Supreme Court vs the United States: Abortion Revisited

If the massive protests and the results of the midterm “red ripple” did not tell you how American women felt about the Supreme Court’s reversal of their own precedent (Roe vs Wade) in last year’s Dobbs vs Jackson Women’s Health Organization, poll results make that statement very clear. Reflective of a 26% differential between Republicans and Democrats on whether religious influence in politics is a good thing, a Gallup Poll, announced on February 2nd, also tells us that only 26% of those polled are in accord with the Dobbs decision and the state of abortion rights in this country. The number approximates the number of self-identified American evangelicals.

We know that with GOP House majority, there is no real likelihood of a Congressional bill to make the prior Roe standard (or some semblance thereof) into a federal statute. As candidate Donald Trump himself has pointed out, the red state obsession with banning or limited abortion lost House seats and kept a Democratic majority in the Senate was materially responsible for that result. He obviously did not reference sentiments over his support for many losing candidates. Even the noise of rightwing voices in Congress trying to pass a national abortion ban is well drowned out by reality. The Biden administration, with full support of elected Democrats, has used its power to open as many channels as it can to women in red states seeking what would otherwise be illegal abortions.

While some of these red state efforts – such as attempting to prosecute individuals, institutions and even governmental agencies in abortion-permissive blue states for performing abortions on red state residents and banning travel from red to blue states to get an abortion – seem violative of the Constitution on their face (although with a rogue Supreme Court, one cannot be certain) – presidential executive orders, federal agency jurisdiction (e.g., the military, the Food and Drug Administration) and Department of Justice advisories, guidelines and interpretations have been crafted to open doors to red state women seeking to end unwanted pregnancies. But such federal efforts have quickly been countered by red states’ continuing to seek to impose a distinct minority view on anyone they can.

Some Republicans standing for higher office in states where anti-abortion sentiments are “light,” have often sidestepped being overtly supportive of abortion bans or simply iterated the Supreme Court’s deference to state abortion prerogatives. But the battlelines between Biden efforts to open abortion doors and red states’ trying to slam them shut are clearly escalating. As trial courts in different cities have created inconsistent decisions over the legality (often based on state or federal constitutionality) of federal administrative rulings/guidelines vs state statutes, with concomitant results beginning to reach appellate levels, its does seem as if the Supreme Court will soon have additional “abortion” refinements to review.

One of the hottest and most contentious issues surrounds the use of the US Postal Service to deliver “abortion pills” from red to blue states or for local but federally certified pharmacies to fill local red state orders for such medications, allowed under a federal ruling. “Republican attorneys general from 20 states wrote letters to executives at CVS and Walgreens warning the pharmacy chains against using the mail to dispense abortion pills in their states, in a shot against a new Biden administration policy.

“The letters rebuke recent guidance from the Justice Department – issued in an opinion from the DOJ’s Office of Legal Counsel – that concluded the federal law did not prohibit the mailing of abortion pills. The release of the Justice Department opinion came ahead of the rollout of new rules from the Food and Drug Administration allowing certified pharmacies to dispense medication abortion with a prescription, including by mail order.

“‘We reject the Biden administration’s bizarre interpretation, and we expect courts will as well,’ the GOP attorneys general wrote, while suggesting that they may bring civil litigation to challenge the claim that federal law allows the mailing of abortion pills. CNN.com, February 1st. Clearly, women facing this toxic exchange face complicated choices that have rewritten pregnancy termination practices.

“Medication abortion – in which pregnancies are terminated with a two-pill regimen – now makes up a majority of the abortions obtained in the United States. Several states restrict medication abortion, some with blanket bans on abortion and others with specific limits on access to abortion pills. CVS and Walgreens have said that they intend to comply with federal and state law with their plans to dispense mifepristone, one of the two drugs used in medication abortion. (Pharmacies were previously allowed to distribute the second drug, misoprostol.)

“Asked about the new letter from the attorneys general, a spokesperson for Walgreens said it is not dispensing mifepristone at this time… ‘We intend to become a certified pharmacy under the program, however we fully understand that we may not be able to dispense Mifepristone in all locations if we are certified under the program,’ the spokesperson Fraser Engerman said in an email.” CNN.com. Not to mention the potential of state criminal sanctions as well.

Some blue states have opted to follow California’s model, where state law protects any woman traveling to California from any extrinsic red state legal effort to prosecute or limit that woman’s rights. These are “free choice zones,” destined to be adjudicated across the land. It does seem odd to force women into a religiously mandated practice to surrender control of their bodies… through legislation passed in legislatures overwhelmingly dominated by older White men.

I’m Peter Dekom, and I suspect these battlelines will only grow in scope and passion, a boon to Democrats and an albatross around the neck of the Republican Party.