Year in Review: Unresolved abortion conflicts

The year is ending with a question mark on some of the most notable developments in post-Roe America as pro-lifers and abortion supporters await resolution in several national and state-level stories. The U.S. Supreme Court is set to hear oral arguments in a case that could restore previous safety requirements for distributing the abortion pill. Pro-lifers facing more than a decade in federal prison await a final sentence after being found guilty under a Clinton-era law. The Texas Supreme Court has yet to rule on an emotionally charged case involving medical exceptions to the state abortion law. And after a pro-abortion referendum succeeded in Ohio, the state is watching the courts and lawmakers to see how the amendment will affect existing laws.

The fight over abortion pill expansion continues

The Biden administration kicked off 2023 with an announcement on Jan. 3 that corner pharmacies can now become certified to fill prescriptions for the abortion drug mifepristone. Soon afterward, the country’s two largest pharmacy chains said they would pursue certification to dispense the drugs. Pro-life organizations responded by organizing boycotts and protests of pharmacies throughout the country.

Pro-abortion state lawmakers also promoted the abortion pill in 2023 by continuing to pass so-called “shield laws” for abortionists in their states. The legislation blocks the prosecution of out-of-state abortionists who prescribe abortion pills remotely to women in pro-life states. In those pro-life states, pregnancy centers continued to encounter women who had ordered abortion pills online, and lawmakers struggled to find a solution.

Meanwhile, a lawsuit filed in November 2022 that could end the dispensing of abortion pills through mail-order and in pharmacies nationwide wound its way through the courts. In April, a U.S. District Court agreed with the pro-life physician plaintiffs that the U.S. Food and Drug Administration wrongfully approved the abortion drug mifepristone in 2000. But the 5th U.S. Circuit Court of Appeals reversed part of the lower court’s ruling in August. It only agreed that the FDA needs to put some safety measures for distributing the drug back in place such as the requirement for abortionists to dispense the drug to women in person. Due to a stay granted by the U.S. Supreme Court, none of those lower court rulings have taken effect. In December, the Supreme Court agreed to take up the federal government’s appeal of the earlier rulings. Oral arguments will likely appear on the high court’s calendar in the spring.

The FACE Act helps and hurts pro-lifers

On Jan. 24, the U.S. Department of Justice announced indictments against two people suspected of spray-painting threatening messages on the property of pro-life pregnancy centers in Florida. It was the first known arrest of perpetrators involved in similar attacks on more than 70 pro-life organizations since the leak of a draft of the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in May 2022. The indictment alleges the pair are guilty of conspiracy and of violating the Freedom of Access to Clinic Entrances Act. Supporters of the 1994 law originally intended it to limit pro-life protests at abortion facilities, but the statute protects pro-life pregnancy centers as well.

Days later, on Jan. 30, a jury acquitted pro-life sidewalk counselor Mark Houck of trumped-up charges he faced under the same law. The allegations stemmed from an altercation he had with an elderly Planned Parenthood volunteer who Houck said had harassed his son. Before the jury dismissed the charges, Houck faced the possibility of 11 years in prison.

Pro-lifer Lauren Handy, 30, and eight fellow pro-life activists still face the possibility of prison. At three separate trials in August, September, and November, juries in Washington, D.C., found them guilty of the same charges the Florida pro-abortion activists face but or participating in a sit-in at an abortion facility in 2020. Authorities took the pro-lifers into custody immediately following the verdicts. The activists are still awaiting their sentences as a similar case heads to trial in January.

Women sue for abortions

In March, the Center for Reproductive Rights filed its first of several lawsuits on behalf of women denied abortions. The pro-abortion legal organization sued the state of Texas on behalf of two OB-GYNs and several women in the state who faced pregnancy complications or whose unborn babies received poor diagnoses. The women claimed they should have been able to get abortions under the state’s medical exceptions to its protections for unborn babies. Denials or delays in aborting their children, the lawsuit said, put their lives and health at risk.

Even pro-life doctors disagree about the best way to handle certain pregnancy complications. But lawyers for the state of Texas agreed that at least some of the women—including lead plaintiff Amanda Zurawski, who nearly died from sepsis—should have qualified for an abortion under the exception. Others, the state said, would not have qualified because they sought abortions due to their babies’ disabilities, not risks to their own health. A trial court heard testimony in the case in July and an appeal brought the case before the Texas Supreme Court in November. The parties expect a final ruling—either upholding or weakening the state’s current protections for unborn babies—in the coming months.

The Center for Reproductive Rights brought similar cases in September on behalf of other women and doctors in Tennessee and Idaho that have yet to head to trial. The organization also represented Kate Cox, a Texas woman who sued her state when she was 20 weeks pregnant for permission to abort her baby, whom doctors had diagnosed with trisomy 18. A Texas district judge ruled that Cox could abort her baby, but the state attorney general’s office disagreed, arguing that Cox had not shown that she had a condition necessitating an abortion to save her life or preserve her health. The Texas Supreme Court overturned the lower court’s ruling and, within a week of filing her lawsuit, Cox left Texas to abort her baby in another state.

Ohioans enshrine a constitutional right to abortion

On Aug. 8, Ohio voters rejected a state constitutional amendment that would have raised the threshold of votes required to pass future amendments from a simple majority to 60 percent. Pro-life groups in the state had championed the measure as a way to protect the constitution from pro-abortion efforts to establish a right to abortion. But 57 percent of Ohioans opposed Issue 1 with even some conservatives expressing concerns about possible unforeseen consequences of making the constitution harder to amend.

Another Issue 1 appeared on Ohio ballots in November—this time, a measure that would enshrine a right to abortion in the state constitution. In their campaign against the measure, pro-life groups focused on how the vague language of the amendment would restrict parents from being involved in their minor children’s pregnancy decisions and legalize unpopular late-term abortions in the state. Despite the focus on talking points more popular with moderate voters, the amendment passed with almost 57 percent of the vote, similar to the results of a comparable measure in Michigan the year before. Pro-life lawmakers in Ohio’s majority Republican legislature responded by vowing to find ways to minimize the effects of the amendment. With little support from lawmakers, pro-abortion groups are turning to state courts to nullify pro-life laws still on the books.