The Supreme Court’s decision to overturn Roe v. Wade set off a wave of new attacks on abortion, causing a catastrophic public health crisis and rapidly eroding our civil liberties and reproductive freedom. So far, 14 states have banned abortion completely, and others have severely limited access to abortion by criminalizing it after the earliest weeks of pregnancy.

Vice President Kamala Harris, the Democratic party’s nominee, has already indicated her support for abortion access and other forms of reproductive health care. At one of her first campaign events, she stated that if Congress “passes a law to restore reproductive freedom, as president of the United States I will sign it into law.”

The ACLU promises to hold Harris accountable for keeping this campaign promise if she is elected in November. Learn more in our breakdown:

The Facts: The Biden-Harris administration made abortion rights and reproductive health a priority during their four years in office. But anti-abortion politicians have had control of at least one body of Congress ever since Roe was overturned, preventing meaningful congressional action on abortion. Enacting federal legislation to protect the right to abortion throughout the country is a crucial and desperately needed step to rectify the harms of overturning Roe.

To be clear, abortion care was not accessible for far too many even before the end of Roe. If elected, Harris must carry out her promise to restore reproductive freedom by taking bold action to ensure that everyone can get an abortion if they need one, no matter who they are, where they live, or how much money they have. She must not only demand legislation that codifies abortion rights and invalidates state bans and restrictions, but that also ends discriminatory barriers to abortion care, such as insurance coverage bans like the Hyde Amendment.

Why It Matters: Right now, millions of people of reproductive age live hundreds of miles from the closest abortion provider. In 2023 alone, more than 171,000 people were forced to travel outside of their home state to secure abortion access. As a result of abortion bans and other restrictions, countless people are being forced to continue their pregnancies against their will. Some states have gone so far as to criminalize the provision of abortion care in medical emergencies where the inability to get an abortion puts the pregnant person’s health, life, and future fertility in danger.

In the two years since Roe was overturned, however, there has been a groundswell of public support for abortion rights and rising opposition against bans and restrictions on abortion care. People in states across the country — including Kansas, Kentucky, Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin — have repeatedly demonstrated their support for reproductive health care access since Roe was overturned.

Harris on Abortion

The ACLU will use every tool available to ensure that a potential Harris administration delivers on the promise to protect the right to abortion.

Source: American Civil Liberties Union

How We Got Here: Making good on his campaign promise to end Roe, President Donald Trump appointed three Supreme Court justices who were part of the majority opinion that overturned the 50-year-old decision and took away the constitutional right to abortion. Since then, extreme politicians have increased their attacks on our reproductive freedom, enforcing bans that push care out of reach entirely in 14 states and attempting to use junk science to take an abortion pill off the shelves nationwide. These politicians even threatened to put doctors in prison for providing emergency abortion care to pregnant patients facing complications.

Our Roadmap: As a presidential candidate in 2020, Harris committed to working with Congress to pass a federal bill to codify abortion rights. She also promised to end the Hyde Amendment, which places restrictions on Medicaid coverage for abortion and has forced one in four low-income women seeking an abortions to carry an unwanted pregnancy to term. The Biden-Harris administration took steps to remove this harmful restriction and, if Harris is elected, the ACLU will urge her administration to build on past progress to fulfill her campaign commitments.

In addition to ending the Hyde Amendment and protecting abortion access, the threat of misusing the Comstock Act as a national abortion ban must be eliminated. The Comstock Act is an 1873 anti-obscenity law that regulates the use of the mail and common carriers to send or receive anything that is “indecent, filthy, or vile” or “intended for producing abortion.” Trump’s advisors are threatening to misapply this law, claiming incorrectly that the Comstock Act functions as a national abortion ban. To ensure that no future anti-abortion president can weaponize this antiquated law, Harris must urge Congress to repeal it. The ACLU has already asked lawmakers to introduce the Stop Comstock Act, and we will demand that any legislation codifying abortion rights also repeals the Act.

Additionally, we urge a potential Harris administration to robustly defend pregnant people’s rights and ensure all hospitals satisfy their obligations under the Emergency Medical Treatment and Labor Act (EMTALA), which requires hospitals that receive Medicare funds to provide emergency stabilizing treatment, including abortion, to any patient who needs it. The ACLU will continue to work in the courts and with coalition partners to defend emergency abortion care, including urging Congress to swiftly respond in the event of a Supreme Court decision that eliminates these protections.

Lastly, while the Biden-Harris administration made steps toward expanding reproductive health care and contraception access, it must go further. If Harris is elected, the ACLU will work with her administration to urge Congress to make needed investments in Title X, a federally-funded family planning program that helps low-income people obtain critical health care services for free or at a reduced cost.

What Our Experts Say: “If Vice President Kamala Harris wins the election this year, it will be because she prioritized reproductive freedom as a central tenet of her campaign, but that promise must be met with bold and urgent action. Harris has the opportunity to ensure that Congress enacts federal protections for abortion that reflect the American public's overwhelming support for reproductive freedom. That means demanding Congress send her a bill to sign that ensures everyone who needs abortion care can access it.” — Madison Roberts, ACLU senior policy counsel for reproductive freedom.

What You Can Do Today: Since Roe was overturned, abortion bans have gone into effect in states across the country. Today, anti-abortion extremists continue to attack medication abortion and emergency abortion care. It’s past time to make a change. Join our campaign to urge your congress members to pass federal legislation that safeguards our reproductive freedom.

New legislation would repeal parts of the Comstock Act, a Victorian-era law that's being revived to attack abortion pills.

Passed in 1873, the Comstock Act was a big deal in earlier eras, sending people to prison for publishing information about birth control, critiques of marriage, and more.

The law is vague and broad, banning the mailing of any "article, matter, thing, device, or substance" that the government deems "obscene, lewd, lascivious, indecent, filthy or vile," along with anything "designed, adapted, or intended for producing abortion, or for any indecent or immoral use." Essentially, the Comstock Act weaponizes the U.S. Postal Service to give the federal government an in against things that otherwise wouldn't be its business.

"Anthony Comstock, the law's namesake and an anti-smut crusader, lobbied for and personally enforced the law as a special agent of the U.S. Postal Service," noted the Foundation for Individual Rights and Expression (FIRE) lawyer Robert Corn-Revere in a recent piece for Reason about efforts to posthumously pardon publisher D.M. Bennett. "Under the law's broad mandate, everything that Comstock considered immoral was by definition obscene and, therefore, illegal. Comstock's concept of immorality included blasphemy, sensational novels and news stories, art, and even scientific and medical texts." (You can read more about Comstock, "the prodigal censor," here.)

The Comstock Act lay dormant for a while, rendered toothless in part by court interpretations of the First Amendment that were more vigorously protective of free speech. But these days, activists and politicians opposed to abortion are trying to revive the law, seeing its potential usefulness in going after mifepristone and misoprostol, the two-pill regimen approved to end first-trimester pregnancies.

The resurgence of interest in the Comstock Act underscores the need to repeal bad laws, not simply assume them defanged by decades of latency.

The Biden administration certainly isn't going to start prosecuting people under the Comstock Act, but a more conservative future administration could. "[Donald] Trumps' [sic] advisors are…arguing that the Comstock Act is a de facto national abortion ban already on the books," says Madison Roberts, senior policy counsel at the American Civil Liberties Union (ACLU). "They are wrong. The Department of Justice has made clear and federal appeals courts have uniformly held for almost a century that the Comstock Act does not apply to legal abortion care. But anti-abortion extremists have manipulated the law to ban abortion before, and there's no reason to think they won't try it again."

Moreover, the law was cited in a legal challenge to abortion pills and the U.S. Food and Drug Administration's decision to let them be sent via mail. The district judge who first heard the case (and sided with the plaintiffs) wrote that "dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law." That case was shot down by the U.S. Supreme Court last week on procedural grounds, but it certainly won't be the last attempt to stop the prescription and mailing of abortion pills. Nor is it likely to be the last time Comstock is invoked for this purpose—unless the act is revised or repealed.

"It is too dangerous to leave this law on the books," Sen. Tina Smith (D–Minn.) said in a statement.

The Stop Comstock Act, which Smith is slated to introduce soon (no draft has been released yet, however), would repeal the parts of the law "that could be used by an anti-abortion administration to ban the mailing of mifepristone and other drugs used in medication abortions, instruments and equipment used in abortions, and educational material related to sexual health," per Smith's press release. A companion bill will be introduced in the House by Rep. Becca Balint (D–Vt.).

This is good, but not far enough, if it only partially repeals the law.

Why stop with repealing the parts that could be used to target abortion? The Comstock Act's reach is much more broad than that, and every bit could do some damage in the wrong hands.

Here's the full spate of things that the Comstock Act declares criminal to mail:

Every article or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing.

It's time to repeal the whole thing.

Today, it's only the abortion part of the law that people are trying to revive. But a few years ago, most of us weren't expecting a Comstock revival at all. Who's to say that a few years from now, people won't try to use it against all sorts of information, art, etc. that they don't like?

If we want to stop the Comstock Act from ever again being used to suppress speech, restrict access to contraceptives, punish people for homosexuality, and more, then we need to stop the Comstock Act entirely.

The post The Stop Comstock Act Doesn't Go Far Enough appeared first on Reason.com.

This month, the Supreme Court refused to consider a request by anti-abortion groups to impose nationwide restrictions on mifepristone, a safe medication used in most U.S. abortions and for miscarriage care. Without addressing whether mifepristone should be further restricted, the court found that these anti-abortion plaintiffs lack “legal standing” – meaning they do not have a sufficient connection to the Food and Drug Administration’s (FDA) regulation of mifepristone to be able to challenge the agency’s decisions in court.

The court’s decision is a relief, but we should not be dazzled by the fact that the justices did the right thing based purely on a legal technicality. While the Supreme Court refused to allow these particular anti-abortion groups to bring this case, extremist politicians have vowed to continue to use the courts and the law to strip away access to medication abortion nationwide. Below, we break down why this case matters, and what happens next.

The plaintiffs in Alliance for Hippocratic Medicine v. FDA are organizations and doctors who want to see all abortion banned nationwide. To further their agenda, they used junk science to target access to mifepristone, a medication used in most U.S. abortions. They filed this lawsuit in Amarillo, Texas, where they could guarantee it would be heard by a Trump-appointed district court judge with a record of hostility to abortion. That district judge rubber-stamped all of their requests, and the Fifth Circuit Court of Appeals largely did the same – overriding the consensus of the FDA and every leading national medical authority in order to impose medically unnecessary restrictions on mifepristone.

In its decision, the Supreme Court did not address the plaintiffs’ arguments that mifepristone should be severely restricted. The court found that the lawsuit suffered from a critical defect: the anti-abortion groups and doctors who brought the case lack legal standing. As the court explained, these anti-abortion plaintiffs don’t prescribe mifepristone and have no actual connection to the FDA’s regulation of the drug. Instead, “the plaintiffs want [the] FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain.” But under the Constitution, “a plaintiff ’s desire to make a drug less available for others does not establish standing to sue.”

For now, the court’s decision preserves the state-level patchwork access to medication abortion that has existed since the Supreme Court overruled Roe v. Wade in 2022. That means that, for the time being, people across the United States can continue to fill their mifepristone prescriptions through mail-order and retail pharmacies, just as they would for any other similarly safe medication – without having to travel, sometimes hundreds of miles, just to pick up a pill. Health care professionals with specialized training, like nurse-practitioners, will also maintain the ability to prescribe mifepristone where state law allows. Furthermore, in the U.S. nearly 1 in 5 abortions relies on telemedicine. For many people – including low-income patients, people of color, folks in rural areas, and women in abusive households – retaining accessibility options, such as telemedicine, is essential – especially when it may be impossible to arrange and afford lengthy transportation and childcare, to secure time off work, or to escape the surveillance of an abuser in order to access time-sensitive care.

The court’s order also forestalls the dire consequences the American Cancer Society and many other patient advocacy groups warned of should the court override the FDA’s actions and undermine drug development and impede access to critical medications well beyond reproductive health care.

There is no credible dispute about mifepristone’s safety. The nation’s leading medical associations describe the science confirming its safety as “overwhelming.” While all drugs carry risks, medical experts have explained that mifepristone is among the safest medications used in medical practice today – safer than Viagra or penicillin – with serious complications experienced by fewer than 1 percent of patients.

By contrast, the plaintiffs’ evidence rested on testimony and research from a few anti-abortion doctors who travel the country peddling junk science about abortion safety. As the ACLU explained in a friend-of-the-court brief, when other courts have heard these folks testify, time and again, they have discredited them. For instance, Dr. Ingrid Skop – cited 17 times in the appellate court’s ruling– had her testimony on abortion thrown out by a Florida court two years ago for being “inaccurate.” Dr. Skop admitted under oath in 2020 that she is “not a really good researcher,” so it’s no surprise that her research on mifepristone was published by a fringe advocacy group known for promoting blatantly false conspiracy theories, such as that President Barack Obama hypnotized listeners with his speeches. Several of the studies relied on by these plaintiffs have been retracted because they are so profoundly flawed. Another study is based on 98 anonymous blogs.

Maintaining access to mifepristone has never been more crucial. Since it was approved in 2000, nearly 6 million people in the United States, and millions more globally, have used this medication. Today, medication abortion comprises almost two-thirds of all abortions in this country.

Play the video

The Supreme Court refused to allow these particular anti-abortion groups to bring this case, but extremist politicians are waiting in the wings to continue this campaign to strip away access to medication abortion nationwide. Indeed, the same Trump-appointed district judge in Texas has already permitted Idaho, Kansas, and Missouri to intervene in the district court proceedings on the same side as the anti-abortion groups. And these extremist politicians have said that they will try to continue this case in Texas – even though the Supreme Court just found that the original plaintiffs lack standing – or else bring copycat lawsuits in other jurisdictions.

Moreover, in the coming weeks, the Supreme Court will decide another abortion case that will determine whether politicians can force doctors to withhold emergency room care from their patients suffering severe pregnancy complications. These cases show how far politicians will go to prevent people from getting the reproductive health care they need.

Since Roe was overturned, every time an abortion issue has been put to the ballot, the people have voted in favor of access. Politicians are relentless in their attacks, but a majority of this country believes that people must have the power to make personal decisions during pregnancy. We’ll continue using every tool at our disposal to fight back against these cruel and deeply unpopular attacks on our health, our futures, and our bodily autonomy.

Join us in this fight to expand and restore our rights by urging legislators to pass federal legislation that safeguards our reproductive freedom – including abortion, birth control, AND IVF care.

Arizona legislators voted to repeal the state's total ban on abortion, an 1864 law revived by its courts after the U.S. Supreme Court dismantled Roe v. Wade. It was a close thing—most Republicans voted to keep the Civil War-era prohibition—but it's now on Democrat governor Katie Hobbs' desk and she will sign it. — Read the rest

The post Arizona repeals 1864 abortion ban appeared first on Boing Boing.

Less than a month after the Alabama Supreme Court ruled that frozen embryos created for in vitro fertilization treatment are children, Alabama Gov. Kay Ivey has signed a law protecting access to IVF treatment in the state. 

In February, the Alabama Supreme Court handed down a controversial ruling, deciding that frozen embryos would count as children under a 19th-century Alabama wrongful death statute. Justice Tom Parker used extensive quotes from the Bible and Christian theology to justify his decision. "The doctrine of the sanctity of life is rooted in the Sixth Commandment," which prohibits murder, Parker wrote. "All human beings bear the image of God," he continued, "and their lives cannot be destroyed without effacing his glory."

IVF is an infertility treatment involving the fertilization of multiple eggs with the goal of inserting them afterward in a woman's uterus, where they may hopefully implant and grow into a healthy baby. As Reason's Ronald Bailey put it shortly after the ruling was released, "Since the implantation of any specific embryo is far from guaranteed, IVF often involves creating several embryos that are stored in liquid nitrogen that could be made available for later attempts at achieving pregnancy." Parents often have to choose whether to leave their remaining frozen embryos in storage (at a cost) or to have the IVF clinic discard them.

The ruling caused near-immediate chaos, with three IVF providers in the state shutting down operations, citing confusion over the legal implications of the court's decision. The ruling quickly garnered widespread outrage, even among many who are avowedly pro-life.

"We want to make it easier for people to be able to have babies, not…make it harder….And the IVF process is a way of giving life to even more babies," Texas Gov. Greg Abbott told CNN in February. "What I think the goal is is to make sure that we can find a pathway to ensure that parents who otherwise may not have the opportunity to have a child will be able to have access to the IVF process."

Soon after the ruling was handed down, Alabama legislators moved quickly to introduce bills that would protect access to IVF treatment in the state. Senate Bill 159, which Ivey signed Wednesday, ultimately passed with a large bipartisan majority. 

"No action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization," the bill states. "No criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos."

"The overwhelming support of [the bill] from the Alabama Legislature proves what we have been saying: Alabama works to foster a culture of life, and that certainly includes IVF," Ivey said in a statement on March 6. "I am confident that this legislation will provide the assurances our IVF clinics need and will lead them to resume services immediately."

After the bill's signing, two of the three closed clinics announced that they would restart IVF treatments.

Alabama's IVF protection bill will likely assuage fears that access to fertility treatments could be seriously impacted by state-level court rulings. Even in a state where abortion is banned from conception, attacks on IVF remain incredibly unpopular—and stridently pro-life legislators still recognize the importance of safeguarding fertility medicine. 

The post Alabama Governor Signs Bill Protecting IVF Treatments appeared first on Reason.com.

The sorry history of anti-miscegenation and forced sterilization laws in the U.S. provides ample evidence that preemptive government interference in the reproductive decisions of its citizens should be strongly rejected. In a free society, the default should be that individuals are best situated for weighing the costs and benefits, moral and material, with respect to how, when, with whom, and whether they choose to become parents.

The now infamous Alabama Supreme Court decision earlier this month essentially outlawing the use of in vitro fertilization (IVF) by would-be parents highlights the consequences of unwarranted government meddling in reproductive decisions all too well. At its most basic, IVF is a treatment for infertility involving the fertilization of eggs in a petri dish with the goal of installing them afterward in a woman's womb where they have a chance to implant and hopefully develop into a healthy baby. Since the implantation of any specific embryo is far from guaranteed, IVF often involves creating several embryos that are stored in liquid nitrogen that could be made available for later attempts at achieving pregnancy.

Some 12 to 15 percent of couples in the U.S. experience infertility. Fortunately, since 1981 many infertile folks have been able to avail themselves of IVF and assisted reproduction techniques with the result that more than 1.2 million Americans have been born using it. Currently, about 2 percent of all babies in the U.S. are born through assisted reproduction. A 2023 Pew Research poll reported that "four-in-ten adults (42%) say they have used fertility treatments or personally know someone who has." Given the wide public acceptance and ubiquity of IVF, it is no surprise that a new Axios/Ipsos poll finds that two-thirds of Americans oppose the Alabama court ruling that frozen IVF embryos are the equivalent of born children.

The moral intuition that embryos are not people implied by these poll results reflects what research has revealed about the fraught and complex biology of uterine implantation and pregnancy. In both IVF and natural conception most embryos will not become babies. Research estimates that between 50 to 70 percent of naturally conceived embryos do not make it past the first trimester. In other words, one foreseen consequence of conception through sexual intercourse is the likely loss of numerous embryos.

In his 2012 Journal of Medical Ethics article, University of Illinois Chicago philosopher Timothy Murphy argued that the moral good of the birth of a child counterbalances the unwanted but nevertheless foreseen loss of other embryos in both natural and IVF conception. Again, polling suggests that most Americans endorse this moral reasoning.

In another 2012 article speculating on the metaphysical ramifications of endowing embryos with souls, Murphy basically recapitulates the line of reasoning in my 2004 article asking, "Is Heaven Populated Chiefly with the Souls of Embryos?" There I suggest that "perhaps 40 percent of all the residents of Heaven were never born, never developed brains, and never had thoughts, emotions, experiences, hopes, dreams, or desires."

Murphy similarly concludes, "Since more human zygotes and embryos are lost than survive to birth, conferral of personhood on them would mean—for those believing in personal immortality—that these persons constitute the majority of people living immortally despite having had only the shortest of earthly lives."

Metaphysical conjectures aside, former President Donald Trump clearly knows where most Americans stand on IVF. "We want to make it easier for mothers and fathers to have babies, not harder! That includes supporting the availability of fertility treatments like IVF in every State in America," he posted on Truth Social. He's right.

Now, the 124 denizens of the House of Representatives (all Republicans) who cosponsored just over a month ago the Life at Conception Act are scrambling to explain that, no, they did not really mean that every frozen IVF embryo is a "human person" entitled to the equal protection of the right to life. As a butt-covering move, Rep. Nancy Mace (R–S.C.) is circulating a House resolution "expressing support for continued access to fertility care and assisted reproduction technology, such as in vitro fertilization."

More substantially, Sen. Tammy Duckworth (D–Ill.) is pushing for the adoption of the Right to Build Families Act that states, "No State, or official or employee of a State acting in the scope of such appointment or employment, may prohibit or unreasonably limit…any individual from accessing assisted reproductive technology."

The post Parents, Not the Government, Should Make IVF Decisions appeared first on Reason.com.

The Supreme Court is scheduled to hear oral argument in FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, the combined cases concerning the Food & Drug Administration's regulation of mifepristone, on March 26.

This morning, on the Orders List, the Court denied a motion to intervene filed by Missouri, Kansas, and Idaho. These states argued that the should be allowed to intervene so as to ensure that the requirements of Article III standing are met so that the Court can reach the merits. (This is, I take it, a tacit admission that the plaintiffs' standing claims are quite tenuous, as I have argued at length in some of the poses linked below.) The states base this argument, in part, on their successful motion to intervene in the trial court (which Adam Unikowsky dissects here). In any event, the Court rejected the motion.

The Court also ruled on two applications to file late-submitted amicus briefs, one from the American Bar Association and one from former Commissioners of the FDA. Interestingly enough, the Court rejected the former brief, but accepted the latter. Looking at the two briefs, this seems like a reasonable call. The FDA Commissioners brief provides relevant expertise that might be absent from other filed briefs. The ABA brief, not so much. Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case. Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority.

The Court also denied a motion to intervene filed by Gregory J. Roden as "Next Friend of Americans en ventre sa mere." No surprise there.

For those interested in more about this case, yesterday I participated in a panel discussion on this case with my colleague Jessie Hill, sponsored by the Law-Medicine Center at the Case Western Reserve University School of Law. Video of that program may be viewed here.

Also, here are my prior blog posts about this case and the issues it raises:

• "The Next Abortion Battlegrounds," June 22, 2022;
• "Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA," March 8, 2023;
• "AHM v. FDA: A Contrary View and a Rejoinder," March 28, 2023;
• "Blue-State AGs Have A Mifepristone Lawsuit of Their Own," March 29, 2023;
• "Two (Wrong) Mifepristone Court Rulings in One Day," April 8, 2023;
• "The Good and Bad of the Fifth Circuit's Abortion Pill Ruling," April 13, 2023.
• "BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision," Dec. 13, 2023.

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