I almost opened today’s newsletter by writing that Sunday would have marked the 50th anniversary of Roe v. Wade, had it not been overturned last June. But that’s incorrect. Roe happened, whether opponents of abortion like it or not — the same way that abortions happen (and will continue to happen) regardless of the success or failure of attempts to ban them.
Abortion has always existed. Abortion will always exist.
Roe is dead. Long live Roe.
The Big Takeaway
In its 1973 landmark decision, the U.S. Supreme Court ruled 7-2 that the Due Process Clause of the Fourteenth Amendment provided a fundamental “right to privacy,” including a pregnant person’s right to undergo an abortion. The political landscape of abortion has undergone seismic shifts since that bipartisan decision, but public opinion on the issue is largely unchanged: A majority of Americans supported legal abortion then, and a majority of Americans support legal abortion now.
This goes beyond polling — when Americans are given the chance, they vote to keep abortion legal. Voters in five states (three blue, two red) approved abortion rights measures on the ballot in November. President Joe Biden highlighted that support in a proclamation on Friday, noting that Americans “have made clear at the ballot box that they believe the right to choose is fundamental and should be preserved,” regardless of what the Supreme Court decided.
But most voters haven’t had that opportunity. Abortion is now fully or mostly banned in 13 states, with a handful of additional statewide bans on hold pending ongoing court cases. (Unsurprisingly, those states have higher maternal death rates than places that support reproductive freedom, per the Ohio Capital Journal.) In Wisconsin, where the fall of Roe reinstated a no-exceptions abortion ban from 1849, protesters marked the decision’s 50th anniversary with a “Bigger than Roe” march that culminated with a rally at the state Capitol on Sunday, the Wisconsin Examiner reported.
The Madison march, part of a national movement, sought to call attention to an upcoming state Supreme Court election, where two conservatives and two liberals are vying to replace a retiring right-wing justice. The court, currently a 4-3 conservative majority, will likely decide the fate of the state’s Civil War-era abortion ban, which hinges on the outcome of a lawsuit inching its way through the court system.
Speakers at Sunday’s rally urged attendees to support the liberal court candidates in February’s primary and April’s general election. Those candidates, organizers said, will determine the fate of reproductive rights in Wisconsin. Protesters, waving handmade signs (“Keep your beliefs out of my briefs,” “I will aid and abet abortion”) responded with chants (“Abortion is health care! Health care is a right!”).
“What is next? Legislating birth control?” asked Mary Stoffel, a Madison-based OBGYN. “Everyone should be able to decide what they get to do with their body.”
There is no hyperbole in the post-Roe world, so yes, right-wingers are targeting birth control. They’re also coming for the abortion pill, which could be outlawed even in states where abortion is legal, depending on the outcome of a lawsuit filed by anti-abortion groups in November, according to reporting from our national bureau in D.C.
The 113-page lawsuit, filed by a handful of anti-choice groups (including the Christian Medical & Dental Associations, a real organization that definitely needs to exist), alleges that the federal Food and Drug Administration “exceeded its regulatory authority” in 2000 when it approved a two-drug regimen (mifepristone and misoprostol) to terminate pregnancies in the United States.
One more time, but with extra context: The suit alleges that the FDA exceeded its regulatory authority to evaluate and approve medication in the United States by … evaluating and then approving medication to terminate pregnancies in the United States.
“This case challenges the FDA’s failure to abide by its legal obligations to protect the health, safety, and welfare of women and girls when the agency authorized the chemical abortion drugs … and subsequently eliminated necessary safeguards for pregnant women and girls who undergo this dangerous drug regimen,” reads the complaint.
The court, it continues, should “issue a preliminary and permanent injunction” ordering the agency to rescind its authorization of the drugs.
Attorneys for the U.S. Department of Justice in a Jan. 13 court filing panned the case as “extraordinary and unprecedented.” The plaintiffs, they wrote, failed to provide a single example “where a court has second-guessed FDA’s safety and efficacy determination and ordered a widely available FDA-approved drug to be removed from the market — much less an example that includes a two-decade delay.”
Doing so “would cause significant harm, depriving patients of a safe and effective drug that has been on the market for more than two decades,” the filing continued.
In summary, the lawsuit is just the latest (exhausting) example of fringe groups throwing everything at the legal system in hopes that something will stick. But abortion rights advocates said they’re forced to take it seriously anyway, based solely on the judge who will oversee it: Matthew Joseph Kacsmaryk, a Donald Trump appointee who has criticized the legal foundation of Roe and once likened pro-abortion groups to “sexual revolutionaries.”
Suffice to say that Kacsmaryk seems sympathetic to the anti-abortion cause, but it doesn’t really matter — regardless of what he decides, the case is basically guaranteed to end up before the U.S. Supreme Court. And it’s pretty easy to predict what’ll happen once it gets there.
6-3, anyone?: Federal judge allows Arizona to implement genetic-abnormality abortion ban … VP Harris in Tallahassee: ‘Can we truly be free if a woman cannot make decisions about her life?’ … Georgia’s six-week ban not enough for anti-abortion activists pressing for more restrictions at Roe’s 50th anniversary … Idaho Abortion Rights receives donation to increase free emergency contraception supply … Mainers mark 50th anniversary of Roe, call for strengthening of state abortion rights … Roe v. Wade at 50: A look back at the fight for abortion rights in Michigan and nationwide … Study: States protecting abortion access have higher minimum wage, lower incarceration rates … Planners for southern New Mexico reproductive health clinic gather in the capital to talk next steps … In Texas’ first post-Roe legislative session, there’s a new political power dynamic on abortion
State of Our Democracy
Last summer, a grand jury convened in Georgia to determine whether former President Donald Trump and his allies broke the law by attempting to overturn the results of the 2020 election. On Tuesday, Fulton County Superior Court Judge Robert McBurney will decide whether their conclusions should be made public, per the Georgia Recorder.
For roughly six months, the 26-member panel heard from dozens of witnesses, including top Trump allies (U.S. Sen. Lindsey Graham (R-S.C.), former New York Mayor Rudy Giuliani) and Georgia officials (Gov. Brian Kemp, Secretary of State Brad Raffensperger). The group did not have the authority to charge anyone with a crime, but it was tasked with compiling its findings into a report for the district attorney, who has final say on whether to heed (or discard) their recommendations to indict (or not indict).
That report has not been released to the public, though McBurney noted last week that the panel had recommended that it be published. The judge has final say over whether the information becomes public, though legal experts said parts of the report are likely to trickle out either way when (or if) criminal charges are filed. But it’s unlikely that the entire document will be released on Tuesday — or even this week, they said.
“The judge will put some fire behind the district attorney and say, ‘I’m going to order that this report be released in its entirety on such and such a date and portions of it may be released next week and you need to judge yourself accordingly,’ ” said J. Tom Morgan, former DeKalb County District Attorney and criminal law professor at Western Carolina University. “This report puts the D.A. in a quandary, because the report says there have been certain crimes and certain persons should be prosecuted and if she doesn’t prosecute, it’s going to come back to bite her.”
Still, the hearing itself could offer clues to the contents of the report. A coalition of media groups filed a brief Monday calling for the document to be unsealed, describing it as a “matter of profound public interest that goes to the heart of the nation’s democratic forms of government.” They’re likely to go up against attorneys representing the people who could be targeted by the report, with one notable exception: Trump himself. The former president’s legal team said in a statement Monday that it would not be present in court on Tuesday, noting that Trump was “never subpoenaed nor asked to come in voluntarily by this grand jury or anyone in the Fulton County District Attorney’s office."
“We can assume that the grand jury did their job and looked at the facts and the law, as we have, and concluded there were no violations of the law by President Trump,” the statement said.
Billable hours: (Arizona) ‘Drag is art’: Drag artists, LGBTQ community and allies rally against GOP vitriol … Arkansas legislation restricting school restroom use mimics Conway policy … More and more ‘special’ sessions: Will Florida Legislature ever review changing the way it operates? … Longest-serving members of Kansas Legislature talk about career, race and partisan politics … Louisiana Legislature special insurance session: What, if anything, gets done? … (Maryland) At start of a new term, Latino Caucus welcomes new members, celebrates successes … Bill to repeal Montana’s energy policy up for third reading in House, other updates … The New Mexico Voting Rights Act is coming back, lawmakers and advocates say … (Pennsylvania) Technical mistakes, secrecy envelope errors led to Lehigh Valley mail-in ballots being rejected
From The Newsrooms
One Last Thing
Earth’s inner core is slowing its spin, which is apparently not a harbinger of the end times but probably the latest recurrence of a 70-year cycle.
Although researchers don’t know that for sure.
“It’s probably benign,” said John Vidale, a geophysicist at the University of Southern California. “But we don’t want to have things we don’t understand deep in the Earth.”
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