A growing number of states led by Democratic governors are stockpiling doses of drugs used in medication abortions, amid fears that a court ruling last week could restrict access to the most commonly used method of abortion in the US
The moves are more generally a reflection of the shifts at state level that are resulting after last year’s Dobbs v. Jackson ruling overturned the epochal 1973 Roe v. Wade decision, which established the right to abortion. The shifts often illustrate how Democratic- and Republican-led states are moving further apart with respect to reproductive health.
Massachusetts said Monday it has purchased enough doses of the drug mifepristone — one of two drugs used in combination to end pregnancies — to last for more than a year.
California has secured an emergency stockpile of up to two million pills of misoprostol, the other drug used in abortion medication, Democratic Gov. Gavin Newsom has announced, while Washington’s Democratic Gov. Jay Inslee announced last week that the state purchased 30,000 doses of the generic version of mifepristone, enough to last the state’s residents three years.
The actions come as US District Judge Matthew Kacsmaryk, a federal judge in Texas appointed by former president Donald Trump, overruled decades of scientific approval Friday and put on hold federal approval of mifepristone.
Democratic Gov. Maura Healey said the Kacsmaryk ruling threatens access to the medication even in states supportive of abortion rights like hers, Massachusetts.
“It harms patients, undermines medical expertise, and takes away freedom. It’s an attempt to punish, to shame, to marginalize women. It’s unnecessary,” Healey said.
Interstate travel bans called ‘uncharted territory’
The Biden administration on Monday appealed the Kacsmaryk decision, saying it would thwart the US Food and Drug administration’s scientific judgment and “severely harm women.”
The court ruling has even raised eyebrows among some Republicans in Congress.
“I agree with ignoring it at this point… this thing should just be thrown out, quite frankly,” South Carolina Rep. Nancy Mace said Monday in a CNN interview.
But at the state level, many Republican officials are going even further in restricting previously-held reproductive rights.
Idaho is one of those states, one of 13 in total banning abortion at all stages of pregnancy since last year. Legal limits on abortion-related travel are the focus of a new law, with the Idaho Gov. Brad Little signed a bill that makes it illegal for an adult to help a minor get an abortion without parental consent.
The new “abortion trafficking” law signed on April 5 is the first of its kind in the US. It makes it illegal to either obtain abortion pills for a minor or to help them leave the state for an abortion without their parents’ knowledge and consent. Anyone convicted will face two to five years in prison and could also be sued by the minor’s parent or guardian.
LISTEN | Reproductive law expert Mary Ziegler speaks to CBC’s Front Burner:
Front Burners24:56US abortion pill access threatened by Texas lawsuit
There is no legal precedent giving good guidance about whether states can influence their residents getting abortions outside their borders.
“If red states pass laws saying, ‘We can go after people for X, Y and Z,’ and blue states say, ‘You can’t,’ we’re in uncharted territory,” said Mary Ziegler, a legal historian at the University of California, Davis School of Law.
The scenario is somewhat analogous to the situation before the nation’s top court recognized a right to same-sex marriage in 2015. Some states did not recognize marriages that were legal elsewhere, and all the protections that go with them. The federal ruling has so far resolved those legal conflicts.
Idaho’s neighbors push back on new laws
Andrea Miller, president of the National Institute for Reproductive Health, which supports abortion rights, said the validity of interstate laws is unclear.
“The hope would be this would be seen as an extreme overreach,” she said, “but one would have thought that overturning Roe v. Wade would have been an extreme overreach, too.”
Inslee, from neighboring Washington, in a letter to Little, expressed his objections to a bill he said had “unacceptable consequences.”
“As we did during COVID, we will care for your residents in a manner consistent with their health care needs as determined by trained medical professionals, not politicians,” wrote Inslee.
Texas took a step toward state-border restrictions in a 2021 law that allows civil lawsuits against a person who “aids or abets the performance or inducement of abortion.” The former husband of a Galveston-area woman who terminated a pregnancy last year with medication sued three women who helped her obtain pills, claiming wrongful death. The lawsuit says the woman terminated the pregnancy in July 2022 and the couple divorced in February.
Tennessee’s Republican-dominated legislature last week approved a measure that would prohibit cities and counties from using their funds to help someone obtain an abortion outside the state — including banning coverage of out-of-state abortions under government employee health insurance plans.
In his concurring opinion in last year’s ruling overturning Roe, Supreme Court Justice Brett Kavanaugh contemplated whether states could restrict their residents from getting abortions in other states
“In my view, the answer is no based on the constitutional right to interstate travel,” wrote Kavanaugh.
‘Unconscionable’: Iowa change for victims slammed
Meanwhile, Iowa said last week it has paused its practice of paying for emergency contraception — and in rare cases, abortions — for victims of sexual assault.
Federal regulations and state law require Iowa to pay many of the expenses for sexual assault victims who seek medical help, such as the costs of forensic exams and treatment for sexually transmitted infections. Iowa’s victim compensation fund until recently also paid for Plan B, the so-called morning after pill, as well as other treatments to prevent pregnancy.
“As a part of her top-down, bottom-up audit of victim assistance, Attorney General [Brenna] Bird is carefully evaluating whether this is an appropriate use of public funds,” an Iowa government spokesperson said in a statement.
The Iowa chapter of the American Civil Liberties Union called for a reversal, characterizing the decision as “beyond cruel” and “unconscionable.”
“Being sexually assaulted is traumatic for survivors and the State of Iowa simply must do the right thing by them,” the ACLU said. “This includes helping victims put their lives back together and assisting them on the road to recovery. Instead, this decision penalizes and re-victimizes them.”