USA: battle still on for abortion rights
With the overturning of Roe v. Wade, women’s rights in the USA lost a crucial battle, but not the war. The anti-rights advance has run up against public opinion, creating a dilemma for the Republican Party in the run-up to the 2024 elections. Divisions in the anti-abortion camp contrast with the unity of purpose and drive of the pro-choice movement, which is finding innovative ways to uphold rights as the battleground shifts to abortion medication. Six decades on from the invention of the pill that subverted the social order by changing women’s position in it, another pill containing the same promise of autonomy is increasingly being placed at the centre of an ongoing culture war.
The battle is still on for abortion rights in the USA. The confident winners of a year ago don’t seem certain of victory anymore.
In June 2022, the US Supreme Court overturned the 1973 Roe v. Wade ruling, which protected the right to abortion for almost 50 years, leaving abortion regulation up to each of the country’s 50 states. Abortion soon became illegal in many states that had introduced trigger bans, designed to take effect once the ruling was overturned. Soon after, almost a third of US women of reproductive age found themselves living in states where abortion was unavailable or severely restricted.
Republicans seemed taken aback by how unpopular this was. Last August, voters in the unmistakably conservative state of Kansas, where Donald Trump received 56 per cent of the vote in the 2020 election, rejected an anti-abortion constitutional amendment. This was the first sign that the ultra-conservative backlash might be out of step with public opinion.
In November it happened again, times five. Abortion was on the ballot both figuratively and literally in the midterm elections: it weighed heavily on voters’ minds in the many instances where they turned out in droves to prevent the election of extremists, and it was the focus of ballot measures in five states.
In California, Michigan and Vermont, voters approved amendments to state constitutions to ensure access to abortion rights and other reproductive health services. And as in Kansas, voters in Kentucky and Montana rejected proposals to change state constitutions to strike down abortion rights.
But the ultraconservatives intent on keeping women in check remain formidable foes and haven’t stopped looking for ways strip them of their autonomy. Their backlash is increasingly focusing on a new frontier: abortion medication.
As of today, 14 states have banned all or almost all abortions, in some cases with no exceptions, even for rape or incest. Abortion is also effectively banned in another state, Georgia, with an extremely low limit of six weeks of pregnancy. Eleven more states continue to grudgingly allow abortion before a set number of weeks of pregnancy, with severe restrictions – such as South Carolina’s six-week ban, passed in May – having been blocked by judicial action.
Recently in Nebraska and North Carolina, the legal deadline for abortions has been slashed to 12 weeks – a limit that still allows around 90 per cent of abortions to happen. This strategy of moderate restriction rather than outright bans is being embraced after repeated failures to introduce stricter measures. Although not as harmful as so-called ‘heartbeat laws’ that impose six-week bans, they can contain much grim detail: they often don’t provide exceptions for foetal anomalies incompatible with life, they threaten doctors with jail time if they act after the deadline, or are accompanied by much lower time limits on the use of medication abortion.
In the remaining 24 states plus the District of Columbia abortion remains legal – with long-established limits ranging from 20 to 24 weeks or up to viability. Twenty of these states have recently introduced additional protections aimed at preventing regression. Some have taken the form of ‘shield laws’ protecting providers and patients against criminal investigation for their involvement in abortions. Others have focused on providing safe access to clinics and increased confidentiality for providers, and some have increased funding for abortion.
According to a recent opinion poll, 54 per cent of Americans strongly oppose the elimination of the constitutional right to abortion, and a further 12 per cent somewhat oppose it. An overwhelming 78 per cent believe the decision should be left to the pregnant person and their doctor. Additionally, 66 per cent want abortion medication to remain on the market, compared to only 24 per cent who want it taken away.
Understanding that public opinion is on their side, abortion rights advocates may now propose ballot measures to introduce additional state-level constitutional protections in the 2024 election, including in Republican-led states.
But misalignment with public opinion has created division among Republican lawmakers at both federal and state levels, and among anti-abortion groups. The split was visible before the midterms but has deepened since.
Some Republican politicians have tried to distance themselves from an issue that could prove fatal for their campaigns. Rather than push for a national-level abortion ban that Congress wouldn’t pass anyway, they’ve expressed their preference to leave it to states to decide.
Some have fallen back, at least for now, on the 12-week limit. Some have blocked extreme abortion bans proposed by members of their party. The push towards moderation has often come, unsurprisingly, from female Republican legislators.
But in some states, Republicans have pushed further, seeking complete bans and breaking an age-old promise of the anti-abortion movement – that they wouldn’t punish women who have abortions. In despair at the rising trend of self-managed medication abortions, they’ve introduced bills stripping pregnant people of protection against criminalisation, defining the foetus as a person from the moment of conception and proposing that abortion be treated as homicide.
This is setting the tone for the 2024 presidential contest. Democrats are eager to put front and centre an issue on which they’re united and in line with public opinion, denouncing the Republican Party’s ‘war on women’. Initiatives such as the push in Texas to have the abortion pill banned are only helping them.
In the Republican camp, Trump has now tried to distance himself from a cause he once claimed to support. His main challenger, Florida Governor Ron DeSantis, an avowed culture war warrior who has introduced a barrage of rights restrictions in his state, may have considerably lowered his chances by nailing his colours to the mast on backing further repression. He insisted on signing into law a ban on abortion after six weeks, at which point most women don’t know they are pregnant. There’s much at stake for women in the upcoming election.
The abortion pill, front and centre
With medication having become the most popular abortion method in the USA, the battleground for abortion rights has started to shift from bans and regulations of clinics, procedures and the medical profession to attempts to control the circulation of this liberating medication.
Ultraconservatives intent on keeping women in check remain haven’t stopped looking for ways strip them of their autonomy. Their backlash is increasingly focusing on abortion medication.
Abortion medication consists of a pill, mifepristone, followed by another, misoprostol. Both drugs have other medical uses, which makes it difficult for the authorities to ban them altogether. Violent anti-abortion backlash resulted in a two-decade delay in approval of the use of mifepristone by the US Food and Drug Administration (FDA). When approval came in 2020, it was already legal in some 20 countries, mostly in Europe. It’s now approved in 94 countries around the world.
While Roe v. Wade stood and surgical abortion remained widespread, abortion medication wasn’t much of an issue: it was approved for abortions only until seven weeks of pregnancy, a limit extended to 10 weeks in 2016. Until 2021 mifepristone could still only be dispensed in medical facilities.
But the pandemic was a game-changer as it gave a huge boost to telemedicine and put pressure on the FDA to allow mifepristone pills to be sent by mail. This initially temporary measure became permanent after a few months, and this year the FDA made the drug more widely available, establishing a special certification for pharmacies to dispense it.
The proportion of abortions carried out through medication increased from 39 per cent in 2017 to 53 per cent in 2020, and has likely risen since. The true numbers are probably much higher due to the growing number of abortions carried out with pills bought online and delivered from other countries.
Anti-abortion groups realised this could undo much of their victory in bringing down Roe v. Wade. So in November 2022 they sued, doing so in Amarillo, Texas, to ensure the case would be heard by a Christian conservative judge of their choice. Their complaint stated that the FDA never had any authority to approve mifepristone and claimed against all evidence that the drug was unsafe. In April 2023, the sympathetic judge predictably voided all actions taken by the FDA on mifepristone since 2016. Among other things, he invoked an 1873 anti-vice law that banned the mailing of ‘indecent’ materials.
The US Department of Justice appealed against the decision to the Fifth Circuit Court of Appeals, which refused to block the lower court’s decision, so it filed an emergency application with the Supreme Court, which h as temporarily blocked the Texas judge’s decision while the case continues.
Meanwhile a total of 28 states have so far introduced restrictions on abortion pills, with five bills ultimately enacted to ban the use, mailing or prescription of abortion pills through telemedicine consultations.
But at the same time, 12 Democratic-led states have filed a federal court complaint to challenge FDA restrictions on mifepristone distribution. They seek to have it treated as any other common drug that can be prescribed and dispensed by any doctor or pharmacy.
The legal process remains ongoing. The issue will likely end up at the Supreme Court – where the same conservative judges who overturned Roe v. Wade will have their say.
As extreme-right judges play politics with the law, Maryland continues to take steps to ensure our state will always put women’s health and the right to choose first.— Senator Chris Van Hollen (@ChrisVanHollen) June 6, 2023
Mifepristone is safe and has been available for decades. It should remain that way. https://t.co/gVG1HhmH5Z
Game not over
It all started with a pill. In the 1960s, the contraceptive pill revolutionised sexual relationships and gave women an unprecedented level of reproductive autonomy, enabling them to make life choices unimaginable to previous generations and helping change the place of women in society. Now it’s increasingly boiling down to another pill that gives women autonomy in the face of an onslaught on their rights.
The fight to restore access to surgical abortion continues, with organising efforts helping women travel to places where abortion remains legal and receive the services they need, particularly where medication abortion isn’t suitable.
But the abortion pill is the new frontier of the abortion wars. That’s why anti-abortion activists continue to try to restrict access to it by multiple means, while abortion advocates continue coming up with innovative ways of circumventing restrictions – including by stocking up and distributing the medication, and providing counselling and instructions on how to use it.
They can learn from their Latin American peers who’ve been doing likewise for decades. In several countries south of the border, the use of abortion medication has been a pathway to the ‘social decriminalisation’ that preceded a wave of liberalisation of abortion laws. They have shown that the tide can turn, so the current state of play shouldn’t be seen as game over in the USA either.
OUR CALLS FOR ACTION
The US federal government must take action to safeguard access to medication abortion.
In states where abortion continues to be legal, legislators should repeal existing restrictions, expand insurance coverage, strengthen legal protections and allocate funding to ensure access.
Abortion rights activists should use every tool available to protect abortion rights, including litigation, legislative advocacy and ballot initiatives, combined with underground organising to ensure access to abortion services and medication.
Cover photo by Andrew Caballero-Reynolds/AFP via Getty Images