Supreme Court Says, “Farewell, Roe”  — But Abortion is Still the Issue 

In the months leading up to the ill-fated Dobbs v. Jackson Women’s Health Organization ruling, abortion rights supporters often cited the U.S. Supreme Court’s decision in Roe v. Wade securing the right to abortion under the due process provision of the 14th Amendment’s Equal Protection Clause. There was the hope that the nearly 50 years of precedent would surely preserve abortion rights. So it was a shock when the conservative majority on the Court threw out that precedent – even though many of those same justices had vowed to protect precedent when being considered for confirmation by the U.S. Senate — and declared abortion unconstitutional. The heart-wrenching consequences of Dobbs v. Jackson Women’s Health Organization go beyond restricting the right to abortion to creating chaos in the states as well as possibly leading to the loss of other due process rights. There is now a flurry of new laws, a succession of lawsuits to protect access in various states, and many tragic personal stories. Dobbs has made abortion a critical topic of the 2022 midterm campaigns. 

Abortion on the Ballot 

In the first national election since the overturning of Roe, abortion is clearly a central issue for both Democratic and Republican governors running for office.  Democratic Gov. Michell Lujan Grisham in New Mexico is being challenged by Mark Ronchetti (R), a state with a solid constitutional protection of abortion rights. Ronchetti claims to be “strongly pro-life,” pushing political ad campaigns that double down on his plan to end late-term abortion, an inflammatory non-issue.  

Nevada’s Republican gubernatorial candidate and county sheriff Joe Lombardo sends mixed messages about his stance on abortion, voicing his opposition to a national abortion ban that might be passed by Congress. Lombardo is simultaneously sponsoring a campaign event for Nevada Right to Life, which firmly opposes abortion at all stages of pregnancy. Michigan Republican Tudor Dixon believes that there should be a complete abortion ban, despite an abortion-related ballot measure to amend the state constitution with the fundamental right to reproductive freedom.  

In Pennsylvania, Democratic candidate for governor, Josh Shapiro who is a supporter of abortion rights, is facing an opponent, Doug Mastriano, who wants to criminally prosecute women who have abortions. Mastriano is a 2020 election denier and a big promoter of QAnon and various discredited conspiracy theories. New York Republican gubernatorial candidate, Lee Zeldin, in a close race with Democratic Gov. Kathy Hochul, an abortion rights supporter, says he won’t act to change New York’s abortion rights laws, even though he is 100 percent pro-life.  

New Hampshire Republican Senate candidate Don Bolduc used misogynistic rhetoric about abortion rights while on the campaign trail. Bolduc stated, “That is the best way I think, as a man, that women get the best voice,” asserting that abortion decisions are best left to the “gentlemen” who represent the interests of millions of female constituents. Bolduc reportedly supported a 15-week ban but later disavowed it. The GOP candidate for Nevada state Attorney General, Sigal Chattah, has a well-documented history of a radical, anti-abortion stance, equating abortion as healthcare to murder as population control. Chattah backs the implementation of a six-week so-called heartbeat ban – which is essentially a full ban since most women do not know if they are pregnant at six weeks following their last menstrual period. In a 1990 referendum, two-thirds of Nevadans approved a ballot measure protecting abortion within 24 weeks of pregnancy and strong sentiment likely remains.  

In many of the races, Republican statewide candidates’ opposition to abortion rights is at odds with a majority of the public which supports abortion rights. This is true for many of the ‘Red’ states which are gerrymandered to preserve conservative Republican control. 

The GOP’s Long-Running Anti-Abortion Campaign 

In early May, Republican Minority Leader Mitch McConnell (R-KY) stated that in light of the leaked Supreme Court draft opinion that if Republicans took control of Congress it would be possible to pass a national abortion ban. But as a public uproar ensued following the Dobbs decision and ratings for some of the Republican candidates plummeted, the minority leader backpedaled, saying that the GOP preferred abortion be dealt with at the state level.  

In September, Sen. Lindsey Graham (R-SC) blindsided his colleagues by introducing a 15-week federal abortion ban, S. 61, the Pain-Capable Unborn Child Protection Act. Many of his fellow Republicans in tough re-election campaigns probably wished that Graham would have waited with this announcement until after the mid-terms. 

Nonetheless, it is no secret that Republican candidates are heavily supported by wealthy funders who have spent many millions to elect abortion rights opponents to Congress and state legislatures. It has been a 40-plus year anti-abortion crusade by conservative religious organizations and their deep-pocketed supporters that has radicalized both the Republican party and make-up of the Supreme Court. Many GOP lawmakers have received substantial financial backing from anti-abortion donors and super PACs, accumulating as much as $184 million to promote conservative candidates in the 2016 and 2018 elections to push restrictive legislation through Congress. This year, campaign contribution totals are likely far greater. Unlimited millions in ‘dark money’ for Republican candidates may give them the edge on November 8th, unfortunately. 

Democrats to the Rescue! 

Shortly after the Dobbs decision was announced, President Biden announced several initiatives to safeguard reproductive healthcare accessibility. On July 8, he signed an executive order to protect access to reproductive healthcare services and to preserve the privacy and safety of reproductive healthcare clinics, providers, and patients. Amid the rollout of alarming state restrictive abortion laws over the summer, on August 3rd President Biden signed a second executive order to advance the accessibility to reproductive healthcare services. Biden’s directive to the Department of Health and Human Services (HHS) orders efforts to increase access to emergency reproductive healthcare, contraception, medication abortion, family planning, sexual health education, and legal aid.  

On May 3, Sen. Richard Blumenthal (D-CT) introduced S. 4132, the Women’s Health Protection Act of 2022. The bill prohibits governmental restrictions that impede upon the provision of and access to abortion services and reinforces that the government may not prohibit abortion services before or after fetal viability when the life or health of the pregnant person is at-risk.  

On May 11, the Biden administration released a statement of administrative policy in strong support of the Senate passage of S. 4132, reiterating the President’s commitment to and sense of urgency for protecting reproductive healthcare services following the Dobbs decision. The Women’s Health Protection Act passed the House in 2021, but the bill faced strong opposition from Senate Republicans. It failed a motion to proceed to a vote on the merits by two votes! 

 Should the outcome of the midterm elections result in Democrats retaining control of the House and gaining two more seats in the Senate to provide a clear majority to overcome the filibuster, the Women’s Health Protection Act has a good chance of passage in 2023. 

On June 3, Sen. Kirsten E. Gillibrand (D-NY) introduced S. 4354, the Military Access to Reproductive Care and Health for Military Servicemembers Act (MARCH). With support from 80 Democratic lawmakers, the bill aims to secure abortion services for servicewomen stationed in states that enforce or are expected to ban anti-abortion laws following the Dobbs decision.  Women in the armed forces are already disproportionately affected by lacking reproductive healthcare services and prenatal care, with a growing number of abortion regulations threatening their health and safety exponentially in states where military servicemembers are stationed. Approximately 539, 228 women veterans, 28.1% of all women veterans, live in states that restrict or ban abortion. Most of the states with strict abortion laws, like Texas, Florida, and Georgia, are home to some of the largest military bases in the country. With varying abortion laws state-to-state, the reproductive rights of female troops can be night and day between bordering states. The Military Access to Reproductive Care and Health for Military Servicemembers Act recognizes the extensive hurdles for women in the armed forces to seek abortion care out-of-state, hitting detrimental financial and health obstacles along the way.  

On June 16, Rep. Sara Jacobs (D-CA) introduced H.R. 811, the My Body, My Data Act. This bicameral bill will protect women’s digital privacy for reproductive and sexual health. In light of the Dobbs decision and subsequent rollout of state abortion bans, many women feared that anti-abortion actors would weaponize the personal and private digital data concerning reproductive healthcare to target abortion providers and patients. Following Dobbs, pro-choice allies and online activists warned women to delete menstrual period and fertility tracking applications from their digital devices as new trigger laws went into effect. In garnering support from100 members of the House of Representatives and 13 senators, the My Body, My Data Act limits the reproductive and sexual health data that can be collected by smartphones and its applications and protects the personal data collected by these entities that are not covered under HIPPA.   

On September 29, Rep. Carolyn Maloney (D-NY) held a press conference alongside allies in Congress and abortion rights advocates to address the impact of state abortion restrictions and the proposed national abortion ban. In October, Rep. Maloney introduced H.R. 9247, the Abortion Care Awareness Act, to enhance national public health, education, and awareness for reproductive healthcare.  It instructs the Department of Health and Human Services to carry out a federal public health, education, awareness, and outreach campaign to enhance access to abortion services and promote accurate information about where and how to obtain those services. The legislation is intended to counteract widespread misinformation and disinformation about abortion that has proliferated following the Dobbs decision. 

On June 3, Sen. Kirsten E. Gillibrand (D-NY) introduced S. 4354, the Military Access to Reproductive Care and Health for Military Servicemembers Act (MARCH). With support from 80 Democratic lawmakers, the bill aims to secure abortion services for servicewomen stationed in states that enforce or are expected to ban anti-abortion laws following the Dobbs decision.  Women in the armed forces are already disproportionately affected by lacking reproductive healthcare services and prenatal care, with a growing number of abortion regulations threatening their health and safety exponentially in states where military servicemembers are stationed. Approximately 539, 228 women veterans, 28.1% of all women veterans, live in states that restrict or ban abortion. Most of the states with strict abortion laws, like Texas, Florida, and Georgia, are home to some of the largest military bases in the country. With varying abortion laws state-to-state, the reproductive rights of female troops can be night and day between bordering states. The Military Access to Reproductive Care and Health for Military Servicemembers Act recognizes the extensive hurdles for women in the armed forces to seek abortion care out-of-state, hitting detrimental financial and health obstacles along the way.  

On September 15, Rep. Sheila Jackson Lee (D-TX) introduced H.R.8838, the Safeguard Healthcare Industry Employees from Litigation and Distress (SHIELD) Act, to protect privacy rights, regulate public funding, and restrict the reach of law enforcement in reproductive healthcare services.  

Rep. Jackie Speier (D-CA) also introduced a bill in September. H.R. 8867, the Saving Abortion Facilities from Extremists for Patients (SAFE) Act, establishes a cause of action for reproductive healthcare services and protects healthcare facilities and providers from physical obstruction, violence, or injury from anti-abortion protestors.  

On October 21, Rep. Sara Jacobs (D-CA) and Rep. Joaquin Castro (D-TX), along with 67 members of Congress, delivered a letter to the State Department, urging review of the recent statewide abortion restrictions as potential violations of U.S. international human rights committees and treaty obligations. 

Elizabeth Safaryn, NOW Government Relations Intern

Resource: Brennen Center for Justice: New Money and Messages in Judicial Elections This Year

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