And yet, they just can’t escape talking about it.

The policy high point for abortion opponents — the Supreme Court’s 2022 decision to strike down Roe v. Wade — is proving a low point for public support for their cause. More American adults consider themselves “pro-choice” than at any time in the past 30 years, according to a recent survey from Gallup: 54%, compared with 41% who identify as “pro-life.”

The tide is turning even as some conservatives seek restrictions on birth control and fertility treatments. A new KFF survey of women voters found that Democrats are more likely than Republicans to say that abortion is the most important issue in their vote for president — a reversal from recent elections. One in 5 women under age 30 and 13% of those under age 50 said it is their top concern. Among independents, 81% said they believed abortion should be legal.

Democrats are counting on the issue to help turn out their votes and ensure President Joe Biden’s reelection, despite persistent dissatisfaction with his leadership. Abortion could prove particularly disruptive in battleground states expected to have initiatives on the ballot to enshrine access to abortion in state constitutions, including Arizona and Nevada.

Eight in 10 Democratic women in states with possible ballot measures said they were “absolutely certain” they would vote — and also said they were more likely to back Biden compared with Democratic women in other states, KFF found.

So far, abortion rights supporters have prevailed in each of the seven states that have put ballot initiatives before voters — including in states where Republicans control the legislatures, such as Kansas, Ohio, and Kentucky. About two-thirds of women in Arizona told KFF they support the state’s proposed Right to Abortion Initiative, including 68% of independents.

On the campaign trail, Republicans are bobbing and weaving to avoid the subject, even when that means distancing themselves from — well, themselves. Former President Donald Trump, who has taken a few different stances since calling himself “pro-choice” in 1999, reportedly urged lawmakers during a recent closed-door visit to the Capitol not to shy away from the issue, but also to support exceptions to bans, including to protect the life of the pregnant person.

In pivotal Arizona, U.S. Senate Republican candidate Kari Lake, who embraced a near-complete abortion ban while running for governor two years ago, recently said “a full ban on abortion is not where the people are.” In Nevada, the GOP Senate nominee, Sam Brown, who as recently as 2022 headed up a branch of a conservative anti-abortion group, has said he will respect his state’s permissive abortion law and would not vote for a nationwide ban if elected.

The Supreme Court is keeping the issue on the front burner. In a decision June 27, the court left emergency abortions legal in Idaho, a state with a strict ban, though the issue remains unsettled nationally. Justice Ketanji Brown Jackson, who joined the majority in an unusual ruling that sent the case back to the lower court and declared it had been accepted prematurely, accused her colleagues of dawdling on the issue.

“Pregnant people experiencing emergency medical conditions remain in a precarious position, as their doctors are kept in the dark about what the law requires,” she wrote.

The KFF survey found broad, strong support for preserving access to abortion in cases of pregnancy-related emergencies: 86% of women voters — including 79% of Republican women — support laws protecting access in those circumstances.

In mid-June, the court rejected an effort to overturn the FDA’s 24-year-old approval of the abortion pill mifepristone, but only on a technicality. With no actual ruling on the merits of the case, the justices left open the possibility that different plaintiffs could provoke a different outcome. Nevertheless, the push to redefine reproductive health care post-Roe v. Wade continues. The influential evangelical Southern Baptist Convention recently called for significant legislative restrictions on in vitro fertilization, which its members call morally incompatible with the belief that life begins at fertilization.

Abortion opposition groups are pressing Trump not to discard a main plank of the GOP’s presidential platform since 1976: a federal abortion ban. Trump has recently said states should make their own decisions about whether to restrict abortion.

Democrats and Democratic-aligned groups are exploiting Republicans’ discomfort with the issue. On the day Senate Democrats forced a vote on legislation that would have guaranteed a federal right to contraception, a group called Americans for Contraception floated a giant balloon shaped like an IUD near the Capitol. (Republicans blocked the bill, as expected — and no doubt Democrats will frequently remind voters of that this year.)

A week later, Senate Democrats tried to bring up a bill to guarantee access to IVF, which Republicans also voted down. No giant balloon for that one, though.

Republicans still appear bent on dodging accountability for the unpopularity of their reproductive health positions, if only by highlighting other issues they hope voters care about even more — notably, the economy. But one thing they’re unlikely to accomplish is keeping the issue out of the news.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

Doctors are showing — through their words and actions — that they are reluctant to practice in places where making the best decision for a patient could result in huge fines or even a prison sentence. And when clinics that provide abortions close their doors, all the other services offered there also shut down, including regular exams, breast cancer screenings, and contraception.

The concern about repercussions for women’s health is being raised not just by abortion rights advocates. One recent warning comes from Jerome Adams, who served as surgeon general in the Trump administration.

In a tweet thread in April, Adams wrote that “the tradeoff of a restricted access (and criminalizing doctors) only approach to decreasing abortions could end up being that you actually make pregnancy less safe for everyone, and increase infant and maternal mortality.”

An early indication of that impending medical “brain drain” came in February, when 76% of respondents in a survey of more than 2,000 current and future physicians said they would not even apply to work or train in states with abortion restrictions. “In other words,” wrote the study’s authors in an accompanying article, “many qualified candidates would no longer even consider working or training in more than half of U.S. states.”

Indeed, states with abortion bans saw a larger decline in medical school seniors applying for residency in 2023 compared with states without bans, according to a study from the Association of American Medical Colleges. While applications for OB-GYN residencies were down nationwide, the decrease in states with complete abortion bans was more than twice as large as those with no restrictions (10.5% vs. 5.2%).

That means fewer doctors to perform critical preventive care like Pap smears and screenings for sexually transmitted infections, which can lead to infertility.

Care for pregnant women specifically is at risk, as hospitals in rural areas close maternity wards because they can’t find enough professionals to staff them — a problem that predated the abortion ruling but has only gotten worse since.

In March, Bonner General Health, the only hospital in Sandpoint, Idaho, announced it would discontinue its labor and delivery services, in part because of “Idaho’s legal and political climate” that includes state legislators continuing to “introduce and pass bills that criminalize physicians for medical care nationally recognized as the standard of care.”

Heart-wrenching reporting from around the country shows that abortion bans are also imperiling the health of some patients who experience miscarriage and other nonviable pregnancies. Earlier this year, a pregnant woman with a nonviable fetus in Oklahoma was told to wait in the parking lot until she got sicker after being informed that doctors “can’t touch you unless you are crashing in front of us.”

A study by researchers from the State University of New York-Buffalo published in the Women’s Health Issues journal found that doctors practicing in states with restrictive abortion policies are less likely than those in states with supportive abortion policies to have been trained to perform the same early abortion procedures that are used for women experiencing miscarriages early in pregnancy.

But it’s more than a lack of doctors that could complicate pregnancies and births. States with the toughest abortion restrictions are also the least likely to offer support services for low-income mothers and babies. Even before the overturn of Roe, a report from the Commonwealth Fund, a nonpartisan research group, found that maternal death rates in states with abortion restrictions or bans were 62% higher than in states where abortion was more readily available.

Women who know their pregnancies could become high-risk are thinking twice about getting or being pregnant in states with abortion restrictions. Carmen Broesder, an Idaho woman who chronicled her difficulties getting care for a miscarriage in a series of viral videos on TikTok, told ABC News she does not plan to try to get pregnant again.

“Why would I want to go through my daughter almost losing her mom again to have another child?” she said. “That seems selfish and wrong.”

The anti-abortion movement once appeared more sensitive to arguments that its policies neglect the needs of women and children, a charge made most famously by former Rep. Barney Frank (D-Mass.), who once said: “Conservatives believe that from the standpoint of the federal government, life begins at conception and ends at birth.”

In fact, an icon of the anti-abortion movement — Rep. Henry Hyde (R-Ill.), who died in 2007 — made a point of partnering with liberal Rep. Henry Waxman (D-Calif.) on legislation to expand Medicaid coverage and provide more benefits to address infant mortality in the late 1980s.

Few anti-abortion groups are following that example by pushing policies to make it easier for people to get pregnant, give birth, and raise children. Most of those efforts are flying under the radar.

This year, Americans United for Life and Democrats for Life of America put out a joint position paper urging policymakers to “make birth free.” Among their suggestions are automatic insurance coverage, without deductibles or copays, for pregnancy and childbirth; eliminating payment incentives for cesarean sections and in-hospital deliveries; and a “monthly maternal stipend” for the first two years of a child’s life.

“Making birth free to American mothers can and should be a national unifier in a particularly divided time,” says the paper. Such a policy could not only make it easier for women to start families, but it could address the nation’s dismal record on maternal mortality.

In a year when the same Republican lawmakers who are supporting a national abortion ban are even more vehemently pushing for large federal budget cuts, however, a make-birth-free policy seems unlikely to advance very far or very quickly.

That leaves abortion opponents at something of a crossroads: Will they follow Hyde’s example and champion policies that expand and protect access to care? Or will women’s health suffer under the anti-abortion movement’s victory?

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

It appears to be the first time a court has directly usurped the FDA’s authority to provide the final word on which medicines are safe and effective and, thus, allowed to be sold in the United States. And it could well throw the pharmaceutical industry into turmoil.

If the decision is allowed to stand, it could affect far more than abortion drugs. “It will radically alter the process for approving drugs and will kill innovation and hinder bringing new drugs to market,” Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project, told reporters in a briefing April 10. It might also invite what she called “fringe groups” to challenge any other drug they object to for political reasons.

So you’d think challenging the decision would be a top priority for the prescription drug industry’s national advocacy group, the Pharmaceutical Research and Manufacturers of America, or PhRMA. Yet the drug lobby did not join the long list of medical, legal, and academic groups that filed “friend of the court,” or amicus, briefs in the Texas case.

And since the ruling, PhRMA has declined to weigh in beyond the relatively bland statement it made weeks ago. “The FDA is the gold standard for determining whether a medicine is safe and effective for people to use,” said Priscilla VanderVeer, PhRMA’s vice president for public affairs. “While PhRMA and our members are not a party to this litigation, our focus is on ensuring a policy environment that supports the agency’s ability to regulate and provides access to FDA-approved medicines.”

By contrast, many individual drug companies, as well as the biotech industry’s trade group, were quick to decry the ruling. The Biotechnology Innovation Organization said the ruling sets “a dangerous precedent for undermining the FDA and creating regulatory uncertainty that will impede the development of important new treatments and therapies.”

PhRMA’s relative silence is puzzling, said Carole Joffe, a professor at the University of California-San Francisco and an expert on the sociology of reproductive health issues. “PhRMA now has to contemplate the politicization of potentially everything. For Big Pharma, one could argue that a Pandora’s box has been opened.”

Even more puzzling, though, is that PhRMA has only to look at another major health industry player, the physicians’ major lobbying group, the American Medical Association, for an object lesson in how sitting on the sidelines of a polarizing political issue can cost an industry or profession a chunk of its autonomy.

When it comes to abortion, lawmakers at the state and federal level, not to mention judges, have been essentially practicing medicine without a license for over a half-century, since the decision in Roe v. Wade itself. In that case, seven Supreme Court justices signed on to a framework for pregnancy (dividing it into “trimesters”) that did not exist before, at least not medically.

The AMA played a major role in making abortion illegal in the 19th century, when it sought to supplant midwives and others whom doctors saw as threats to their economic and professional power. But in the 20th century, the organization was slow to recognize that doctors’ professional judgments were being supplanted by those of others — lawmakers and judges. The AMA did not even file an amicus brief in the Roe case itself, and for much of the next four decades tried mightily to stay out of the abortion fray, even as warnings grew that medical professionals were losing the right to practice according to the best medical evidence.

After the Supreme Court upheld the first ban on a specific abortion procedure in 2007 — a ban the AMA had initially endorsed, then opposed — it was clear that physicians were losing their primacy over the practice of medicine.

Yet the stigma attached to abortion remained. Even after the AMA formally supported abortion rights, the group “did as little as possible,” said Joffe. Over several decades, most doctors tried to distance themselves from both the abortion issue and their colleagues who performed the procedure, Joffe said.

It wasn’t until 2019 that the AMA stepped out of the shadows on the subject of lawmakers interfering in the doctor-patient relationship. That’s when the group filed suit to block two North Dakota abortion laws, which the organization said “compel physicians and other members of the care team to provide patients with false, misleading, non-medical information about reproductive health.” (A federal judge subsequently blocked the law.)

By the time the Supreme Court was ready in 2021 to take up the Mississippi case that would eventually overturn Roe, the AMA realized what was at stake. The state law being challenged — a ban on all abortions after 15 weeks — “threatens the health of pregnant patients by arbitrarily barring their access to a safe and essential component of health care,” the AMA said in an amicus brief it filed with two dozen other medical groups.

And after the decision reversing Roe in 2022, the AMA’s new president, Dr. Jack Resneck Jr., was quick to lament what had been lost. “Medicine is hard, and it’s hard enough without members of Congress or governors or state legislators or others trying to sit in your exam room with you and second-guess all the decisions that you’re making,” he told KHN’s “What the Health?” podcast in July.  

So the AMA has apparently learned its lesson the hard way. Now the question is whether the drug industry will learn that same lesson — and when.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

This time it’s Democrats accusing Republicans of wanting to maim the very popular federal health program that covers 64 million seniors and people with disabilities. In the past, Republicans have successfully pinned Democrats as the threat to Medicare.

Why do politicians persistently wield Medicare, as well as Social Security, as weapons? Because history shows that works at the ballot box. Generally, the party accused of menacing the sacrosanct entitlements pays a price — although it’s the millions of beneficiaries relying on feuding lawmakers to keep the programs funded who stand to lose the most.

Republicans have repeatedly warned they would hold raising the federal debt ceiling hostage unless Democrats negotiated changes to Medicare, Medicaid, and Social Security. The three programs together, along with funding for the Affordable Care Act and Children’s Health Insurance Program, account for nearly half of the federal budget.

The political bomb that went off during President Joe Biden’s State of the Union speech on Feb. 7 had been ticking for weeks. In his speech, Biden threatened to veto any Republican efforts to cut Social Security or Medicare. It was one of only three veto threats he made that night. During a trip to Florida after the speech, he said it more forcefully: “I know a lot of Republicans, their dream is to cut Social Security and Medicare. Well, let me say this: If that’s your dream, I’m your nightmare.”

Senior Republicans have distanced themselves from the proposals Biden was referencing, notably ideas from the House Republican Study Committee and Sen. Rick Scott (R-Fla.) to make cuts or even let Medicare expire unless Congress votes to keep it going.

“That’s not the Republican plan; that’s the Rick Scott plan,” Senate Minority Leader Mitch McConnell said on a Kentucky radio show Feb. 9, echoing his opposition to the plan last year.

“Cuts to Social Security and Medicare are off the table,” House Speaker Kevin McCarthy declared the day before Biden’s veto threat.

McConnell and McCarthy know something that Rick Scott apparently does not: Politicians threaten big, popular entitlement programs at their peril. And, usually, it’s been Republicans who suffer the electoral consequences.

This dates at least to 1982, when Democrats used threats of Republican cuts to Social Security to pick up more than two dozen House seats in President Ronald Reagan’s first midterm elections. In 1996, President Bill Clinton won reelection in part by convincing voters that Republicans led by House Speaker Newt Gingrich wanted to privatize Medicare and Social Security.

At the beginning of his second term, in 2005, President George W. Bush made it his top priority to “partially privatize” Social Security. That proved singularly unpopular. In the following midterm elections, Democrats won back the House for the first time since losing it in 1994.

In 2010, Republicans turned the tables, using what they described as “Medicare cuts” in the Affordable Care Act to sweep back to power in the House. (Those “cuts” were mostly reductions in payments to providers; beneficiaries actually got extra benefits through the ACA.)

The use of the Medicare cudgel likely reached its zenith in 2012, when Democrats took aim at Medicare privatization proposals offered by Paul Ryan, the House Budget Committee chair and Republican vice presidential candidate. That debate produced the infamous “pushing Granny off the cliff” ad.

The reality is that Medicare’s value as a political weapon also sabotages any effort to come together to solve the program’s financing problems. The last two times the Medicare Hospital Insurance Trust Fund was this close to insolvency — in the early 1980s and late 1990s — Congress passed bipartisan bills to keep the program afloat.

Even the word “cut” can be political. One stakeholder’s Medicare “cut” is another’s benefit. Reducing payments to medical providers (or, more often, reducing the size of payment increases to doctors and hospitals) may reduce premiums for beneficiaries, whose payments are based on total program costs. Raising premiums or cost sharing for beneficiaries is a benefit to taxpayers, who help fund Medicare. Increasing available benefits helps providers and beneficiaries, but costs more for taxpayers. And on, and on.

There are fundamental differences between the parties that can’t be papered over. Many Republicans want Medicare to shift from a “defined benefit” program — in which beneficiaries are guaranteed a certain set of services and the government pays whatever they cost — to a “defined contribution” program, in which beneficiaries would get a certain amount of money to finance as much as they can — and would be on the hook for the rest of their medical expenses.

This would shift the risk of health inflation from the government to the beneficiary. And while it clearly would benefit the taxpayer, it would disadvantage both providers and beneficiaries of the program.

But there are many, many intermediate steps Congress could take to at least delay insolvency for both Medicare and Social Security. Some are more controversial than others (raising the payroll tax that funds Medicare, for example), but none are beyond the steps previous Congresses have taken every time the programs have neared insolvency.

Republicans are correct about this: Medicare and Social Security can’t be “fixed” until both sides lay down their weapons and start talking. But every time a granny in a wheelchair gets pushed off a cliff, that truce seems less and less possible.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

It is important not to misread what happened in 2022. After a 6-3 majority of justices overturned Roe v. Wade, voters in six states were asked to choose between preserving or reducing abortion rights. In all six — Kansas, Michigan, California, Kentucky, Montana, and Vermont — voters sided with abortion rights.

Anti-abortion politicians have fared well in recent elections, contributing to a wave of anti-abortion legislation in many statehouses. But when voters are asked to consider a direct ballot question about abortion access — as opposed to weighing in on a candidate, whose anti-abortion position may be one of many stances they hold — voters strongly favor abortion rights.

Many pundits were shocked by last year’s results, particularly in Kansas, where voters have backed the Republican candidate in nearly every presidential election since 1940. Less than six weeks after the court’s decision, Kansas residents — including a large, mostly female contingent of newly registered voters — rejected an amendment to the state constitution that was put on the ballot by anti-abortion state legislators in an effort to overturn a 2019 decision by the Kansas Supreme Court.

It was unquestionably a big deal that the abortion-rights side won by 18 percentage points, particularly since the measure appeared on the ballot during the state’s August primary, when its backers anticipated lower and Republican-leaning voter turnout.

But was the defeat of their effort to limit abortion truly a surprise? Not if you look at the history of state-level ballot measures related to abortion.

According to the website Ballotpedia, there have been 53 abortion-related ballot measures in 24 states since 1970. Of the 43 questions supported or placed by anti-abortion groups or legislators, voters approved 26% and rejected 74%. Of the 10 questions supported by abortion-rights backers, voters approved 70% and rejected 30%.

In other words, the abortion-rights side has won nearly three-quarters of the ballot measures.

More than a few of these ballot questions have been in states where Republicans have even more control than in Kansas. In South Dakota, for example, voters in 2006 overturned a sweeping abortion ban passed by the legislature, which was designed to prompt the Supreme Court to reconsider Roe v. Wade. Two years later, South Dakota voters also rejected a second, slightly less draconian ban.

Even in Mississippi, historically one of the most conservative states, voters in 2011 rejected a “personhood” amendment that would have added language to the state constitution stating that life begins at fertilization. Voters demurred after it was pointed out that such a law could outlaw some common types of birth control and in vitro fertilization.

And many of the anti-abortion ballot measures that were approved dealt with issues that have long enjoyed considerable public support — such as banning public funding of abortion and requiring parents to be involved in a minor’s abortion decision.

That is in stark contrast to the more recent success of candidates who oppose abortion, whose numbers have dramatically increased at both the state and federal levels in recent years. Conservative Republicans won control of so many governorships and state legislatures in 2010 that it led to a landslide of anti-abortion legislation in the following years.

Abortion isn’t the only issue for which voters have split ballots, weighing in on a ballot initiative while backing a candidate with an opposing viewpoint. Expanding Medicaid coverage under the Affordable Care Act is another example. So far, in seven states where Republican governors, lawmakers, or both have refused to extend Medicaid coverage to certain moderate-income residents, voters have approved expansion over those objections.

What explains how some of the same voters who elect and reelect candidates opposed to abortion also support abortion rights in stand-alone ballot questions?

One reason is that until 2022, abortion was not among voters’ top priorities when choosing whom to vote for. As recently as 2016 — when Republican presidential candidate Donald Trump promised to work to ban abortion, while Democrat Hillary Clinton vowed to protect abortion rights — only 45% of voters said abortion was “very important” to their vote, compared with 84% who cited the economy and 80% who said their top issue was terrorism. Out of 14 top issues that year, abortion ranked 13th in the poll from the Pew Research Center.

What does it mean for the future? In 2022, according to an analysis by KFF pollsters, support for abortion rights may have helped Democrats soften their expected midterm losses. As abortion has surfaced more in headlines, the issue has become more salient for voters of both parties.

State and federal lawmakers, emboldened by the court’s decision, may need to be more careful in deciding how to legislate on abortion-related matters in 2023. The voters are watching.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

As lower courts grapple with rapidly changing state laws, patients wonder from day to day if abortion is still legal and, even if legal, whether it is still available in their state. Health professionals in states with abortion bans fear prosecution by state authorities for performing abortions or by federal authorities for not performing them in life- or health-threatening situations.

Even employers are caught between conflicting state and federal rules about what can, cannot, and must be covered by insurance.

But amid all the confusion, some things are simply not true. Here are three myths going around about the abortion debate:

MYTH 1: Only people seeking abortions are affected by the Supreme Court’s action.

The huge changes and uncertainties wrought by the Supreme Court’s erasure of 49 years of largely settled federal policy most directly affect pregnant women. But they are far from the only people whose medical care is being disrupted.

As abortion providers pack up and leave states with bans, they may take with them expertise in managing high-risk pregnancies as well as routine deliveries, particularly in less-populated areas, plus access to long-acting birth control and screening and treatment for cancer and sexually transmitted diseases.

Similarly, medical students and medical residents may not want to train in states where they can’t learn abortion techniques, which are often the same as care for miscarriages. That could lead to shortages of people trained to help patients give birth safely just as more people are being forced to carry pregnancies to term.

Also affected, at this point as much by accident as intent, is birth control. In Missouri, a hospital system temporarily stopped distributing the “morning after” birth control pill, which is a contraceptive that does not cause abortion, before reversing the decision.

That is its own sub-myth — that the Plan B morning-after pill is the same as the abortion pill mifepristone. Plan B is a high dose of regular birth control that prevents ovulation but does not interrupt an existing pregnancy. Mifepristone ends a pregnancy if used in approximately the first 10 weeks.

And it’s not just pregnant women who are affected by the uncertainty. People with severe psoriasis, lupus and other autoimmune disorders are already reporting difficulty obtaining methotrexate, a first-line medication for those ailments that can also be used as an abortion medication.

MYTH 2: The Democratic Congress could have codified abortion protections long before now but chose not to.

The House on July 15 voted — for the second time by this Congress — for a bill that would effectively codify the federal abortion protections of the Supreme Court’s 1973 Roe v. Wade ruling. Ever since the court overturned that decision last month, Democrats on social media and elsewhere have complained that this is a bill Congress should have passed years ago, when the Democrats had firmer control of the House, the Senate, and the White House.

But even though Democrats had bigger majorities in Congress under Democratic Presidents Bill Clinton and Barack Obama, large numbers of anti-abortion Democrats in both chambers effectively meant there was not a majority for such legislation, much less the 60-vote supermajority that would have been required in the Senate.

It was not, contrary to some revisionist historians’ views, for lack of trying. In 1992, Democratic leaders promised to bring the “Freedom of Choice” act to the floor, a bill that would have written the right to abortion into federal law, if only to embarrass then-President George H.W. Bush right before the GOP convention. (Here is a very old clip of me explaining the situation on C-SPAN.) In the end, the bill did not make it to the floor of either the House or the Senate, as Democratic leaders could not muster the votes.

In fact, since the Roe ruling, the House has been more anti-abortion than the Senate, in part because so many Democrats from Southern and/or conservative districts opposed abortion (most have now been replaced by Republicans), and because the Senate has long had at least a handful of Republicans who support abortion rights. Today that is limited to Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska). The House got its first abortion-rights majority only in 2019, when Donald Trump was president.

MYTH 3: Congress could simply eliminate statutory abortion restrictions now.

With Democrats in charge of both Congress and the White House, they can just change the existing laws limiting abortion, advocates claim. Indeed, President Joe Biden’s budgets in 2021 and 2022 proposed eliminating the so-called Hyde Amendment, named for its sponsor, the anti-abortion crusading Rep. Henry Hyde (R-Ill.), which has barred most federal abortion funding since the late 1970s. But while the House voted in 2021 for the funding bill for the Department of Health and Human Services without the abortion rider for the first time in decades, Senate Republicans forced the restrictions back into the final measure. The same is expected later this year. Democrats hold only 50 seats in the Senate and need at least 10 Republicans on any bill that is threatened with a filibuster.

The Hyde Amendment could also keep the federal government from allowing abortion clinics to operate on federal land, as many progressives have been calling for. But other, more complicated federal-state issues would more likely doom that scenario.

Complicating things still more, the Hyde language in the HHS spending bill is far from the only abortion restriction embedded in federal law. While abortion-rights backers have successfully fought off most efforts to make such restrictions permanent, various other spending bills annually include limits on abortion in the military, in federal prisons, by the Indian Health Service, and as an insurance benefit for federal workers. Congress has also limited the ability of the District of Columbia to spend local tax dollars on abortion.

It is possible the reversal of Roe could lead to the reversal of some of these restrictions. But with Democrats’ paper-thin majority in the Senate, it’s not likely, at least not in 2022.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

But it’s not the first time — positions taken by both sides of the abortion debate have ebbed and flowed repeatedly in the 49 years since the Supreme Court declared abortion a constitutional right.

Abortion opponents and those supporting abortion rights expect the Supreme Court to soon overturn its 1973 Roe v. Wade decision, and both groups have reacted strongly. Abortion rights supporters unsuccessfully pushed Congress to pass the Women’s Health Protection Act, which would not only codify abortion rights but also eliminate lots of popular restrictions the court has allowed since 1973, most notably parental involvement laws.

But it’s abortion opponents’ efforts in many conservative states to exclude most exceptions — for rape or incest or to save the life of the mother — that have drawn headlines recently.

The efforts do not appear to have wide appeal. The majorities of Americans who support allowing those exceptions are nearly as large as the majorities who oppose abortion late in pregnancy, according to opinion polls.

Nonetheless, there are numerous examples of such efforts — going far beyond the banning of abortions after 15 weeks, which is at the crux of the Mississippi law being considered by the Supreme Court. A leaked draft opinion published last month suggests the court could use the case to overturn Roe. For example, over the past few months, Oklahoma has passed three laws restricting abortion. The latest one, signed by the governor May 25, bans abortion beginning at fertilization, which would, at least in theory, ban both in vitro fertilization and many forms of hormonal birth control. (The Oklahoma bill’s sponsor says that is not the law’s intent.)

During debate in the Oklahoma Senate on the strictest of the bans, Republican Sen. Warren Hamilton said he did not think the measure went far enough because it allowed abortions in the case of an ectopic pregnancy, a life-threatening medical emergency in which an embryo is growing outside the uterus.

That has horrified some medical professionals. “The fallopian tube and other places a pregnancy can implant cannot support a pregnancy,” Dr. Iman Alsaden, an OB-GYN and medical director of Planned Parenthood Great Plains, told reporters at a news conference May 19. “If you continue to let these pregnancies happen, there will be no viable baby afterwards. What will happen is [the fallopian tube] will burst and people will bleed to death.”

At the same time, an increasing number of state legislatures are contemplating bans that do not include exceptions for the health (as opposed to the life) of the pregnant person or for pregnancies resulting from rape or incest. Testifying on her bill in Ohio, GOP state Rep. Jean Schmidt in April told lawmakers that a child resulting from rape would be “an opportunity for that woman, no matter how young or old she is, to make a determination about what she’s going to do to help that life be a productive human being.”

Rape and incest exceptions have been an accepted part of most abortion bans since the early 1990s, but that was not always the case. For a dozen years, they were not part of the so-called Hyde Amendment, the provision inserted in annual federal spending bills that bars the use of almost all federal funds for abortion.

The more liberal (at least on abortion) Senate tried to keep the rape and incest (and health) exceptions intact back then, only to be forced to back off by the more conservative House, whose anti-abortion efforts were led by Rep. Henry Hyde (R-Ill.). “The Supreme Court had said: ‘You may not impose capital punishment on a rapist. That’s cruel and unusual punishment,’” Hyde said during a 1988 debate over the issue. “But you are saying exterminate. Exterminate this innocently inconvenient residual of the rape.”

In 1993, Hyde himself put the rape and incest exceptions back into his eponymous funding ban, and they have remained there since. With Democratic president Bill Clinton in the White House, and large Democratic majorities in both the House and Senate, “I didn’t think the votes were there anymore for a straight ban on abortion funding,” he said at the time. Indeed, at that point, the entire ban was in danger of being dropped, and only Hyde’s parliamentary maneuvering kept the slightly less stringent ban in place.

Abortion bans with few or no exceptions are politically risky. In the 2012 Missouri race for U.S. Senate, the challenger, Republican then-Rep. Todd Akin, was favored to defeat incumbent Sen. Claire McCaskill until he said in a now-infamous interview that he didn’t support exceptions because women rarely get pregnant as a result of rape. “The female body has ways to try to shut that whole thing down,” he said. The comments were disavowed by the Republican running for president that year, Mitt Romney, and his running mate, Paul Ryan. Akin eventually lost.

Now, however, anti-abortion forces appear to be on the cusp of being granted free rein by the Supreme Court to ban abortion to any degree they want. Activists clearly want the most comprehensive bans that lawmakers will pass. Whether voters will go along with that will be decided at the ballot box in November.

HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN’s chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

It was fairly clear when the court heard arguments in December over whether Mississippi could ban most abortions after 15 weeks of pregnancy that at least five justices supported upholding Mississippi’s law. It also seemed likely that they favored going significantly further to chip away at the right to abortion that women have been guaranteed since Roe was decided in 1973.

A leaked draft opinion published by Politico on Monday night — itself a historic breach of the court’s top-secret deliberation process — simply suggests what those who have followed the debate closely already suspected: Roe and the 1992 case that upheld it, Planned Parenthood of Southeastern Pennsylvania v. Casey, were soon to be no more.

“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences,” says the draft opinion obtained by Politico and authored by Justice Samuel Alito. Politico said Alito was writing for a majority that includes Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, but not Chief Justice John Roberts.

Several caveats are in order here, even after the draft was confirmed as “authentic” by Roberts, who also said he has ordered an investigation into the source of the leak. First, draft opinions can and do change — majority opinions can even become minority ones. That’s what happened with the 2012 Affordable Care Act case — although the initial vote was to strike down the law as unconstitutional, a deal was eventually made to uphold the core of the ACA while making a key provision, the Medicaid expansion, optional for states. Those deliberations were detailed by Supreme Court reporter Joan Biskupic in her 2019 biography of Roberts, “The Chief.”

Even if the underlying votes don’t change, draft opinions are often changed significantly before they are released.

Also, the Supreme Court’s process is an iterative one: Justices circulate drafts back and forth and agree and disagree and edit. That’s why often there are multiple majority, dissenting, and concurring opinions surrounding a single case. As Roberts noted in his statement Tuesday, “Although the document described in yesterday’s report is authentic, it does not represent a decision by the Court or the final position of any member on the issues in the case.”

All of that said, however, it seems unlikely that any of the five justices on the draft decision to overturn Roe and Casey will change their minds on the threshold issue.

Which leads to the next question: What’s next?

Substantively, the answer is obvious. A number of conservative states already have anti-abortion laws on the books that will be triggered if the court overturns Roe. Red states lacking so-called trigger bans likely will rush to pass as many prohibitions and restrictions as they can. Blue states probably will attempt to make abortion more available to travelers from other states.

But politically the impact is murkier. Will women rise up and protest, as when President Donald Trump was elected, and then drive the midterm vote in November toward Democrats? Or will the reaction be more as it has been in Texas, where, as The Washington Post pointed out this week, “Republicans have paid no apparent political price for banning abortion after cardiac activity is detected, around six weeks of pregnancy.” The Supreme Court has so far declined to halt the Texas law, even though it directly contravenes Roe, which technically remains the law of the land until an opinion overturning it is issued.

The leak alone has changed the tenor of the debate.

“It concerns me a great deal that we’re going to, after 50 years, decide a woman does not have the right to choose,” said President Joe Biden, who has mostly avoided the touchy issue since becoming president. “If this decision holds, it’s really quite a radical decision.” (Biden did, for apparently the first time in his presidency, use the actual word “abortion” in his prepared statement and responses to reporters Tuesday.)

“My intention is for the Senate to hold a vote on legislation to codify the right to abortion,” said Senate Majority Leader Chuck Schumer on the floor Tuesday morning. “Every American is going to see on which side every senator stands.”

Schumer has so far resisted holding such a vote, mainly because not every Democrat would necessarily vote for such a bill, which could have implications broader than a reinstatement of Roe.

Republicans are, so far, downplaying the potential political impact. Senate Minority Leader Mitch McConnell, who largely is responsible for adding the justices to the court who would make Roe’s overturn possible, focused his reaction on the leak. “Last night’s stunning breach was an attack on the independence of the Supreme Court,” he said in a statement.

But even GOP operatives say they are not that concerned about a voter backlash. “Consider me highly skeptical that the SCOTUS decision is going to have a meaningful impact on the midterms,” tweeted Brendan Buck, a GOP communications consultant and former top aide to House Speakers John Boehner and Paul Ryan.

Abortion opponents are among those celebrating, although even they realize this is not the final word. “If this opinion is adopted … the chaos of an erroneously decided decision 50 years ago that has had such a profoundly negative impact on our culture and all women, and men, would finally be set right,” tweeted Jeanne Mancini, president of the anti-abortion group March for Life.

One of many wild cards in all this is the role major corporations are playing in facilitating abortion for employees and their dependents. Some large companies, including Amazon, Citigroup, Yelp, Lyft, and Uber, are specifically creating benefits to help their workers obtain and pay for reproductive health care.

For the moment, both sides appear galvanized by the likely earthquake to come; abortion rights proponents and opponents have been crowding the sidewalk in front of the Supreme Court and the Capitol. But politically, this is going to be a marathon, not a sprint.

A final, official decision from the court is expected by the end of June.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

When it comes to health policy, former Utah Republican Sen. Orrin Hatch, who died April 23 at age 88, leaves a complex legacy of major legislative achievements, changing positions, compromises, and fierce opposition. In many ways, though, Hatch’s evolution and leadership on health policy during his four decades in the U.S. Senate mirror that of the Republican Party.

When he came to Washington as a neophyte politician after an upset victory in 1976, Hatch was a conservative firebrand, one of the early leaders of the “New Right” bent on dismantling the federal welfare state and banning abortion. A former trial lawyer, the new senator had never before held public office.

But the election of Ronald Reagan in 1980 and the Republican takeover of the Senate that made Hatch chairman of the powerful Labor and Human Resources Committee (now the Health, Education, Labor and Pensions Committee) turned him into something of a pragmatist. That pragmatism, it should be noted, was somewhat forced: Even though Hatch was technically the chair, there were enough moderate Republicans on the panel to give the ranking Democrat, Massachusetts’ Edward Kennedy, effective control over what could be passed by the committee.

So Hatch learned to compromise — and to legislate. In 1984, he negotiated with liberal Rep. Henry Waxman (D-Calif.) what is still referred to as the “Hatch-Waxman Act.” It’s better known as the law that allowed, for the first time, approval of generic copies of brand-name drugs. Although far from a panacea, it is still the single-biggest advance in the fight to rein in high drug prices.

When the Democrats took back the Senate after the 1986 elections, Kennedy became chairman of the committee and Hatch, the ranking Republican. The two teamed up on a series of landmark legislative achievements, from the Ryan White program on AIDS treatment and the Americans with Disabilities Act to the first major federal child care law. And while Hatch was a strong foe of national health insurance, he and Kennedy ultimately pushed through Congress in 1997 the bill to create the Children’s Health Insurance Program, which provides low-cost health insurance for low-income families who don’t qualify for Medicaid.

The stridently anti-abortion Hatch was outspoken about his support for federal funding for research on embryonic stem cells derived from aborted fetuses. “I think it’s the ultimate pro-life position, because I believe being pro-life is not just caring for the unborn but caring for those who are living,” he told NPR in 2007.

But like much of the Republican Party in Congress, Hatch returned to his conservative roots after the election of President Barack Obama in 2008. A supporter of the so-called individual mandate requiring people to have health insurance when it was the quasi-official GOP position in the early 1990s, Hatch became an outspoken foe. “Congress has never crossed the line between regulating what people choose to do and ordering them to do it,” he said in 2010.

After moderate Utah Republican Sen. Robert Bennett was ousted in a primary in 2010 and replaced by conservative favorite Mike Lee, Hatch grew more conservative to win reelection in 2012. His final term in the Senate was marked by efforts to overturn the Affordable Care Act and further restrict abortion access. The devout Mormon, who in his spare time wrote lyrics for best-selling Christian music, even called the ACA “the stupidest, dumb-ass bill that I’ve ever seen. Now some of you may have loved it; if you do, you are one of the stupidest dumb-ass people I’ve ever met.” He later apologized for the statement.

A former Kennedy aide, Jim Manley, told The Salt Lake Tribune that “no one epitomizes the rightward lurch of the Republican Party more than Sen. Hatch.”

In one final twist, however, Hatch pushed as his successor the 2012 GOP presidential nominee, Mitt Romney. In just his first few years, Romney has become one of the most moderate Republicans in the chamber. That may prove to be Orrin Hatch’s final legacy.

HealthBent, a regular feature of Kaiser Health News, offers insight and analysis of policies and politics from KHN’s chief Washington correspondent, Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).

To the casual observer, the obvious answer is that abortion opponents want to overturn Roe v. Wade, the 1973 Supreme Court ruling that legalized abortion nationwide. Before Roe, states decided whether and when abortion should be legal.

It’s possible opponents of abortion will see that wish granted. Based on comments made by six conservative justices during arguments, the high court this year is expected to either weaken significantly or throw out the nearly 50-year-old precedent of Roe by upholding a Mississippi law banning the procedure after 15 weeks of pregnancy.

In the meantime, state legislatures are scrambling to prepare for that likelihood — either by shoring up laws protecting the procedure (in a few states), by proposing new restrictions, or by ensuring that pre-Roe bans or restrictions could be reinstated if and when the Supreme Court acts. According to the Guttmacher Institute, an abortion-rights think tank, 519 abortion restriction bills were introduced in 41 states from Jan. 1 through March 15, including 82 proposed abortion bans in 30 states.

Just last week, West Virginia’s governor signed a law banning abortion for reasons of fetal disability, and Idaho’s governor approved a bill that mirrors a Texas ban on abortion after six weeks. The Supreme Court has so far failed to block the Texas law, even though it clearly violates Roe, which, until the justices rule, remains binding precedent.

But it is important to remember that overturning Roe — and tossing abortion decisions back to individual states — is only a way station toward opponents’ ultimate destination: ending abortion entirely. “We would like to see every abortion gone, because we know that there are two people in every abortion choice,” Marjorie Dannenfelser, president of the Susan B. Anthony List, told KHN’s “What the Health?” in January.

But anti-abortion forces disagree on two fundamental points: what ending abortion actually means, and how fast to try to achieve it.

To settle the first major disagreement, there first must be consensus on what constitutes an abortion, or, to put it another way, when life begins. The “personhood” movement, which has pushed (so far) unsuccessful ballot measures in several states, argues that because human life begins from the moment sperm and egg unite to form a zygote, fertilization should mark the start of protections for human life. That would, in practice, bar many forms of birth control and in vitro fertilization, and give embryos property rights, among other things.

Other abortion opponents suggest banning forms of birth control they consider “abortifacients” (methods they say cause abortions, such as most intrauterine devices and the “morning-after” pill), while not banning in vitro fertilization. Still others would continue to support most forms of birth control but not the abortion pill mifepristone, which, unlike the morning-after pill, works after a fetus has begun to develop in the womb.

The second, and more public, disagreement is over how quickly to pursue a zero-abortion strategy, assuming the Supreme Court returns that power to the states. This is where some of the more extreme anti-abortion bills are starting to consume the debate’s oxygen. For example, in Missouri, legislators have proposed bills that would ban abortions even in cases of ectopic pregnancies, which are not only nonviable but also life-threatening for the pregnant person, and criminalize helping someone travel out of state for an abortion. In Idaho, the new law would allow the family members of some rapists to sue doctors who perform abortions on rape victims.

The problem with these measures, say analysts from Guttmacher, is that “often they are not the main focus of anti-abortion policymakers, but pull attention away from other abortion restrictions and bans that are moving quickly through some state legislatures. Moreover, these types of headline-baiting restrictions can make other devastating provisions, such as Texas-style bans or gestational age bans, seem less radical and harmful than they really are.”

“There was a time when passing blatantly unconstitutional laws was considered un-American,” said Emily Wales of Planned Parenthood Great Plains Votes in a statement about a bill passed by the Oklahoma House on March 22 that would ban virtually all abortions — making it potentially the strictest ban in the U.S. “The proposed ban is intended to shame, stigmatize, and create fear among vulnerable Oklahomans.”

Which raises the idea of the “Overton Window.” Named for Joseph Overton, who helped run a public policy institute in Michigan, the concept is that only policies within a range of acceptance to the public are considered viable. However, by pushing policies that may be outside that window — in other words, extreme — the window can be nudged to make previously unthinkable policies politically acceptable.

Some suggest that’s what is happening with the recent slew of abortion legislation — that anti-abortion forces, whether accidentally or on purpose, are pushing extreme proposals to make formerly radical proposals — like a Texas-style ban on abortion after six weeks, enforced by civil lawsuits rather than state officials — seem moderate by comparison.

Will the strategy work? It’s too early to tell. But things are likely to become clearer in a hurry when the Supreme Court issues its decision, expected sometime before July 4. Fireworks, indeed.

HealthBent, a regular feature of KFF Health News, offers insight into and analysis of policies and politics from KFF Health News chief Washington correspondent Julie Rovner, who has covered health care for more than 30 years.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

USE OUR CONTENT

This story can be republished for free (details).