After Kansas, Confusion
Terry H. Schwadron
Aug. 9, 2022
It didn’t take long to see how the lessons of public abortion rebuke in Kansas would start to play out.
Among the pundits, there were immediate predictions that the politicians would adjust for the November elections — Democrats more vocal, Republicans more cautious.
Instead, of course, the Republican-dominated legislature in Indiana ignored what the public said it wanted and moved quickly just three days later to shove through a near-total ban on abortion. The Republican governor immediately signed it into law in a state where the attorney general threatens to de-license a doctor for treating a 10-year-old rape victim from Ohio over still-legal abortion. And big businesses in the state, including Eli Lilly, were quick to say they would be looking elsewhere to expand.
At the White House, Joe Biden signed an executive order to help ensure that women could travel across state lines for access to abortion after the Supreme Court decision to overturn 50 years of precedent for legal abortion rights.
The Justice Department filed suit against aspects of Idaho’s abortion laws as overly restrictive of legally available treatments under Medicaid.
In Congress, legislators are sitting on their hands over a proposal to codify the struck provisions of Roe v. Wade.
And everywhere, people are marching and shouting. Up until the last-minute of passage in the Indiana Senate, anti-abortion advocates were all over those Indiana legislators for still allowing abortion in cases of rape, incest, lethal fetal abnormality or when the procedure is necessary to prevent severe health risks or death.
In short, buoyed by Kansas voting, Democrats were trying to make the best of offering protections where legally available, and Republicans were in denial that there had been a Kansas vote.
Instead, Republican legislators in Indiana, the first state to act since the Kansas vote, found themselves stuck between perceived loyalties to evangelical supporters and a public who not only poll as opposing abortion extremes, but had just voted in red-state Kansas to tell lawmakers emphatically to stop acting as they have been. But they acted anyway — for their own political preservation.
Along with the abortion ban, Indiana Republicans also passed legislation they said was intended to support pregnant women and mothers, but critics pointed out much of the money was directed at propping up pregnancy crisis centers run by antiabortion groups.
All Indiana lawmakers had to do with stop for a moment, and just think again about what people want. The final vote in the state senate came despite some Indiana Republicans opposing the measure for going too far, and others voting no because of its exceptions.
Todd Huston, the Republican speaker of the Indiana House, acknowledged that many would disagree with the legislation, but said he was was pleased with the final version of the law. “We’ve talked about the fact that voters have an opportunity to vote, and if they’re displeased, they’ll have that opportunity both in November and in future years,” he told The New York Times.
How does this attitude reflect good policy or even good politics? The only explanation is that Republicans felt pressured to ban abortion to stay in good stead with a base that is out of sync with general election voters.
What About Caution?
More broadly, even as Democrats now are running against abortion “extremists,” Republicans have moved slowly and suddenly lack unity on the subject. Lawmakers in South Carolina and West Virginia have weighed but taken no final action on proposed bans while those in Iowa, Florida, Nebraska and other red states have not taken legislative action.
News reports have reflected many Republican politicians recalibrating their messaging on abortion to a more cautious approach.
Meanwhile, the moves by Biden and Justice show just how rocky the legal waters are going to prove in the months ahead as the practical details of what is allowable or not start to emerge.
The presidential order directs Health and Human Services Secretary Xavier Becerra to consider “all appropriate actions to ensure health care providers comply with federal non-discrimination laws so that women receive medically necessary care without delay,” including steps to provide health care providers with technical and legal guidance amid the patchwork of state legal restrictions on abortion care following the Supreme Court’s decision.
Can we agree that it is a horrible sign for individual rights when the White House feels it needs executive orders to allow for interstate travel, a right so basic to this nation that it seems nuts to have to defend. The presidential order aims to help women travel to receive abortions where they are legal, ensures health care providers comply with federal law so women aren’t delayed in getting care and advances research and data collection “to evaluate the impact that this reproductive health crisis is having on maternal health and other health conditions and outcomes.”
Along with the Justice lawsuit against Idaho and non-evangelical religious congregations in Florida filing legal challenges based on opposing freedom of religion claims, we are in for a heavy continuation of abortion rights in the courts. That, of course, is the opposite of what the Supreme Court said it wanted by overturning Roe, and, in essence, making abortion decisions a matter for states, legislatures and elections rather than in the courts.
In state courts, we have seen a welter of contradictory moves to allow or delay implementation of “trigger laws” meant to stop statewide abortions following that Supreme Court decision.
If successful, the Justice Department action in Idaho could mean more challenges in other states. That lawsuit notes that Idaho has violated the Emergency Medical Treatment and Labor Act (EMTALA), a federal law that requires medical facilities that receive federal funds to give “stabilizing treatment” to patients, including abortion patients facing medical exigency. Under the Constitution’s supremacy clause, the federal law trumps state laws. The Justice Department argues: “The Idaho law would make it a criminal offense for doctors to comply with EMTALA’s requirement to provide stabilizing treatment.” Meanwhile, The Times also notes, without numbers, reports of rising self-directed abortions in states where legal procedures have been banned.
In short, despite a clarion call in Kansas, we see a scramble towards what is legal and a distinct voluntary deafness to what the public wants in the name of partisan politics.