This Week in Abortion: Supreme Court, Marilyn Lands, and the TX Medical Board

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

Welcome back to This Week in Abortion - Your weekly substack roundup of good reads, news updates, and policy insights on abortion.

Happy Easter to those celebrating. I appreciate your being here. 

The Supreme Court did its thing this week, the Texas medical board issued lackluster guidelines, and a pro-access Alabama Democrat was elected in a historically Republican district.

But before that, since it is Easter weekend, I encourage everyone to check out Catholics for Choice. As I’ve mentioned before, they have a lot of really great resources and theological contemplation around not just abortion, but also contraception, IVF, and reproductive health equity.

Supreme Court

I agree with most of the analysis out there on this. The Justices seem unlikely to rule against the expanded access to mifepristone - one of two abortion medications - even as some of them seemingly searched for any solid argument in favor of doing so. The basic conclusion seemed to be that those challenging the FDA’s ruling don’t have any legitimacy (standing) to do so and, even if they did, the remedy that they are seeking is not in balance with the harm they claim they are suffering. That said, The Comstock Act is Coming. It won’t be this case, but it’s clear that Thomas and Alito are looking for an opportunity to use it.

What happened at the hearing? 

• Jennifer Shutt gives a thorough and clear account of the back and forth. 

• Chris Geidner provides a full legal analysis.  

• Even anti-access observers seemed skeptical that the court would rule against the FDA. 

What’s next? 

• The Justices will hear another abortion-related case on April 24th. IDAHO V. UNITED STATES focuses on when and whether the Emergency Medical Treatment and Labor Act supersedes state law.

• Alice Miranda Ollstein writes about all the other ways the anti-access movement is seeking to stop medication abortion, inside and outside the courts.

• Pro-access states are considering whether to re-up their stockpiles of mifepristone and misoprostol. While the urge and reasoning are understandable, I hesitate to applaud all the governors advertising this - as we all know from the great toilet paper shortage of 2020, stockpiling can create a shortage all on its own.

Need more? 

• Melissa Segura profiled Judge James Ho - one of the Judges on the Texas appeals court that ruled against access last year. Judge Ho’s wife (Allyson Ho) is also a lawyer and has financial ties to the anti-access law firm behind the case.

• If that gets you fired up, there is some good news, federal courts released a new policy aimed at curbing “judge shopping,” the practice of filing a case in a district where you know the judge will be friendly to your cause.  

Top Abortion Updates

• 👎 Texas’s medical board took a pass on defining what qualifies as an exception under Texas’s abortion ban. On the one hand, this makes sense, as they stated - each case is different and should be up to the doctor. But that only works until you remember that doctors may lose their license and end up in jail if the courts - not medical practitioners - decide they made the wrong call on what was medically necessary.

  • The Board’s guidance is posted here. The public can comment until 4/21. If you are a Texas resident or medical professional, I encourage you to share your opinion. Push the board to be more specific or to call out the problems in the law. Play nice and remember your comments are likely to end up public. Personal attacks won’t help, they will just make it easier to dismiss your opinion. But, mothers, fathers, doctors, nurses, and everyday Texans sharing genuine concerns and fears…at the very least that will keep a few of the board members up at night.

• 👎 Kansas legislators passed an anti-access law this week that requires providers to ask patients a set of invasive questions before they can access abortion services such as whether “the patient already has enough, or too many, children.” Although the Governor will veto the legislation, the legislature seems to have the votes to override.

• 😬  Florida’s Supreme Court will likely rule tomorrow on whether a pro-access ballot initiative can appear on the November ballot. If it doesn’t, by default the initiative can move forward. If you are tracking the news, send me your favorite April Fools reference, I’m sure there will be plenty. 

• 👎 Over a year ago, Iowa’s recently elected Attorney General paused a program that helped victims of rape access emergency contraception. Local news orgs are starting to ask questions as her office’s review of the program drags on and this low-cost, seemingly high impact, program remains in limbo.

• 👍Running against Alabama’s abortion and IVF bans, Democrat Marilyn Lands secured a surprisingly strong victory in a special election for Alabama’s State House. It’s the political silly season, so much more will be made of her win than is warranted. I favor Brian Lyman’s (Alabama Reflector) take, “Most places in Alabama aren’t Huntsville. But many Alabamians share Lands’ views.” 

  • My take…Lands focused on the burden it creates for women with non-viable pregnancies (like she once had) and baby steps like ensuring exceptions are added to the law. She ran against Alabama’s extreme ban. She did not, so far as I can tell, front her support for full access. A lesson for anyone in a state with a ban, especially the other Forgotten States. 

More Good Reads

• As two new polls show general support for abortion access (Axios/Ipsos and Fox), James Bickerton speculates that Republicans may still be relying on the same bad pollsters they did in 2022.

• Politico also noticed that a growing number of women in the public eye are talking about their abortion experiences. They totally stole my idea! Only, their version is a bit better and more in-depth, so take a look.