There's been a lot of talk among abortion-rights activists and Democratic lawmakers that Brett M. Kavanaugh's ascension to the Supreme Court might provide a majority to overturn the landmark 1973 Roe v. Wade decision.
Here's the thing: even if that happened, abortion rights won't be immediately outlawed throughout the United States.
The truth is the legal framework surrounding abortion rights in the United States is much more complicated, meaning that if the high court acted to overturn Roe, some states would continue allowing women access to abortions, while others may bar them from receiving the procedure -- or restrict access to it at various points in a pregnancy and for any number of different reasons.
That means even greater variance in abortion laws across the country depending on whether a state is run by Democrats or Republicans.
Right now, how easily a woman can access an abortion varies dramatically based on whether she lives in a politically red or blue state. Access would become even more segmented if a now solidly conservative high court moved the guideposts on when or how abortion can be restricted.
It's worth remembering that Roe didn’t guarantee access to legal abortion — the decision states that the procedure can’t be restricted before the point that a fetus is viable. So overturning Roe wouldn't change much of anything for states mainly run by Democrats who are supportive of abortion rights -- they could keep abortion legal within their borders. In fact, nine states have passed laws explicitly protecting abortion rights, regardless of a high court decision.
But in the 26 states where Republicans hold the governorship and control the legislature, stricter abortion bans would probably follow if the court weakens or eliminates the Roe standard.
Four of these states — Louisiana, Mississippi and North and South Dakota — have enacted “trigger laws,” which would go into effect should Roe be struck down. Louisiana’s 2006 law would prohibit all abortions except when the woman’s life is in danger. Mississippi’s 2007 law would also allow an exception in cases of rape. Ten other states have kept pre-Roe abortion bans on the books.
So it’s easy to imagine a scenario in which abortion remained legal in states mainly controlled by Democrats and illegal in other states supervised by Republicans, cleaving the country along the same geographic lines that have divided it in elections
My colleagues Joe Fox, Ann Gerhart and Aaron Steckelberg have a useful visual with this map:
“I think you’ll see conservative states in the South and Midwest adopt protections to the unborn, but I think in blue state America very little is going to change,” said Michael New, a political science professor at Catholic University who has written extensively about abortion law.
Abortion-rights activists know they're working on the defense after strong political victories at the state and national level in recent years. These activists are trying to leverage Kavanaugh’s entry onto the court into a motivating force for voters in November, hoping that at least handing more seats to Democrats will help keep abortion rights broadly legal despite what the high court may do.
“The Republican Party takeover of our government has been devastating for women and families,” NARAL Senior Vice President Sasha Bruce said in a statement Sunday announcing a $1 million ad campaign targeting seven vulnerable House Republicans. “They have had their say, now it is time for us to have ours and vote them out.”
NARAL and other activists want to avoid a scenario that terrifies them – the possibility that Congress could pass a federal ban on abortion if the Supreme Court overturns Roe. That seems less likely to happen if Democrats manage to seize control of the House next month.
Sen. Susan Collins (R-Maine), who supports abortion rights, has tried to downplay the possibility that Kavanaugh would help the court to overturn Roe, as she faces fierce criticism from activists for voting to confirm him (our colleague Glenn Kessler has a good fact-check this morning on her recent inaccurate claim that Planned Parenthood opposed three previous "pro-choice" justices just because they were Republicans).
But here’s the catch. The Supreme Court doesn’t need to overturn Roe to dramatically reshape abortion laws in the United States.
There’s a whole pot of state restrictions the justices could consider, which would allow them to significantly move the boundary lines on access to the procedure. Experts on both sides of the issue say that’s more likely than an all-out Roe reversal.
Sen. Mazie Hirono (D-Hawaii) predicted over the weekend that the court will essentially “nullify” Roe by upholding more restrictive state laws.
“Of course it will matter if they go over there and actually overturn Roe v. Wade, which I doubt they’re going to do,” Hirono told ABC’s Jonathan Karl. “But … the states are very busy passing all kinds of laws that would limit a woman’s right to choose. It’s those things that will go before a justice.”
On the list of possibilities: Laws in Mississippi and Louisiana banning abortions past 15 weeks of pregnancy, well before the “viability” standard established under Roe. There’s Iowa’s “heartbeat” law banning abortion after a fetal heartbeat can be detected — typically around seven or eight weeks of pregnancy. And then there are laws in Arkansas, Texas and Alabama banning a common second-trimester abortion procedure known as dilation and evacuation, or D&E.
Of course, it’s next to impossible to predict what legal maze the Supreme Court will try to navigate. But anticipation is at a boiling point among activists on both sides of the issue now that Kavanaugh is on the bench.
“If we already have this fractured system in place with Roe intact, Roe could be undermined or overturned and that would allow a deepening of these fractures,” said Elizabeth Nash, senior state issues manager at the Guttmacher Institute. “It might not take an overturning of Roe to make it harder for abortion rights to remain in place.”
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AHH: As they barrel toward the midterm elections, Democrats have made health care the most mentioned topic in campaign advertising, the Wall Street Journal’s Brian McGill and Julie Bykowicz report.
An analysis of Kantar Media/CMAG advertising data on health care and tax and economic messaging in House and Senate races this year found health care has dominated all topics, including opposition to the president.
The analysis found that, from Jan. 1 through Sept. 30, about 50 percent of ads from Democrats have focused on the topic of health care, compared with 21 percent of Republican ads.
There’s been a marked increase in the focus on health care in campaigns in the last several years. In 2010, 29 percent of ads from Republicans targeted the Affordable Care Act, as did less than 6 percent of ads from Democrats. In 2014, 44 percent of Republican ads during midterms targeted the ACA, compared with 31 percent of ads from Democrats on the issue.
“The Democrats’ embrace of health-care messaging, eight years after all but shunning it, reflects the growing popularity of the Affordable Care Act as its provisions have come into effect,” Brian and Julie report. “The percentage of Americans who hold favorable views of the law has surpassed the share opposing it, a gap that has grown since Republicans’ failed repeat efforts.”
OOF: Sen. Brian Schatz (D-Hawaii) in a series of tweets last night said Senate Democrats are planning to force a vote this week on the Trump administration’s short-term health plans.
As of last week, insurers were able to sell skimpy short-term health plans, which the administration argues are a cheaper alternative to ACA insurance plans and open up additional coverage options for consumers shopping for insurance.
So part of how healthcare works is there are certain minimum standards for a healthcare plan - it’s gotta cover ER visits, pregnancy, Athsma - there’s a long list of what they call Essential Health Benefits - a list of ways that insurance companies are not allowed to screw you.— Brian Schatz (@brianschatz) October 8, 2018
These are called Junk Insurance Plans and to no ones surprise the trump people love them. This Wednesday, we Senate Democrats are forcing a vote to overturn this stupid rule allowing junk plans. Tammy Baldwin and all Senate D’s cosponsored the legislation.— Brian Schatz (@brianschatz) October 8, 2018
As Schatz notes, Democrats have criticized short-term options as “junk plans" because they frequently don't cover essential health benefits and deny coverage to individuals with preexisting health conditions. Democrats have made the issue of preexisting illness protections a central messaging point as they push toward midterm elections.
The Hawaii Democrat says the vote, even if it fails (as is likely), will force Republicans to defend a Trump administration policy in the final weeks before voters go to the polls:
On Wednesday we are voting to overturn these junks plans. I am eager to see whether Republicans want to support these junk plans and stick w Trump or do they want to support their constituents. I think they stick w Trump.— Brian Schatz (@brianschatz) October 8, 2018
OUCH: Our Post colleague Lindsey Bever writes about a recent cluster of acute flaccid myelitis, or AFM, that developed in Minnesota.
The condition has been compared to polio because of how it can lead to paralysis and even death in some cases. The Centers for Disease Control and Prevention began tracking AFM in 2014 and since then, 362 cases have been reported across the country. And 38 of those cases have been reported in 16 states just this year. That prompted the Minnesota Department of Health to put out a statement about the recent outbreak of six cases. “For reasons not fully understood, AFM affects mainly children,” the alert read. “All recent Minnesota cases have been in children under 10 years old and all were hospitalized. Cases have been reported from the Twin Cities, central Minnesota and northeastern Minnesota.”
AFM can lead to weakness in muscles, with symptoms including facial muscle weakness, droopy eyelids, issues swallowing or slurred speech, Lindsey writes.
The Mayo Clinic’s Marc Patterson explained to Lindsey the recent jump in the number of cases “could be that the viruses are mutating to be better able to invade their hosts, or it could be that doctors are now better able to recognize the signs.”
— The pro-Obamacare group Protect our Care launched an ad on Monday targeting Sen. Susan Collins (R-Maine) following her vote to confirm Kavanaugh.
The ad imagines a scenario in 2019 or 2020 when the Supreme Court rules to overturn the ACA, with Kavanaugh pushing the vote to a 5-4 margin. "Maine Sen. Susan Collins cast the crucial vote confirming Kavanaugh to the court," the ad says, flashing a note that reads, “Senator Collins: We won’t forget.”
“The ad, which will launch online and on TV in Maine, is meant to punish the Maine senator for being one of the deciding votes to confirm Supreme Court Justice Brett Kavanaugh,” the Washington Examiner’s Kimberly Leonard reports. “The ad highlights Obamacare's protections for people with pre-existing conditions and says that it will allow insurance companies to deny coverage to half a million people in Maine.”
"Trump’s nomination of Brett Kavanaugh to be a rubber stamp on his war on health care was a true test of Senator Collins’s commitment to health care," Protect Our Care chair Leslie Dach said in a statement. "Senator Collins failed that test, and Mainers will remember where she stood when the Court rules to rip health care away from us."
— At a ceremonial swearing-in for Supreme Court Justice Kavanaugh, Trump fanned the flames of an already contentious confirmation process by apologizing to Kavanaugh and his family “for the terrible pain and suffering” they experienced, our Post colleagues Ashley Parker and John Wagner report.
“Those who step forward to serve our country deserve a fair and dignified evaluation, not a campaign of political and personal destruction based on lies and deception,” Trump said. “What happened to the Kavanaugh family violates every notion of fairness, decency and due process.”
The president also “used the ceremony to press a message he thinks resonates with his base in the face of the #MeToo movement,” they write.
“In our country, a man or a woman must always be presumed innocent unless and until proven guilty,” he, telling Kavanaugh: “I must state that you, sir, under historic scrutiny, were proven innocent.” No actual conclusion was reached regarding Christine Blasey Ford’s allegation that Kavanaugh sexually assaulted her when they were teenagers.
— Obamacare insurance plans in Ohio will see modest rate hikes next year.
Premiums for ACA plans will go up an average of 6.3 percent, the Cleveland Plain Dealer’s Ginger Christ reports. But Ohioans will have more options: there will be 10 insurers in the marketplace in 2019 compared with eight insurers this year.
“The biggest premium increase in northeast Ohio was requested by New York-based Oscar Insurance Corp., a health insurance tech startup that entered the Ohio market with an insurance offering with the Cleveland Clinic for 2018 coverage,” Ginger writes. Kyle Estep, the state’s market director for Oscar Health, explained rising premiums are in part related to the increase in drug and health services costs.
“Other insurers also attributed higher costs to a number of changes at the federal level,” Ginger writes. “Congress in 2017 repealed the individual mandate, which required that everyone have health insurance, or pay a fine. The mandate was intended to keep healthier people on the insurance market, which lowers costs for all insured people. Repeal of the mandate goes into effect for 2019 coverage.”
— Most Americans are in favor of legalizing marijuana, a new survey from the Pew Research Center has found.
It found 62 percent of Americans support legalization, up 1 percent from 2017, and representing a 200 percent jump from the level of support in 2000.
Broken down by party, the survey found 69 percent of Democrats, 75 percent of Independents who lean toward the Democratic Party and 45 percent of Republicans support legalization. The level of Republican support has increased 6 percent since 2015, per the report. Meanwhile, 51 percent of Republicans are against legalizing marijuana.
“The growth in public support for legal marijuana comes as a growing number of states have legalized the drug for medical or recreational purposes in recent years,” Pew notes. “Nine states and the District of Columbia have legalized the drug for recreational purposes, according to the National Conference of State Legislatures. More than half the states (31) – plus the District of Columbia, Guam and Puerto Rico – have legalized it for medical purposes.”
— A few more good reads from The Post and beyond:
- The FDA holds a meeting of the Oncologic Drugs Advisory Committee on Wednesday.
- The FDA holds a meeting of the Anesthetic and Analgesic Drug Products Advisory Committee on Wednesday.
- The Alliance for Health Policy holds an event on aging in America on Wednesday.
- The American Enterprise Institute holds an event on “Nurse practitioners and America’s primary care shortage” on Oct. 15.
- The Brookings Institution holds an event on “Crafting public policy to address the nation’s opioid epidemic” on Oct. 15.
Watch Trump's full speech at Kavanaugh's swearing in ceremony: