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America’s Second Year Post-Roe Will Be Even More Contentious

11 minute read

By the time the U.S. Supreme Court voted to overturn Roe v. Wade and eliminated the federally protected right to abortion one year ago, public-health and legal experts were armed to the teeth with predictions about what the complicated fights over reproductive care would look like in all 50 states. Experts warned that key steps of the anti-abortion movement’s path to a total abortion ban could include attempts to establish fetal personhood laws, criminalize pregnant women facing complications and miscarriages, and access citizens’ private data to enforce restrictions.

Since last June, 14 U.S. states have enacted near-complete abortion bans, and nearly half a dozen more restrict the procedure to a narrow gestational window. Other, less straightforward measures such as strict clinic regulations and an interstate travel ban for minors in Idaho, have similarly limited the accessibility of care. Decades of planning and anticipation meant that the anti-abortion movement was quick to act when Roe fell, and in the last year, they’ve made rapid progress through the strategic playbook. “There were more than 360 anti-abortion bills filed across over 47 states,” says Alexis McGill Johnson, President and CEO of Planned Parenthood. “They are pulling every single lever and trying to identify any way to restrict access.”

For anti-abortion organizations and politicians, if the first year post-Roe was about pulling all possible levers, the second will be about focusing on those that they’ve found worked best. Here are some of the key strategies the conservative movement will use to try and restrict reproductive rights in the coming year:

Electoral maneuvering

There’s less doubt than ever about where Americans stand when it comes to reproductive rights. According to a June 14 Gallup poll, 69% of Americans believe abortion should be legal throughout the first trimester, while 34% support access under any circumstances. Meanwhile, just 13% of Americans want abortion illegal in all circumstances. Pro-abortion access ballot measures did well with voters in the 2022 midterm elections, with Michigan, California, and Vermont enshrining reproductive rights in their state constitutions. In Kansas, Montana, and Kentucky, voters turned out to defeat measures that would have further restricted access to care. In light of these numbers, continuing to restrict abortion will require what McGill Johnson describes as “a tyranny of the minority.”

“Many of the groups that are active on the frontlines of the anti-abortion movement are also supporting broad sweeping efforts to undermine the ability of people to vote,” says Skye Perryman, president and CEO of Democracy Forward. For instance, explains Joanne Rosen, a legal scholar and associate lecturer in health policy at the Johns Hopkins Bloomberg School of Public Health, some conservative states, like Mississippi and North Dakota, responded to the midterms by handicapping the procedures and protections that made it possible for such ballot measures to reach poll booths in the first place. Others, such as Ohio, are taking a different tack: increasing the percentage of voters that must support an initiative in order for it to pass. In May—just months after the right to abortion was enshrined in neighboring Michigan with a 56% majority—an amendment was proposed in Ohio’s state legislature that would increase the threshold for constitutional amendments from approval by 50% of voters to 60%. At least four other states are considering similar constitutional changes.

Read More: What Abortion Laws Look Like in the U.S. One Year After the Fall of Roe v. Wade

These sorts of tactics will be a priority in the coming year because “year two introduces an element that wasn’t really present in the immediate aftermath of Dobbs: the run-up to the presidential election in 2024,” says Rosen. She and others believe that the anti-abortion movement understands that the majority of Americans support abortion rights, and fear that opportunities to sound off directly on abortion will continue to increase liberal voter turnout. By making it impossible for these abortion protections to appear on ballots before the 2024 race, Republicans can minimize the chances of their candidate losing to votes cast by those motivated by protecting abortion rights in their state.

Expect to also see the anti-abortion movement more often attempting to skip voters and take issues directly to judges. A lawsuit filed in November by the anti-abortion group Alliance for Hippocratic Medicine in an attempt to revoke the U.S. Food and Drug Administration’s approval of the abortion medication mifepristone is a key example, says Rosen. The ongoing case was brought directly to Trump appointee Judge Matthew Kacsmaryk in his Amarillo, Texas jurisdiction. There will likely be similarly strategic case filings before conservative circuit judges—especially in areas where state lawmakers are less likely to be receptive to anti-abortion legislative measures.

Unorthodox legal strategies

The anti-abortion movement has launched several innovative legal attacks in the last year that it’s been “hard to anticipate,” says McGill Johnson. “Part of their strategy is to defy the norms that were intended in a law, and weaponize laws for their aims.”

Consider, for example, a series of three petitions submitted to the FDA in 2022 and 2023 by the anti-abortion group Students for Life of America (SFLA) that attempt to make it harder to get medication abortion, the most common abortion method in the U.S., currently most often done as a self-managed at-home procedure. SFLA has been claiming medication abortions violate U.S. wastewater regulations established by the longstanding Environmental Species Act. “They’re arguing in part that any physicians who prescribe mifepristone must be ordered by the FDA to dispose of fetal remains as medical waste, which would essentially make it impossible to prescribe misoprostol because people who use it would have to wait in a medical clinic,” says Rosen.

SFLA’s first two petitions were denied by the FDA; the third is awaiting a response.

Anti-abortion activists have also been looking to halt the mail delivery of abortion medications under an 1873 law known as the Comstock Act, which prohibits the mailing of any items deemed lewd or obscene, explicitly including those used for abortion. The law was reinterpreted under Roe v. Wade to cover only supplies for “unlawful” abortion, and, for the most part, the law hasn’t been applied for decades. However, thanks to its vague and broad wording, could affect an overwhelming roster of critical medical supplies and everyday items if enforced. In anticipation of related challenges, Democrats in states such as Wisconsin are working on bills that would protect the ability to receive and distribute contraception.

“I don’t think any of these unusual causes of action should be underestimated,” says Rosen. In early 2022, she says, the idea of a lawsuit challenging the 2000 approval of mifepristone, a medication “that has been proven safe and effective in hundreds of studies” would have also sounded “outlandish.”

Expanding conservative support networks

In socially conservative parts of the U.S., pregnant people seeking health care, counseling, or social services often end up in “crisis pregnancy centers.” These facilities, operated primarily by Christian groups, typically work to prevent abortion rather than provide care. Already, they outnumber clinics that provide abortions three to one in the U.S.

On their websites, more than a third of crisis pregnancy centers neglect to explicitly mention that they do not provide abortion care. “People are walking into these places, thinking that they’re receiving medical care and that they’re gonna get comprehensive, evidence-based information,” says Dr. Kristin Lyerly, an ob-gyn who lives in Green Bay, Wis. and has been providing legal abortions across state lines in Minnesota. “That false and misleading information is manipulating them emotionally, and it’s delaying their access to the care that they truly need.”

Experts watching this space expect to see a further expansion of crisis pregnancy centers, after they clocked numerous victories in 2022 and 2023. According to the Guttmacher Institute, a policy organization focused on reproductive rights, multiple states have increased public funding for crisis pregnancy centers since June 2022, including at least $1 million of additional direct allocation in Arkansas, Kansas, North Dakota, and Ohio.

A late May brief from two leading anti-abortion organizations, the Charlotte Lozier Institute and the Susan B. Anthony Pro-Life America Education Fund, shows how such groups are thinking about the future of crisis pregnancy centers. Among its goals is fto “establish and extend a network of maternity homes across the nation that provide robust services for up to two years after childbirth.” These facilities, which essentially function as live-in crisis pregnancy centers for pregnant and postpartum people, provide private and unregulated support that can vary greatly and can come at the price of close surveillance and intense Christian “indoctrination,” says Emma Roth, a staff attorney at Pregnancy Justice.

When asked about the surveillance and religious indoctrination practices, Andrea Trudden, vice president of communications & marketing for Heartbeat International, the largest network of crisis pregnancy centers, responded in an email to TIME that “Maternity Homes have been expanding over the past few years as the need for maternity housing has grown in various areas that are experiencing an increase in client homelessness. Each Maternity Home is its own organization and includes specific parameters women agree to before staying for the health and safety of all residents in the home.”

Criminalization of pregnancy and reproductive care

Currently, 38 states allow prosecutors to charge pregnant women with a variety of crimes under fetal protection laws. Such laws, especially post-Dobbs, have greatly expanded the range of possible crimes during pregnancy. In Georgia, for example, citizens are now able to claim “unborn dependents” on their taxes, leading advocates to worry that this classification could be used to argue for fetal personhood, which would allow standard felony charges to be applied to pregnant women in normal circumstances. “In the last 10 years, in particular, there have been more pregnancy criminalization cases than ever,” says Roth, and the rate at which they occur is only increasing now that 50 states each have their own different sets of laws.

States such as Texas, Kentucky, South Carolina, and Arkansas have proposed legislation that would open the door to homicide charges for people who obtain abortions—laws that could also lead to full-blown criminal investigations of nearly any miscarriage. Measures like Texas’s Senate Bill 8, which allows citizens to report violations of anti-abortion statutes, could also land in about a dozen more states and increase cases of criminalization as well.

Experts are also on the lookout for new attempts to criminally prosecute providers of reproductive care. In anticipation, “there’s a chilling effect that’s happened among providers,” says McGill Johnson. “They are consulting their lawyers or their hospital insurance risk managers in order to make decisions about whether to treat things like miscarriage.” These fears have been validated just this month with the news that Indiana had launched an investigation into Indianapolis ob-gyn Dr. Caitlin Bernard’s decision to provide abortion care to a 10-year-old rape victim. Lyerly believes that case won’t be the only attempt to handicap medical decision-making, and she’s fearful of the effect that continued legal threats could have on providers’ ability to appropriately prioritize patients’ health. “We spent a lot of time as a medical community trying to define things so that we could continue to practice without handcuffing ourselves to legal terms—so we could still be nimble as we’re individualizing our care for our patients.”

Pro-choice advocates expect to have to use a similar nimbleness to face down the coming year, in which, as Rosen puts it, “nothing is off the table.” At the same time, “we also are thinking a lot about what the proactive work needs to be,” says McGill Johnson. “We need to ensure that we have stronger shield laws to protect providers from the lawsuits and prosecutions that we’re going to see from even out-of-state actors. We want to make sure that we are repealing the existing abortion bans. There will still be work to codify abortion rights into state law and state constitutions. And I do think there’s a lot of education that needs to happen.”

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