For both sides, abortion policy two years after Dobbs decision hinges on November

Abortion rights protesters gather at the U.S. Supreme Court in Washington, D.C. (Jane Norman/States Newsroom)

WASHINGTON — Exactly two years after the U.S. Supreme Court overturned the constitutional right to an abortion, the battles rage among advocates and lawmakers over the future of reproductive rights at the state and federal levels.

Anti-abortion groups that have achieved considerable success in deep-red parts of the country are working to sway voters away from approving ballot questions in more than a dozen states this November that could bolster protections for abortion. Several will be decided in states that will have an outsized role in determining control of Congress and the White House.

Supreme Court justices appear split over whether to protect abortion care during emergencies

Abortion opponents are also preparing a game plan to implement if former President Donald Trump regains the Oval Office, a prospect that could lead to sweeping executive actions on abortion access as well as at least one more conservative Supreme Court justice.

Reproductive rights organizations are honing in on the numerous ballot questions as a crucial way to remove decisions from the hands of lawmakers, especially in purple or conservative-leaning states.

Abortion rights supporters are also trying to shore up support for Democrats in key races for the U.S. House and Senate as well as hoping to keep President Joe Biden in office for another four years.

Both sides plan to spend millions to win over voters.

The Center for Reproductive Rights, National Women’s Law Center, American Civil Liberties Union and several other organizations announced Monday they’re putting at least $100 million toward building “a long-term federal strategy to codify the right to abortion, including lobbying efforts, grassroots organizing, public education, and comprehensive communication strategies to mobilize support and enact change.”

“Anti-abortion lawmakers have already banned or severely restricted abortion in 21 states with devastating consequences, and they won’t stop until they can force a nationwide ban on abortion and push care out of reach entirely, even in states that have protected abortion access,” they wrote.

Susan B. Anthony Pro-Life America and PAC Women Speak Out announced they would dedicate $92 million to make contact with at least 10 million voters in the swing states of Arizona, Georgia, Montana, North Carolina, Pennsylvania, Wisconsin, Michigan and Ohio.

SBA President Marjorie Dannenfelser wrote in a statement released Monday that there “is still much work ahead to ensure that every mother and child is supported and protected.”

“Meanwhile we are just one election cycle away from having every gain for life ripped away,” Dannenfelser wrote. “Joe Biden and the Democrats are hell-bent on banning protections for unborn children, spreading fear and lies, and forcing all-trimester abortion any time for any reason — even when babies can feel pain — as national law.”

Democrats have tried repeatedly to enact protections for abortion access, contraception and in vitro fertilization in Congress — both when they had unified control of government following the fall of Roe in 2022 in Dobbs v. Jackson Women’s Health Organization, and during divided government.

None of Democrats’ bills have garnered the support needed to move past the Senate’s 60-vote legislative filibuster.

In addition to calling on Congress to restore the protections that existed under Roe, the Biden administration is attempting to defend abortion and other reproductive rights through executive actions as well as in front of the Supreme Court.

Earlier this year, Solicitor General Elizabeth Prelogar argued two cases on abortion access.

The first case, brought by four anti-abortion medical organizations and four anti-abortion doctors, addressed access to mifepristone, one of two pharmaceuticals used in medication abortions.

The justices unanimously ruled earlier this month that the groups didn’t have standing to bring the case in the first place, though they didn’t address any other aspects of the case.

The second case, yet undecided, has to do with when doctors can provide abortions as emergency medical care under the Emergency Medical Treatment and Active Labor Act or EMTALA.

Assistant to the President and Director of the Gender Policy Council Jennifer Klein said on a call with reporters Monday that there’s not much the Biden administration will be able to do if the justices side with Idaho in the case.

“If the court rejects our current interpretation, our options on emergency medical care are likely to be limited,” Klein said.

U.S. Health and Human Services Secretary Xavier Becerra in July 2022, shortly after the Dobbs ruling came out, released a letter saying that EMTALA protected health care providers who use abortion as stabilizing care.

The letter stated that “if a physician believes that a pregnant patient presenting at an emergency department, including certain labor and delivery departments, is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.”

“And when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted,” Becerra wrote.

The Centers for Medicare & Medicaid Services recently established a new portal that is supposed to make it easier for people to file complaints under EMTALA if they’re denied an emergency abortion.

Klein also said on the call the White House will likely support a bill introduced last week in Congress to repeal sections of the Comstock Act, an 1873 anti-obscenity law, that could be used to bar the mailing of medication abortion during a future GOP administration.

“We support all actions by Democrats in Congress to protect reproductive freedom, including this one,” Klein said, after noting the interagency process for determining whether the Biden administration will support the bill was still ongoing.

The legislation, however, is unlikely to pass in a Congress with a Republican-controlled House and a Democratic majority in the Senate. And divided government appears likely to continue during the next four years, regardless of which presidential candidate wins in November.

Outside of court cases and executive actions, ballot referendums are shaping up to be the more fruitful battleground for those supportive of abortion access, though anti-abortion groups are hoping to make some headway this fall.

Group launches effort to explore ballot initiative restoring abortion access in Idaho

Advocates in Arizona, Arkansas, Colorado, Florida, Iowa, Maine, Maryland, Missouri, Montana, Nebraska, Nevada, Pennsylvania and South Dakota have either secured questions for the November ballot or are in the process of doing so, according to the health news publication KFF.

Residents in California, Kansas, Kentucky, Michigan, Vermont and Ohio have all previously decided to bolster or add protection for abortion access in the two years since the Supreme Court ruling was released.

Polling from the Pew Research Center conducted earlier this year shows that 63% of Americans support abortion access being legal in all or most cases, while 36% say it should be illegal in most or all cases.

The polling shows that Democrats and Republicans hold views in both directions, with 41% of Republicans and 85% of Democrats saying it should be legal in most or all cases, while 57% of Republicans and 14% of Democrats say it should be illegal in most or all cases.

The issue, as well as Biden and Trump’s records on abortion, are likely to be a central part of the first presidential debate on Thursday, just three days after the two-year anniversary of the Dobbs ruling.

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