Editor’s note: This report is part of State Newsroom’s special series on abortion access one year after the U.S. Supreme Court invalidated the constitutional right to abortion.
WASHINGTON — A year after the U.S. Supreme Court struck down the constitutional right to abortion, the courts, not a divided Congress, lead the way on reproductive rights decisions that will impact the entire nation.
Congress has not passed federal legislation protecting reproductive rights or restricting abortion in the year since the Women’s Health Organization’s Dobbs v. Jackson ruling overturned the landmark Roe v. Wade decision. And that’s not likely to change anytime soon.
Even though many Republicans canvassed for the U.S. House of Representatives on promises to enact a nationwide abortion ban, the chamber has failed to introduce such legislation six months after the GOP took control.
And in the US Senate, Democrats who control that chamber lack the 60 votes needed to overcome a legislative filibuster, leading to a stalemate on abortion legislation, as well as securing access to birth control.
It is much more likely that the next nationwide abortion policy will be written by the same U.S. Supreme Court that a year ago said that “the power to regulate abortion is returned to the people and their elected representatives.” This court is dominated 6-3 by conservative judges.
“To the extent that Congress continues to be inept at legislating in many respects, the matter rests with the courts,” said Suzanne Bell, an assistant professor in the Department of Population, Family and Reproductive Health at the Johns Hopkins Bloomberg School of Public Health.
The gridlock in Congress contrasts sharply with fresh regulations from dozens of state legislatureswhere over the past year, lawmakers have moved to either limit access to abortion or strengthen it. However, many of these proposals made their way into state court systems, and some went to the state Supreme Court.
Abortion pill box
Nine U.S. Supreme Court justices are expected to take up a case slow this year or next spring over access to the abortion pill known as mifepristone or its brand Mifeprex, after a federal district court in New Orleans ruled on an appeal. This will likely be the most high-profile reproductive rights court case since Dobbs went to the Supreme Court.
The U.S. Food and Drug Administration approved mifepristone in 2000 as part of a two-drug regimen that is now used until the 10th week of pregnancy.
Alliance Defending Freedom, a legal anti-abortion organization, filed a lawsuit in November seeking to have the license invalidated nationwide.
U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk, an appointee of former President Donald Trump, found their arguments persuasive and maintained FDA approval in early April.
The U.S. Department of Justice appealed the case to the 5th Circuit Court, which heard oral arguments in May and he could rule every day.
The ruling will likely go to the U.S. Supreme Court later.
Bell said in an interview that it’s strange that the case is making it to the justice system, calling it “disheartening,” although she expects such cases could become more common.
“It would be a strange overreach of the courts and even Congress for Congress to be involved in a mifepristone case,” she said.
Bell also cautioned that as politicians increasingly focus on winning or losing debates – whether in the courts or the legislature – they often lose sight of the impact of their decisions and the impact of changes in access on the real lives of Americans, as well as public health.
“We are embroiled in some political, legislative and litigation issues regarding this issue. But in the meantime, it has a real impact on the people and families giving birth,” Bell said.
Account presentation cascade
In the year since Dobbs, Republicans and Democrats in Congress have introduced dozens of bills that either expand reproductive rights or restrict access to abortion, though none of them are likely to become law soon.
Republicans have introduced more than 80 bills that relate to abortion in some way, including a proposal from Missouri Rep. Ann Wagner that would require health care providers to provide the same level of care “to protect the life and health of the child” in the case of abortion. was supposed to result in the birth of a live baby.
Republicans in the House of Representatives passed the law in Januaryalthough it is highly unlikely it will pass the Democrat-controlled Senate. However, Republicans in the House of Representatives decided not to submit any of the bills proposing a nationwide abortion ban.
Democrats have reintroduced legislation that would provide nationwide protections for abortion access, although it failed to receive a vote in the Senate this Congress and is unlikely to provide the votes needed for a legislative filibuster.
The so-called Women’s Health Protection Act would prohibit local, state or federal governments from restricting access to abortion before the woman becomes viable, approximately between 22 and 24 weeks of pregnancy. Once this threshold was exceeded, governments could not impose restrictions where “in the good faith of the treating physician of the health care provider, the continuation of the pregnancy would pose a threat to the life or health of the pregnant patient.”
Issuing bills
The nature of a divided Congress has led some members to highlight the annual government funding process as one way to change nationwide abortion policy.
Attempts to do so in the past have failed to shake up the status quo, but House Republicans are trying to prohibit the departments of Defense and Veterans Affairs from performing abortions — even in cases of rape, incest, or the life of the pregnant patient.
The House GOP also added language to the FDA’s annual funding bill that would prohibit it from allowing pharmacies, including mail-order pharmacies, to submit applications to dispense abortion drugs in the same way they dispense other prescriptions. The FDA proposed this change in January, and some pharmacy chains have started the process.
Susan B. Anthony Pro-Life America praised House appropriators for adding “strong language to the farm appropriations bill that protects women and girls from the dangers of chemical abortion.”
By barring women service members and veterans from accessing abortions in cases of rape, incest or life, SBA Pro-Life America thanked Republicans on the committee “for supporting the long-standing law and the unborn by banning funding for Biden’s illegitimate rule” that would force taxpayers to pay for abortions at hospitals for veterans.”
Since the 1970s, federal spending laws have prohibited the exploit of taxpayer dollars to pay for abortions, except for rape, incest and the patient’s life. This provision is generally called the Hyde Amendment and applies to dozens of federal programs, including federal employee health care, Medicaid, Medicare and foreign aid.
The decision by House Republicans is a change from September 2022, when said many Republicans on spending panels they did not envisage changing the way the regulations were applied.
While the House GOP proposals are unlikely to become law, they could disrupt the annual government funding process, increasing the risk of a partial government shutdown later this year.
When Democrats controlled the U.S. House of Representatives during the first two years of the Biden administration, they removed language from all their bills limiting when the federal government could pay for abortions.
But under pressure from Republicans, a restriction was again added to the final bills, requiring the federal government to only pay for abortions under three exceptions.
“Don’t bury your head in the sand”
Autumn Katz, managing senior counsel for U.S. litigation at the Center for Reproductive Rights, said that while Congress may not be able to pass legislation protecting reproductive rights at this time, hearings, bill introductions and debate are “important work.”
“There is an issue of the filibuster in the Senate, and a lot has changed in the House, so I think it is difficult to introduce abortion protection now,” Katz said. “But I think it’s important to emphasize that Congress is not burying its head in the sand.”
Katz said she expects the cases to continue in federal courts, especially given that some states are seeking to limit when and how residents travel to access reproductive health care.
“The idea that this has already been settled and will be resolved on a state-by-state basis is really quite a cynical view because there are so many questions,” Katz said. “That’s why I think there will continue to be litigation, confusion and chaos.”
Access to medication abortion is one area of ongoing confusion amid a patchwork of state laws, an ongoing federal court case and the FDA’s announcement in January that pharmacies can apply to dispense mifepristone like other prescription drugs.
Over 50 Democrats in Congress wrote to earlier this month, five major pharmacy chains, encouraging them to apply to dispense mifepristone like other prescription drugs.
“We are concerned that your companies have not yet announced plans to seek certification to dispense mifepristone consistent with federal guidelines and regulations, as this could help increase access to needed medicines,” they wrote. “Your continued silence is unacceptable because it goes against your publicly proclaimed values supporting equal access to health care and gender equality.”
A possible U.S. Supreme Court opinion on access to mifepristone could settle the issue if the justices decide to overturn the drug’s 2000 approval or return to prescribing and dosing instructions that were in place before 2016.
