WASHINGTON — On the day the Supreme Court overturned Roe v. Wade, and with it the constitutional right to an abortion, Sen. Josh Hawley was thrilled.
The Missouri Republican got into politics because of his opposition to abortion. It’s one of the reasons both he and his wife, Erin Morrow Hawley, became lawyers. He believes it’s the greatest social justice issue of our time.
And in the immediate aftermath of a ruling Hawley had been waiting his life to see, he said he wanted to give the ruling a little time for the issue to breathe and for states to start setting their own policies.
“In my lifetime, nothing that any voter in my state has ever voted on has mattered with regard to abortion,” Hawley said in June of last year. “Because we’ve never had any say. The voters of Missouri and every other state now, what they decide on this is going to be law. And that’s a big change.”
His comments match the Republican line since the ruling, known as the Dobbs decision — the issue is going back to the states and voters will decide. But less than a month later, a case going through the courts could restrict abortion access even in states like Kansas, where abortion rights are legally protected.
A Texas case, argued by Erin Morrow Hawley, is seeking to overturn FDA approval of mifepristone, a pill used for medication-induced abortions. A favorable ruling has the potential to either prevent the drug from being used for abortion or could prevent abortion pills from being mailed across the country.
“I think the irony of the activity in the courts is that what the Supreme Court made it sound like in Dobbs was that basically this has to be an issue decided by the people,” Aziza Ahmed, the co-director of the Boston University law program on reproductive justice. “And it sort of betrays that to see that the conservatives are actually rising up through the courts to essentially try to make the case to ban, in the most recent state of activity, medication abortion.”
Hawley has not been shy about his support for a potential federal ban. In September, after Sen. Lindsay Graham, a South Carolina Republican, introduced a bill to ban abortions after 15 weeks, Hawley was one of just nine senators who signed onto the bill, even though most Republican senators signed on to a version of the same bill prior to the Supreme Court’s decision.
The lack of co-sponsors reflected a larger uncertainty among some Republican lawmakers, particularly as abortion emerged as a galvanizing issue for Democrats in the 2022 mid-term elections. Even in Republican-leaning states, like Kansas and Kentucky, ballot measures that would have allowed the legislature to further restrict abortion rights were shot down by voters.
Kansas was the first state in the country to vote on an abortion ballot measure after the U.S. Supreme Court overturned the constitutional right to an abortion and Kansans overwhelming rejection of a provision that would have enabled the legislature to ban the procedure signaled a turning point for the abortion rights movement. Mifepristone is used in 70% of Kansas abortions.
“While Kansans made it clear last August that their health care decisions should be between them and their doctor, not politicians, this new ruling threatens to restrict access to reproductive health care nation-wide,” Rep. Sharice Davids, a Kansas Democrat, said of the Texas judge’s ruling. “Far-right politicians continue to push these extremist and unpopular policies at every level of government. I’ll continue to oppose any attempt to strip away the rights and freedoms Kansans have fought so hard to keep.”
Many Republican-controlled state legislatures have continued to pass stricter abortion laws — Florida recently passed a ban on abortion after 6-weeks and Idaho passed a bill preventing women from traveling for an abortion — federal efforts have largely been left up to anti-abortion activists in the courts.
In Kansas, where the state Supreme Court has protected abortion rights, Kansas Attorney General Kris Kobach, a Republican, joined a brief in support of the legal effort to ban mifepristone.
“This is just another piece of the puzzle for anti-abortion politicians, judges, the movement, to achieve their ultimate goal, which is to enact a national abortion ban,” said Gabby Richards, a national spokeswoman for Planned Parenthood.
Anti-abortion groups have openly pushed for a federal ban on abortion. Marjorie Dannenfelser, the president of Susan B. Anthony Pro-Life America, said the Republican Party has long endorsed federal abortion restrictions, from the presidency of Ronald Reagan to the presidency of Donald Trump, who appointed the conservative justices who overturned Roe v. Wade.
“What the Supreme Court said in Dobbs is that the people and their elected lawmakers — state or federal — have the right to find consensus on what the law should be,” Dannenfelser said. “Most Americans want laws that are far more protective of the unborn and their mothers, while almost every congressional Democrat backs legislation to impose the abortion-on-demand policies of China and North Korea nationwide. Respectfully, life isn’t a states’ rights issue, it’s a human rights issue.”
The most prominent case moving through the courts was filed last year by anti-abortion groups and doctors in Texas. It argues that the FDA erred in 2000 when it approved mifepristone, the first pill used in the process of medically induced abortion. They argue, using their own studies, that the pill is unsafe, despite evidence that it has a .4% risk of major complications.
In the years since, the FDA has expanded access to the drug from strict requirements where women could only be prescribed the drug by certain medical providers and had to receive it in person. In January, the FDA allowed for people to obtain the drug without visiting their physician in person.
A Texas judge sided with the anti-abortion groups and issued a temporary ban on the medication. An appeals court partially overruled the ban, making the pill legal, but imposing some restrictions on how it could be received and prescribed.
The Supreme Court on Wednesday punted until Friday on whether to impose restrictions on the pill while the cases make their way through the court.
Hawley said there is a distinction between legislative efforts and legal efforts to limit abortion rights. He said the mifepristone case is about the regulatory process and blamed the Biden administration for loosening restrictions on access to the drug.
“I think what the Fifth Circuit did in this case, was really reasonable,” Hawley said. “They just returned it to the rule from 10 years ago.”
Sen. Roger Marshall, an OB/GYN who also signed on to the 15-week abortion ban, said he supported states ability to ban the drug, but didn’t necessarily support the courts overruling the FDA.
“It’s the job of the FDA to determine if it’s safe or if it’s not safe, if it does what it’s supposed to do,” Marshall said. “So I think it would be okay with me, even though it’s FDA approved, that doesn’t mean that it would be legal in Kansas.”
But federal lawmakers have largely appeared to leave any further restrictions up to the courts. While the Republican-controlled U.S. House passed a bill requiring doctors to save the life of an infant in the unlikely event that it’s born during or after an attempted abortion, Republicans have not attempted to pass a more stringent ban.
Already, the issue is a complicating factor in the 2024 Republican presidential primary. After Florida Gov. Ron DeSantis signed the six-week ban in Florida, one donor said he would no longer support the candidate many see as best positioned to take down former President Donald Trump in a primary. Trump, too, is struggling with religious conservatives on the abortion issue.
“My sense is that there’s going to be some pressure at least on some of the Republican congresspeople to not wade into that territory,” Ahmed said. “I don’t think it’s always a guaranteed win, even for conservative legislators, to be dabbling in the most extreme types of abortion restrictions. It alienates people.”
But even if Republicans back away from a federal ban, the decades long effort to approve conservative judges could still play an important role in abortion laws across the country.
“This is a foreshadowing of the battles and the fights that are yet to come,” Richards said. “So how this is decided is really, really critical. It’s either going to send a message to the people who are continuing to attack our rights and our bodily autonomy that hey, this isn’t going to stand. Or it’s going to be open season for these attacks to continue.”
