interpreting the abortion statute, where it said the law does not require imminence of death or medical certainty for a physician to intervene. The Idaho court also said another doctor’s opinion would only be considered if they accused the doctor who performed the abortion of acting in bad faith.

U.S. Solicitor General Elizabeth Prelogar said for those reasons, women in Idaho are not getting the treatment they need, often in already-tragic situations where a wanted pregnancy is lost because of complications.

“They are getting airlifted to Salt Lake City and to neighboring states where there are health exceptions in their laws,” she said. “The doctors can’t provide the care until they can conclude that a prosecutor looking over their shoulder won’t second guess that maybe it wasn’t really necessary to prevent death.”

Conservatives ask about conscience objections

The more conservative justices offered mixed questions to Prelogar, who argued on behalf of the government. Justice Neil Gorsuch posed questions related to the federal Supremacy Clause about when federal law can override state law in the context of medicine, while Barrett asked whether conscience exceptions exist for doctors who don’t feel comfortable terminating a pregnancy even in emergency situations. Or if a hospital did not want to provide the procedure, such as a Catholic hospital, would be exempt under EMTALA for conscience reasons. One of Idaho’s largest hospital systems, Saint Alphonsus, is a Catholic hospital.

Prelogar confirmed that yes, individual doctors and entire medical entities qualify for those conscience objections and are therefore not required to perform an abortion under EMTALA. But at a hospital that did not have a blanket objection, they would take individual objections into consideration for appropriate staffing so that there is always someone available to provide that care if necessary.

“If the question is, could you force an individual doctor to step in over a conscience objection, the answer is no, and I want to be really clear about that,” Prelogar said.

Justice Sam Alito also asked Prelogar if EMTALA could be understood to apply to other emergency situations such as a mental health emergency, if someone was expressing suicidal thoughts and wanted to end their pregnancy to resolve those thoughts. Idaho’s legal representation, conservative religious law firm Alliance Defending Freedom, argued in its brief to the court that a ruling in favor of EMTALA protection would allow such situations to occur. Prelogar said no, the proper treatment would be to administer medications to alleviate the suicidal thoughts.

“There can be grave mental health emergencies, but EMTALA could never require pregnancy termination as the stabilizing care … because that wouldn’t do anything to address the underlying brain chemistry issue that’s causing the mental health emergency in the first place,” Prelogar said. “If she happens to be pregnant, it would be incredibly unethical to terminate her pregnancy. She might not be in a position to give any informed consent.”

Demonstrators, legislators from Idaho comment on court case

Hundreds of abortion rights advocates, medical professionals and two Idaho legislators gathered outside the U.S. Supreme Court building in Washington, D.C., on Wednesday morning before the arguments advocating for the court to uphold EMTALA as a guiding principle regardless of state abortion laws. On the anti-abortion rights side, Idaho-based crisis pregnancy center Stanton Healthcare argued the case was about forcing states with abortion bans to perform them. Danielle Versluys, the organization’s chief operating officer, said women with complications should deliver a baby naturally, regardless of the circumstances.

“The outcome is the same — a dead baby — but the difference is one is natural, and the other is not,” she said. “And one allows the woman the natural process to give birth and to grieve, and the other one is unnatural.”

Rep. Ilana Rubel, a Democrat and the legislature’s minority leader, told States Newsroom the case is a waste of state taxpayer dollars.

“It is, frankly, stunning that leaders in our state think that this is something they want so badly they were willing to take it to the Supreme Court to deprive women of appropriate care in medical emergencies,” Rubel said. And with the Idaho Legislature adjourned for the year, she added, “If the Supreme Court does not give us EMTALA back, there will be no lifeline for women at least until 2025.”

States Newsroom reproductive rights reporter Sofia Resnick contributed to this report.

Because of Idaho’s abortion ban and a court decision that does not protect emergency room physicians from prosecution under that law, some Idaho physicians are advising their pregnant patients, or those trying to become pregnant, to purchase memberships with companies like Life Flight Network or Air St. Luke’s in the Boise area to avoid potentially significant costs if they need air transport in an emergency. (Courtesy of Life Flight)

Since the U.S. Supreme Court decided in January to consider a case about whether a federal law regarding emergency medical treatment supersedes an abortion ban in Idaho, air transports out of state for pregnancy complications at one of the state’s largest hospitals have increased from one in all of 2023 to six in the past four months.

St. Luke’s Chief Medical Officer Dr. Jim Souza said if that pace continues, that number could be 20 patients before the year is over.

“We have limited resources in terms of helicopters, fixed-wing transports and ambulances. If we occupy an air transport with a patient who could completely receive the totality of her care right here, safely, it’s potentially dangerous for other patients,” Souza said.

Idaho’s abortion ban went into effect in August 2022, a few months after the U.S. Supreme Court issued its Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade, ending federal protection for abortion access and allowing states to regulate it instead.

That rise has prompted some Idaho physicians to advise their pregnant patients, or those trying to become pregnant, to purchase memberships with companies like Life Flight Network or Air St. Luke’s in the Boise area to avoid potentially significant costs if they need air transport in an emergency. With or without private insurance, the cost can be thousands of dollars.

“The thought of this becoming the new normal — I don’t want it to be the new normal,” said Blaine Patterson, director of the Air St. Luke’s program, which reported the recent increase in transports by air.

The court will hear oral arguments Wednesday over whether the near-total abortion ban means doctors who may need to terminate a pregnancy to stabilize a patient in a health emergency will have to continue to transfer patients out of state or risk jail time and the loss of their medical license. The U.S. Department of Justice sued Idaho in 2022 over the ban, saying it violated the Emergency Medical Treatment and Labor Act, or EMTALA, which mandates that Medicare-funded hospitals provide stabilizing care for patients who come to an emergency room regardless of their ability to pay.

In a brief submitted to the court leading up to oral arguments, the Department of Justice cited States Newsroom’s reporting from January that without EMTALA protection in place, doctors said they would have to transfer more patients out of state for abortion care rather than wait for conditions to become life-threatening.

A pregnant patient might come to the ER for a variety of reasons, including high blood pressure, bleeding, or one of the most common occurrences, when the patient’s water breaks before a fetus can live outside of the womb, even with medical intervention. It happened 54 times at St. Luke’s Boise in 2023, or about once a week — though not all of those cases occur before a fetus is viable, which is generally considered to be about 22 weeks of gestation.

After the water breaks, there is often still a fetal heartbeat, even though the fetus ultimately won’t survive without amniotic fluid. And in the meantime, infection can quickly spread throughout the body and turn septic, which is life threatening, or it can lead to hemorrhage. Without the ban in place, a doctor would likely recommend termination of the pregnancy to avoid further complications.

But with the ban, maternal-fetal medicine specialists like Dr. Stacy Seyb of Boise aren’t taking any chances by trying to wait until the law’s exception for saving the patient’s life might apply. If termination needs to be considered, he said it’s better in his judgment to send someone to a facility out of state that can freely offer termination before it’s too late. The longer an infection or other complication persists, the greater risk it poses to a patient’s health and ability to get pregnant again in the future.

“And there are times they may not even need the procedure. But we can’t predict that, and we can’t predict how quickly their status might change,” Seyb said. “I think it’s a great hardship, it’s an extra expense to our medical system, and it doesn’t make sense why something that I’ve been doing for 30 years of my career is now taboo.”

Transport has financial, emotional and potentially physical costs

In a brief filed earlier this month by the Alliance Defending Freedom, a religious conservative law firm that has argued several abortion-related cases before the U.S. Supreme Court, including the Dobbs decision, attorneys argued on behalf of Idaho that transport out of state for an emergency termination is in line with EMTALA’s requirements.

“If state law allows a doctor to provide a particular treatment, then that service is available at a hospital for EMTALA purposes. But if state law prohibits a particular treatment, then the facility cannot provide it to anyone, no matter the circumstances,” the attorneys wrote.

Typically, only one support person at most can accompany a patient during air transport. That often means other family members must drive hours away from home in this region of the country, and find a place to stay. Seattle or Portland are seven to eight hours away, while Salt Lake City is about a five-hour drive from Boise. Utah has an 18-week abortion ban with an exception to preserve a pregnant patient’s health.

“It’s tough enough losing a pregnancy, but then to go through this in a foreign land,” Seyb said. “I feel very bad for these patients.”

There are also some patients who simply go home and wait it out, he said, because they don’t have the money or resources for air transport. Those patients may end up back at the emergency room later in worse condition.

According to the National Association of Insurance Commissioners, the average cost of these flights is between $12,000 and $25,000 before insurance is applied, based on an average 52-mile distance. Salt Lake City is almost 340 miles from Boise. Depending on the patient’s insurance plan details, 20% of that cost could still fall to them to pay out of pocket.

The median cost calculated by the Centers for Medicare and Medicaid Services is even higher at $36,000 to $40,000.

Besides the emotional and financial toll, Seyb said, there are delays in care caused by first having to make the decision to transfer and decide where the patient should go, then prep the patient for transport and make the journey while hoping no complications occur en route.

The aircraft is equipped to try to handle those situations, but by definition, it is not as well-equipped as a hospital. The specialty care teams that have to ride along for those transports in case of complications are also tied up for many hours and therefore unavailable to other hospital patients who may need them.

There are also considerations around weather in a mountainous region, said Patterson. In a time-sensitive situation, if there is a severe storm or low visibility for other reasons, it will inevitably delay care further.

“If it’s below weather minimums, we aren’t going anywhere. And those apply to everybody,” Patterson said.

‘You should think about’ membership if pregnant in Idaho

Natalie Hannah, spokesperson for the Life Flight Network, said they have not seen an increase in transports for maternal complications, nor have they seen an increase in membership requests. Life Flight has a reciprocal agreement with Air St. Luke’s and many other regional medical facilities around the West, she said, so coverage would be widespread. A membership with Life Flight costs $85 for one year for a household, while Air St. Luke’s charges $60 for one year. A member is required to have private insurance to qualify.

Patterson said a membership with Air St. Luke’s will cover copays and deductibles, and while he might only have recommended it before for those who recreate outdoors in remote areas or who ride motorcycles, he now would advise people to add pregnancy to the list. Seyb agreed that it made sense as a precautionary measure.

“You should think about it,” Patterson said.

Republican Floor Leader Damon Thayer chastises Sen. David Yates, D-Louisville, who tried to move his bill adding exceptions to Kentucky's abortion ban. (Kentucky Lantern photo by McKenna Horsley)

FRANKFORT — With about five hours left in the 2024 legislative session, a Louisville Democrat tried to force a Senate vote on a stalled bill that would have added exceptions for rape and incest to Kentucky’s strict abortion ban.?

Senate Floor Leader Damon Thayer called the move “a political stunt on the last day of the legislative session” — and it easily failed.?

Sen. David Yates, D-Louisville, cited Rule 48 to ask for a vote on Senate Bill 99, which hasn’t moved since it was filed in January. All bills must be assigned to a committee within five days of being introduced, according to Senate Rules. Rule 48 allows any member to call for a vote on whether a bill has been “held an unreasonable time” the day after filing a discharge petition.?

Senate President Robert Stivers ruled the petition out of order, saying that for it to be in order Yates would have had to call the discharge petition with one full legislative day remaining.?

The rule says a lawmaker can “call the petition for consideration on the next succeeding legislative day after its filing.” Yates filed the petition on Friday.??

After Stivers ruled his petition out of order, Yates asked for a roll call vote in a challenge of that ruling. Senators took Stivers’ side along party lines, with the exception of Sen. Adrienne Southworth, R-Lawrenceburg.?

Southworth said it was clear to her “in black and white” that Yates had a right to make his motion.?

“I’m not surprised,” Yates told the Lantern after the vote. “I’m disappointed, especially when it’s that clear.”?

Minority Floor Leader Sen. Gerald Neal, D-Louisville, told reporters Tuesday that he found the outcome of the petition “revealing.”

“It was revealing about what happens when you have a majority, you have someone with power, not recognizing and using discretion properly,” he said. “You don’t just use power because you have it. You use it for the benefit of all.”

Sen. David Yates, left, and Hadley Duvall called on the legislature to consider Yates' bill adding exceptions to Kentucky's abortion ban. (Kentucky Lantern photo by Sarah Ladd).

FRANKFORT — Democrats are hoping to force lawmakers to take a stand on loosening Kentucky’s near total ban on abortion before going home Monday.

Sen. David Yates, D-Louisville, announced Thursday that he is filing a discharge petition for his Senate Bill 99, which would create exceptions in the abortion ban for rape and incest. He filed the bill on Jan. 9 and said it has been “deliberately shelved.”?

At a Thursday news conference, Yates spoke alongside Hadley Duvall, who talked about her childhood pregnancy in ads supporting Democratic Gov. Andy Beshear before his reelection last November.?

Duvall said the Republican-controlled legislature’s refusal to consider adding exceptions to the law leaves her “heartbroken” for her fellow abuse survivors. She promised to “fight for them always.” Yates named his measure Hadley’s Law in her honor.?

Beshear also weighed in Thursday, saying he is “100% in support” of Yates’ discharge petition. Kentucky has “one of the most restrictive laws in the country,” Beshear said. “It’s mean and it’s cruel.”?

“If the legislature passes on that, that’s another year,” he said. “The people who are violated and harmed don’t have options.”?

Under Senate rules, all bills shall be assigned to a committee within five days of being introduced. Any member can call for a vote on whether a bill has been “held an unreasonable time” the day after filing a discharge petition. If a majority of senators concur, the bill is treated as if it had been approved by a committee and receives a first reading. Bills must receive readings on three different days. That means that without a suspension of the rules there would not be time for a vote on SB 99, even in the unlikely event the Republican-controlled Senate approved the discharge petition.

Yates told reporters he wants the public to know where their representatives stand on this issue, though he acknowledged it’s a “hard vote” for many.?

“I’m not trying to embarrass people,” he said. “We’re elected here to make the hard votes.”?

In January, Senate President Robert Stivers promised on KET that Yates’ bill would be assigned to a committee but it never was.? On Thursday, Stivers told reporters that he “never had any real discussion with anybody that wanted to move” Yates’ bill.?

Stivers also said the bill could not be constitutionally passed now because it would lack the required three readings.

“I think Sen. Yates is probably making more of a political statement than he is a policy maneuver because it just doesn’t survive the process,” Stivers said.?

‘A scared middled schooler’?

Abortion has emerged as a favorable issue for Democrats since the U.S. Supreme Court overturned Roe v. Wade, which said there was a constitutional right to abortion, in 2022. Later that year, Kentucky voters defeated an anti-abortion constitutional amendment. Voters in Kansas and Ohio have approved measures protecting abortion rights. The Arizona Supreme Court on Wednesday upheld a 1864 abortion ban, ensuring that abortion will be an issue in one of the races expected to decide control of the U.S. Senate this year. Kentuckians will be voting in legislative races in November in addition to contests for Congress and U.S. president.

At the Thursday news conference, Duvall said, “If this bill had been given a hearing, I would have been here to testify. I would have said how I was sexually abused by my stepfather for years and became pregnant at the age of 12. And I would have described the feeling of being a scared middle schooler taking a pregnancy test by myself, in my bathroom, right after school, terrified about what it could mean for my future. There are little girls across Kentucky right now in similar situations and they need options.”?

Yates agreed, saying “When someone has violently taken away their choices, it is wrong for us to continue to do that as the state.”?

Yates also said the three-month delay on his bill is “about as unreasonable as you get.”?

Woman in Beshear’s abortion ad says she wants to give voice to victims

None of the bills seeking to loosen Kentucky’s near-total abortion ban were assigned committees, making them effectively dead on arrival. Those bills include:?

• A Republican bill to add rape and incest exceptions and clarify doctors can treat ectopic pregnancies?
• Yates’ bill to add rape and incest exceptions.?
• A Democratic bill to roll back all abortion restrictions.?

The day after he won reelection, Beshear called on the Republican-controlled General Assembly to add exceptions to the Kentucky law in cases of rape and incest. Advocates hoped that Duvall’s story and Beshear’s reelection were a turning point in the attitudes toward Kentucky’s lack of abortion access.?

Beshear added Thursday that he believes in greater access to abortion than just the exceptions. He’s publicly said Roe V. Wade was “generally right.” He said the exceptions in Yates’ bill were the “very least that people of empathy should be able to do.”?

Duvall said she’s “disappointed” in legislative leaders who failed to advance the bill named after her. She hopes they use this chance to change course.?

“How could you choose to not hear out the bill, but you won’t give us our choice?” she asked. “I say a lot that I’m not pro-abortion. I’m pro mind-your-own-business. This is a mind-your-own-business piece of legislation.”?

Reproductive rights advocates gather on the steps of the Arizona Supreme Court to speak out against a near-total abortion ban from 1864 being considered by the judges on Tuesday, Dec. 12, 2023. The ban includes no exceptions for rape or incest and allows only abortions performed to save the patient’s life. Photo by Gloria Rebecca Gomez | Arizona Mirror

The Arizona Supreme Court ruled to make abortion largely illegal in the Grand Canyon State, reinstating a 160-year-old law that forbids all procedures except those to save a woman’s life.

Justice John R. Lopez IV, writing for the court in a 4-2 split decision, said that a 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion. And since the U.S. Supreme Court eliminated that right in the Dobbs v. Jackson Women’s Health Organization ruling two years ago, that law can’t overrule one first passed in 1864, when Arizona was a territory.

“Absent the federal constitutional abortion right, and because (the 15-week abortion law)? does not independently authorize abortion, there is no provision in federal or state law prohibiting (the 1864 law’s) operation. Accordingly, (the 1864 law) is now enforceable,” Lopez wrote.

And that means abortions are illegal in every case except to save a woman’s life.

“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal…,” Lopez wrote.

Arizona Attorney General Kris Mayes called the ruling “unconscionable” and “and affront to freedom.”

“Make no mistake, by effectively striking down a law passed this century and replacing it with one from 160 years ago, the Court has risked the health and lives of Arizonans,” Mayes said in a written statement. “Today’s decision to reimpose a law from a time when Arizona wasn’t a state, the Civil War was raging, and women couldn’t even vote will go down in history as a stain on our state.”

The ban will go into effect in 59 days.

Anti-abortion groups celebrated the ruling. Cathi Herrod, president of Center for Arizona Policy, which backed the 15-week law while it was moving through the legislature and is behind many of Arizona’s abortion regulations, said that the high court ruled with an eye toward a neutral interpretation of the law, and not to advance partisan priorities.

“Today’s decision preserves a system designed to be blind to all but the law, and in doing so, it upholds the right of life for all Arizonans.”

Arizona governor responds

In a post on social media site X, formerly Twitter, Gov. Katie Hobbs sounded the alarm over the decision and vowed to continue working to protect access to abortion.

“It is a dark day in Arizona,” she wrote. “We are just fourteen days away from one of the most extreme abortion bans in the country. But my message to Arizona women is this: I won’t rest, and I won’t stop fighting until we have secured the right to abortion.”

During a news conference held shortly after the ruling was released, the Democrat called on the Republican-led legislature to repeal the 1864 law, saying it was the right thing to do. Two attempts this year to do just that stagnated in the legislature, where the GOP-majority has the power to decide which bills get heard.

But it seems unlikely that Republicans will respond to the renewed request. House Speaker Ben Toma and Senate President Warren Petersen filed an amicus brief in the case advocating for the reinstatement of the Civil War-era law, saying that lawmakers never intended to supersede the ban when they passed the 15-week law.

If Republican lawmakers won’t act, Hobbs said, then Arizona voters can in November, when an abortion access amendment is expected to make it onto the ballot.

“To the people across Arizona who are concerned about the future of abortion rights in our state, who are worried about their bodily autonomy, who don’t want to see the freedom of their wives, sisters and daughters restricted, you can make your concerns known at the ballot box,” she said.

Reproductive rights advocates are concerned that a return to a near-total ban will result in uneven health care access for women, as those who can afford to leave the state to seek abortions elsewhere will do so and women who can’t shoulder the cost will be forced to continue carrying unwanted or dangerous pregnancies. Morgan Finkelstein, who in 2020 was forced to travel to California because of Arizona’s limited abortion providers to receive a selective reduction when one of her twins developed a critical heart defect, said that the experience was “traumatic” and should not have to be endured by anyone.

Hobbs told reporters that, while she expects abortion advocacy groups to help women access the health care they need, she is open to discussing ways to support that effort with other governors, including California’s Gavin Newsom.

Hobbs highlighted her executive order that concentrates prosecutorial authority for abortion law violations in Mayes’ office as the most effective strategy to prevent the criminalization of doctors by “overzealous” prosecutors. And while some county attorneys have signaled an interest in challenging that executive order in court, Hobbs said she is confident in the order’s legal basis.

“Bring it on,” she said. “I would not have issued the executive order if I didn’t think it was legally sound.”

Dr. Gabrielle Goodrick, medical director of Camelback Family Planning, one of a handful of private abortion clinics in the Valley, told the Arizona Mirror that she’s committed to keeping her doors open for the entire 59 days that the ruling is paused.

“It is business as usual, and health care as usual, and we will try to see as many people as we can,” she said.

But Goodrick, who has practiced in Arizona for more than 20 years, said she’s confident the November election will bring change, as voters flock to the polls in response to the “extremist” ruling.

The background

The dilemma arose in the summer of 2022, after the U.S. Supreme Court eliminated the constitutional right to abortion and sent the power to regulate the procedure back to the states. Then-Arizona Attorney General Mark Brnovich went to court to reinstate the 1864 abortion ban, and convinced a trial court judge that the Civil War-era law should be enforced instead of the 15-week ban passed just months earlier.

The consequences for reproductive health care in Arizona were instantaneous: An uncertain legal landscape led the majority of the state’s nine abortion clinics to provide intermittent services for months. The 1864 law carries with it a 2- to 5-year mandatory prison sentence for doctors who perform abortions for any reason other than saving a patient’s life, and the 2022 law punishes doctors with a class 6 felony and a revoked license.

Women were cut off from potentially life-saving care as the abortion rate saw record lows that year. Whereas abortions in Arizona have consistently exceeded 13,000 since 2011, in 2022 that number plummeted to just 11,407 procedures.

With two conflicting statutes on the books, uncertain doctors shutting their doors rather than risk prison time, and state officials vying over which ban to implement, Arizona courts were tasked with figuring out how to make the laws coexist.

Proponents of the near-total ban argued that the 2022 law included a provision that stated it wasn’t meant to repeal any laws that came before it, signifying that the 1864 law should reign supreme. But reproductive rights advocates pushed back, pointing out that if the 1864 law wasn’t overruled by the 15-week law based on that interpretation, then neither were the numerous abortion law restrictions enacted in Arizona in the 50 years since Roe v. Wade was decided. And keeping in place laws that mandate an ultrasound, a 24-hour waiting period and an informational consultation, among other requirements, meant that abortion must be preserved to some extent.

The near-total ban was brought back into play by a Pima County judge who nullified an injunction holding it at bay that was erected in 1973, under the auspices of Roe.

But the Arizona Court of Appeals later ruled that the 15-week ban should supersede its predecessor, with the judges noting that if the GOP-majority legislature had intended to completely outlaw abortion, it should have been done so explicitly instead of passing what amounted to a gestational limit.

Less than two months later, Alliance Defending Freedom, an anti-abortion legal firm, filed an appeal with the Arizona Supreme Court on behalf of Dr. Eric Hazelrigg, the medical director of a chain of Valley-wide anti-abortion pregnancy centers. Hazelrigg was admitted into the case to fill the role of “guardian ad litem”, representing the interests of the unborn in Arizona. The position was added in 1973 when the near-total ban was first challenged.

In a December hearing, Alliance Defending Freedom attorney Jake Warner urged the justices to reverse the appellate court’s decision, saying that the lower court erred when it ruled to permit elective abortions up to 15 weeks under the 2022 law.

Warner argued that both the 1864 near-total ban and the 15-week gestational ban outlaw all but the most life-threatening procedures. Instead, the way to harmonize the two laws is by allowing the exception baked into the 15-week law for “immediately” life-threatening situations to modify the requirements of the 1864 law, he said.

Until 15 weeks, Warner explained, all abortions would be prohibited unless the mother’s life is in danger, as the 1864 law mandates. After the 15-week point, the threshold for obtaining an abortion would be raised, so that only “immediately” life-threatening emergencies would merit a procedure. A cancer patient, Warner said, is facing a life-threatening situation, but not an “immediately” dangerous prognosis, and so they would not be permitted to obtain an abortion to begin treatment.

In a written statement issued after the Arizona Supreme Court’s ruling on Tuesday, Warner called the decision a win for the right to life.

“Life is a human right, and today’s decision allows the state to respect that right and fully protect life again – just as the legislature intended,” he said.

Planned Parenthood Arizona attorney Andy Gaona, meanwhile, rebutted that if the Arizona legislature truly meant to outlaw virtually all abortions, it should have made its intention clearer. GOP lawmakers in Arizona modeled the state’s 15-week ban after the Mississippi law in Dobbs v. Jackson Women’s Health Organization, under the assumption that the U.S. Supreme Court would uphold that law and the Arizona copy could stand.

But Arizona lawmakers left out a key provision from the Mississippi law: a clause which stated that any abortion that complied with Mississippi’s 15-week law but violated any other abortion law was nonetheless illegal. Gaona pointed to that as proof that Arizona lawmakers never intended to completely ban abortion.

While the courts worked through the legal parameters of abortion in Arizona, the election of pro-choice Democrats to statewide offices two years ago dampened the threat of a state ban to some degree.

Gov. Katie Hobbs, who ran on a promise to protect abortion access, issued an executive order in July concentrating the prosecutorial authority for abortion law violations in the Arizona Attorney General’s office. Doing so preemptively barred any of the state’s 15 county attorneys from using Arizona’s abortion laws to take a doctor to court. At least one county attorney, Yavapai’s Dennis McGrane, who joined Hazelrigg in advocating for the 1864 law, has indicated an interest in pursuing abortion law violations. AG Kris Mayes, meanwhile, has vowed never to prosecute a single case.

But the legal strength of Hobbs’ executive order has yet to be tested in court. Shortly after she issued it, county attorneys threatened to mount a legal challenge against it, though none has since materialized.

November 2024: the solution?

Reproductive rights groups are aiming to stave off threats from the court rulings and GOP-backed laws by enshrining abortion access in the state constitution this November. The Arizona Abortion Access Act would guarantee the procedure as a right up to 24 weeks of gestation, in a mirror of the standard in Roe. The act would also include an exception for procedures performed after that time if the doctor considers it necessary to safeguard the life, physical or mental health of their patient.

Because it is a constitutional amendment, the initiative needs to collect 383,923 signatures to qualify for the ballot and be considered by Arizona voters. Earlier this month, the campaign announced it has gathered 500,000 signatures, and it plans to continue collecting more to ensure a buffer against signatures that are eventually thrown out during the verification process.

Along with securing enough signatures, supporters of the act must also contend with opposition from the It Goes Too Far Campaign, which is aiming to convince voters that the ballot proposal is too extreme. In an emailed statement, Campaign Manager Leisa Brug said that, despite the Arizona Supreme Court’s ruling, the 15-week gestational ban remains the law of the land, and the campaign is focused on ensuring that the effort to enshrine abortion protections doesn’t undermine that.

“Our campaign is committed to exposing the real impact of the vague language of this amendment,” she said, in an emailed statement. “Arizonans deserve to know.”

Democrats in Arizona and across the country are counting on the abortion issue to mobilize voters and deliver wins for party candidates. Abortion access has proven to be a highly motivating concern, even in red states like Kansas, where a record number of voters showed up to reject a legislatively referred ballot measure that would have given lawmakers the power to eliminate abortion protections, and in Virginia, where voters awarded Democrats a legislative majority to defend against the anti-abortion policies of the state’s Republican governor.

Vice President Kamala Harris placed the blame for the Arizona Supreme Court’s ruling squarely on former President Donald Trump, who is running to recapture the White House. The campaign to reelect President Joe Biden and Harris has sought to underscore Trump’s involvement in overturning Roe, and link his presidency to the proliferation of abortion bans across the country.

“Arizona just rolled back the clock to a time before women could vote – and, by his own admission, there’s one person responsible: Donald Trump,” Harris said in an emailed statement. “This even more extreme and dangerous ban criminalizes almost all abortion care in the state and puts women’s lives at risk. It provides no exceptions for rape, incest, or health. It’s a reality because of Donald Trump, who brags about being ‘proudly the person responsible’ for overturning Roe v. Wade, and made it possible for states to enforce cruel bans.”

Trump’s appointments to the U.S. Supreme Court bench secured a conservative majority that later struck down the constitutional right to abortion.

In a joint statement, Arizona Democratic Party Chairwoman Yolanda Bejarano and state Senator Eva Burch, who has recently become the face of abortion access in Arizona after sharing the difficulties she faced obtaining an abortion, denounced anti-abortion Republicans and vowed to back reproductive rights efforts in November.

“The decision to choose when and how to start a family belongs to each of us as individuals. Donald Trump and extremist Republicans at every level of government have been undermining these rights for years, and we have had enough,” the two said in an emailed statement. “Arizona Democrats are ready to do whatever it takes to protect the people of Arizona from these out-of-touch extremist policies, and take it to the ballot in November.”

The story is republished from the Arizona Mirror, a sister publication of the Kentucky Lantern and part of the nonprofit States Newsroom network.

A collection of mementos, including footprints and handprints, were provided by a hospital in Richmond, Virginia, to Kelly Shannon of Alabama after she had to terminate a pregnancy because of fatal anomalies. (Courtesy of Kelly Shannon)

Kelly Shannon was grieving a pregnancy she would need to terminate because of multiple fetal anomalies when she got the call that Alabama doctors wouldn’t approve an abortion procedure despite exceptions in the law. That meant she would have to leave the state.

This is the fourth installment of an occasional States Newsroom series profiling individuals who have needed abortion care in the U.S. before and after Dobbs.

Shannon, 36, was about 16 weeks along in January 2023 when genetic testing – and confirmation from an amniocentesis – showed her fetus likely had Trisomy 21, better known as Down syndrome. It didn’t take long for the doctor to determine the fetus likely wouldn’t survive to term. There was fluid buildup in the head and body, evidence of a heart defect, and a tumor on the abdomen that was roughly one-third the size of its entire body.

“There was so much decision-making and processing, and you’re still feeling the baby kick the whole time,” Shannon said. “And every time she would kick, I was just sitting there like, ‘I’m so sorry. I wish I got to be your mom, but I don’t get to be your mom.’”

Three years before the U.S. Supreme Court issued the Dobbs decision in June 2022 and returned the ability to regulate abortion to the states, Alabama had already passed an abortion ban. Gov. Kay Ivey said at the time she signed the bill that even though it was likely unenforceable since abortion was still legal nationally, it was a signal to the courts to overturn Roe v. Wade. A group of physicians challenged the Alabama law in court and received a preliminary injunction that had barred its enforcement for years. But when Dobbs took effect, the injunction was lifted. Doctors are now subject to felony charges with punishment of up to life in prison.

Alabama is one of few states with an abortion ban at any stage of pregnancy that also contains an exception for lethal fetal anomalies. In the law, it’s defined as a condition from which the fetus would die after birth or shortly thereafter, or be stillborn. There are also exceptions for performing an abortion to save a pregnant patient’s life or preserve their health. However, according to the latest WeCount report of abortions performed since Dobbs, Alabama has recorded zero abortion procedures. Activists have argued that exceptions in abortion bans are meaningless because there is too much fear and uncertainty about what circumstances will qualify for an exception.

Down syndrome is the most common chromosomal abnormality, and more often occurs when the pregnant person is over the age of 35. According to the Centers for Disease Control and Prevention, infants with Down syndrome and a heart defect are five times more likely to die in their first year of life than those without.

Each abnormality on its own would possibly have been manageable, Shannon said, but the maternal-fetal medicine specialist told her the combination meant she would likely either miscarry at some point during the pregnancy or her daughter’s life would be short and punctuated by multiple surgeries. Shannon and her husband made the difficult decision at that point to terminate.

“That made the decision easier because it was like, well now if I know I’m going to lose her regardless, I can lose her on a controlled timeline, protect my health, start the grieving process, get healthy and then still be able to have another child,” she said.

Shannon filled out paperwork and made a termination appointment pending approval from the other maternal-fetal medicine specialists at the University of Alabama at Birmingham. Her doctor felt confident that given the severity of the anomalies, the abortion would be allowed.

‘I don’t think I would’ve taken that risk on me’?

A few days later, in the car on her way to meet her husband and toddler at a local dog park, the doctor called back.

“I knew why she was calling me. I knew that was the day the (second) committee was supposed to meet and she’d be calling me with their decision,” Shannon said.

Shannon scheduled the Jan. 24? termination date, made arrangements to take leave from work and had decided on cremation. But with one phone call, all the decisions she’d made had to change.

The termination had easily been approved by the first committee, and it seemed like the higher-level committee would sign off too. But in a halting manner, the doctor explained the committee had decided since each condition by itself was survivable, it didn’t meet the criteria for termination. She told Shannon it was the hardest phone call she’d made in her professional career.

The only way the committee might approve the request was if the fetus also developed a condition called hydrops fetalis, an excessive buildup of fluid that is often fatal. Shannon said that put her in a strange place of having some kind of hope that her pregnancy was even worse than originally thought. But she wasn’t upset with the doctors themselves.

“I mostly just felt sorry for them, even at the time,” she said. “As angry as I was that I wasn’t going to get to handle my pregnancy and my termination in the way that made the most sense to me … if I had been in their shoes and thought well, is this one case worth my license and jail time and prosecution? Her life’s not in danger, her baby’s probably going to die. I don’t think I would’ve taken that risk on me.”

The manager of public relations at the University of Alabama at Birmingham said no one was available to speak with States Newsroom for this story.

She had one more ultrasound at 17 weeks, where her providers checked for hydrops, but there was no presence of it. As the pregnancy had progressed further since the last ultrasound,? multiple holes between the chambers of the fetus’s heart were clearly visible, and the tumor had grown .7 centimeters. Despite the increased severity of those issues, without hydrops, she still had to go out of state.

A scheduling error meant Shannon had to wait two more weeks before she could get an appointment at a hospital in Richmond, Virginia — an 11-hour drive. Rather than bring her husband and toddler along for the ordeal, Shannon’s parents accompanied her. It was the first night she’d ever spent away from her toddler.

She chose to be induced for the procedure. After a long day of waiting, Shannon gave birth a few minutes before midnight and got to hold her daughter.

“I kept her with me until about 2 or 3 in the morning,” she said.

The logistics of what to do with the remains became more complicated since she was now more than 700 miles away from home and wouldn’t be able to visit a burial site in Virginia the way she could have in Alabama. She opted to have her daughter buried with other babies that had died because of miscarriage, termination or other premature causes.

Baby boy born in mid-March?

In mid-March, Shannon gave birth to a healthy baby boy that was a surprise pregnancy. She had been aiming for her next pregnancy to happen over the summer, when she wasn’t teaching.

“When I found out I was pregnant, I just started crying. Instead of being excited, the trauma came back,” she said. “And I felt like, I want to be excited and happy, but I’m not there yet because I don’t know if we get to keep this one yet either.”

She said she wants her story to make a difference, in hopes that another person doesn’t have to go through the same pain.

“I get angry whenever I see people with the ‘choose life’ bumper stickers and license plates, because they’re not thinking about me. They’re not recognizing that it’s not a black and white issue, it’s nothing but shades of gray when you’re dealing with pregnancy, particularly high-risk pregnancy,” Shannon said. “I am a married, white, straight, Christian, grew-up-in-the-church woman who was attempting to grow her family within the bounds of marriage, and I just keep thinking, if anybody is going to be able to change a mind about this issue, shouldn’t it be me?”

The Kentucky Senate, Feb. 27, 2024. (Kentucky Lantern photo by Arden Barnes)

FRANKFORT — A bill that open government advocates warn would introduce loopholes into Kentucky’s open records law could make its way to Democratic Gov. Andy Beshear’s desk when lawmakers return to Frankfort later this week.?

The final two days of the 60-day regular session — Friday and Monday — are set aside to consider gubernatorial vetoes of bills that both chambers have passed. The Republican supermajority can easily reach the simple majority of votes needed to override ?vetoes.

Legislation that has yet to make it through both chambers also could come up in the final two days, including a bill to end the certificate of need requirement for freestanding birth centers and a maternal health bill that ran aground in the Senate after a late amendment was added in committee.

The Senate is expected to consider confirming Robbie Fletcher as the state education commissioner, along with appointments to other positions. Thanks to a law enacted last year, it will be the first time the education commissioner has required Senate confirmation.

Any bill that lawmakers pass would be subject to a successful veto by Beshear because the legislature would have no chance to override it.

‘Bad actors’

Beshear has voiced support for the controversial changes to the open records law proposed in House Bill 509. During his weekly news conference last week he said he needs to see the bill’s final form before deciding what action to take on the bill. “We’ll review it when it gets to me.”

The House passed the bill, but the Senate did not give it a floor vote ahead of the veto period. The Senate could give final passage to the bill when both chambers reconvene Friday and Monday.

HB 509 would require state and local government agencies to provide email accounts to public officials on which to conduct official business. However, the bill doesn’t address what happens to public records created on private devices.?

Beshear told reporters he thinks the bill would be more effective than current law in deterring officials from conducting public business on their personal devices or email accounts. He traced the controversy to the Kentucky Department of Fish and Wildlife Resources (KDFWR), which has waged a so far unsuccessful court fight to block release of commissioners’ text messages. The challenge is now before the state Supreme Court.

“Fish and Wildlife hadn’t issued state email addresses to their commissioners and they insisted on texting each other on their own devices,” Beshear said. “That’s wrong. So, right now, what the law says is if you do that, that is an open record. But all we can do in terms of enforcement is ask that person ‘would you please look through your phone and take snapshots of anything that we’re asking for and send them to us now?’ Do you think a bad actor who’s trying to get around the open records request is going to do that and send them to you?”

HB 509 would destroy Kentucky’s long tradition of openness. And Beshear knows it.

Beshear said HB 509’s mandate that official business be conducted on government email accounts could aid transparency by making government agencies responsible for the records. “What it does is take whether you get a record away from a potential bad actor and put it with the agency that can secure those records.”

Agencies could discipline employees who violate HB 509’s mandates — by using a personal cell phone or email account for official communications, for example — but it’s unclear if and how those records could be publicly disclosed. The bill includes no penalties for violations by elected officials. The bill also does not require agencies to search for public records on personal devices.?

When asked if he thought Beshear would veto the bill, Republican Senate President Robert Stivers told reporters as the veto period began: “You’d have to ask the governor on that. I do not know. I don’t know what he would do.”?

The open records challenge against the KDFWR was spurred by a former member of the KDFWR’s governing board requesting text messages among Fish and Wildlife officials and lawmakers. The governor and Republican legislature have also clashed over the Kentucky Senate not confirming gubernatorial appointments to the KDFWR’s governing board. Five appointments are? awaiting confirmation this session.?

Here’s a look at where some other high-profile legislation stands:?

Momnibus?

After picking up some controversial baggage in the last leg of the legislative session, the maternal health bill called “Momnibus” failed to get final passage.?

The bill would incentivize Kentuckians to get prenatal care by adding pregnancy to the list of qualifying life events for health insurance coverage, among other things. It had bipartisan support.

But a late amendment borrowed language from a bill filed by an anti-abortion lawmaker that requires hospitals and midwives to refer patients who have nonviable pregnancies or whose fetuses have been diagnosed with fatal conditions to perinatal palliative care services. Abortion rights advocates say the requirement could become coercive.

The bill awaits Senate passage and Beshear’s action.?

Meanwhile, Democrats in the Senate have filed amendments

Democrats in the Senate have filed amendments to loosen the state’s near-total ban on abortion by adding exceptions for rape, incest and lethal fetal anomalies ?and changing the word “baby” to “fetus.”?

It could still pass in the final two days but would have to be a version that meets Beshear’s approval because lawmakers would be unable to override a veto.??

Freestanding birth centers?

A bill to remove the certificate of need requirement for freestanding birth centers that meet a set of criteria was approved by the House. It has had two readings in the Senate but still needs to pass a Senate committee.?

A Senate Resolution to reestablish a task force to study certificate of need in Kentucky has also not passed.?

Crime bill awaits action by Beshear

A sweeping crime bill backed by Jefferson County House Republicans has been awaiting action by the governor for about a week. House Bill 5 has been hotly debated, with House Democrats futilely arguing on the last day before the veto period against the measure.??

The bill includes new or increased criminal penalties, bans street camping and imposes a three strikes rule on violent offenders. It requires prisoners convicted of violent offenses to serve 85% of their sentences instead of the current 20% before becoming eligible for parole, and classifies more crimes as violent.

HB 5 has gained opposition from across the political spectrum, as both progressive and conservative groups have argued that a more in-depth fiscal analysis is needed before implementing the legislation. However, the Kentucky Fraternal Order of Police and some families of deceased crime victims have expressed support for the bill.?

Beshear told reporters Thursday that he was still reviewing the bill and was supportive of parts of it but concerned about other sections. He added that he supported the carjacking provision but had reservations about provisions that could criminalize homelessness by creating the crime of illegal street camping.?

He said a part of the bill that would “allow for the destruction of a weapon used in a murder” is close to him a year after the Old National Bank shooting in Louisville. The bill would allow someone to purchase such a weapon at auction and ask Kentucky State Police to destroy it. The funds are used for local government and law enforcement grants.?

Local officials highlighted the issue of the auctions after the shooting last year. One of the victims, Tommy Elliot, was a close friend of Beshear’s.?

“Thankfully, the ATF seized that weapon, and it was destroyed,” Beshear said of the weapon used in the bank shooting. “Otherwise, I was going to have to watch a weapon that murdered my friend be auctioned to the highest bidder.”?

Beshear also added that he wished legislation like this would be broken up into separate bills. He can only issue line-item vetoes on budget bills.?

Changes to horse racing and gambling oversight

Beshear can also take action on another bill that was passed by the General Assembly just before the veto period began that would dissolve the Kentucky Horse Racing Commission and Department of Charitable Gaming.?

Senate Bill 299 would form a new government corporation to oversee the duties of the commission and department. Both of those are currently under the Public Protection Cabinet. The House and Senate have both given approval on the measure.

The bill has been backed by the legislature’s Republican leadership. In a joint meeting of the Senate and House economic development committees, Senate Majority Floor Leader Damon Thayer and House Speaker David Osborne presented the bill.?

Beshear told reporters that it does not impact gubernatorial appointment powers but would create an independent corporation that could “take regulatory action and punish different groups,” such as trainers. That raises a question about the constitutionality of the bill, he said, as an executive branch officer will not be over the corporation.

“So, how are you independent but have full regulatory and enforcement authority? I think that’s the thing to work through there,” Beshear said. “We’ve never seen it before. We don’t know of another group that acts that way, so a little complex legally.”?

New hurdles for fossil fuel-fired power plant retirements

Beshear has yet to act on Senate Bill 349, a Senate president-backed bill that would add new bureaucratic hurdles to slow the retirement of fossil fuel-fired power plants. Before utilities could retire a fossil fuel-fired plant, they would have to notify a newly created board, whose membership would be dominated by fossil fuel industries.

Investor-owned utilities and environmental advocacy groups have decried the bill, saying it could keep aging, uneconomical coal-fired power plants on the grid and burden ratepayers with the costs of their maintenance. Advocates for the bill, including coal industry interests, have argued SB 349 is needed to ensure the reliability of the state’s energy grid, an assertion rebuffed by the leader of Kentucky’s largest utility.

Beshear last month criticized the bill, saying it was going to “take authority” from the state’s utility regulator, the Kentucky Public Service Commission, which makes decisions on power plant retirement requests. He said he’s been in the “same place” as some of the people who have pushed for SB 349, but that the proposed board is “not the way” to address the issue.

Limiting power of Louisville’s air pollution regulator

Beshear on Monday vetoed House Bill 136, sponsored by Rep. Jared Bauman, R-Louisville. The bill would prevent the Louisville Air Pollution Control District from issuing fines against industries that self-disclose violations of federal pollution regulations. Critics, including the environmental law group Kentucky Resources Council, say it could give industry in Jefferson County a “free pass” from penalties when a self-disclosure of a violation happens by ending the air pollution regulator’s ability to issue penalties in such cases.

Bauman and other Republicans have argued HB 136 is needed to align air pollution regulations in Jefferson County with the rest of the state. Most Democrats have opposed the bill, worried the bill could create less accountability over air pollution in Jefferson County.?

Criminalizing documentation of meatpacking plants, ag operations without consent?

Senate Bill 16, sponsored by Sen. John Schickel, R-Union and backed by Tyson Foods and Kentucky’s poultry industry, would criminalize using recording equipment or drones at concentrated animal feeding operations (CAFOs) and commercial food processing and manufacturing plants without the permission of the operation’s owner or manager. It would also criminalize distributing the footage.

Group alleges ‘hidden-camera’ video reveals ‘cruelty’ in chicken production in Kentucky?

Critics, including animal welfare groups, have said the bill is a so-called “ag gag” bill meant to hide from the public and prevent whistleblowers from exposing the conduct and practices of large-scale, corporate agricultural operations. An animal protection advocacy group released a video from a “hidden-camera” investigation of alleged “cruelty” within Kentucky poultry production, an investigation the group argues would be criminalized under SB 16.?

Schickel and other SB 16 supporters have said the bill is needed to prevent harassment of employees and agricultural operations that provide jobs to Kentucky communities. The bill passed through the legislature largely on party lines.?

Bills that are in the legislative graveyard or near

Anti-DEI bills: Republican efforts to limit or end diversity, equity and inclusion programs in public universities and colleges died when the Senate declined to consider changes made in its bill by the House. Any effort to revive anti-DEI legislation would almost certain be vetoed by Beshear.

Drag bill: After several edits to soften the legislation, a bill to place restrictions on adult-oriented businesses with “sexually explicit” performances sputtered on the House side despite passing a committee.??

Vaccine bill: A bill to bar employers and educational institutions from requiring the COVID-19 vaccination for treatment, employment or school, passed in the Senate but failed to advance on the House side.?

Though it could still pass in the final days of the session, Beshear, an outspoken supporter of the vaccines, would likely veto it.?

Abortion bills: None of the bills seeking to loosen Kentucky’s near-total abortion ban were assigned committees, making them effectively dead on arrival.?Those include:?

• A Republican bill to add rape and incest exceptions and clarify doctors can treat ectopic pregnancies?
• A Democratic bill to add rape and incest exceptions.?
• A Democratic bill to roll back all abortion restrictions.?

Loosening state child labor law: A bill that would allow some teenagers to work longer and later hours, voted down and then revived by a Senate committee, still needs final passage through the Senate to get to Beshear’s desk.?

Lawmakers wouldn’t have the chance to override a veto of House Bill 255 from Beshear, who in past comments panned the legislation saying child labor protections are there “for a reason.”?

Education and Labor Cabinet officials have said HB 255 also deletes language in state law that mirrors federal prohibitions on employing 14- and 15-year olds in hazardous occupations, such as jobs involving railroad cars and conveyors, loading and unloading goods from motor vehicles and requiring the use of ladders. State labor officials said they wouldn’t be able to enforce those hazardous occupation standards even if still federally prohibited.?

Bill sponsor Rep. Phillip Pratt, R-Georgetown, who owns a lawn and landscaping company, said his legislation would help minors “gain valuable experience in the workplace.”

Weakening a mine safety protection: House Bill 85, sponsored by Rep. Bill Wesley, R-Ravenna, would weaken a key workplace protection for coal miners, according to a long-time coal miner safety advocate. Wesley has argued HB 85 is needed to help smaller coal mines continue operating.?The bill would need approval from the Senate Natural Resources and Energy Committee and three required readings before being sent to the governor, who could veto it without the legislature overriding it.?

House District 75 Democratic candidate Allie Phillips collects signatures for her ballot petition from neighbors Paula Lyles, right, Danielle Davis, center, and Theron Lyles. (Photo by John Partipilo/Tennessee Lookout)

NASHVILLE, Tenn. — Candidates for political office often have personal reasons motivating them to run, even if those reasons don’t always end up as part of a stump speech or a talking point of the campaign platform. But when Allie Phillips knocks on the doors of strangers in Tennessee, she is leading with the story of one of the worst things that has ever happened to her — when she was forced to leave her home state to terminate a nonviable pregnancy.

For many people who have had an abortion, the intimacy of the experience and the stigma that often comes with it makes them reluctant to share, even among their closest friends and family, especially now that the procedure is illegal in 14 states. But not Phillips, even before she decided to run for office.

She has agreed to virtually any media request for an interview that has come her way over the past year, including stories about her pending lawsuit against the state of Tennessee. A Google search of her name returns more than 54,000 results, with headlines in the highest echelons of American media and abroad.

She has been through the story so many times with so many people that going door-to-door and relaying it to strangers with no idea of their political persuasions and asking them to support her candidacy was only a little bit nerve-wracking. Phillips needed 25 qualifying signatures from registered voters in her district, which includes her home city of Clarksville.

“I’m running because this time last year I was 19 weeks pregnant at my anatomy scan, when my doctor told my husband and me that it was no longer viable, and we made the very hard decision to terminate the pregnancy,” Phillips told her neighbors at each stop. “Because of Tennessee’s laws, I could not do that here, and on March 7, I had to travel out of state to receive the care that I needed.”

Tennessee has a near-total abortion ban that has been in effect since August 2022, two months after the U.S. Supreme Court issued the Dobbs decision that returned the ability to regulate abortion to individual states. The law contains an affirmative defense if an abortion is performed to preserve the pregnant person’s health or prevent the person’s death. It’s the law Phillips is suing over, along with six other Tennessee women and two physicians, to clarify that doctors can provide an abortion to pregnant patients who need one for medical reasons without fear of criminal prosecution. Similar lawsuits are still pending in Idaho and Oklahoma, with representation from the Center for Reproductive Rights. A hearing is scheduled to take place Thursday morning in Tennessee district court.

Since June 2022, the average number of abortion procedures per month in Tennessee fell from 1,205 to 44, according to a report from the Society of Family Planning. The law contains exceptions to save a pregnant patient’s life and to prevent substantial health problems, but without greater clarity in the law, few physicians are willing to risk performing the procedure with potential felony charges and up to 15 years in prison.

Phillips, who is vying for the House District 75 seat,? is one of the first candidates to run for office with her own personal story of seeking an abortion in a state where it is banned since the Dobbs decision, and she’s one of few who has ever run with such an emphasis on her own abortion story, as far as she and her campaign manager can determine. With each door knock, she and her team weren’t quite sure what kind of reaction they would get.

‘I started blaming myself immediately’

The story Phillips, 29, tells at the door is much simpler than the one she tells at length when given the opportunity.

She announced her pregnancy in November 2022 on the TikTok account she started two years earlier. At that time, she had about 275,000 followers that she had built largely through sharing videos about her weight loss after bariatric surgery, when she dropped close to 150 pounds in nine months. In between those videos, she danced with her daughter and made memes to the music of her favorite artist, Taylor Swift. It’s also where she announced the name she and her husband, Bryan, had chosen for their first child together —Miley Rose.

The couple brought 6-year-old daughter, Adalie, to a routine anatomy scan when Phillips was 19 weeks pregnant in February 2023. About five minutes into the scan, which examines the fetus’ internal organs, limbs and other aspects of the pregnancy to check for any developmental issues, the technician stopped and told Phillips she needed to talk to the doctor because she was seeing “some pretty serious things.”

“And of course, as soon as she says that my heart starts beating fast, I get a knot in my throat,” Phillips said.

When the doctor came in, she told Phillips the fetus was lacking amniotic fluid, which is essential to continued development, and both of the kidneys were not functional. The doctor referred Phillips to a specialist, but didn’t give her a prognosis.

During the four days before her high-risk appointment, Phillips said she googled every possible diagnosis she could find and told herself based on that research that it was fixable. But the follow-up appointment dashed those hopes. The fetus had stopped growing about a month earlier, the bladder and stomach had not formed correctly, the lungs were not developing, and only two of four chambers of the heart were working.

“And so in my mind I’m like … we can get stomach transplants, or feed her with a tube. We can get a kidney. I’m just going through all these things in my head, like, this is fixable,” Phillips said. “Lungs, I don’t know how we’re going to go about that, but I’m sure we’ll figure it out.”

But then the doctor continued the ultrasound imaging to the head.

“That’s when I felt a giant weight on my chest,” Phillips said. “Once you hit the brain and there’s something wrong with the brain, you’re done.”

The brain had failed to fully split into two hemispheres, a condition that results in live birth about 3% of the time, and of those, many die within the first year of life. There was also extra fluid present.

With all of that, the doctor told Phillips her second daughter was not compatible with life outside of the womb.

“And it was just quiet for a minute,” she said. “I didn’t look at her. My eyes were fixated on the (screen), like a million things running through my mind. … How could I have avoided this? Is it because I didn’t drink enough water? Is it because I didn’t get enough vitamins? I started blaming myself immediately.”

The doctor told her and her husband they had two options — to continue the pregnancy with risk of miscarriage, stillbirth or other complications, or terminate the pregnancy.

“She continued to say that because of Tennessee’s ban, you cannot do that here. You would have to look out of state, and I cannot offer you any resources,” Phillips said.

To avoid risking her future fertility or health, especially since she already had a daughter dependent on her, she decided termination was the right choice.

The next morning, Phillips recorded a TikTok video about the outcome of the appointment. That video has more than 3 million views and 28,000 comments. Many were supportive and kind, but thousands urged her not to “kill her baby.”

For various reasons, she chose New York City for a termination appointment the following week. Her husband had to take off work, she had to close her in-home daycare, find child care for her daughter, and somehow come up with about $5,000 for the procedure, the flights, lodging and meals. Her followers asked her to set up a GoFundMe so they could help, and they raised $8,000 — double her goal.

‘I’m more than just a one-issue candidate’

The day Phillips went canvassing in late February, her campaign planned to target certain houses based on voting records, but the application that campaigns use to identify those voters wasn’t working. Campaign manager Megan Lange decided they would wing it and hope for the best. The canvassing team included Phillips’ friend, Kathryn Rickmeyer, who has also had to leave the state for an abortion and is a vocal supporter of Phillips’ run for office.

Her Republican opponent for the seat, Rep. Jeff Burkhart, ran unopposed in the 2022 election. The district was newly drawn as of that year, but as far as Phillips and other Democratic operatives can tell, it is close to a 50-50 split with an edge to Republicans.

A conversation Phillips had with Burkhart a few months after her abortion was one of the driving factors behind her decision to run. She had approached him about crafting a bill to exempt fatal fetal anomalies from Tennessee’s abortion ban that would be called “Miley’s Law,” but the legislation never made it to the statehouse floor.

Burkhart’s legislative assistant told States Newsroom he was not accepting any requests for interviews.

During the two-hour meeting, which Phillips recorded, she said Burkhart told her he thought it was just first pregnancies that could go wrong, and he would encourage his daughter to continue a nonviable pregnancy even if her health was at risk rather than see her get an abortion.

Before that, she’d had no political ambitions. But several weeks later, she decided to take the leap, not just because of Burkhart.

“The idea to run was to turn my pain into purpose, to turn my tragedy into policy, so nobody else has to experience it,” she said. “But I’m more than a one-issue candidate, because Tennessee is more than a one-issue state. We have a lot of problems that need to be fixed.”

It hasn’t been easy just five months in. The family’s combined income is low enough that Phillips has said publicly she’s had months where she has to choose between paying the mortgage and buying groceries. She lost one daycare client because she was closed down for too many days for campaign-related events and interviews. It’s a talking point she uses while canvassing as well — that her opponent, a real estate developer, was able to loan his campaign $110,000.

“I’ve never seen that much money in my life,” she says to her neighbors.

Face-to-face interactions are more powerful than rhetoric, historian says

Over the course of the afternoon, few people who answered the door reacted to Phillips’ story of needing an abortion in either a negative or positive way.

Gillian Frank, a professor and historian who has studied reproductive rights history extensively, told States Newsroom there is a long history of women telling their abortion stories after they’ve been elected, but fewer who have campaigned on their own personal story.

Sen. Lorraine Beebe, a Republican in Michigan’s state legislature, spoke of the abortion she’d had during a debate on a bill to loosen restrictions on the procedure in 1969, four years before Roe was decided. The bill failed, and while her story gained national attention, she lost her seat in the next election, her house was fire-bombed, and her tires were slashed.

In the decades that have followed, entire organizations and activist groups have dedicated their missions to sharing abortion stories, such as Shout Your Abortion and We Testify. Some Democratic legislators have recently told their own stories as well, including Sen. Eva Burch in Arizona, who spoke about her experience being forced to hear about adoption and foster care and undergo a transvaginal ultrasound for a nonviable pregnancy before she could be granted an abortion, laws that were passed by state GOP lawmakers. Only one of the chamber’s 16 Republicans remained on the floor during Burch’s speech.

Frank said while Democrats have included reproductive rights as part of the party platform for decades, the support has often not been full throated or explicit, including from President Joe Biden, a Catholic whom activists have complained is too tepid in his support for abortion access.

Phillips’ experience of door-knocking, as relayed to him by States Newsroom, is what Frank says he would expect as a person’s standard reaction to someone standing in front of them sharing their story.

“‘I’m sorry that happened to you’ is just a fairly scripted, polite way to respond,” Frank said. “The lack of condemnation itself is interesting, but the default in an awkward situation is to offer a nicety and avoid discomfort.”

But there is a difference, he said, in a face-to-face conversation versus interacting with the anti-abortion rhetoric that has played out in campaigns and at protests and rallies over the years, especially since most Americans support some form of access to abortion and a right to privacy.

“The anti-abortion minority is both vocal and dramatic and prone to highly emotional displays, and that sort of hyped-up language is not where most people live their lives,” Frank said. “When we have these push polls and campaigning issues, dramatic commercials and reductionist devices, it’s a different experience than someone saying, ‘This is my story, I’m right here telling it to you.’”

Unregistered voter still thought Roe was intact

As of November 2022, the U.S. Census Bureau showed about 67% of Tennessee residents are registered voters, but that number is lower in Montgomery County, where about 127,000 residents were registered. According to state population estimates for 2023, that would be about 55%.

That seemed to ring true in Phillips’ neighborhood, where many of those who answered the door were receptive to her story but were not registered to vote and therefore couldn’t sign her petition. Some politely took her card and listened, but didn’t comment or agree to sign. One said he didn’t care if she was his neighbor and shut the door in her face.

A woman who hasn’t been a registered voter for many years was unaware that Roe v. Wade, the landmark case that made abortion access a constitutional right in 1973, was no more. She told Phillips she was sorry about her baby, and agreed that Phillips should have been able to terminate her pregnancy in Tennessee.

Two neighbors, including the one across the street who displays a large “Trump 2024” flag on his front step, signed as well, saying they supported her decision to run even if they didn’t agree politically.

As part of her pitch, Phillips mentions she’s committed to making sure public schools are fully funded and talks about her support for Medicaid expansion, infrastructure and gun safety. One woman did not comment on the abortion story but asked if Phillips was in favor of charter schools. When she said no, the voter agreed to sign. Another man said he would sign based on her abortion story alone, but he had to make sure she was still in favor of the Second Amendment when she started talking about gun safety.

Her last signatures of the day, and the ones that helped her hit her goal, were from three voters who were largely concerned about growth in the community and having their voices heard at the local level.

A woman next door came out of her house as Phillips was leaving and offered deep sympathy for her experience. She said God would give her another baby.

“We aren’t sure about trying again while the laws are the way they are, because we don’t know what my body can handle,” Phillips told her.

‘She went on her own’

The clinic in New York City only allowed the patient inside for the procedure, so Phillips went to the initial appointment while Bryan stayed at the hotel. She was looking forward to seeing Miley one last time before saying goodbye.

But when the ultrasound began, instead of hearing the quick thud of a heartbeat and seeing a wriggling form on the screen, there was only silence.

“I was like, ‘Is there not a heartbeat?’ and she slowly started to shake her head,” Phillips said. “And it just hit me like a train.”

No matter how many dozens of times she’s told the story, Phillips always starts to cry when she talks about telling her mom that Miley was already gone by the time of the ultrasound.

“(She said) I think this is the best gift Miley could have given you, because you were going to New York with so much guilt, and so much heartache, you were blaming yourself, you had all these ‘what ifs’ you were dealing with,” Phillips said. “She went on her own, so you didn’t have to make that choice.”

On her mantle now sits a tiny pink urn containing Miley’s ashes, onesies and binkies purchased for a full-term baby, and framed tiny footprints. Everyday, she plays the recording of Miley’s heartbeat inside a stuffed bunny.

‘I will just fight fire with fire’

As of March 26, Phillips has qualified to appear on the Aug. 1 primary ballot in Tennessee. So far, she has no Democratic opponents.

Since the canvassing in February, Phillips has spoken before the U.S. Senate about her experience, and she visited the White House on March 18 as part of a Women’s History Month event with Vice President Kamala Harris.

Win or lose in November, Phillips feels she has already made a difference by helping others who have been through similar experiences feel less alone and more empowered to work for change. Telling her story over and over again has its challenges, but they have been outweighed by the positives, including keeping the promise she made to Miley that she wouldn’t let her name die with her. Before she was running for a legislative seat, Phillips said she told her story to share the pain and hurt that it caused, but she shares it now as an example of why she thinks a nationwide 15- or 16-week ban on abortion is a bad policy, because she was 19 weeks before she found out she would need to terminate.

“Part of me doesn’t like politicizing my story,” she said. “I feel like I’m using my life for a political purpose. But unfortunately, our government has made our wombs a political topic. So I will just fight fire with fire at this point and use their own ammunition against them, in hopes that I win the battle at the end.”

Protesters take to the streets outside the U.S. Supreme Court on Tuesday, March 26, 2024, where justices questioned attorneys about broad changes in access to mifepristone. (Sofia Resnick/States Newsroom)

WASHINGTON—As the enormous yellow banner unfurled in front of the steps of the U.S. Supreme Court Tuesday morning, Laura Clime-Coates turned to her 9-year-old daughter and said, “Those are the names of people who agree with us.”

On the sign, titled “We the People Support Medication Abortion,” were what activists estimated to be half-a-million signatures from people across the U.S. asking the Supreme Court not to restrict mifepristone, a commonly used drug for abortions and miscarriage management. And for Clime-Coates, who said she signed several petitions in support of medication abortion, mifepristone is the reason her oldest child was standing beside her, and the reason she has a little sister at home in Baltimore.

Back in 2009, Clime-Coates said she experienced what she referred to as a missed miscarriage.

“There was no heartbeat, and it was risking my future ability to have children, and I really wanted children,” she told States Newsroom. “The tissue was not developing and threatening my uterus. My choice was to wait around and damage my body or take mifepristone.”

Clime-Coates and her daughter were among hundreds of abortion rights supporters holding signs and chanting, while inside, the justices heard oral arguments in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, their first major reproductive rights case since overturning Roe v. Wade almost two years ago.

In the absence of a legal precedent protecting the right to terminate a pregnancy, the implications for abortion access in this case are as high as they have ever been. More than a dozen states have banned or heavily restricted abortion since 2022’s Dobbs v. Jackson Women’s Health Organization decision, but abortion rates have risen rather than fallen. The Guttmacher Institute recently published data estimating more than 1 million abortions in 2023, of which about 63% were via medication, and that only includes abortions in the formal medical system. Many reproductive rights researchers and providers credit the rise in part to the FDA lifting certain restrictions on abortion medication after more than two decades of consistent safety and efficacy data. Beginning in 2016, the FDA increased the gestational window women could terminate pregnancies using medication, adjusted the dosages, removed in-clinic requirements, and made medication abortion available via telemedicine and directly at pharmacies.

Initially filed in 2022 by anti-abortion doctors and medical groups a few months after Roe was overturned, the case has incurred criticism from throughout the medical and scientific community because of its flawed scientific claims that mifepristone is dangerous and should not have been approved by the FDA. At issue now in the FDA’s appeal to the Supreme Court is whether to uphold the 5th U.S. Circuit Court of Appeals’ opinion that the FDA must reapply older restrictions against the agency’s own scientific determination. The coalition of anti-abortion medical groups?have largely relied on anecdotes from longtime anti-abortion activists, as well as a handful of studies produced by some of the main medical groups connected to the lawsuits, two of which were recently retracted by academic publisher Sage for methodological flaws and undisclosed conflicts of interest.

In anticipation of the oral arguments in this case, those in the pharmaceutical industry have expressed anxiety that a ruling against the FDA could stifle future drug development, by allowing anyone with an ideological opposition to a medication to try to force a drug-policy change.

“This case isn’t about mifepristone,” said Elizabeth Jeffords, the CEO of a small biotech company called Iolyx Therapeutics, on a webinar organized by reproductive health researchers last week. “This is about whether or not the FDA is allowed to be the scientific arbiter of what is good and safe for patients. …. It’s critical for our ecosystem that we continue to have investors, and investors will only come to our ecosystem if they have some certainty. If I had to believe that I would have to stand up to multiple litigations from parties without standing over the course of any drug that we’re working on developing, I wouldn’t have enough money to exist, and all of the little biotech companies would be out of existence as well.”

Pharmaceutical sciences professor Chris Adkins – who sparked the investigation into those studies and has co-authored a new academic paper in the journal Contraception breaking down what he says are significant methodological flaws – said it has been difficult to watch this case advance all the way to the Supreme Court.

“I just hope moving forward that we’ve got more public awareness that our federal courts have not always been the best evaluators of scientific evidence,” Adkins told States Newsroom. “I really hope that the public can really put some pressure on the courts to do a better job at evaluating the scientific and the medical literature, because I think this all impacts each one of us, our families, our futures. … This type of case could threaten regulatory approval or the processes they’re involved with, not just for mifepristone, but for others.”

But for both abortion opponents and supporters outside the Supreme Court Tuesday, the issue is personal.

“I was really glad I had that choice,” Clime-Coates said. “It’s health care! And I would hate for any of my children or any woman or anyone who’s capable of reproduction to not have that choice in the future.”

Alethea Shapiro, a protester from Florida, told States Newsroom she needed mifepristone years ago to terminate a pregnancy for medical reasons. “Hands off our mifepristone!” she yelled in a small circle of activists organized by the Women’s March and the Center for Popular Democracy. Some of the activists had prepared for arrests, but they eventually dispersed while law enforcement officers surveilled the crowd.

Robin Ross, an anti-abortion activist from Amarillo, Texas — home of the conservative federal district court where the case was originally filed, told States Newsroom she had secretly attended abortion rights demonstrators’ planning session the night before but said she learned little beyond logistics. The 57-year-old Navy veteran said she recently became an activist after learning that her teenage mother had attempted to abort her in the 1960s, before abortion was legal throughout the country. Ross said that she has had many health problems, including the inability to have children, because of the abortion attempt (she did not give specifics, but she said it was not the medication abortion method authorized by the FDA, at issue in this lawsuit). She is currently working to make Amarillo a so-called sanctuary city for the unborn.

“As soon as I heard about the ability to put my faith into action and me as an abortion survivor, I instantly wanted to start [anti-abortion activism].

Some anti-abortion activists proudly displayed their pregnant bellies in protest of medication abortion.

“I’m here because I’m 34 weeks’ pregnant. I’m advocating for the rights of my child, my baby in the womb,” said Savannah Evans from Tampa, Florida, who does marketing for the national anti-abortion group Live Action. “ I don’t want her to grow up in a world that sees an abortion as an acceptable option for women.”

At 22, Evans said her pregnancy was unplanned and that she was initially “terrified,” but she and her now-husband chose to parent.

Among the speakers in the largely outnumbered anti-abortion crowd, messages focused heavily on alleged high risks of medication abortion and called on the Supreme Court to order the FDA to reapply the since-lifted restrictions that have made it possible for women to have medication abortions via telemedicine and in their homes.

“FDA, do your job!” shouted Marjorie Dannefelser, the president of Susan B. Anthony Pro Life America. “We certainly do not have complete agreement upon the fact that there are two patients in every pregnancy, but we can at least pledge ourselves to one patient: the woman receiving abortion drugs in the mail in her home alone. … She has become her own abortionist in an unsafe home abortion.”

Recent research on telemedicine abortions, co-authored by University of California San Francisco epidemiologist Ushma Upadhyay, finds a low rate of serious adverse risks. And reproductive rights activists working to expand medication access around the nation said in interviews that abortion drugs are here to stay, even if the Supreme Court sides with the anti-abortion activists, which as States Newsroom reported Tuesday, is far from a sure thing.

“We know that people, no matter what happens with this case, are going to continue to access pills outside of the formal health care system,” said Bethany Van Kampen Saravia, senior legal and policy advisor at Ipas, which for decades has worked in countries with restrictive laws to train providers and help expand access to abortion care. Since the overturning of Roe, she said Ipas has refocused their efforts throughout the U.S., where at least half the states have near-total bans or heavy restrictions. As States Newsroom recently reported, new data shows a rise in self-managed abortions since the Dobbs decision.

“People will continue to get medication abortion through online access, through telehealth service, through online pharmacies, through your community network,” Van Kampen Saravia said. “Self-managed abortion is a WHO-recommended method of care. What Ipas knows from decades of working outside of the U.S. is that abortion with medication is safe and effective. And that’s not going to stop no matter what happens.”

Abortion providers who work in and outside of the formal medical system told States Newsroom they should be able to prescribe the current medication abortion regimen off label, if the FDA is ordered to change its protocol.

“We’re continuing to work because the pills are still on the market, they’re still registered, so they will be available and the doctors have the freedom to prescribe them off label,” said Dutch physician Dr. Rebecca Gomperts, founder of the online clinic Aid Access, which she said has been working with states with shield laws to ship abortion drugs to women in states with abortion bans. She was in front of the court handing out, for free, a small amount of boxes of the abortion-medication regimen. She said Aid Access will continue helping women self-manage their abortions.

“No matter what the Supreme Court is going to do, we’ll be there,” Gomperts said.

Opposing protesters outside of the U.S. Supreme Court on Tuesday, March 26, 2024, are kept separated by fencing as U.S. Capitol Police and Supreme Court Police observe. The demonstrators held signs and chanted as the justices heard oral arguments over access to mifepristone, one of two pharmaceuticals used in medication abortion. (Photo by Ashley Murray/States Newsroom)

WASHINGTON — The future of medication abortion access in the United States went in front of the U.S. Supreme Court justices on Tuesday, where several justices appeared somewhat skeptical as anti-abortion organizations argued use of the pharmaceutical should be moved back to what was in place before 2016.

Solicitor General Elizabeth Prelogar, speaking on behalf of the federal government, told the conservative-dominated court that those restrictions would be unnecessary due to the numerous reputable studies that have shown mifepristone to be safe and effective.

Prelogar also argued that conscience protections already in place at the federal level protect doctors and other health care providers who don’t want to participate in elective abortion or in treating complications that can sometimes arise from medication abortion.

“Only an exceptionally small number of women suffer the kinds of serious complications that could trigger any need for emergency treatment,” Prelogar said. “It’s speculative that any of those women would seek care from the two specific doctors who asserted conscience injuries. And even if that happened, federal conscience protections would guard against the injury the doctors face.”

Prelogar said there was no way to trace those two anti-abortion doctors’ concerns — cited in the case argued by Alliance Defending Freedom — about treating patients with complications from medication abortion to the changes the Food and Drug Administration approved in 2016 and 2021, which were at the center of the case before the Supreme Court.

Prelogar also said the anti-abortion legal organization that filed the original lawsuit hadn’t identified a situation where a doctor or health care provider opposed to abortion raised a conscience protection and then had that violated.

Medication abortion includes mifepristone as the first pharmaceutical and misoprostol as the second. The two-drug regimen accounted for about 63% of abortions within the United States in 2023, according to a report from the Guttmacher Institute.

Questions about broad changes in access

Justices Amy Coney Barrett and Neil Gorsuch — appointed to the court by former President Donald Trump — and Ketanji Brown Jackson, appointed by President Joe Biden — were among the members of the court who specifically asked about why conscience protections would or would not be an appropriate remedy to the anti-abortion doctors’ concerns about medication abortion.

“I’m worried that there is a significant mismatch in this case between the claimed injury and the remedy that’s being sought,” Jackson said. “The obvious, common-sense remedy would be to provide them with an exemption that they don’t have to participate in this procedure.”

But, Jackson noted, the anti-abortion doctors were seeking changes in access to mifepristone for everyone in the United States.

“And I guess I’m just trying to understand how they could possibly be entitled to that, given the injury that they have alleged,” Jackson said.

Gorsuch appeared to express some criticism of the anti-abortion case as well, saying, “We have before us a handful of individuals who have asserted a conscience objection.”

“Normally, we would allow equitable relief to address them,” Gorsuch said. “Recently — and I think what Justice Jackson is alluding to — we’ve had, what one might call, a rash of universal injunctions or vacatures.”

“And this case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an FDA rule, or any other federal government action,” Gorsuch said.

Prelogar agreed there was a “profound mismatch,” though Erin Morrow Hawley argued on behalf of Alliance Defending Freedom and the anti-abortion doctors that conscience protections don’t go far enough.

“These are emergency situations,” Hawley said. “Respondent doctors don’t necessarily know until they scrub into that operating room whether this may or may not be abortion drug harm — it could be a miscarriage, it could be an ectopic pregnancy, or it could be an elective abortion.”

Doctors, Hawley said, “can’t waste precious moments” in those circumstances.

Ruling coming later this year

The Supreme Court’s opinion on the case, Food and Drug Administration v. Alliance for Hippocratic Medicine, will likely arrive sometime early this summer in the middle of a bitter campaign for control of the White House and Congress in which the issue of reproductive rights is being stressed by Democrats.

The ruling will come about two years after the Supreme Court overturned the constitutional right to an abortion that it first recognized in the 1973 Roe v. Wade ruling and reasserted in the 1992 Casey v. Planned Parenthood decision.

Reverting use of mifepristone, one of two pharmaceuticals used in medication abortions, back to what was in place before the FDA began making changes in 2016 would lead to significant changes for doctors and patients:

• Mifepristone would be approved for up to seven weeks gestation, down from the current 10-week ceiling for use.
• Patients would go back to attending three, in-person doctor’s office appointments to complete the medication abortion process.
• The pharmaceutical could no longer be sent to patients through the mail.
• Only doctors would be able to prescribe mifepristone, removing the option for qualified healthcare providers like physician’s assistants and nurse practitioners to prescribe it.

The FDA originally approved mifepristone in 2000, later updating prescribing guidelines in 2016 and again during the COVID-19 pandemic.

Several major medical organizations — including the American College of Obstetricians and Gynecologists, the American Medical Association and the Society for Maternal-Fetal Medicine — wrote in a brief to the Supreme Court ahead of oral arguments that “(f)ocus on the use of mifepristone for induced abortion disregards how similarly essential it is to the safe and effective treatment of miscarriage or early pregnancy loss.”

“Miscarriage is common,” the medical organizations wrote. “Of the roughly 5.5 million pregnancies estimated to occur in the United States each year, between 10% and 26% end in miscarriage. For the million or more patients who experience early pregnancy loss annually, mifepristone is often a critical component of care.”

The U.S. Food and Drug Administration approved a key abortion pill mifepristone for use in 2000. The U.S. Supreme Court will take up a case Tuesday, March 26, 2024, challenging that approval. (Getty Images)

Self-managed abortions rose by more than 26,000 in the six months after the U.S. Supreme Court overturned Roe v. Wade nearly two years ago, according to a?peer-reviewed study?published Monday in JAMA, the American Medical Association’s journal.

Researchers determined that an increase of approximately 27,838 online orders of abortion pills between July and December 2022 corresponded to the findings of an additional 26,055 medication abortions reported outside the formal health care system, the study found.

The Dobbs v. Jackson Women’s Health Organization ruling in June 2022 overturned the federal right to abortion, returning the decision to the states and leading to?14 with near-total abortion bans.

The study was published a day before the nation’s highest court is set to hear arguments in a case over the federal approval of?mifepristone, one of two drugs used for medication abortions. A decision in favor of an anti-abortion group could limit access to mifepristone, even in states with protective abortion laws.

Alliance for Hippocratic Medicine, an anti-abortion group of physicians, is asking the court to rule that the U.S. Food and Drug Administration should revert to pre-2016 mifepristone regulations. The change would reduce mifepristone’s use from 10 weeks gestation to seven, alter the dosage, require three in-person visits, and only allow doctors to provide medication abortions, among other restrictions.

Lawyers for the Biden administration are?urging?the court to keep the current regulations on the drug.?Hundreds of studies point to the pill’s safety. Since the FDA approved mifepristone in?2000, 32 deaths have been associated with the drug’s use as of December 2022.

Regardless of the outcome, the JAMA research suggests that some people in states with strict abortion bans have found ways to terminate their pregnancies outside of a clinician setting.

“Given the increases we’ve seen and reductions in access, we could make a good guess that a lot of these pills are going to states with those bans,” said?Abigail Aiken, a University of Texas at Austin public affairs professor and the study’s lead author.

Researchers analyzed data provided by telemedicine organizations — such as Aid Access, an international abortion pill provider, community networks and online vendors. Community networks — organizations run by volunteers that sometimes work offline or through hotlines and provide pills at no-cost to recipients? — accounted for more than half of all abortion pill orders. Online vendors are websites that give various price options for buying abortion medications.

Post-Dobbs, there was an estimated monthly average of 5,931 provisions — orders — of abortion pills from those main sources. That’s a 322% increase from a pre-Dobbs average of 1,407 provisions per month, according to the study.

Despite the availability of abortion pills, Aiken said some people may not want to terminate a pregnancy without clinician support. She noted from her previous 2016 research in?Ireland, before the country legalized abortion in 2018, feelings associated with self-managed abortion, including isolation.

“They oftentimes wanted to connect with the formal health care setting,” Aiken said.? “They were experiencing prolonged symptoms and wanted to make sure they didn’t need help.”

Aiken’s latest study broadens the scope of research on medication abortions since the end of Roe.

Abortions through telehealth?increased?post-Dobbs, according to a Society of Family Planning #WeCount?report?published last month. They made up 16% of all reported abortions as of September 2023. Before Dobbs, just 4% of all abortions were telehealth abortions.

“Telehealth abortion has really had a huge impact,” Ushma Upadhyay, a professor at the University of California, San Francisco’s Advancing New Standards in Reproductive Health, told States Newsroom in February. “We’re addressing unmet need that existed in those states, even before Dobbs. I think that a lot of the unmet need in the blue states is being met, as well as people traveling from states with abortion bans.”

A report released last week by the Guttmacher Institute showed that?63% of all clinician-provided abortions in the U.S. last year were medication abortions.

There were more than 1 million abortions provided in the formal health care system in 2023, the largest number since 2012. In 2020, medication abortions made up 53% of all abortions, according to the institute.

The data “helps paint the picture of the extreme need that we are experiencing around reproductive health in this country,” said Monica Simpson, the executive director of?SisterSong, a Georgia-based reproductive justice organization.

Simpson said a Supreme Court decision restricting medication abortion access would create a scenario similar to the aftermath of the Alabama Supreme Court?ruling?that said frozen embryos are “unborn children.” That ruling brought fertility services in the state to a standstill until the governor signed legislation providing?criminal and civil immunity?to IVF providers and patients.

“Our opposition — these anti-abortion extremists — this is what they want. They want to intentionally create chaos around us,” she said.

About 900 companies, trade associations and other groups registered to lobby during the 2024 session of the Kentucky legislature held at the Capitol in Frankfort. Their combined spending was roughly $1 million higher than the previous record set the year before. (Kentucky Lantern photo by Arden Barnes)

FRANKFORT — With eight days left in this session and a slew of decisions pending, the Kentucky House and Senate reconvene Thursday afternoon after a three-day break.

High on lawmakers’ to-do list will be finalizing the next two-year state budget.

The Senate also must consider changes to the tax code approved with little public notice by the House last week after Rep. Jason Petrie, chairman of the House budget committee, converted House Bill 8, an 11-page “shell bill,” into 124 pages of wide-ranging provisions affecting state revenue.

One of the provisions would pave the way for income tax cuts in future sessions by changing the 2022 law that created a process for determining when the state can afford additional reductions. Republicans lowered the rate in 2022 and 2023 in hopes of eventually eliminating the state income tax.

The 2022 law prevented another cut this year because one of its two fiscal metrics was not satisfied. Petrie’s tweaks would make it easier to trigger consideration of reductions in the income tax rate by the legislature in the future.

League of Women Voters asks that public have 24 hours to review budget

Study: Kentuckians increasingly excluded from lawmaking process by fast-track maneuvers

Leaders from both chambers met in a budget conference committee earlier this week to begin hashing out differences in the two spending plans.

Among other sticking points, negotiators must agree on the level of state support to help Kentucky’s beleaguered child care providers survive the end of federal pandemic aid. The Senate also has proposed spending more of the state’s record surplus on projects than has the House.

On Wednesday, the League of Women Voters of Kentucky called on the legislature to “ensure the public has at least 24 hours to review” the negotiated budget bills before the House and Senate vote on them. The League last year released a study showing the ?General Assembly in the 21st century has increasingly fast-tracked bills, using maneuvers that shut out citizens from participating in the process.

Lawmakers also must decide which constitutional amendments to put to voters in November. Four amendments are allowed on the ballot every two years. Two amendments already have been approved by both chambers: One would allow the General Assembly to fund nonpublic schools with public dollars. The other would preempt those who aren’t U.S. citizens from voting in Kentucky elections.?

Still up in the air is a Senate bill that would tie Kentucky to coal-generated power over the objections of environmentalists and the state’s investor-owned utilities. It’s awaiting action in the House.

A House bill that critics say would put a gaping loophole in the state’s open records law is awaiting action in the Senate.

Both chambers have voted to limit diversity, equity and inclusion efforts at Kentucky’s public universities and colleges. The House version went further than what was passed by the Senate, which now must consider the House overhaul of its bill.

Plus, for the first time, under a law enacted last year, the Senate must confirm an education commissioner, which it is expected to do before the session ends. The state Board of Education began contract negotiations with its choice for the post on Monday without saying which of three finalists it is.

What’s moving, what’s not

So far, both the House and Senate have approved a sweeping crime bill that will mean much longer sentences before Kentuckians convicted of violent crimes can be considered for parole, as well as create new crimes including “unlawful camping” which critics say will criminalize homelessness.

Proposals that have yet to make it out of the starting gate include adding exceptions in cases of rape and incest to Kentucky’s abortion ban, establishing protections for in vitro fertilization, making substantial changes in certificate of need laws and Democratic Gov. Andy Beshear’s requests for an 11% raise for public school employees and funding universal pre-kindergarten.?

Beshear has vetoed one bill that preempted local governments from outlawing housing discrimination based on a renter’s source of income. The Republican-controlled legislature quickly overrode Beshear’s veto.??

Here is a rundown of where some bills stand as the session nears an end:

Child care?

Lawmakers in the House and Senate have filed bills aimed at addressing Kentucky’s child care crisis.?

The largest of those proposals, Sen. Danny Carroll’s Horizons Act, has passed a Senate committee but has not yet been considered on the floor.?

Another bill, which originated in the House and encourages local governments to examine available zoning for child care centers, is much closer to getting through the legislative process. House Bill 561 has passed the House and a Senate Committee, and can proceed to the Senate floor.?

The House and Senate are in talks over a compromise budget, so the final investment into child care is not clear.?

Abortion?

Democrat and Republican bills seeking to reform Kentucky’s strict abortion bans — including adding exceptions for rape and incest — have failed to advance.?

Senate Bill 99, filed by Democrat Sen. David Yates to add rape and incest exceptions to the ban, hasn’t received a committee assignment. Likewise, Democrat Rep. Lindsey Burke’s House Bill 428 to restore abortion access did not get a committee assignment.?

On the Republican side, Rep. Ken Fleming filed House Bill 711 to both add rape and incest exceptions as well as clarify that physicians could treat ectopic pregnancies, incomplete miscarriages and lethal fetal anomalies. His bill has not received a committee assignment.?

IVF?

Two Democrats and a Republican filed bills seeking to protect access to in vitro fertilization following an Alabama Supreme Court ruling that frozen embryos are children.?

Those bills have stayed stagnant, though. Sen. Cassie Chambers Armstrong’s Senate Bill 301 was sent to the Judiciary Committee on February 29, but has not received a hearing. Sen. Whitney Westerfield’s Senate Bill 373 was sent to the Health Services Committee on March 1 but has not moved further. Louisville Democrat Rep. Daniel Grossberg’s House Bill 757 has not been assigned to a committee.?

Certificate of Need?

As of March 12, none of the bills seeking to reform Kentucky’s certificate of need laws (CON) have received a floor vote.?

In the House, these bills have not moved:?

• HB202 – Stuck in Committee on Committees since Jan. 9.?
• HB203 – Stuck in Committee on Committees since Jan. 9.?
• HB204 – Was sent to Health Services, where it failed to pass on March 21.?
• HB199 passed a committee, and is awaiting floor vote while the sponsor works with the Kentucky Hospital Association to address its concerns.?

In the Senate, these bills have not moved:?

• SB137 was sent to Health Services but has been stagnant since Jan. 29.?
• SB305 was sent to Health Services and has been stagnant since Feb. 29.?
• SB103 was sent to Health Services but has been stagnant since Jan. 12.??

A resolution seeking to reestablish the Certificate of Need Taskforce, which in 2023 studied the issue but concluded that it needed to study it further, was filed on Jan. 4. It was immediately sent to Health Services, where it has stayed since.

Education

Many education bills are awaiting action in the legislature.

In the Senate, these bills have not had committee hearings:?

• SB 205, a bill that would give Kentucky public school teachers up to 20 days of maternity leave.?

In the House, these bills have not had committee hearings:?

• SB 1, which sets up an endowed fund for collaborative research between public universities?
• SB 2, a continuation of a 2019 school safety act that aims to provide more access to mental health resources while also allowing schools to hire “guardians” to fill vacant school resource officer positions, has not received a committee hearing
• SB 8, which would create partisan elections for the Kentucky Board of Education
• SB 4, which changes how teachers would be paid for sick days upon retirement.?

Government

Lawmakers have proposed several changes to state and local government processes. A House bill filed after U.S. Senate Republican Leader Mitch McConnell announced his plans to step down from the role passed out of the Senate State and Local Government Committee Wednesday. The legislation, HB 622, would allow winners of special elections to fill U.S. Senate vacancies to fill unexpired terms.?

That same committee also forwarded HB 513, a bill that gives the General Assembly oversight over permanent displays in the Capitol Rotunda, including statues.?

In the House, these bills have not had a committee hearing:?

• SB 10, which would propose a constitutional amendment to move Kentucky’s statewide elections to coincide with presidential elections.
• SB 80, which would remove university-issued ID cards as a primary form of voter identification.?
• SB 126, which proposes a constitutional amendment to limit governors’ pardon and sentence commutation powers around elections
• HB 4, another constitutional amendment that would allow the General Assembly the power to call itself into a special session?

In the Senate, these bills have not had a committee hearing so far:?

• HB 509, a bill that advocates warn could add loopholes to state open records laws, has not had a committee hearing
• HB 626, which would make interrupting legislative proceedings a crime.?

Energy, environment

Having already been passed by the Senate and under consideration in the House, SB 349, backed by Senate President Robert Stivers, would create new barriers to utilities retiring fossil fuel-fired power plants, something environmentalists and utilities alike say could burden ratepayers with the cost of keeping open aging, uneconomical coal-fired power plants. Stivers, R-Manchester, and bill sponsor Sen. Robby Mills, R-Henderson, have argued the bill is needed to protect the reliability of the electricity supply, an assertion rebuffed by utilities.?

Another coal-related bill, under consideration in the Senate after having passed the House, would weaken a key workplace protection for miners, according to a coal mining safety advocate. HB 85 needs a favorable vote from the Senate Natural Resources and Energy Committee and by the full Senate before reaching Beshear’s desk to be signed or vetoed. Sponsor Rep. Bill Wesley, R-Ravenna, has argued the legislation is needed to help smaller mines operate consistently.?

In the House, these bills or resolutions need a committee hearing or a vote by the full House:?

• HJR 121, which would declare Kentucky “a sanctuary state from the United States Environmental Protection Agency’s overreaching regulatory actions on fossil fuel-fired power plants,” still needs a committee hearing.
• HB 141, which would allow water utilities to opt out of a long-standing mandate of drinking water fluoridation, hasn’t had a full vote by the House.?
• SB 16, characterized by critics as “ag-gag” legislation that would criminalize the operation of a drone with recording equipment over meatpacking plants without the consent of the plant’s owner, needs a full vote by the House.?
• SB 198, which would create a new research authority dedicated to advancing nuclear energy in Kentucky, still needs a vote by the full House.?
• SB 215, which would prohibit any Kentucky agency from enforcing or adopting emissions standards “that are identical to the standards established by the State of California pursuant to the Clean Air Act,” still needs a vote by the full House.?
• SJR 149, which would direct the Kentucky Energy and Environment Cabinet to “provide guidance and consultation on best management practices” with per- and polyfluoroalkyl substances, commonly known as PFAS or “forever chemicals,” for “entities that discharge directly or indirectly into Kentucky’s waterways,” still needs a vote by the full House.?

In the Senate, these bills or resolutions need a committee hearing or a vote by the full Senate:

• HB 136, which would curb the power of Louisville’s air pollution regulatory agency to issue fines, could be voted on by the full Senate this week and sent to the governor’s desk.?
• HB 583, which would require more local governments to receive a notification of “environmental emergencies” in their jurisdiction, hasn’t been assigned to a Senate committee.
• HB 40, which would create a new board focused on the certification of water and wastewater system operators, needs a vote by a Senate committee.?
• HB 563, which would create a new funding source for economically challenged water districts, needs a vote by a Senate committee.?

A number of bills filed by Republicans and Democrats alike regarding energy and environmental policy haven’t seen any movement.?

HB 180, a bill with bipartisan sponsorship that would create limitations on when utilities could disconnect customers, hasn’t been assigned to a committee.?

HB 398, a bill with bipartisan sponsorship that would exempt small electric vehicle chargers from an existing tax on chargers, hasn’t had a committee hearing.?

HB 445, a Republican-backed bill that would create additional barriers before the state’s utility regulator could retire a fossil fuel-fired power plant, hasn’t been assigned to a committee.?

Economy and Labor

Having been revived by a Senate committee after previously stalling, a bill that would loosen state child labor laws by allowing teenagers to work longer and later hours, HB 255, still needs a vote by the full Senate. The bill sponsor, Rep. Phillip Pratt, R-Georgetown, has argued it will give minors the opportunity to work more, while critics have lambasted the bill as opening the door for more teenagers to be exploited by employers.?

Diaper tax?

Senate Bill 97, which was filed by Sen. Cassie Chambers Armstrong, D-Louisville, would exempt diapers from the sales tax. The bill has bipartisan support, including from Senate Majority Floor Leader Damon Thayer, R-Georgetown.?

It was sent to Appropriations and Revenue on Jan. 10, where it has stayed. It could still be included in the revenue bill, which Chambers Armstrong is hoping for.?

Of the more than 1 million Americans who had abortions last year, 63% terminated their pregnancies using medication, according to new data analysis. The U.S. also saw the most abortions since 2012. (Anna Moneymaker/Getty Images)

Researchers found that 63% of all abortions provided in the U.S. last year were medication abortions.

There were an estimated 1,026,690 abortions — the most in over a decade — performed in the formal health care system in 2023, according to a report released Tuesday by the Guttmacher Institute, a reproductive health research organization.

The data provides a quantitative look at abortion care the first full year after the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling in June 2022.

Medication abortions increased by 10% from 2020 to 2023. About 642,700 medication abortions were provided in the country last year, the data shows.

“Improved access to medication abortion is a positive development, but it is not a panacea,” said Rachel Jones, Guttmacher principal research scientist, in a news release. “As abortion restrictions proliferate post-Dobbs, medication abortion may be the most viable option — or the only option — for some people, even if they would have preferred in-person procedural care.”

The findings were published one week before the U.S. Supreme Court is set to hear arguments in a pivotal lawsuit that could severely limit access to medication abortion.

Alliance for Hippocratic Medicine, an anti-abortion rights group, and other doctors who oppose abortion are asking the court to restrict access to mifepristone, one of two drugs used to terminate pregnancies. The Biden administration is urging the justices to maintain the U.S. Food and Drug Administration’s current regulations on mifepristone.

“As our latest data emphasize, more than three out of five abortion patients in the United States use medication abortion,” said Amy Friedrich-Karnik, Guttmacher’s director of federal policy.

“Reinstating outdated and medically unnecessary restrictions on the provision of mifepristone would negatively impact people’s lives and decrease abortion access across the country,” Friedrich-Karnik said.

Most states without near-total bans saw upticks in abortions.

Despite the patchwork of abortion laws in the nation — 14 states, including Kentucky, have near-total bans, while Arizona, Florida, Georgia, Nebraska, the Carolinas and Utah restrict abortion after 18 weeks’ gestation or earlier — Americans terminated pregnancies at the highest number and rate seen in a decade, according to a policy analysis by Isaac Maddow-Zimet, a data scientist, and Candace Gibson, director of state policy at Guttmacher.

The rate was 15.7 abortions per 1,000 women of reproductive age last year. Over 160,000 people traveled out of state in 2023 to seek abortion care, the report stated.

According to Maddow-Zimet and Gibson, several factors likely contributed to the increase in abortions last year, including the rise of telehealth, financial support from abortion funds and shield laws in 22 states and Washington, D.C., that protect providers and patients from out-of-state investigations or prosecutions concerning reproductive health.

“This increase in abortions does not diminish the impact of Dobbs on people’s lives,”? Maddow-Zimet and Gibson wrote. “Instead, the data provide important evidence that people will continue to seek abortion care in spite of the policy barriers that anti-abortion policymakers impose.”

States that share borders with states that enacted bans post-Dobbs saw a 37% increase in abortions between 2020 and 2023. Illinois had the highest total surge with 38,010 more abortions than in 2020, a 72% increase over three years. New Mexico (15,090 more abortions, 257% increase) Virginia (14,190 more abortions, 76% increase) and North Carolina (12,970 more abortions, 41% increase) followed suit.

The Guttmacher Institute classified the following states as border states in the current abortion policy landscape: Colorado, Florida, Georgia, Iowa, Illinois, Kansas, Michigan, Minnesota, North Carolina, New Mexico, Ohio, South Carolina and Virginia.

Almost every state without a near-total ban saw increases in abortion. But Arizona, Georgia, Indiana and Wisconsin all saw declines. Arizona has a 15-week ban, Georgia has a six-week ban, while near-total bans were in effect in Indiana and Wisconsin at certain periods in 2023.

Retired Arizona nurse Mary Cross volunteers as an abortion doula for Planned Parenthood Arizona. (Jerod MacDonald-Evoy/Arizona Mirror)

A 39-year-old single mother of two got up extra early on a recent Wednesday morning, hoping to be one of the first outside the Planned Parenthood clinic near Phoenix, Arizona.

The upside of not telling anyone about her abortion was that she wasn’t going to have to explain herself. The downside was that she couldn’t receive any pain medication, since she’d have to drive herself home. After scraping together $770 to pay for the procedure — $250 of which she said came from an abortion fund — she couldn’t afford an Uber for the 80-minute round trip. So she was overcome with relief when not only did the busy clinic not turn her away, but a retired nurse named Mary Cross offered to be her abortion doula, free of charge.

“I was very, very happy that she was in the room,” said the patient, who asked not to be named, given the stigma and legal uncertainty around abortion in the U.S. (Abortion is currently mostly legal in Arizona through 15 weeks’ gestation, amid ongoing litigation over an 1864 law banning abortion.) “I wanted to keep [the abortion] as private as possible, but it still isn’t something that you want to go through alone without sedation.”

The overturning of Roe v. Wade in June 2022 was a turning point for the reproductive health community, and the public at large. A longtime operating room nurse, Cross now had free time and an urge to get involved.

“I’ve always had a choice of what I wanted to do with myself, with my career, with my body,” said the 70-year-old from Tempe. “And now here I was a retired nurse, and the law changed. That really was the trigger that sent me to be more involved in a hands-on kind of way.”

Cross started attending regular conference calls hosted by Planned Parenthood to learn about ways to get involved. At one of those meetings, Planned Parenthood Arizona nurse Kischea Talbert talked about a program she was developing to offer free doula services to patients at their clinics.

“My ears perked up immediately,” Cross said. “I started thinking, ‘That’s something I could do. That’s something I have a skill set for.’ So I texted her right away.”

Doulas are trained, non-medical patient advocates, typically associated with pregnancy and childbirth and end-of-life care. But there’s a growing movement in the U.S. to have advocates provide physical and emotional support to other potentially high-anxiety reproductive health services, such as abortion and miscarriage management, as well as for Pap smears and birth control insertion, which Talbert said can be challenging for patients with past sexual trauma.

In addition to her nursing duties, Talbert became a patient navigator in April 2022, when it was anticipated the U.S. Supreme Court was going to overturn Roe v. Wade. In this role, she helps connect patients with financial and transportation services to access legal abortions. In the early days before the high court’s ruling, Talbert said she attended a presentation by Planned Parenthood Global, in case she might have to start navigating patients to Mexico if abortion became illegal or inaccessible in Arizona, which still has the Civil War-era abortion ban on the books.

Mexico decriminalized abortion in 2023, but even before, abortion drugs had been widely available. Talbert said Planned Parenthood Global has a relationship with several clinics in Mexico that were using doulas to help patients manage the symptoms of medication abortion, which is essentially an induced miscarriage. She said the presenters reported better patient outcomes and less need for medical intervention, which they attributed to the doula program. As a former labor and delivery nurse who worked with postpartum patients and in the neonatal intensive care unit, Talbert was very familiar with doulas.

“I immediately said to myself, ‘Oh, that would be great if we had that program here at Planned Parenthood Arizona,’” Talbert told States Newsroom. “Because in my mind, I’m thinking from a nurse’s perspective how beneficial this would be to have our patients have something like this, and especially at the time, because we didn’t know what the future of abortion care was going to be. So I wouldn’t really let it go.”

With the help of Ohio’s Southwest affiliate, which was the first national Planned Parenthood affiliate to start a doula program, Talbert said Planned Parenthood Arizona launched theirs in October 2022.

The Arizona affiliate currently has approximately 20 active doulas, a mix of nursing and pre-med students, retired nurses, and other working professionals, Talbert said. They are asked to volunteer at least two three-hour shifts a month and are trained annually in trauma-informed care, health-privacy laws, breathing techniques, and abortion procedures and laws. She said Arizona held its third doula training last month.

An optional free doula is offered to patients coming in for procedural abortions, wellness exams, birth control insertions, or gender-affirming care at the affiliate. The goal is to soon have doulas available for medication abortion services. Talbert said they’re applying for a grant through Planned Parenthood Federation of America to potentially be able to pay doulas a stipend.

Cross was part of the first training cohort and began her official volunteer duties in early 2023. When she can, she likes to volunteer at least once a week. She said she thinks of her job as comforting patients and distracting them from pain and anxiety. Even patients who do receive sedation might be nervous about the IV, and might feel nauseated afterward. She’s there to remind them to breathe, and to offer them a cold compress or some 7UP.

“I may tap you on the shoulder, if that’s okay, or I may squeeze your hand, if I’m holding your hand,” Cross said. “And I’ll remind you to take a big deep breath through your nose. We’ll practice it before sedation starts in: ‘I’m going to ask you to blow it all the way out, and then blow it out, blow it out, blow it out till you can’t blow anymore. Take another big deep breath.’ And that kind of calms people, or at least focuses their attention on something else.”

The 39-year-old patient told States Newsroom she used a doula for her oldest child’s birth more than 20 years ago and her youngest’s six years ago, both without any pain medication. She had never related doulas with abortion. But alone in the clinic that day — already stressed from waiting in a growing line of pregnant walk-ins, as abortion protesters shouted with megaphones — it made sense.

“She held my hand the entire time and made sure that I was okay, to help keep me calm and breathing through the pain of the procedure,” the patient said of Cross.

But most crucially, she said, Cross distracted her when the 5-to-10-minute procedure became suddenly overwhelmingly painful. She described the pain as similar to labor pains — without pain medication — going from zero to 10 centimeters in less than two minutes.

“I got really dizzy,” she said. “When I started to focus too much on the pain or the discomfort of what was going on, [Cross] would tap my shoulder or remind me to breathe. At one point, she even pointed out a really pretty necklace that one of the nurses was wearing and just kept talking me through … I’m not going to say that having the doula there made all the pain go away and it was like rainbows and sunshine, but it did help a lot. It helped make it manageable.”

Though the doulas focus on the patients, Talbert said they also provide many services to the staff, such as making copies, folding towels, and cleaning. She said one doula created a coloring book for patients that also includes their discharge instructions. They make care bags for patients with special candy for nausea and fidget toys.

A year later, Planned Parenthood Arizona’s chief medical director, Dr. Jill Gibson, said their doula program has been indispensable for both patients and staff. She said several affiliates across the country are currently developing similar programs.

Gibson said abortion access has been more scarce in Arizona since Roe v. Wade was overturned, especially in the northern and eastern parts of the state. Planned Parenthood has several clinics in Arizona but only the clinics in Glendale, Tempe and Tucson provide abortions. Gibson said the clinics are typically booked out and regularly turn away walk-ins. There are also several independent clinics in Arizona. Gibson said most of their patients are Arizonans, some of whom are terrified undocumented immigrants and many of whom have to drive long distances, and have to plan for two appointments 24 hours apart, one of the state’s many abortion regulations. She said absorbing patients’ hardships is a draining practice and something the doulas assist with.

“A lot of the stories that we hear are devastating, and so to have another layer who can help absorb some of that trauma has been actually extraordinarily helpful for our staff,” Gibson said. “I feel like before I worked as an obstetrician-gynecologist, I didn’t know anything about the world.”

For the patient who talked to States Newsroom, the unplanned pregnancy upended her already challenging life. She said she arrived at the clinic by 7 a.m. and barely made the cutoff for walk-ins. It was nerve wracking, she said, because she knew she was running out of time. It had taken nearly three months for her to realize she could be pregnant. Already a grandmother at almost 40, she said she mistook her pregnancy symptoms for early menopause. And by the time she obtained the abortion, she was already about 12 weeks along. If she’d waited any longer, she was told the price would climb to $1,000, and her insurance doesn’t cover abortion. And if she waited three more weeks, she would have to leave the state to get a legal abortion.

“If I’m having trouble getting the money together for this procedure, there’s no way I can raise another child, not even close,” she said. “So I went in knowing that it was probably going to be pretty rough for me. But having [the doula] there I honestly think that it made a world of difference.”

Cross said she typically does feel drained after a long doula shift spent absorbing patient and staff anxiety. But she said it’s rewarding work.

“I would recommend to anybody to be a doula with abortion care, reproductive care, [anybody] that really believes that we should have the ability to choose if and when to have children and to bring those children up in an environment that we feel is safe,” Cross said. “And this is that opportunity to help those people that are making that choice.”

Kentucky Attorney General Russell Coleman (Kentucky Lantern photo by Mathew Mueller)

Kentucky’s Russell Coleman is among 16 state attorneys general threatening legal action if Maine enacts a law shielding its medical providers from penalties for providing reproductive and gender-affirming care to residents of other states.

The Republican attorneys general assert such a law would be “extraterritorial bullying” and “could also trigger a rapid tit-for-tat escalation that tears apart our Republic.”?

??The Maine legislature is debating a bill that would ensure out-of-state patients and Maine medical professionals aren’t penalized by other states’ laws against abortion and gender-affirming treatments.

“We will not allow laws like LD 227 to deter us from protecting the integrity of our States’ democratic processes. If Maine pursues LD 227’s constitutionally defective approach, we will vigorously avail ourselves of every recourse our Constitution provides,” says the letter dated March 11 on Tennessee AG Jonathan Skrmetti’s letterhead.

It is addressed to Maine’s Gov. Janet T. Mills, Attorney General Aaron Frey, and the top leaders of Maine’s Senate and House.

On Tuesday, Frey, Maine’s attorney general, called the claims “meritless” and an attempt to intimidate proponents of the proposed shield law.

Frey cited Texas Attorney General Ken Paxton’s attempt to subpoena records from a children’s hospital in Seattle, Washington, that Paxton alleged violated Texas law by providing gender affirming care to Texas youths.

“Unfortunately, shield laws have become necessary due to efforts in some objecting states to punish beyond their borders lawful behavior that occurs in Maine and other States,” Frey wrote.

He also dismissed the Republican AGs’ claim that LD 227 would be unconstitutional “because Maine will honor out-of-state judgments as long as they were issued in accord with basic requirements for due process and the court had sufficient jurisdiction.”?

Frey added, “Harmony between our states would be best preserved and promoted by the exercise of restraint by all parties seeking to control health care related policy choices in other states.”

If the bill becomes law, Maine would join other Democratic-led states that have enacted laws shielding providers and out-of-state patients from prosecution or other action by states that have enacted abortion bans and limits on transgender care.? “Shield laws” protect medical providers and in some cases, volunteers and patients, from legal or professional consequences from other states’ bans on certain types of health care. According to the Guttmacher Institute, 22 states and Washington, D.C. have passed shield laws protecting abortion and eleven of those states and D.C. also have protections specifically for gender-affirming care.

Kentucky has enforced? an almost-total ban on abortion since the U.S. Supreme Court overturned the constitutional right to abortion in 2022. Last year the legislature banned gender-affirming medical care for minors.?

Maine lawmakers are also considering additional reproductive rights bills. One proposal would enshrine the right to reproductive autonomy in the state Constitution while another would require insurance providers to cover over-the-counter contraceptives without passing along costs to customers.????

In Kentucky, bills to add exceptions for rape and incest to the state’s abortion ban have not been given a hearing by legislative leaders.

The Maine Morning Star contributed to this report.

Jennifer Vollstedt was pregnant for the second time in 2016, ?after her first?pregnancy was?diagnosed with a fatal chromosomal condition. Her son is now 6. (Courtesy of Jenn Vollstedt)

Jennifer Vollstedt and Ariel Cavanaugh-Okhah have never met, but they are connected by fatal chromosomal abnormalities that affected their wanted pregnancies, and the stress and heartbreak that come with it.

Their experiences of needing to terminate their pregnancies were quite different. One took place before the Dobbs ruling overturned Roe and the federal right to abortion while the other occurred just a few months after.

The two women are separated by nearly 1,500 miles. Vollstedt lives in Wisconsin. Cavanaugh-Okhah is in southern Florida. In some states, like Wisconsin, abortion restrictions were already in place before Roe fell, but the procedure was still accessible.

After June 2022, patients and providers found themselves trying to navigate a patchwork of laws in 14 states that implemented strict or near-total abortion bans, some from any gestational age. Access suddenly became largely dependent on location, with some clinics in bordering states less than an hour away and others more than a 12-hour car ride.

Vollstedt got pregnant for the first time at 27 in December 2014, not long after her wedding. She couldn’t wait to tell friends and family. She called her grandfather to share the news over FaceTime, just weeks before he died.

“He was really excited, he loved babies,” Vollstedt said.

Her doctor ordered standard blood work and other lab tests. But while she was on a family vacation in Florida a few days later, a geneticist called.

“They said my results from the blood test were actually very concerning,” she said.

The test indicated her fetus could have a rare condition called triploidy, which means it has 69 chromosomes instead of the normal 46, and causes many developmental issues such as heart, kidney and neural tube defects. In almost all cases, the pregnancy ends in miscarriage or stillbirth. The few babies that make it to delivery die within hours or days.

“I was just absolutely devastated, because I really wanted this pregnancy,” Vollstedt said.

To confirm the diagnosis, Vollstedt had to wait until 16 weeks for an amniocentesis because of the position of her placenta. Although Roe was still in effect, that year then-Gov. Scott Walker signed a law scaling back abortion to 20 weeks. The clock was ticking.

“I had no doubt that I would get an abortion for this pregnancy, that I did not have any interest in carrying it to term,” Vollstedt said. “I knew this baby, if she survived to term, would experience suffering and then pass away.”

Now with confirmation of the diagnosis, and the termination appointment scheduled, Vollstedt said she avoided leaving the house.

“People could see I was pregnant, and would comment on my belly, and that would just send me into instant tears,” she said. “Everything is going on with your body that you don’t want to be going on, and it’s just really frustrating and disappointing. … I wanted to not be pregnant anymore, and I didn’t have 100% control of when that happened.”

For the abortion, she returned to the same hospital where she had already been receiving care for her pregnancy, where she was already familiar with the nurses and doctors.

“I felt really cared for, and it felt really comfortable to be able to get my abortion in a hospital setting where I knew everybody,” she said. “It was just treated like regular, normal health care.”

Diagnosis came after Florida’s 15-week cutoff?

Cavanaugh-Okhah learned she was pregnant in early October 2022, when her son was about 18 months old. That was the age gap she and her husband, Zachary Okhah, had hoped for.

“We were at that time with my first child when you finally start to sleep, and thought, ‘Okay, we can try again now,’” she said.

Everything went well at her first ultrasound, and she decided to go ahead with genetic testing. Her doctor told her that following the Dobbs ruling, if the test results flagged anything that might cause her to want to terminate the pregnancy, she would have to do it by 15 weeks according to the new Florida abortion law. He wrote the details on a sheet of paper with the name of a clinic and the deadline.

“I remember thinking, ‘Thank you for the information, but that’s not a me problem,’ and just walking out the door,” Cavanaugh-Okhah said.

The test results came back with a high risk of Trisomy 21, better known as Down syndrome. It is the most common chromosomal abnormality, affecting about 1 in every 700 pregnancies, and it has a higher survival rate than several other disorders. But it can come with other severe defects that decrease those odds.

At first, Cavanaugh-Okhah was in denial that the results were accurate. Her doctor seemed to indicate it was probably wrong, she said, and her husband was convinced they were part of the small percentage of people whose babies end up being perfectly fine.

“That was a little too painful, to sit in that place of hope for weeks,” she said.

The doctor ordered an additional diagnostic test just before Cavanaugh-Okhah and her husband left on a trip overseas — her dream vacation to Switzerland at Christmas. But they received the phone call not long after arriving confirming the condition.

“I just fell into my husband, and I was weeping,” she said.

Zach Okhah is a plastic surgeon, and he called in a favor with a friend in Germany who helped them schedule an appointment with an OB-GYN who was willing to perform another ultrasound. That doctor found fluid present in the fetus’ brain, a heart defect, and a gastrointestinal tract that was so poorly developed, the doctor said termination was worth discussing for that abnormality alone.

At that point, Cavanaugh-Okhah was right around 15 weeks, so she wouldn’t be able to get an abortion at home. In Germany, they didn’t offer the type of procedure she preferred to have. And if she wanted her husband to be able to come with her, it needed to happen within the next week. So on Dec. 23, 2022, Cavanaugh-Okhah first called an abortion hotline to figure out her options, then called as many clinics as she could back in the states to find an appointment.

Massachusetts was one of the options on the list, and since she met her husband in Boston, they still had family there who could offer support. But that meant disclosing the whole story to more people than she wanted to tell.

“We hadn’t told those family members we were pregnant, so (my husband) called them and said, ‘Hey, we’re pregnant, and we need an abortion, a place to stay, and child care,’” Cavanaugh-Okhah said.

She contacted her doctor to get all of the ultrasound images and medical documents sent to the clinic, she said, because it felt like no one back home in Florida wanted to be involved with it at that point.

There was one appointment available. They changed their flights and flew straight from Stuttgart, Germany, to Boston.

“It’s so painful getting on an airplane knowing you’re flying to end your pregnancy,” she said. “I kept on saying, ‘I don’t know that I can do this.’”

The hospital was calm and quiet the day of her appointment, and Cavanaugh-Okhah said the doctor who cared for her helped give her the emotional support she needed to make it through the procedure.

“I wanted someone to tell me how many people go through this, because I couldn’t find it anywhere,” she said. “I’ll never forget, she just rolled her little chair closer to me and said, ‘I don’t have that number, but I can tell you there’s a lot of you.’ And then I think she placed her hand on me and said, ‘I know what you’re doing today is done with absolute love and compassion for your child.’”

‘We can love that pregnancy … and still make that decision’?

By the end of 2016, Vollstedt was pregnant again with her son, who is now 6. To process her grief and start to move forward took more than a year, she said, and she’s not sure if she ever would have wanted to get pregnant again if she had been forced to carry that pregnancy to term.

“(When Roe fell) I just thought so much about where I would’ve been had all this happened after that, what other people who are going to be in my situation or similar situations are going to experience,” Vollstedt said. If she had faced the same situation after the Dobbs decision, she would have been forced to look out of state for help, since Wisconsin had a full abortion ban in effect for more than a year.

“To have to do that many extra steps to get to Illinois or Michigan is so challenging when you’re already in this really fragile mental state,” she said.

Cavanaugh-Okhah knows she was able to get the care she needed because she had the means to book a last-minute overseas flight, but that didn’t make the experience any easier or less frightening. Even wealthy people can still lose their lives because care is too far away or otherwise inaccessible. As someone who had an ectopic pregnancy before her abortion and two miscarriages since, Cavanaugh-Okhah is all too familiar with potential complications.

The Florida Supreme Court has yet to decide whether the state’s 15-week ban should become a six-week ban after Republican Gov. Ron DeSantis signed a bill into law in 2023 to further restrict reproductive care.

“We’re in Miami, and if this thing passes and it’s a six-week ban, what’s going to happen if something goes wrong?” she said.

“I really want for people to see the humanness of us women, and that we can love that pregnancy and have so much compassion and connection, and still make that decision. Both can exist at the same time. We’re not heartless monsters.”

Former Kentucky House Speaker Bobby Richardson served as master of ceremonies at the Fancy Farm political speaking in 2017. In 1984, he made a speech that swung a Kentucky House vote in favor of in vitro fertilization. (KET screenshot)

Veteran Kentucky lawmakers call it one of the most dramatic moments in the history of the state’s General Assembly.? Memory of it has revived this spring as the nation — and Kentucky lawmakers — weigh a controversy over in vitro fertilization, a way to help infertile couples have a baby.

“What happened back in the state House in 1984 in that debate on in vitro fertilization in its early stages is a story worth telling again, especially now,” said Democrat Greg Stumbo of Prestonsburg.

“It certainly resonates today with all the talk on the topic.”

Stumbo was a rank-and-file legislator in that session 40 years ago before becoming majority floor leader, House speaker and attorney general.

The current debate over in vitro fertilization started last month in Alabama.

In a first-of-its-kind ruling Feb. 16, the Alabama Supreme Court ruled that frozen embryos are children and those who destroy them can be held liable for wrongful death.

Critics immediately said the ruling could have a chilling effect on infertility treatments like in vitro fertilization.

In vitro fertilization, also called IVF, is a complex series of medical procedures that can lead to a pregnancy. It’s a treatment for couples that cannot get pregnant after at least a year of trying. It also can be used to prevent passing on genetic problems to a child.

In the process, a woman’s egg is combined with male sperm in vitro (“in glass”) in a lab to produce a fertilized egg. One or more of the fertilized eggs, called embryos, are placed in a woman’s uterus, which is where babies develop.

The embryos can be stored in liquid nitrogen at minus 320 degrees Fahrenheit indefinitely.

The history of IVF goes back more than half a century. In 1959, the first birth in a nonhuman mammal — mice — occurred from IVF.? In 1978, a woman in England gave birth after the first human IVF pregnancy.? Since then, millions of babies have been born as a result of IVF.

Is in vitro fertilization under threat in Kentucky too? Law matching Alabama’s deepens concerns

Many state legislatures — including Kentucky’s — and the U.S. Congress have seen IVF legislation sprout up since the Alabama ruling. Alabama’s legislature and governor last week enacted a law meant to shield health providers from prosecution or lawsuits, in hopes that IVF providers in Alabama would resume services. But critics said the measure? fails to address the state’s Supreme Court finding that frozen embryos are children and merit protection as human life.

The Kentucky General Assembly currently is considering three bills dealing with IVF. ?Kentucky Right to Life, the state’s most prominent anti-abortion group, supports one of them and Kentucky Gov. Andy Beshear, who has called IVF “a gift from God,” has thrown his support behind all three.

It will be interesting to see if the legislative debate around IVG becomes as intense as it did in 1984.

‘A magical moment’ in the Kentucky House

IVF was not that well known in Kentucky in 1984, but Rep. Stumbo, a lawyer, had a constituent who asked him to sponsor a bill that would allow public funds to be used to perform the fertility treatment.

The powerful Kentucky Right to Life opposed it. The anti-abortion group was concerned about handling of the embryos in the treatment. It backed legislation to prohibit IVF.

Stumbo was friends with law school classmate, Rep. Bob Heleringer, a Republican attorney from Louisville who was a strong supporter of Right to Life.

Stumbo asked Heleringer for his help on his IVF bill. Heleringer added to it a provision that said the public funding was permissible “as long as such procedures do not result in the intentional destruction of a human embryo.”

“I will never forget that session of the House when we debated IVF,” Stumbo recently recalled.? “I have seen a lot of magical moments in my time in the legislature but that one was right up there.”

The debate was tense. Some members cited the sanctity of life and said embryos were very much human and alive.? Some mentioned the need for the special treatment to help couples who wanted to have children.

The time came to take the vote.? The large boards on the sides of the speaker’s chair that record the individual votes showed that IVF was in trouble.

Unbeknownst to Stumbo, House Speaker Bobby Richardson, a Democrat from Glasgow who was an attorney known for his down-home common sense, stepped down from the speaker’s chair and walked down to one of the member’s desk to deliver a floor speech on the bill

“It got so quiet in the chamber,” said Stumbo.? “A speaker never does that unless the speaker considers it extremely important.? It gets members’ attention. He thought it was extremely important and his speech turned the tide.”

“The best I remember about that speech,” said Richardson in a recent interview, “is that I was thinking about one of the worst tragedies in life is the couple who wants to have a baby and cannot.

“If in vitro is the only way they can have a family, we would be opposing them if we did not support the treatment. I still believe that.”

Richardson made his speech emotional and personal.

“My wife and I had infertility problems.? I talked about that, though we never used IVF.? What I said must have hit a nerve with some members.”

Votes started to change.? The measure eventually prevailed.

Asked if it were his words or the power he carried as speaker that influenced the final vote, Richardson said, “Who knows?? I just know it had an impact.”

In a 2008 interview with the University of Kentucky Oral History Center about his legislative career, Richardson said he was “proud” to have taken the lead on the IVF measure.

“The right-to-life people opposed in vitro fertilization. You are familiar with that,” he said in that interview. “Why, I don’t know except they might have thought there may have been additional eggs fertilized or something, but I thought the technology was a wonderful way for childless couples to end up parents, and I still do.

“That was a fight that I took a lot of pleasure in, after we were successful.”

The 1984 Richardson speech was “the most effective” Heleringer said he heard in his 22 years in the legislature.

“Other members spoke passionately about the issue that day but it was the speaker’s words that took the day. None of us knew the personal pain of infertility as he did.”

Heleringer said he had no problem helping Stumbo with his bill. “That’s when we compromised in the legislature, though Margie didn’t talk to me for a year.” He was referring to the late Margie Montgomery, the co-founder and longtime executive director of Kentucky Right to Life.

“Bobby’s speech was so spontaneous,” said Stumbo.? “It was the first time in the Kentucky legislature that Right to Life had experienced such a legislative defeat.? I remember like it was yesterday.”

The IVF debate today

Richardson said the controversial Alabama Supreme Court ruling was an offshoot of the U.S. Supreme Court decision in June 2022 to overturn the Roe v. Wade decision that established a constitutional right to an abortion.

“I think it was the wrong decision by that state court,” he said. “I don’t believe fertilized embryos used in starting IVF are human beings. They have no heartbeat.”

Cardiac tissue begins pulsing in an embryo around the fifth week of pregnancy, creating electric pulses that an ultrasound procedure can detect and turn into sound.

“I am no longer a politician but I hope IVF remains protected,” said Richardson.? “That is the right thing to do.”

Of the three bills now in the Kentucky General Assembly, ?Kentucky Right to Life supports Senate Bill 373, sponsored by Sen. Whitney Westerfield, R-Fruit Hill.? It would limit liability for doctors and other health care providers if they lose or damage a human embryo.

Westerfield has told his colleagues that his and his wife’s son was conceived through an adopted embryo and that his wife is now pregnant with triplets from embryos that they adopted.

“We do support this bill because it protects the fertilized embryo,” said Addia Wuchner, the current director of Kentucky Right to Life. “Our goal is not to oppose proper fertility treatments but to protect the embryo.”

Wuchner said her organization could not support House Bill 757, sponsored by Rep. Daniel Grossberg, D-Louisville, which says a fertilized embryo outside of the human body is not an unborn child.

Grossberg said it would make sure women have the right to use IVF and would protect them from any prosecution.

“That bill undermines what we affirm,” said Wuchner.

She said she has no comment on SB 301, sponsored----- by Sen. Cassie Chambers Armstrong, D-Louisville.? It protects health care providers who use IVF from criminal li--------ability.