A ruling by the 5th Circuit Court of Appeals on Tuesday that federal regulations do not require emergency rooms to perform life-saving abortions if doing so would violate state law is the latest state-level development to fire up Democrats on the issue of abortion.
Democratic strategists see the abortion issue as their best talking point in the battle to keep the Senate and White House and take over the House, and are pointing to other cases and ballot initiatives that should keep the topic in the headlines right up until Election Day.
One of the biggest developments expected before the November election is a ruling from the Supreme Court on restricting the availability of mifepristone, a common abortion medication, even in states where abortion is legal.
The 5th Circuit Court of Appeals restricted access in an August ruling that banned telemedicine prescriptions and mail shipments.
Thousands of women around the country are now collecting stockpiles of the pills, according to research published by JAMA Internal Medicine.
There are other high-profile abortion-related cases in Alabama, Arizona, Florida, Kentucky, Nebraska, Nevada, North Carolina, Utah and West Virginia, according to the American Civil Liberties Union.
In addition, abortion-rights advocates are looking ahead to battles over proposed ballot measures in Arizona, Florida and Nevada, three Senate battleground states.
The “Arizona for Abortion Access Act” would amend the state constitution to include an explicit right to abortion. Arizona is now enforcing a 15-week ban on abortion, and the state Supreme Court is reviewing a 150-year old law that would place a near-total ban on abortions.
In Nevada, a political action committee, Nevadans for Reproductive Rights, is trying to amend the state constitution to establish a “fundamental right to reproductive freedom,” including the right to birth control, abortion and abortion care. A state district court judge, however, ruled in November the ballot measure was phrased too broadly.
Abortion was Democrats’ best issue in the 2022 midterm elections, when they picked up a Senate seat to expand their majority in the upper chamber and did much better than expected in House races.
The biggest political headwinds Democrats face this year are voters’ concerns about inflation and President Biden’s poor approval numbers, but Democratic strategists think they will overcome these disadvantages by playing offense on abortion.
“From the courts to Congress, a woman’s right to make her own health care decisions is under perpetual attack from Republicans. In 2024, voters will hold every Republican Senate candidate accountable for their party’s agenda to make abortion a crime with no exceptions, and health decisions will once again be on the ballot in Senate races across the country,” Democratic Senatorial Campaign Committee spokesperson Nora Keefe said.
Democratic strategists are highlighting the lopsided vote in favor of a ballot measure to enshrine the right to an abortion in Ohio’s state constitution in November. The amendment passed with 57 percent of the vote and represented the seventh consecutive victory for abortion-rights advocates in a statewide vote.
Democrats saw the victory as a good omen for Sen. Sherrod Brown (D-Ohio), one of the Senate’s most vulnerable incumbents, who is up for reelection next year.
Senate Republican strategists say GOP candidates can insulate themselves from attacks by clearly stating their opposition to implementing a nationwide abortion ban.
“The [National Republican Senatorial Committee] is encouraging Republicans to clearly state their opposition to a national abortion ban and their support for reasonable limits on late-term abortions when babies can feel pain with exceptions for rape, incest and life of the mother,” said a source familiar with committee strategy.
Senate Republican strategists are encouraging candidates to paint the Democrats as favoring the use of taxpayer funds to facilitate abortion, pointing to the Biden Defense Department’s policy of reimbursing the travel costs of service members who cross state lines to obtain abortions.
Democratic senators and strategists, however, say court rulings, such as this week’s 5th Circuit Court decision blocking federal regulations requiring doctors to perform abortions in states where they are prohibited if doing so would protect the health of a mother, will highlight to voters the ongoing threat to abortion rights ahead of the election.
The court ruled in favor of Texas Attorney General Ken Paxton and two anti-abortion groups that challenged Biden administration guidance issued in July 2022. This guidance stated doctors should perform abortions if needed to stabilize a patient in an emergency situation.
“We’re seeing far-right judges working to deny women emergency abortion care even when their lives are in danger,” said Sen. Patty Murray (D-Wash.), a member of the Senate Democratic leadership team. “The bottom line is that we need a pro-choice majority in Congress that will restore Roe and every woman’s right to abortion and stop politicians from interfering in private health care decisions that should be made by women and their doctors.”
The administration based its guidance on the Emergency Medical Treatment and Active Labor Act, but three Republican-appointed judges on the 5th Circuit ruled the law doesn’t mandate any specific type of medical treatment.
Sen. Laphonza Butler (D-Calif.), a member of the Senate Judiciary Committee, said the 5th Circuit’s decision “sets a dangerous precedent by denying lifesaving medical care based on personal or political beliefs.”
“As we continue to see other challenge to the Biden administration’s guidance requiring emergency rooms across the U.S. to perform lifesaving abortions, it’s critical to remember that abortion care is health care and necessary to protecting the lives of pregnant patients,” she said.
Texas abortion law was in the news again last month, when the state Supreme Court ruled that Kate Cox, a 31-year-old mother of two, could not obtain an abortion even after learning that her fetus was suffering from a fatal defect, overturning a lower court’s decision.
Cox was forced to leave the state to obtain an abortion, and critics of abortion restrictions said the episode shows that women are not protected by exceptions to abortion bans that are supposed to protect their lives.
Democratic strategists say abortion will be a potent issue in Florida, where Sen. Rick Scott (R) faces reelection. They point to Gov. Ron DeSantis (R) signing a law in April banning abortions after six weeks of pregnancy.
The Florida Supreme Court said Wednesday that it will hear arguments Feb. 7 about a proposed constitutional amendment to establish abortion rights in the state. The case focuses on the wording of a proposed constitutional amendment that would go on the ballot in November.
Scott told The Hill in an interview that he’s not backing away from his anti-abortion record and dismissed Democratic attacks related to abortion rights as “lies.”
“It’s the only thing they can possibly run on. They can’t run on a secure border, they can’t run on a great economy, they can’t run on keeping us out of war,” he said. “They haven’t fixed health care, they haven’t fixed Social Security, they haven’t fixed Medicare.
“The only thing they can run on is abortion,” he added. “Look, I’m going to be unabashedly pro-life and pro-baby.”
Scott said he knows abortion is “a tough issue for women” but argued that adoption is a “better option” and policymakers need to figure out how to lower adoption costs. He said he also supports “reasonable limitations” on abortion bans to account for incest, rape and the life of the mother.
“I will absolutely — no ifs, ands or buts about it — explain who the Democrats are. Their position is radical,” he said.