The 2024 Forecast for Abortion Is… Shitstorm

The deceit and underhanded tactics from Republicans are only going to get worse and weirder heading into 2024. Driver told Jezebel that SiX is tracking “an uptick in legislation expanding funding for crisis pregnancy centers,” which are anti-abortion centers that pose as real clinics to lure in and deceive pregnant people seeking care. Driver pointed to a bill being considered in Ohio that would offer people tax credits for donating to CPCs, and an official state registry was recently created in Florida to direct pregnant people to CPCs.

As for how anti-abortion politicians will try to sell their wildly unpopular policies on the campaign trail, we already know anti-abortion organizers are leaning into ~rebranding~ their policies as “pro-women” and feminist. And, per a Politico report published in December, Republican strategists (led by Kellyanne Conway, of all people) are telling their candidates to convince voters that it’s actually fine that Republicans have stripped them of abortion rights because they support access to birth control! Except, no they don’t. In 2022, 200 House Republicans voted against a bill to establish a right to birth control; Georgia Gov. Brian Kemp (R) is open to banning birth control; and major conservative groups have equated abortion pills with birth control with the intent to ban them both. But alas, you heard it from Ms. Kellyanne: Expect Republican candidates to lie their asses off about abortion in the coming months—and probably forever, really.

Medication abortion is at the Supreme Court

The majority of abortions in the U.S. are medication abortions, which typically involve taking a combination of mifepristone and misoprostol pills to induce a miscarriage and safely end a pregnancy. Mifepristone and misoprostol received FDA approval in 2000. But this summer, the Supreme Court will rule on whether a conservative group that’s suing to restrict access to abortion pills has standing to sue at all. In August, the Fifth Circuit Court of Appeals ruled that the conservative group, the Alliance for Hippocratic Medicine (AHM), can’t challenge FDA approval, but can challenge the FDA’s 2021 decision to allow abortion pill prescriptions via telemedicine and its 2016 decision to permit mifepristone to be prescribed through 10 weeks of pregnancy instead of just seven. The FDA appealed the Fifth Circuit’s decision to the Supreme Court, which accepted the case—and notably declined to hear an appeal from AHM asking it to rule that the original FDA approval in 2000 was unlawful.

As Jezebel’s Susan Rinkunas recently wrote, that the Supreme Court is hearing this case isn’t necessarily bad news, especially as experts believe the court will rule in favor of the FDA and determine that doctors don’t have standing or an injury that allows them to sue the FDA in the first place. But there’s still this to consider:

This case gives the Court a chance to look reasonable by ruling in favor of the FDA in a decision that would come out in the lead-up to a crucial election. Such a ruling could get the Court headlines that claim they “protected abortion” and “showed moderation,” when all they really did was smack down a meritless lawsuit on standing grounds—and didn’t rule on the underlying arguments of the case about whether the FDA properly approved the drug and later updates to the label.

Additionally, Driver told Jezebel that SiX is tracking a rise in state-level attacks on medication abortion—specifically, access to abortion pills through telemedicine as well as bills attempting to outright criminalize it. That said, it wouldn’t hurt to order and keep some abortion pills on hand for future use as anti-abortion leaders and Republican politicians escalate their attacks. (Find information on how to do so safely and why it’s a good idea here.)

Also, if a Republican is elected president they could potentially enforce the Comstock Act of 1873, which prohibits the mailing, possession, or sale of “obscene materials,” and according to conservative activists “obscene materials” includes abortion pills. If enforced, the law has the potential to ban all abortions. So, that’s a pretty big thing to look out for this election year.

Medical emergency exceptions take center stage

Legal conflict over emergency abortions is already a hotly contentious issue this year. This first month of 2024 alone, two different courts have ruled that—contrary to guidance from the Biden administration in 2022—the federal Emergency Medical Treatment and Labor Act (EMTALA) doesn’t require hospitals to save pregnant people’s lives…if saving their lives requires an abortion. EMTALA, passed in 1986, states that doctors are required to provide stabilizing, emergency care to patients, including those experiencing pregnancy-related complications, regardless of individual state laws.

The Supreme Court will also rule on a lawsuit filed by the Biden administration in 2022 arguing that Idaho’s abortion ban violates EMTALA by threatening to criminalize doctors who offer emergency abortions to pregnant people. A district court sided with Biden and placed an injunction temporarily blocking Idaho’s ban from being enforced—but the Supreme Court lifted that injunction earlier this month, at least until it formally rules on the lawsuit this spring. On top of that, the Center for Reproductive Rights is currently representing women across four states (Texas, Tennessee, Idaho, and North Dakota) who say their states’ abortion bans endangered their lives.

CRR attorney Linda Goldstein told Jezebel that there’s a central throughline in these cases: “They show exceptions don’t work—that’s really the bottomline. These exceptions have always just been window-dressing to make abortion bans look reasonable. The language is too vague and too difficult for doctors to be able to apply to save someone’s life—and that’s the entire point.” Between the Supreme Court’s impending EMTALA decision and the CRR’s lawsuits, I’m really not looking forward to all the inevitable debates on whether pregnant people have a right to live.

Watch out for fetal personhood and pregnancy-related criminalization

A grand jury in Ohio recently decided they wouldn’t charge a young Black woman with felony “gross abuse of a corpse” charges for having a stillbirth in October. But ever since Brittany Watts was arrested in the fall, advocates and legal experts have raised alarms that the case against her stemmed from the dangerous notion that fetuses have personhood rights.

Going into 2024, in a climate where pregnancy and abortion are subject to more scrutiny and surveillance post-Roe, we could continue to see more harrowing cases like Watts’. We could also see more bills like a new bill in Florida that would let someone sue a doctor for “wrongful death” if their partner got an abortion—anyone who helped the woman get the abortion, like friends or family, could also be subject to a lawsuit. The bill calls fetuses “unborn children.”

Driver told Jezebel that SiX is especially concerned with bills like the “Equal Protection Act” being considered in Alabama, which would formally recognize abortion as murder and would prosecute both abortion providers and patients. “It’s part of a rising trend we’re seeing in anti-abortion lawmakers now, not just trying to criminalize the provider but also the person having the abortion,” Driver said, pointing to a wave of bills that threatened to impose the death penalty on abortion patients in 2023. “This happens when we amend the definition of a person to include an ‘unborn child’ from conception.”

And, as Rewire’s Jessica Mason Pieklo pointed out, the aforementioned rulings that EMTALA doesn’t guarantee a right to emergency abortion are also part of “a fight over who is the patient in a medical emergency—the pregnant person or their developing pregnancy”—as she put it, “it’s fetal personhood and medical trauma all wrapped together.” The end of Roe has opened the door for threats to IVF and emergency contraception, all while Republican lawmakers also float bills to offer tax credits and child support for fetuses—and it all extends from the same full-scale war on pregnant women’s status as people with rights, which will be front and center in 2024.

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All of that said, the forecast isn’t entirely bleak: Driver told Jezebel that in states where abortion remains legal, we can expect more proposed shield laws—or laws designed to protect the privacy and data of abortion seekers who travel from states where abortion is banned. Illinois, for example, prohibits out-of-state police from using data from license plate readers in the state to track abortion patients. And legislators in Nebraska are trying to repeal a dated, old abortion ban like Michigan did last year.

In Kentucky, Driver says Democratic legislators are preparing a bill to create an exception to the state abortion ban for rape survivors—a key issue that Gov. Andy Beshear, a Democrat, ran and won on in November. Driver anticipates other states where abortion is banned could try to find agreement on protections for rape victims. “Since the Supreme Court overturned Roe, we’ve seen anti-abortion lawmakers really emboldened to dig in their heels and further restrict abortion,” she said. “But on the flip side, you have lawmakers who are emboldened to get their communities the care they need, and that’s what we’re seeing, too.”

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Feature collage photo credits (clockwise from top left): Donald Trump/Shutterstock; Anthony Comstock/Getty Images; A CPC in Washington D.C./Shutterstock; Mifepristone/Getty Images; Florida Attorney General Ashley Moody/Shutterstock; Protest sign/Shutterstock; Kellyanne Conway/Shutterstock; Mifepristone tablets/Getty Images; Voting sign/Getty Images; Supreme Court Justices/Getty Images; “Keep Abortion Legal” sign/Getty Images