The Unintended Consequences of Overturning Roe v. Wade and the Texas Abortion Pill Ruling: Redefining What Pro-Life Means
May 1, 2023
Toward the beginning of April Representative Tony Gonzales (R, TX) made a statement after a federal court in Texas ruled against the abortion inducing pill, Mifepristone. Gonzales said, “Women have a whole lot more other issues than just abortion. Let’s have those real conversations and let’s talk about the other things that are happening in this world.” Gonzales has a point, there are a number of other issues to address, however, that does not let him off the hook that he is free to avoid addressing abortion. Senator Bill Cassidy (R, LA) essentially tried to support the same look-over-here-not-there position when he said regarding the Mifepristone ruling, “I think [the issue] is totally alarmist.”
When ending abortion was a faraway issue, back in those Roe v. Wade days, and overturning Roe was a useful rallying cry to get-out-the-vote and raise money, it was an easier time for Republicans. Suddenly, getting what they wished for, is now a different world. The vote in the Wisconsin state supreme court race where Janet Protasiewicz won by almost 11 percent, gave some indication that her position to protect abortion rights played well with voters—would her margin of victory have been more if the vote was after the Texas court decision had been made. Gonzales’s statement indicates what Republicans know, that abortion is a political issue that has the potential to hurt them at the polls.
As I thought about this post-Roe v. Wade and now the post-Texas court decision, I was wondering how many Republicans in Congress are now relieved they did not actually get to overturn the Affordable Care Act, usually called Obama Care, or they would have had to deal with the millions who would suddenly be without health care. Imagine how overturning Obama Care would have played with voters as they entered the polling booth (or approached a drop box). Conservative issues, in extreme ways, hurt people and voters react. The point in that last sentence is extreme conservative is different than some reasonable conservative positions. I know at some point I want to address this issue of degrees of conservative—there is too much simple thinking associated with an either/or mentality. Simple thinking stifles moving the needle and finding something that looks like functionable compromise.
The Texas court ruling is very odd to read since it indicated a judge who let his ideology creep into how he wrote his opinion. What was he thinking that he did not even try to hide his prejudice in how he wrote his opinion? The problem, however, goes back to the Dobbs v. Jackson Women’s Health Organization Supreme Court case and the way it was written to overturn Roe v. Wade. The Justices had to be aware that there were states with “trigger” laws in place, waiting for Roe to be overturned where those states were set to impose severe restrictions on access to abortion, or were going to push to eliminate it. Could the Court, knowing that was more than likely going to happen, have added some guidelines for state governments in how they needed to address the issue of unwanted pregnancies leading to unwanted births as states pursued laws to either severely restrict or eliminate abortion. The Dobbs opinion, unfortunately, can best be described as: Hey, girlie you got pregnant live with it.
The current debate on abortion in states seems to be focused on the issue of whether exceptions are or are not to be allowed, such as in the case of rape or the health of the mother. While addressing exceptions is important, associated with that has to be a focus on redefining what pro-life means and not allowing anti-abortion supporters to assume they are entitled to the status of being called pro-life supporters, because, frankly, they are not: All they care about is opposition to abortion and nothing else.
In the Supreme Court case of Webster v. Reproductive Services (1989) which addressed a Missouri law, that law included the words "the life of each human being begins at conception," furthermore it stated, "unborn children have protectable interests in life, health, and well-being." Those opposed to abortion were excited that when this case went to the court, they hoped the court would agree that life began at conception. Unfortunately, that did not happen, the ruling in this case was that the notion of life beginning at conception was an expression in the preamble of the Missouri law, so the court did not need to address it. A preamble is a philosophical introduction to a law. In the Webster opinion, however, the Court addressed some understanding regarding, perhaps, degrees of when life begins issue with the Court writing, “the State having chosen viability as the point at which its interest in potential human life must be safeguarded. The section creates what is essentially a presumption of viability at 20 weeks.”
I bring this up because in the Texas case against Mifepristone, the abortion pill, Judge Matthew Kacsmaryk wrote, “unborn children aged seven-weeks gestation or younger.” Kacsmaryk had to have had an awareness of the legal difficulties of defining when life begins but just brushed those tricky issues aside. Viability, as the issue, which was raised in the Webster case, it can be argued, can be seen as different than when life begins. Webster, however, somewhat related when life begins to viability stating, “the State having chosen viability as the point at which its interest in potential human life must be safeguarded.” Kacsmaryk simply made a decision to ignore any difficulties associated with defining when life begins and used his opinion to make a declaration. In addition, Kacsmaryk decided to distinguish a “fetus” from an “unborn child.” In a footnote in his opinion, Kacsmaryk wrote, “Jurists often use the word ‘fetus’ to inaccurately identify unborn humans in unscientific ways. The word ‘fetus’ refers to a specific gestational stage of development.”
Complicating the issue of when life begins is further muddied by the differences between fertilization and conception. Fertilization is seen as the time of intercourse, while conception may be several days later, assuming conception takes hold. The probability of intercourse, so fertilization, leading to conception can depend on timing. A Mayo Clinic report states, “having sex regularly five days before and on the day of ovulation — can improve the odds of conceiving.” Ovulation is defined as, “the process in which a mature egg is released from [a woman’s] ovary.”
The When Life Begins issue is addressed well by a law school professor’s quote, “The court said that when life begins is up to whoever is running your state — whether they are wrong or not, or you agree with them or not.” In Kentucky, fertilization is addressed as the beginning of life. Kentucky code states, “’Fetus’ means a human being from fertilization until birth,” followed by, “’Human being’ means any member of the species homo sapiens from fertilization until death.”
It is ironic that the amount of attention that some state legislators and anti-abortion activists focus on addressing when life begins which contrasts sharply with the lack of attention they consider once birth happens. A report from 2021 while Roe v. Wade was still the law stated, “Almost all of the states that produce the most unfavorable economic and health care outcomes for children are among those poised to ban or severely restrict access to abortion.”
Will Kacsmaryk’s ruling, which opened the door, yet again, to the issue of When Life Begins, lead to at least some attention focused on the quality of life for those children, now born, in states that were so concerned about making sure they were born in the first place. When addressing state roles in assistance to children, a federal government report stated, “[There is] great latitude [that] states now have in designing assistance programs for families with dependent children under welfare reform.” This statement addresses the Temporary Assistance for Needy Families (TANF) program, assistance to children in need comes primarily through this program. The issue of latitude can be seen in a statement by a report last year from the Center for Budget and Policy Priorities:
TANF’s…purposes are so broad, states have been able to shift funds that were previously used to provide basic cash assistance toward many other uses. Some of these funds have been used to fund programs and services, such as child care, that encourage and support employment among low-income families, while a significant portion (and in some states the majority) of funds are used neither to meet families’ ongoing basic needs nor to support work. Also, states have often diverted TANF funding from providing basic assistance to families with the lowest incomes to providing services to families with incomes well above the poverty line. In 2020, 15 states spent 10 percent or less of their TANF funds on basic assistance.
A report noted that in 2020 only 21 percent of families eligible for TANF assistance received it. Furthermore, as the pandemic hit, child poverty increased, with the child poverty rate reaching 17 percent overall by January 2022, up from 12.1 percent in December 2021. The figures for minority children were worse with 25.4 percent of Black children and 23.9 percent for Latino children living below the poverty level by January 2022.
A New York Times article pointed out that 49 percent of the women who get an abortion, live below the poverty level and 46 percent are not married, which would indicate they struggle financially. In the case of children between birth and five-years-old, a 2019 Children’s Defense Fund report addressing infants, toddlers, and preschoolers stated that 1 in 6 in America live in poverty. A 2017 UNICEF report in looking at the 41 “rich” countries, ranked the United States as sixth in terms of high child poverty rate.
A friend who was a former state legislator (Republican) had a wonderful joke, which was more of a very insightful statement about how people think, or perhaps fail to think, politically. The joke goes:
What do you call a government critic?
Someone who has a driver’s license, they just don’t where they are going.
What happens as the number of unwanted pregnancies increases which leads to unwanted births? The quality-of-life issue, beyond just when life begins, addresses not just the children who are born but those children as adults. A report noted, “people who believe they resulted from unwanted or unplanned pregnancies tend to have more insecure relationship styles as adults.” A study known as the Prague Study reinforced this position, stating, “denial of abortion for unwanted pregnancy entails an increased risk for negative psychosocial development and mental well-being in adulthood.” A study reported in the Journal of the American Medical Association, that addressed the findings on unwanted pregnancies that lead to children born, stated:
In this quasi-experimental study of 146 children born after denial of abortion and 182 children from subsequent pregnancies in women who received an abortion, higher proportions of children born after denial of abortion experienced poor maternal bonding and lived in subjective poverty.
Supporting all this depressing news, a University of Michigan study concluded:
One-third of all children born in the United States are the result of unintended pregnancies and not only do these children receive less attention and warmth from their parents than children whose births were planned, so do their older siblings.
A future in a world after Roe v. Wade has been overturned combined with the Texas court ruling on the abortion pill, may have created a situation that will lead to unintended consequences. The Court of Appeals decision on April 12th to grant a stay, allowing continued access to the abortion pill, but left in place that the pill cannot be sent through the mail. In reading the 42-page ruling, I think that future court action on Mifepristone, however, does not guarantee that things look bright and rosy for the methods of how this drug is distributed. In other words, the appeals court opinion certainly gave the impression they are concerned about complications that can arise from the drug’s use, which leads me to believe that women receiving the drug in the mail might see that disappear completely and, I would suspect, that some closer monitoring by doctors when their patients take the drug might be added through future court action—assuming the appeals court ruling has an impact on the future availability of the abortion pill. Any action that is taken along those lines, can make access to abortion more difficult and could lead to an increase in unwanted pregnancies.
Supreme Court Justice Samuel Alito stepped in and issued an administrative stay against both the Texas court ruling and the Court of Appeals ruling, both of which placed some restrictions on access to abortion, with the Texas court the worst of the two courts. Alito issued this ruling since he oversees matters that require quick, and often temporary rulings, from several states, one of which is Texas. Alito’s stay did not address the federal court in Washington state, where another judge also ruled on Mifepristone. Interestingly, in that 31-page ruling, Judge Thomas Rice addressed the safety of the drug citing a .00005 percent fatality rate associated with its use, which seems to completely contradict the Court of Appeals ruling where they questioned the safety of the drug. The Washington state ruling added, however, “It is not the Court’s role to review scientific evidence and decide whether Mifepristone’s benefits outweigh its risks.” Furthermore, this ruling seemed to open the door to questioning the Administrative Procedures Act (APA). Addressing the APA is beyond what I want to focus on in this article, although I will return to it at a future date. I suspect that a great deal of attention will be focused on the APA in any Supreme Court case as a result of both the Texas and Washington state rulings and the Court of Appeals ruling. I get the impression that conservatives have a bone to pick with the APA and want the Supreme Court to rule on limiting it, even though it was enacted in 1946.
Recently, approximately 150 Republicans in Congress signed a brief urging the Court to let Kacsmaryk’s ruling stand. No doubt these Republicans agree with Representative Gonzales and want “other” issues important to women addressed. The Republican brief wanting Kacsmaryk’s ruling to stand, emphasized that they saw the FDA as exceeding its authority when they approved Mifepristone-yet another indication of a future challenge to the APA.
The APA is complicated to understand since it addresses rulemaking, basically federal agencies have a degree of discretion in how they develop regulations often related to interpretations of federal law. Many state governments developed administrative procedures acts based on the APA. I will point out that in the very-difficult-to-read-and-clearly-understand 320 page House Republican proposal to cut federal government spending and severely control future spending (known as the Limit, Save, Grow Act of 2023) , there is a proposal titled, “Regulations in need of Scrutiny Act of 2023,” and this document states, “The purpose of this title is to increase accountability for and transparency in the Federal regulatory process.” This Republican proposal is then followed by twenty pages addressing severe limitations on rulemaking. Again, I point out I will address the APA and rulemaking in a future article. Rulemaking is important to understand—which I have never seen addressed on a TV news show.
Alito's stay ruling was only until the whole Supreme Court ruled, which basically was another stay, so at least for now, the situation is back to before the Texas court ruling on Mifepristone. The court that overturned Roe v. Wade it looks likely will have another crack at abortion, so much for the opinion in Dobbs saying the issue was returned to the states.
Court rulings are always more complicated and filled with nuance than can sometimes be addressed in a relatively short article, as is the case here. I do not want to get too far away from the broader issue that overturning Roe v. Wade has led to questioning how to understand what pro-life now means. Pro-life, for too long was a term co-opted by anti-abortion forces with not much thought beyond simply overturning Roe. In an environment with Roe overturned, it is a moral imperative and a policy issue to force anti-abortion forces to confront what pro-life means in an environment they have created and one they may only make worse with any ruling on Mifepristone that further adversely affects women seeking an abortion.
In trying to figure out where all this stands now, with the Texas and Washington federal courts and the Court of Appeals ruling, and a temporary stay from Justice Alito, followed by the full Supreme Court issuing a stay, I still believe that any Supreme Court ruling may place restrictions on the availability of Mifepristone. There is still the issue that Mifepristone is one of two drugs used to end pregnancies in the early stages: The second pill is Misoprostol.
Doctors have indicated that if Mifepristone is pulled from the market, then Misoprostol would be used, but using only the one pill as opposed to two is not seen as effective in ending a pregnancy. It is easy to predict that just as Mifepristone is being challenged by anti-abortion groups it is only a matter of time before they go after Misoprostol. It takes no great thinking to consider that those that brought Mifepristone before Kacsmaryk’s court, will try to do the same with Misoprostol.
All this legal landscape still brings up the issue of whether there will be an increase in unwanted pregnancies leading to unwanted births. This leads to issues associated with the Prague Study, as well as other studies that came to similar conclusions, and, as a result, state governments may need to reconsider what it means to be pro-life—simply pushing to severely restrict or eliminate abortion and not caring about the consequences of an increase in unwanted pregnancies, would simply show an incredible heartlessness on the part of anti-abortion supporters. Are we to see these people, these organizations, these state governments as simply displaying a vindictiveness against women who seek abortions and that is their sole stand as to what pro-life means. Florida’s new abortion law banning them after six weeks, leads me to wonder if vindictiveness is the prevailing attitude of the state’s governor and state legislature. Spite and punishment as policy positions that are an outgrowth of their politics, will harm many.
Unwanted pregnancies leading to unwanted births will increase health care costs. A 2006 study noted that 64 percent of unintended pregnancies were publicly funded, which contrasted with 35 percent of births from intended pregnancies. Congresswoman Lauren Boebert (R, CO) is all excited that her irresponsible teenage son got his even younger girlfriend pregnant. I assume that Boebert’s future maybe daughter-in-law will get a publicly funded delivery—probably at the same time that Boebert is carrying on about too much government spending. A 2011 report noted that 45 percent of pregnancies were unintended. Since that was an overall average, the rates varied significantly based on income: Women with lower incomes had five times the unwanted pregnancy rate of higher income women. All this indicates that anti-abortion supporters masquerading as pro-lifers, need to understand that consequences come with a price tag: There will be an increase in demand for government funding, both at the federal and state level, possibly through TANF, to assist with any increase in unwanted births.
The expression if you break, it’s yours, may apply to what may come with any significant increase in unwanted pregnancies leading to unwanted births. Will states that care little about child poverty step up to the plate and take responsibility for what might be coming. Will all those people who love using the term “pro-life” begin to understand what they need to do to develop new responsibilities now that they got what they wanted. It is interesting that if the continued focus of an anti-abortion movement is only about going after ways to restrict or abolish abortion, but little attention, if any, is on life once conceived, that becomes irresponsibility on a grand scale. Representative Gonzales’s foolish statement that there are other issues besides abortion that need to be addressed, regarding women, sounds more like the situation of families with an alcoholic who fail to discuss the elephant in the middle of the room. A Republican media position of not wanting to talk about abortion and wishing it will go away, is about as unlikely as believing that Donald Trump will step aside and let a reasonably normal Republican (not called DeSantis) run for President.
Notes
Alliance for Hippocratic Medicine, et.al v. Food and Drug Administration, et.al, United States Court of Appeals for the Fifth Circuit (April 12, 2023): https://www.nytimes.com/interactive/2023/04/13/us/abortion-pill-fifth-court-of-appeals.html
Ronald Brownstein, “life can be tough for kids in many anti-abortion states,” CNN Politics (December 14, 2021): https://edition.cnn.com/2021/12/14/politics/abortion-rights-states-children-health-poverty/index.html
Henry David, “Born Unwanted, 35 Years Later: The Prague Study,” Reproductive Health Matters An international journal on sexual and reproductive health and rights (May 19, 2006): https:// www.tandfonline.com/doi/pdf/10.1016/S0968-8080%2806%2927219-7
Charlotte Edmond, “These rich countries have high levels of child poverty,” World Economic Forum (June 28, 2017): https:// www.weforum.org/agenda/2017/06/these-rich-countries-have-high-levels-of-child-poverty/
Michael E. Fishman, Kristin Dybdal, John Tapogna, “State Financing of Child Support Enforcement Programs,” Final Report Contract Number 100-96-0011, Assistant Secretary for Planning and Evaluation and Office of Child Support Enforcement Department of Health and Human Services (no date): https://www.acf.hhs.gov/sites/default/files/documents/ocse/state_financing_of_cse_programs_final_report.pdf
Diana Greene Foster, M. Antonio Biggs, Sara Raifman, “Comparison of Health, Development, Maternal Bonding, and poverty Among children Born After Denial of Abortion vs After pregnancies Subsequent to an Abortion,” JAMA Network (November 2018): https://jamanetwork.com/journals/jamapediatrics/fullarticle/2698454
Kentucky General Assemble, “311.720 Definitions for KRS 311.710 to 311.820 and other laws,” Kentucky Revised Statures KRS Chapter 311 Includes enactments through the 2022 Special Session The KRS database was last updated on 04/12/202: https:// apps.legislature.ky.gov/law/statutes/statute.aspx?id=46069
Brendan Lynch, “Research Suggests People Who Believe They Were Unwanted Or Unplanned Babies Likely Have More Troubled Close Relationships,” KU University of Kansas News Service (August 14, 2018): https:// news.ku.edu/2018/08/09/research-suggests-people-who-believe-they-were-unwanted-or-unplanned-babies-likely-have
Mary Marnach, “What ovulation signs can I look out for if I’m trying to conceive?” Mayo Clinic (December 7, 2022): https://www.mayoclinic.org/healthy-lifestyle/getting-pregnant/expert-answers/ovulation-signs/faq-20058000
“Policy Basics: Temporary Assistance for Needy Families,” Center on Budget and Policy Priorities (March 1, 2022): https://www.cbpp.org/research/family-income-support/temporary-assistance-for-needy-families
Margot Sanger-Katz, Claire Cain Miller, and Quoctrung Bui, “Who Gets An Abortion in America?” New York Times (December 14, 2021): https:// www.nytimes.com/interactive/2021/12/14/upshot/who-gets-abortions-in-america.html
“Seven Ways to Improve TANF and Help Families Advance,” JFF (August 11, 2022): https://www.jff.org/points-of-view/seven-ways-improve-tanf-and-help-families-advance/
Adam Sonfield, Kathryn Kost, Rachel Benson Gold, Lawrence Finer, “The public costs resulting from unintended pregnancies: national and state-level estimates,” PubMed (May 19, 2011): https://pubmed.ncbi.nlm.nih.gov/21651708/
“Study: When a child’s birth is unplanned,” Vice President for Communications, Michigan News, University of Michigan (April 30, 2009): https:// news.umich.edu/study-when-a-child-s-birth-is-unplanned/
“The State of America’s Children 2021: Child Poverty,” Children’s Defense Fund (no date): https:// www.childrensdefense.org/state-of-americas-children/soac-2021-child-poverty/
“Unintended Pregnancy in the United States,” Guttmacher Institute (January 2019): https://www.guttmacher.org/fact-sheet/unintended-pregnancy-united-states