Jennifer Shutt, New Jersey Monitor
One year after the U.S. Supreme Court overturned the constitutional right to an abortion, the courts rather than a divided Congress are leading the way on decisions on reproductive rights that would affect the entire nation.
Congress has not enacted federal legislation to either preserve reproductive rights or to restrict abortion in the year since the Dobbs v. Jackson Women’s Health Organization ruling nullified the landmark Roe v. Wade decision. And that’s unlikely to change anytime soon.
Despite many Republicans campaigning for the U.S. House on promises of a nationwide abortion ban, the chamber hasn’t brought such a bill to the floor six months after the GOP took control.
And in the U.S. Senate, Democrats who control that chamber don’t have the 60 votes needed to overcome the legislative filibuster, leading to a stalemate on abortion legislation as well as protections for birth control access.
The next nationwide policy on abortion is much more likely to be written by the same U.S. Supreme Court that wrote one year ago “the authority to regulate abortion is returned to the people and their elected representatives.” That court is dominated 6-3 by conservative justices.
“To the extent that Congress continues to be inept in many regards in legislating, it falls to the courts,” said Suzanne Bell, assistant professor in the Department of Population, Family and Reproductive Health at the Johns Hopkins Bloomberg School of Public Health.
The stalemate within Congress is in sharp contrast to new laws from dozens of state legislatures, where lawmakers have moved to either restrict abortion access or solidify it within the last year. But many of those proposals have landed in the state court systems, with some ending up at a state’s Supreme Court.
Abortion pill case
The nine justices on the U.S. Supreme Court are expected to take up a case late this year or next spring on access to the abortion pill, known as mifepristone or its brand name Mifeprex, after a federal circuit court in New Orleans rules on the appeal. It likely will be the highest-profile court case on reproductive rights since Dobbs to reach the Supreme Court.
The U.S. Food and Drug Administration approved mifepristone in 2000 as part of a two-drug regimen that’s currently used up to 10 weeks in a pregnancy.
Alliance Defending Freedom, an anti-abortion legal organization, filed a lawsuit in November seeking to have that authorization overturned nationwide.
U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk, who was nominated by former President Donald Trump, found their arguments compelling and stayed the FDA’s approval in early April.
The U.S. Justice Department appealed the case to the 5th Circuit Court, which heard oral arguments in May and could rule any day.
That ruling will likely move to the U.S. Supreme Court after that.
Bell said in an interview that it’s odd to see the case in the courts system, calling it “disheartening,” though she expects that could become more common.
“This is such a strange overreach of the courts or even Congress, if Congress were to be involved in this mifepristone case,” she said.
Bell also cautioned that as politicians increasingly focus on winning or losing the debate — whether in the courts or in the legislature — they often lose sight of the impact of their decisions, and the effect changes in access have on Americans’ actual lives as well as public health.
“We get caught up in some of the politics and the legislation and the litigation around this issue. But in the meantime it’s having real impacts on birthing people and families,” Bell said.
Cascade of bill introductions
In the year since Dobbs, Republicans and Democrats in Congress have introduced dozens of bills that would either expand reproductive rights or restrict access to abortion, though none stand a chance of becoming law anytime soon.
Republicans have introduced more than 80 bills that address abortion in some way, including a proposal from Missouri Rep. Ann Wagner that would require health care providers to give the same level of care “to preserve the life and health of the child” if an abortion were to result in a live birth.
House Republicans passed the bill in January, though it’s highly unlikely that it would move through the Democratically controlled Senate. House Republicans, however, have opted not to bring up any of the bills proposing a nationwide ban on abortion.
Democrats have reintroduced legislation that would provide nationwide protection for abortion access, though it hasn’t gotten a vote in the Senate this Congress and would be unlikely to secure the votes needed to move past the legislative filibuster.
The so-called Women’s Health Protection Act would bar local, state or federal governments from restricting access to abortion before viability, roughly 22 to 24 weeks gestation. After that threshold, governments couldn’t implement restrictions when “in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”
The nature of a divided Congress has led some members to turn their attention toward the annual government funding process as one way to change nationwide policy on abortion.
Attempts to do that in the past have been unsuccessful at shaking up the status quo, but Republicans in the House are attempting to bar the Defense and Veterans Affairs departments from providing abortions — even in cases of rape, incest or the life of the pregnant patient.
The House GOP also added language to the annual funding bill for the FDA that would bar it from allowing pharmacies, including mail-order pharmacies, to apply to dispense abortion medication the same way they dispense other prescriptions. The FDA proposed that change in January and some pharmacy chains have begun the process.
Susan B. Anthony Pro-Life America praised House Republican appropriators for adding “strong language in the Agriculture Appropriations Bill that protects women and girls from the dangers of chemical abortion.”
On barring female troops and veterans from having access to abortion in the case of rape, incest or their lives, SBA Pro-Life America thanked Republicans on the committee “for standing up for longstanding law and for the unborn by prohibiting funding for Biden’s illegal rule that would force taxpayers to pay for abortions at Veterans hospitals.”
Federal spending laws have barred the use of taxpayer dollars to pay for abortions with exceptions for rape, incest and the life of the patient since the 1970s. The provision is generally referred to as the Hyde amendment and applies to dozens of federal programs, including federal employee health care, Medicaid, Medicare and foreign aid.
The House Republicans’ decision is a change from September 2022, when numerous Republicans on the spending panels said they didn’t anticipate changing how the provisions were applied.
While the House GOP proposals are unlikely to become law, they could throw a wrench into the annual government funding process, increasing the odds of a partial government shutdown later this year.
When Democrats were in control of the U.S. House during the first two years of the Biden administration they removed the language that limited when the federal government could pay for abortion from all of their bills.
But, the limitation that the federal government would only pay for abortions under the three exceptions was added back into the final bills at the insistence of Republicans.
‘Not sticking its head in the sand’
Autumn Katz, managing senior counsel of U.S. Litigation at the Center for Reproductive Rights, said that while Congress may not be able to enact legislation protecting reproductive rights at the moment, the hearings, bill introductions and debate are “important work.”
“There’s the filibuster issue in the Senate, and things have changed in the House, so enacting protection for abortion I think is difficult right now,” Katz said. “But I do think it’s important to emphasize that Congress is not sticking its head in the sand.”
Katz said she expects cases will continue in the federal courts system, especially given that some states are seeking to restrict when and how residents travel to access reproductive healthcare.
“The idea it’s now settled and will be resolved in individual states is really kind of a cynical view because there are so many questions,” Katz said. “And so I think there is bound to continue to be litigation and confusion and chaos.”
Access to medication abortion is one of the areas of ongoing confusion amid a patchwork of state laws, an ongoing federal court case and the FDA announcing in January that pharmacies could apply to dispense mifepristone like other prescription drugs.
More than 50 Democrats in Congress wrote to five major pharmacy chains earlier this month, encouraging them to apply to dispense mifepristone like other prescription drugs.
“We are concerned that your respective companies have not yet indicated plans to seek certification to dispense mifepristone, consistent with federal guidelines and regulations, as this could help increase access to needed medication,” they wrote. “Your continued silence is unacceptable as it is misaligned with your publicly stated values in support of equal access to health care and of gender equality.”
A possible U.S. Supreme Court opinion on access to mifepristone could decide the issue if the justices rule to overturn its 2000 approval, or revert to prescribing and dosage instructions that were in place before 2016.
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