Having achieved the generational dream of seeing Roe v. Wade overturned, the largest and oldest anti-abortion group in the US is now taking its fight to the state level, with a particular focus on restricting medication abortion.
At a joyous National Right to Life Committee convention over the weekend in Atlanta, where attendees listened to workshops such as “Preparing for the 2022 Elections” and “Grassroots Lobbying 101,” medication abortion – which is becoming the more common method of the procedure – is fast emerging as the most pressing priority for the anti-abortion-rights movement.
“Chemical abortion is the fight we’re going to be having for the next decade, probably longer,” Jennifer Popik, the group’s federal legislation director, told attendees.
No matter “how many of your wonderful states will now ban abortion either six weeks or almost completely … these pills will still be coming into your state,” she added.
The US Food and Drug Administration approved mifepristone, coupled with misoprostol, for abortion use in 2000 and recently relaxed certain federal regulations during the Covid-19 pandemic to allow the drugs to be sent via mail.
In the wake of Friday’s ruling overturning Roe, Attorney General Merrick Garland said states “may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”
He also cited “bedrock constitutional principles” as protecting women who live in states that banned abortion from seeking the procedure in places where it’s legal.
National Right to Life, however, intends to push state and federal legislation that would criminalize and try to prevent the drugs used in medication abortions from not being dispensed in person. The group also wants legislation requiring informed consent, blocking telemedicine for these drugs and promoting the controversial practice of so-called abortion pill reversal, which is regarded by the American College of Obstetricians and Gynecologists as an “unproven medical approach” that does “not meet clinical standards.”
National Right to Life has outlined its priorities in model legislation that it rolled out ahead of last week’s ruling, including recommendations to restrict abortion except to save the life of a pregnant woman, and language if states want to carve out exceptions for rape and incest.
The group also is pushing for states to restrict those “conspiring to cause, or aiding or abetting, illegal abortions,” the “trafficking” of abortion-inducing drugs and “abortion trafficking” of a minor.
The proposal suggests that criminal penalties should extend to individuals who aid or abet illegal abortions, which would include giving instructions about self-administered abortions or means of obtaining an “illegal abortion” over the phone, the internet or another form of communication. The group suggests criminal penalties should also include hosting or maintaining a website that “encourages or facilitates efforts to obtain an illegal abortion,” offering or providing “abortion doula” services and making referrals to an abortion provider.
The group recommends states allow civil action to be brought by state or local officials or relatives of the pregnant woman against a person or entity that violates the abortion law.
“In addition to criminal penalties and medical license revocation, civil remedies will be critical to ensure that unborn lives are protected from illegal abortions,” the memo says.
States are also encouraged to require physicians to report to state agencies when abortion was necessary to prevent the deaths of pregnant women or face misdemeanors.
James Bopp, a conservative lawyer and general counsel for National Right to Life who helped draft the model legislation, said it “reflects the thinking of the whole Right to Life movement on where we need to be post-Roe.” He did acknowledge that “it’s very difficult for states to have extraterritorial enforcement of the law” and “the violation has to occur in their state.”
But abortion rights advocates, including Elizabeth Nash, the state policy analyst for the Guttmacher Institute, called the model legislation “deeply concerning” and “simply out of touch with reality in the sense that … we know that people will always need abortion care.”
Nash argued that the bill would be in conflict with First Amendment rights and “raises some concerns that a provision like this would kill the sharing of information around abortion – in many ways, not only around self-managed abortion.”
‘Where the battle is going to be played out’
National Right to Life’s state affiliates now will push the model legislation to state legislators, as a handful of states have announced they’ll hold special sessions to consider abortion legislation.
Bopp told CNN that National Right to Life plans to aggressively push the model legislation nationwide, though he acknowledged there are several Democratic-led states where such efforts will not make any headway.
All the while, activists with National Right to Life and other groups that oppose abortion are girding for the next phase of this fight.
Speaking at the convention over the weekend, Randall O’Bannon, National Right to Life’s director of education and research, pointed to state legislative fights as the place “where the battle is going to be played out over the next several years.” In particular, he warned against what he framed as the uniquely pernicious challenge of combating medication abortion that can be ordered online and urged attendees to “stop thinking that abortion is something that’s done by old abortionists operating in dilapidated clinics.”
“It’s hard to detect and even maybe harder to control,” O’Bannon said. “Can it be stopped? Yes. Will it be easy? No. But we have faced many tough challenges before.”