With help from Myah Ward
HURDLES, RISKS, DECISIONS — If the Supreme Court overrules Roe v. Wade entirely, as the draft opinion published on Monday by POLITICO suggests, patients who want to terminate a pregnancy but live in a state that outlaws doing so will have three choices: travel outside the state, manage their own abortion at home using FDA-approved pills or less-safe methods, or carry an unwanted pregnancy to term.
To make that decision, they would have to sift through an ever-shifting mountain of state laws ranging from outright bans to full-throated protections, overcome financial and logistical hurdles, and decide how much legal risk they would be willing to shoulder should they choose to undergo the procedure.
The first step for patients who wanted an abortion in a post-Roe paradigm? Figuring out whether they would still allowed to get an abortion in their state.
— 18 states have so-called trigger bans that would kick in if Roe is overturned, pre-Roe bans that haven’t been enforced for decades but that could be resurrected, or both.
— Four states (Georgia, Iowa, Ohio and South Carolina) may revive court-blocked bans on abortions after six weeks of pregnancy, a point at which many people don’t know they’re pregnant. (The Iowa Supreme Court has, however, recognized the right to abortion in the state’s constitution.)
— Florida would ban the procedure after 15 weeks starting in July, though its Supreme Court has also recognized a state constitutional right to abortion
— Three states (Indiana, Kansas and Nebraska) allow the procedure until 22 weeks.
— Seventeen states allow abortions until the point of fetal viability or 24 weeks.
— Virginia allows abortions until the third trimester.
— Four (Colorado, New Jersey, Oregon and Vermont) allow abortions throughout pregnancy.
— New Mexico and Alaska have no laws on their books either limiting or protecting the right to an abortion at any point in a pregnancy, though the Alaska Supreme Court has interpreted the state’s constitution as recognizing a right to “reproductive choice.”
Adding to the confusion, these thresholds aren’t static. Conservative states are already trying to pass more restrictive bans, and laws may continue to change as legislative power shifts between Republicans and Democrats in swing states this fall.
If the patient can’t get an abortion at a clinic in their home state, they have three choices.
Option No. 1: Travel. Traveling out-of-state to obtain an abortion can be costly, from the procedure itself to travel, lodging, childcare and lost wages from missed work. Additional barriers for some vulnerable patients include immigration status and disabilities that make travel more treacherous.
Some abortion-supportive states are looking at using state dollars to help both residents and non-residents obtain abortion care regardless of the Supreme Court’s final decision. Oregon lawmakers established a $15 million Reproductive Health Equity Fund this spring to provide grants to local organizations to help pay for the procedure, and California is considering similar legislation.
States could also require health plans to cover abortion care, use state dollars to cover abortions and abortion-related travel for people on Medicaid, or allow nurse practitioners and physician assistans to perform abortions, as Connecticut and Maryland recently did.
And that’s just the tip of the iceberg. In December, a coalition of abortion advocates in California published a lengthy list of policies to improve access to the procedure in the state, many of which have already been adopted. But other blue states likely to receive a flood of patients if Roe falls are far less prepared.
“If California has come up with 45 recommendations … then other states also have a long way to go,” said Elizabeth Nash, interim associate director of state issues at the Guttmacher Institute.
Welcome to POLITICO Nightly. Read more below on the options available in a possible post-Roe world. Reach out with news, tips and ideas at [email protected]. Or contact tonight’s author at [email protected] and [email protected], or on Twitter at @meganmesserly and @AliceOllstein.
Option No. 2: Order abortion pills by mail or resort to other at-home options. Mail-order pills could help millions of people privately terminate a pregnancy, but many patients don’t know they exist — and could end up in legal jeopardy if they obtain them.
Groups like Plan C, Aid Access and others will help patients obtain abortion pills via telemedicine through a doctor outside of the U.S. and an international pharmacy. Guides also exist to advise patients on how to obtain pills via telemedicine in the U.S. by lying or omitting their location.
Some people unable to access the pills are expected to resort to other unsafe methods to terminate a pregnancy, such as herbal remedies, inserting objects into the body or inflicting trauma on the abdomen. According to the World Health Organization, about 30 people die out of every 100,000 unsafe abortions in developed nations.
Option No. 3: Carry an unwanted pregnancy to term.
Evidence from Texas, which has had a 6-week ban on abortion in place since September, indicates that most women who want an abortion will either obtain pills or travel out of state should the draft Supreme Court ruling become final. But researchers like the University of Michigan’s Lisa Harris are sounding the alarm that states are not ready to handle the likely thousands of additional births that will result from the people unable to access either option.
“We estimate an additional 8,000 to 20,000 births per year just in Michigan alone,” she told POLITICO. “We don’t have the maternity care capacity for that.”
— Fed launches fresh assault on inflation in new era for economy: At a meeting today, the Fed announced a supersized, half-point increase in interest rates and laid out plans to shrink its massive bond holdings starting on June 1, in a bid to put the brakes on the economy and kill the highest inflation since the Reagan administration. But the central bank, which said in a statement that it’s “highly attentive to inflation risks,” won’t stop there. Rates this year could reach their highest levels since before the 2008 Wall Street crash if surging prices continue. That prospect has sent stocks sliding this year and pushed mortgage rates above 5 percent for the first time in a decade.
— Donald Trump Jr. interviews with Jan. 6 select panel: Donald Trump Jr., the son of the former president, interviewed with the Jan. 6 committee on Tuesday, according to two people familiar with the matter. He’s the latest member of the Trump family to provide testimony to the select committee probing the Capitol attack, following the panel’s interview last month with Ivanka Trump. Trump’s son-in-law and former adviser Jared Kushner, as well as Trump Jr.’s fiancée Kimberly Guilfoyle, have also talked to investigators.
— Biden: MAGA is the ‘most extreme political organization’ in recent U.S. history: President Joe Biden escalated his rhetorical attacks on the Republican Party and rebuked former President Donald Trump’s enduring grip on the GOP. “This MAGA crowd is really the most extreme political organization that’s existed in American history, in recent American history,” Biden told reporters at the White House, referring to Trump’s “Make America Great Again” movement.
— Antony Blinken tests positive for Covid: The nation’s chief diplomat is experiencing “mild symptoms,” according to State Department spokesperson Ned Price. Blinken has not seen Biden in person for several days, Price added in a statement.
AFTER ROE? In Tuesday’s newsletter, Nightly’s Myah Ward asked constitutional scholars and legal experts whether the Supreme Court could, as Justice Samuel Alito suggests in his draft opinion, strike down Roe v. Wade without threatening other decisions — especially ones relating to contraception, sex and marriage — that similarly rest on a right to privacy in the Constitution. Here are more answers from the nation’s top legal experts. These responses have been edited.
“While such concerns are understandable, they are overblown.
“Alito’s draft opinion relies on precedent holding that the Due Process Clause of the Fourteenth Amendment only protects substantive rights that are ‘deeply rooted’ in history. It can be argued that these other rights also lack ‘deep’ roots. But Alito also emphasizes that Roe is ‘fundamentally different’ from precedents involving ‘intimate sexual relations, contraception, and marriage,’ because abortion arguably involves destruction of innocent ‘fetal life.’ This crucial difference is the main reason why Roe continues to draw vastly more opposition than these other rulings.
“In addition, decisions protecting same-sex marriage and intimate sexual relations need not rely on the Due Process Clause alone. Laws discriminating against same-sex relationships also violate the Equal Protection Clause because they discriminate on the basis of sex. Just two years ago, the Supreme Court ruled that discrimination against gays and lesbians qualifies as sex discrimination under the Civil Rights Act of 1964, in a decision written by conservative Justice Neil Gorsuch, and joined by Chief Justice John Roberts. Much the same reasoning applies in the constitutional context.
“Furthermore, history shows that major Supreme Court decisions protecting rights only get reversed if there is a powerful movement seeking that outcome, such as the pro-life movement in the case of Roe. By contrast, there is no longer a strong movement seeking abolition of same-sex marriage (conservative politicians rarely advocate abolition anymore, perhaps because same-sex marriage now has overwhelming public support), and even less appetite for banning contraception (which is supported by some 90% of Americans), or bringing back anti-sodomy laws.
“A ruling reversing Roe v. Wade might make judicial recognition of new ‘substantive due process’ rights less likely. But it is unlikely to threaten major existing rights that enjoy far broader support than abortion.” — Ilya Somin,“,”link”:{“target”:”NEW”,”attributes”:[],”url”:”https://twitter.com/IlyaSomin”,”_id”:”00000180-923d-d0a8-aba3-b73d33ce0002″,”_type”:”33ac701a-72c1-316a-a3a5-13918cf384df”},”_id”:”00000180-923d-d0a8-aba3-b73d33ce0003″,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>
“To the extent that the abortion right was established through ‘penumbras’ of the Constitution, which the Court relied upon to establish a right to contraception for married people in Griswold v. Connecticut and later same-sex marriage in Obergefell v. Hodges, it’s easy to believe that the draft opinion’s analysis has set the stage to tear down other precedents built on this legal approach. Justice Alito’s insistence that liberty interests must be ‘deeply rooted in the Nation’s history and traditions’ threatens the right to contraception and same-sex marriage, given that our country has prohibited both, just as it did with abortion. Perhaps most telling, however, is that this decision would mark the first time the Court overturned precedent to eliminate, as opposed to recognize a new, right. In short, all rights recognized under the Due Process Clause are vulnerable.” — Sonia Suter,“,”link”:{“target”:”NEW”,”attributes”:[],”url”:”https://twitter.com/smsuter”,”_id”:”00000180-923d-d0a8-aba3-b73d33ce0004″,”_type”:”33ac701a-72c1-316a-a3a5-13918cf384df”},”_id”:”00000180-923d-d0a8-aba3-b73d33ce0005″,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>
“Justice Alito’s draft opinion draws a distinction between abortion and other Court-recognized rights, such as same-sex marriage and contraception. Justice Alito wrote that abortion ‘destroys . . . the life of an ‘unborn human being.’’ Same-sex marriage and contraception do not. Moreover, as a practical matter, there is no national movement to overrule Obergfell v. Hodges (same-sex marriage) or Griswold v. Connecticut (contraception). Abortion is unique.” — Josh Blackman,“,”link”:{“target”:”NEW”,”attributes”:[],”url”:”https://twitter.com/JoshMBlackman”,”_id”:”00000180-923d-d0a8-aba3-b73d33ce0008″,”_type”:”33ac701a-72c1-316a-a3a5-13918cf384df”},”_id”:”00000180-923d-d0a8-aba3-b73d33ce0009″,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>
“Can it? Yes. Will it? No.
“The Court’s conservatives have always seen not just Roe but Griswold and all its progeny as thoroughly illegitimate. How, though, will they twist legal doctrine henceforth to salvage only the substantive due process cases they like, such as those protecting religious and parental rights?
“Kavanaugh suggested at the Dobbs oral argument ‘the core problem … is … the Court has been forced … to pick sides on the most contentious social debate in American life … in a situation where … this Court should be scrupulously neutral on the question… because … the Constitution doesn’t give us the authority, we should leave it to the states.’
“He would have been more accurate had he made exactly the same point one week later, when the question was not abortion, but state funding of sectarian religious schools; the relevant substantive due process precedents were not decades old like Roe but brand new; and the state was not Mississippi but Maine, whose advocates got nowhere when they argued that the Establishment Clause at the very least permitted, even if it did not require, states to refrain from using tax dollars to support pervasively sectarian religious schools.” — Mary Anne Case,“,”link”:{“target”:”NEW”,”attributes”:[],”url”:”https://twitter.com/Mary_Anne_Case”,”_id”:”00000180-923d-d0a8-aba3-b73d33ce000a”,”_type”:”33ac701a-72c1-316a-a3a5-13918cf384df”},”_id”:”00000180-923d-d0a8-aba3-b73d33ce000b”,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>
“The draft opinion claims to be innocently discarding the right to abortion because the word is not in the Constitution; at argument, the conservative Justices argued that the Constitution should stay ‘neutral’ on abortion. But there is nothing innocent or neutral about the draft opinion. The claim that rights not specifically named in the Constitution deserve no protection is part of a campaign of misdirection led by religious conservatives for more than 50 years. Supporters, like Justice Alito, cherry pick among rights not named in the Constitution, the real goal being to allow laws enforcing regressive beliefs about sex, pregnancy, and gender.” — Priscilla Smith,“,”link”:{“target”:”NEW”,”attributes”:[],”url”:”https://law.yale.edu/priscilla-smith”,”_id”:”00000180-923d-d0a8-aba3-b73d33cf0000″,”_type”:”33ac701a-72c1-316a-a3a5-13918cf384df”},”_id”:”00000180-923d-d0a8-aba3-b73d33cf0001″,”_type”:”02ec1f82-5e56-3b8c-af6e-6fc7c8772266″}”>
KYIV’S NEW NORMAL — If some residents who fled in the early days of the invasion thought they could return to the safety of their homes to resume their lives, the attack on Kyiv that took journalist Vira Hyrych’s life was a stark reminder that even with Russian troops hundreds of miles to the east the threat of missiles remains, Christopher Miller writes.
Russia’s war is still palpable in Kyiv, even as Putin shifts the focus of his military operation to Ukraine’s eastern Donbas region. And there is a militaristic element to nearly every aspect of life now.
The scorched hulks of Russian tanks dot the E-40 highway heading to Kyiv, providing surreal selfie backdrops for returning residents. Many of the checkpoints that marked the city’s intersections have been dismantled, but the cement blocks and anti-tank metal “hedgehogs” still sit aside the road, ready to be moved back into place at a moment’s notice. Government offices, strategic buildings and cultural landmarks are littered with barricades and mounds of sandbags.
Most lights go out after sundown, and there’s a heavy troop presence on the streets after curfew. On Tuesday evening, the air raid siren sounded across Kyiv’s city center, sending a shopkeeper on a smoke break and two friends into a nearby basement. There were no reports of missile strikes in the area; local authorities reported that air defense systems intercepted a missile aimed at Kyiv.
CRYPTO’S BIG BUCKEYE NIGHT — The crypto industry is a big winner in this week’s Ohio Senate primary, Sam Sutton writes.
J.D. Vance, the Republican nominee, and Rep. Tim Ryan, the Democratic nominee, emerged victorious Tuesday after they and their opponents took pains to present themselves as the type of lawmaker who’d prefer a lighter touch when it comes to digital asset regulation.
It bodes well for cryptocurrency startups that are increasingly flexing their muscles around Washington and the campaign trail. Policymakers from both sides of the aisle increasingly see digital currency firms and users as an important constituency.
“Both Ohio primaries gave us a hard time in terms of ironing out our endorsement strategy and process because of the fact that there are so many kinds of crypto-friendly voices,” said Tyler Whirty, founder of the pro-crypto political action committee HODLpac, which endorsed Ryan and Republican state Treasurer Josh Mandel. “It’s a good position to be in.”
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George is Digismak’s reported cum editor with 13 years of experience in Journalism