A Year Post-Dobbs, Major Shifts in Abortion Access and Politics
Plus: Court rules against judge who threw child stars in jail during parents' custody dispute, inside the FTC's attempt to stop Microsoft from acquiring Call of Duty, and more...
A year ago Saturday, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade and Planned Parenthood v. Casey and upending the legal scheme America relied on to govern reproductive rights for nearly 50 years. The Dobbs ruling has had a profound impact on abortion laws and access over the past year, with effects also reaching women's health care and U.S. politics more broadly.
"For women and their families, abortion access is now largely a function of financial and geographic circumstances," notes NBC News. As states rushed to pass new abortion bans post-Dobbs, or put old but unenforced ones into effect, women in many states lost access to abortion entirely or after just a few weeks of pregnancy:
Abortion is outlawed — with few exceptions — in 13 states, with care also unavailable in Wisconsin, where there are no official abortion providers. Seven states restrict abortions based on the number of weeks a woman has been pregnant, with some bans coming as early as six weeks — before many women know they are pregnant. More than 28 million women of reproductive age live in states where abortion is banned, unavailable or restricted, with 2 million more in the two states where abortion is available but restrictions are pending….
Bans and restrictions mean many women who do seek abortions have to travel long distances. Before Dobbs, less than 15% of reproductive-age women lived more than one hour's drive from the nearest abortion facility, according to a study from researchers affiliated with Boston University, which compared population distribution with the locations of abortion clinics nationwide. By September — just three months after the Dobbs decision — that figure had more than doubled, to 33%.
According to the Society of Family Planning, these restrictions led to more than 80,000 people encountering "disruptions in accessing abortion care" between July 2022 and March 2023 and, as a result, "there were 25,640 cumulative fewer abortions" during this period.
The Associated Press has a good interactive map showing the extent of abortion restrictions in different states.
It shows that abortion is severely restricted at all stages of pregnancy in Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin. In Georgia, it's largely banned after fetal cardiac activity can be detected (around six weeks) and, in Nebraska, at around 12 weeks. Restrictions after 15–22 weeks of pregnancy are now in effect in Arizona, Florida, Indiana, Iowa, Kansas, Ohio, North Carolina, South Carolina, and Utah. In the remaining states, restrictions only kick in at 24 weeks of pregnancy or later.
These restrictions have not just curtailed access to abortion for people with unwanted pregnancies. They've also made things difficult for women with pregnancy complications or nonviable pregnancies, and for the doctors who treat them. (The American College of Obstetricians and Gynecologists rounds up some doctors' stories here.)
In some cases, pregnant women with risky but not-yet-life-threatening issues have been forced to wait until their conditions worsen before they can terminate pregnancies under abortion-ban exemptions meant to save mothers' lives. In other cases, women carrying fetuses with little to no chance of surviving outside the women were reportedly forced to carry these doomed pregnancies to term, or travel hours out of state to obtain an abortion.
Such was the case for a young Alabama woman whose membranes ruptured early in her pregnancy. "No healthcare provider was going to be able to do anything in Alabama and waiting for something to happen is really dangerous for the mother," Northwestern Medicine's Melissa Simon told MedPage Today. "So [the woman and her mother] came to Chicago to get an abortion procedure because there was no chance that this pregnancy was going to survive and that this baby was going to survive. There was a high chance that the mother would develop an infection or could die in that scenario."
The Biden administration is currently investigating two hospitals that declined to perform an abortion on a Missouri woman whose health and life were threatened by pregnancy.
That investigation comes as part of a standoff between the federal government and some state governments over what is required by the federal Emergency Medical Treatment and Active Labor Act (EMTALA). "The EMTALA statute requires that Medicare hospitals provide all patients an appropriate medical screening, examination, stabilizing treatment, and transfer, if necessary, irrespective of any state laws or mandates that apply to specific procedures," the U.S. Department of Health and Human Services said. "Stabilizing treatment could include medical and/or surgical interventions, including abortion. If a state law prohibits abortion and does not include an exception for the health or life of the pregnant person — or draws the exception more narrowly than EMTALA's emergency medical condition definition — that state law is preempted."
We've also seen a major legal dispute playing out over abortion pills.
A federal court in Texas held in April that the Food and Drug Administration erred in approving the abortion-inducing drug mifepristone back in 2000 and ordered mifepristone access to be suspended. Meanwhile, a federal court in Washington said U.S. authorities can't do anything to restrict access to mifepristone.
The situation came to a head later that month at the Supreme Court, which granted the government's request for a stay as the U.S. Court of Appeals for the 5th Circuit considers the case on its merits. The 5th Circuit heard arguments in the case in May and has not yet issued a decision.
Battles over abortion access and legality have reverberated throughout the U.S. political landscape.
Following the Dobbs decision, a number of polls have shown Americans increasingly identify as "pro-choice" or say they disfavor total abortion bans. Voters concerned about abortion rights may have played a big role in the 2022 election and are viewed as a major challenge to Republicans in elections to come, too. "Democrats credit abortion with helping them keep control of the Senate and protecting against steep losses in the House in last year's midterm elections. And they plan to make it a major campaign issue in 2024," notes The Washington Post.
Votes specifically related to abortion haven't always gone the way pro-lifers wanted, even in red states like Kansas. Some more extreme anti-abortion legislation has been failing in red-state legislatures, too.
Before Dobbs, Republican politicians were always free to cater to their most anti-abortion constituents with little worry that it would affect their bottom line, since those with less extreme views were hardly likely to vote against them over policies that couldn't actually be put into practice. But the overturning of Roe has made abortion extremism a liability for some Republicans.
"The divide between GOP moderates and the most ardent antiabortion lawmakers over how far to pursue restrictions continues to fester," notes the Post. "When Roe was in place, the politics were simpler for Republicans. They could just say they wanted it gone and press Democrats on whether they would support any limits," points out NPR. Now Republicans are being pressed for more specifics, and liable to anger parts of their base no matter which way they go.
Post-Dobbs, many Americans "are reporting more liberal views on abortion than major pollsters have seen in years," notes FiveThirtyEight after analyzing a range of polls. "Even conservatives, although the changes are slight, are increasingly supportive of abortion rights. There are other signs that longstanding views are shifting: For instance, Americans are more open to the idea of unrestricted third-trimester abortion than they were even a year ago. And although it's hard to predict what will shape upcoming elections, there are indications that abortion has the potential to be a major motivator for some Americans when they go to vote in 2024."
FREE MINDS
The U.S. Court of Appeals for the 8th Circuit ruled against a judge who jailed two children during their parents' custody dispute. The case involved America's Got Talent child stars Kadan and Brooklyn Rockett, whose parents were going through a divorce. In 2019, the kids refused to go home with their mom after one custody hearing, so Taney County Judge Eric Eighmy threw Kadan and Brooklyn in jail cells for an hour and threatened to put them in foster care.
"He took them there himself," noted the 8th Circuit in a Thursday decision. "They were ordered to remove their shoes, socks, jackets, and jewelry before entering separate cells."
A few months later, when the kids refused to go with a court officer to their mother's home, "police took the children to a juvenile detention center, where they were strip-searched and put in separate solitary-confinement cells for two days," The Washington Examiner reported in March. "All of this was done despite the fact that Eighmy didn't have jurisdiction."
The father, Bart Rockett, sued Eighmy, who argued the suit was invalid because he had judicial immunity. But a U.S. district court ruled that judicial immunity did not shield Eighmy in this case.
Eighmy appealed to the 8th Circuit, which issued a ruling yesterday. "At this early stage, the only question before us is whether judicial immunity shields these acts," it states. "The district court said no. We affirm in part and reverse in part."
The appeals court found Eighmy was immune for issuing an order to pick the children up the second time. But "Judge Eighmy's decision to personally escort the kids to jail took what would otherwise be a judicial act too far," the appeals court concluded. "Judges have the authority to order an officer or a bailiff to escort an unruly litigant to jail. They can also pull the parties into a conference room to discuss what just happened in court.…Judge Eighmy crossed the line, however, when he personally escorted the kids to jail, stood there while they removed their clothes and belongings, and personally came back an hour later to release them."
FREE MARKETS
Email from Sony CEO Jim Ryan contradicts the company's public narrative about Microsoft and Call of Duty. The government is trying to prevent Microsoft from acquiring Activision Blizzard, the company behind the popular game Call of Duty. Among the government's concerns is a fear that Microsoft would make Call of Duty exclusive to or more easily accessible on its Xbox gaming console, harming other gaming console companies like Sony, which owns PlayStation. And Sony has helped publicly push this narrative.
But as Axios reports, "Sony PlayStation boss Jim Ryan privately didn't think Microsoft was trying to take Call of Duty exclusive when it bid for Activision Blizzard," according to what a Microsoft lawyer told the court yesterday:
The private email to former Sony Computer Entertainment Europe president Chris Deering was quoted during Microsoft's opening statement as part of hearings over the Federal Trade Commission's attempt to secure a preliminary injunction against the deal and ultimately block it.
Why it matters: Ryan and the PlayStation team have been the chief antagonists against Microsoft's $69 billion bid for Call of Duty publisher Activision Blizzard, citing concerns over Microsoft pulling COD from PlayStation.
Details: "It is not an exclusivity play at all," Ryan wrote to Deering after the deal was announced. "They're thinking bigger than that."
Ryan's email went on to state that he was "pretty sure we will continue to see [Call of Duty] on PlayStation for many years to come. We'll be okay. We'll be more than okay."
Even if the Federal Trade Commission "persuades the court that Microsoft can't be trusted to keep Call of Duty on competing platforms, the regulator still has to prove that that would be unfairly harmful to competitors on consoles and cloud," notes Axios. "Microsoft has argued that, even without CoD, PlayStation would still have the majority of the market."
QUICK HITS
• The submersible vessel that disappeared while traveling to the Titanic ruins "imploded near the site of the shipwreck and killed everyone on board," the A.P. reports.
• The Supreme Court sided with the Biden administration in a case involving immigrants being deported for obstruction of justice.
SCOTUS watch: we got #Pugin and immigrants lost and lost big on this one. This is the case about whether an ag felony under 1101(a)(43)(S) could be for obstruction of justice if no proceedings or investigation is ongoing. The Justices sided w 4th cir and kicked the 9th in the… https://t.co/TpzE8DGYbW
— Nicolette Glazer (@NicoletteGlazer) June 22, 2023
• A federal judge said Florida's edict against Medicaid covering gender transition care was discriminatory and politically motivated. "U.S. District Judge Robert Hinkle declared the rules are unconstitutional and violate federal law," notes Axios. "That means that all transgender Floridians who qualify for Medicaid should now be able to seek coverage of their gender-affirming care."
