Three days after the Supreme Court decision that suspended the right to abortion in the US, the regulation of the procedure in the country is going through a very confusing moment. Republican governors seek to put new restrictions in place, while Democratic politicians and the White House offer few concrete steps to try to make the right to practice viable and deal with an even more divided country.
At least 13 states had laws ready to be adopted shortly after the court’s announcement, and about 10 more are expected to follow suit. Thus, the procedure would be legal in half of the country and vetoed in the other. Southern and central states would form a kind of belt in which the procedure is prohibited, while northern and east and west states would maintain the release.
The scenario is marked by uncertainties. Some states, like Missouri and Oklahoma, already have severe restrictions in place. Others debate adopting them in the coming days or weeks, but the courts can still intervene. On Monday, a Louisiana judge granted an injunction and temporarily blocked the adoption of a state anti-abortion law. The case is due to go to trial next week, and the rule cannot be put into effect until then. Lawsuits are also being presented in other states.
Hours after the court’s announcement on Friday, President Joe Biden said he would do everything to ensure women can travel from state to state for abortions and have access to abortion pills.
However, in the same speech, the Democrat made it clear that he could not go much further. “The only way to guarantee a woman’s right to choose is for Congress to restore Roe v. Wade’s protections as federal law. No executive order from the president can do that,” he said. He then asked for votes for Democrats in the November elections, when the House and Senate will be renewed.
The main brake is the Hyde Amendment of 1976, which prevents the use of federal funds to fund abortions. “But the government can support laws that prevent states from barring the shipment of abortifacients to other states. It would be very significant,” says Richard Friedman, a professor of law at the University of Michigan.
In December, the FDA, the agency that regulates drugs in the US, lifted restrictions on some drugs that induce abortion. Now, they can be prescribed by remote consultation and sent by post. Its use is indicated in the first ten weeks of pregnancy. Despite this, there are penalties in Texas for providing them to women over seven weeks pregnant. Shipping by mail was also banned, subject to a fine of up to US$ 10,000. Other states, such as South Dakota and Mississippi, are considering beefing up punishments.
In addition to banning pills, some states speculate making it difficult for their residents to travel to other states in search of care. The idea, however, calls into question the concept of free internal movement. “The Supreme Court has recognized in the past the right to travel from one state to another. And the judge [Brett] Kavanaugh said any attempt to make it illegal to travel to obtain an abortion would violate this right. So there would probably be at least five votes against such laws,” says Friedman.
Other possibilities include punishing women based on existing laws, such as conspiring to commit murder. As the Supreme Court ruling leaves open when life begins, states could consider the fetus a human being and thus equate abortion with murder.
In most cases so far, the laws seek to exempt pregnant women who abort and instead punish those who help them. Activists and organizations that provide information to women seek to protect themselves based on the Constitution’s First Amendment, which guarantees freedom of expression and access to knowledge.
On Monday, House Speaker Nancy Pelosi said in a letter to Democrats that the party leadership plans new measures, such as protecting women’s data collected by health apps, which could be used as evidence to report an irregular abortion. Pelosi also promised to work for a law that would guarantee abortion in the country. However, the proposal would hardly pass the Senate, in which Republicans have the power to bar such measures.
Since the day of the decision, there have been protests for the return of abortion rights in several US cities, such as Los Angeles, New York and Washington. Among the activists’ demands are the expansion of the Supreme Court’s seats, from 9 to 13. Thus, Biden could appoint four more justices and dilute the current Conservative majority. The president, however, has already shown himself against the idea.
On Sunday, Democratic Representative Alexandria Ocasio-Cortez defended the impeachment of two conservative judges who had said during Senate confirmation hearings that they would not vote to end abortion rights, but have now done the opposite. “They lied. Lying on trial is an impeachable offense, and that should be taken seriously,” she said.
Supreme Court justices could lose their seats, but such a move would require approval by two-thirds of the Senate — Democrats have only half of the seats.
Another idea is to open abortion clinics in federal areas within states that veto the practice. But the proposal can be stopped on the basis of the Hyde amendment. In an interview with CNN on Monday (27), Vice President Kamala Harris said that, for now, the government does not consider this possibility.
