This Week in Abortion, Positive Externalities

A collection of good reads, events from the week, and policy insights.

Mar 18, 2023

Welcome back to your weekly roundup of good reads, legal updates, and legislative overview on abortion. This week we feature some thoughts on the influx of advances in maternal health and family supports that is happening as part of the Dobbs fallout.

Good Reads

Kept the good reads light this week. Please, take a moment and revel in the fact that Grey’s Anatomy is still on the air and, what’s more, they cover abortion pretty frequently including in a recent episode.
Plus the trailer for Plan C is out.

15 governors asked Walgreens and all pharmacies to share their plans for mifepristone distribution in all “states where such care is legal.” Of course, it’s unclear what “legal” means. And, it gets more complicated. Vox just reported that the key supplier in the US of mifepristone may not let pharmacies distribute its drug in certain states, even if they want to. Last week we wrote about why we think protesting Walgreens is the right thing to do. The anti-access movement is applying a lot of pressure through legal and physical threats. There has to be some counterpressure from us, or the anti-access argument is the only thing the system will hear.

Abortion in Wyoming may no longer be considered healthcare and providing it could be a criminal offense. On top of that, medicated abortion is now illegal in the state. The abortion ban was challenged before it even went into effect (well done local advocates!). But, without immediate court action, abortion will no longer be available in the state.

After the blatant intimidation, we highlighted a few weeks ago, Tennessee legislators appear poised to pass exemptions to their ban that are way watered down and ineffective. Tennessee may be the worst state to be working in and around access. Thanks to a 2014, low-turnout vote, the state’s constitution explicitly excludes abortion from protection. There is no citizen’s ballot initiative that can save them. It’s all in the hands of a very anti-access legislature. The real and critical need for relief on the ground as explained in these LA Times and NY Times Op-Eds is perceived by some to conflict with the broader movement goals of getting to full access and even orgs like ACOG don’t want to get involved. It’s the kind of tension that we hope to explore more in the coming weeks. For now, as the votes were going down this week, one Tennessee representative shared her abortion story. It’s powerful and worth watching. (Somehow, she is not on Emily’s List.)

Arkansas - another state where abortion was kicked out of the constitution decades ago - will likely be getting a monument near the state Capitol marking the number of abortions performed in Arkansas before Roe v. Wade was struck down. The whole bill is a giant fuck you to the access movement. The introduction even uses the words of a historic abortion-rights leader in supposed support of the state’s total ban. Looks like a job for The Satanic Temple! (Seriously guys, please get over there.)

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Colorado committees are discussing three very cool bills that look likely to pass. Axios has a full breakdown. The first seeks to protect from prosecution, etc, residents in states with bans - this is similar to what legislators are doing in New York, Illinois, California, and elsewhere. The second makes it a deceptive trade practice for clinics to directly or indirectly indicate that they provide abortions, emergency contraceptives, or referrals when they do not. When we covered crisis pregnancy centers we noted that going after these centers for deceptive advertising was worth trying again. Colorado is taking it further by making the offer or administration of medication abortion reversal unprofessional conduct and grounds for discipline. The third, and the COOLEST requires large employer insurance plans to cover the total cost of abortion care, contraception, STD treatment, and vasectomies.

New Mexico passed a law that “overrides local ordinances aimed at limiting access to abortion procedures and medications.” The law is especially relevant in border towns, where Texans and others are now looking for care.

And, Florida is considering a six-week ban that seems to be moving quickly.

Legal Updates

The Texas hearing on mifepristone finally happened. The case goes way beyond what Walgreens is in hot water for. It attacks the original approval of the drug, meaning a negative ruling could remove it from the market altogether. Those reading the tea leaves think the judge is likely leaning in favor of the anti-access camp but might be searching for a way to narrow the effect of his ruling. Either way, the case (brought by, of course, a Tennessee group) seems to be winding its way to the Supreme Court. For a great breakdown of the possible outcomes see this article from February as highlighted in a breakdown by fellow substackers Grace Haley and Jessica Valenti.

Reminder

Mifepristone + misoprostol is the preferred method of medication abortion in the United States and is the only one FDA-approved. But, if mifepristone disappears, misoprostol, which is considered nearly as effective on its own and is used across the globe, will still be available.

We previously reported on a lawsuit against the Smithsonian after visitors alleged security guards kicked them out of the museum for wearing pro-life clothing. The Smithsonian has entered a consent order and preliminary injunction basically agreeing to make sure something like this doesn’t happen again. The pro-life law firm managing the case says it’s not over. But, it seems like a consent order is more than enough for what appears to have happened.
The Supreme Court in North Dakota will allow abortions in the state to remain legal while a lawsuit over the state’s ban proceeds. Even better, the majority opinion basically stated that they feel access is a constitutional right.

Feature - Positive Externalities

Since the overturn of Roe v. Wade, we are seeing an increase in legislation that supports families and expands women’s health benefits. We were curious to learn more about what these bills propose, why they are coming now, and how we should be thinking about them in the context of abortion rights.

The TL;DR is:

These bills and advances are a mixed bag - some are great while others are actually only pro-baby and may be doing (un)intentional harm to the women, families, and children that need the most support. You can probably guess which states are enacting which.
There is not a zero-sum game on improving family support and healthcare opportunities for women.
It is ok to celebrate wins, even if they are happening simultaneously with things that make us angry.

What are the bills and are they any good?

States across the spectrum of abortion access are racing to show off how much they support women and families by putting forward bills to expand childcare, paid family leave, child tax credits, and health insurance. We obviously support women getting time to shine and anything that can help ease the challenges of raising children. Let’s raise a glass to that!

According to the Guttmacher Institute, in 2023 alone there have been:

116 bills to expand health services to prevent maternal mortality
62 bills to expand coverage of infertility and prenatal care
31 bills to convene maternal mortality review commissions
30 bills to protect contraceptive coverage through insurance
29 bills to expand access to contraceptives (emergency and otherwise)
21 bills to expand the definition and ranges allowed for infant abandonment
16 bills to expand access and coverage for STI testing and prevention

This is amazing and should be celebrated, especially compared to previous years. In 2019, for example, there were only four bills introduced across the entire country to expand insurance coverage of infertility and prenatal care and only two bills introduced related to STI testing.

In some of the best examples, states like Colorado and New Mexico, are getting creative in advancing protections for women and families. Many states who were not Medicaid expansion states (i.e. did not expand the definition of who was eligible for Medicaid in 2010), such as Alabama, Georgia, and Mississippi are expanding postnatal Medicaid insurance coverage for 12 months post-birth (instead of the federally required 60-days). Kentucky recently signed an act requiring health insurers to cover prescriptions for postpartum mood disorders and has introduced a bill to expand “counseling interventions for pregnant and postpartum persons at increased risk of perinatal depression.” And at the federal level, the Maternal Health Quality Improvement Act passed last year as part of the omnibus spending bill, expanding access to maternal care in rural areas.

And yet (there seems to always be a yet), many proposed bills come with catches and perpetuate inequities that could actually harm the women, families, and kids they seem to support. A new slew of bills to support Missouri’s childcare industry focus on employer-based childcare and include no provisions for improving working conditions, staff wages, or expanding which families are eligible for subsidies. Other tax credit proposals, such as Senator Romney’s 2022 federal bill, require cutting the Earned Income Tax Credit, which could in fact make families worse off.

Some legislation is advancing only portions of women’s health, while also actively and intentionally excluding specific groups or adding handcuffs to otherwise helpful steps forward. Last year Louisiana passed a law to create the Office on Women’s Health, but specifically called out it “shall only provide services to a woman born as a biological female,” essentially becoming both a women’s health bill and an anti-trans bill simultaneously. It also explicitly states that “No person employed by the office on women’s health shall require or recommend that any woman have an abortion or promote abortion.” Two steps forward and two steps back.

And don’t get us started on some of the names - Providing for Life Act, Family Security Act, Unborn Child Support Act - many of these names continue the notion that the woman is actually only important as the vessel for the baby, but not in her own right.

How should we think about this in relation to the timing of abortion rights?

Women did actually birth babies prior to the Dobbs decision and were, in fact, in need of many of the benefits now being considered. Women, children, and families deserve social safety nets and supports, even if they have access to abortion services. Paid family leave, Medicaid expansion to new moms, affordable childcare options - all of these are things advocates have been pushing for YEARS and are not pawns in a game of chess. There is no checkmate when it comes to ensuring our country’s residents are able to thrive. Childcare should not be traded for access to healthcare.

It sucks that it took the reduction of a right to gain traction on these other important issues. Reducing access to vital healthcare is not good for women, no matter how many other improvements you make. And in our opinion (and personal experience), abortion is vital healthcare. There are many studies that highlight the link between abortion restrictions and worsening maternal outcomes (see here, here, or here for some examples).

But, the range of policies politically acceptable to the mainstream population changed as a result of the Dobbs decision, allowing advocates and lawmakers to pursue options that previously had been untenable, particularly in deep red states. Yes, many of these bills are political maneuvers. Fortunately, or unfortunately, political maneuvers are how lots of good (and not good) things get done.

What’s to come?

We do not have a magic 8 ball to tell us what will happen, but we do think it is likely this trend continues.

We expect to see more states expand Medicaid coverage to 12-months for new moms and expand access to STD treatment and contraceptives. The better bills will benefit all families and parents, not just the married heterosexual kind, and will actually add to the pot, rather than simply shift around benefits. We’d love it if more states follow Colorado’s lead by working to ensure that insurance companies treat abortion as a basic healthcare option.

Also, keep in mind, that while childcare and paid leave reforms are beneficial, they require money. As such, they are not slam dunks, even in pro-access states. And we caution everyone to read the fine print in anti-access states to understand whether the proposals include restrictions on who can benefit from these new “pro-family” laws and where constraints may actually perpetuate harm.

This Week in Abortion