Day 2- Contemporary Abortion Politics

What is the significance of the Alabama IVF ruling?

• Embryos = legal “children”

• Expands fetal personhood

• Links IVF to abortion regulation

• Creates liability risks for providers

What is the fetal personhood strategy?

• Defines embryos/fetuses as legal persons

• Used to:

  • restrict abortion

  • regulate IVF

• Creates criminal/civil liability

What trends show judicial politicization post-Dobbs?

• Use of religious rhetoric

• Ignoring medical consensus

• Cherry-picking evidence

• Undermines science in rulings

Alliance for Hippocratic Medicine v. FDA

• Challenge to FDA approval of abortion pill (mifepristone)

• Courts accused of:

  • using ideological language

  • relying on weak/retracted studies

• Shows judicial politicization + attacks on medication abortion

Idaho v. United States

• Conflict between:

  • state abortion bans

  • federal EMTALA law (requires emergency care)

• Question: must doctors perform abortions to stabilize patients?

• Shows tension between state law and federal medical obligations

Why is telehealth abortion important?

• Expands access despite bans

• Medication abortion widely used

• Legally targeted by states/federal actors

How are IVF and abortion becoming legally connected?

• Personhood applies to embryos

• Same legal logic used to restrict both

• Expands reproductive regulation

What are current threats to abortion pills?

• State lawsuits + criminal penalties

• FDA pressure using “junk science”

• Comstock Act revival- outlawing the mailing of abortificides

• Medicaid defunding

What are shield laws?

• Protect providers sending abortion pills across state lines

• Block enforcement of restrictive state laws

• Used by blue states

What happened in the Georgie case? What does the Georgia abortion case show?

• A woman (Alexia Moore) took abortion medication believing she was early in pregnancy

• She later delivered a fetus that showed signs of life and then died

• She was charged with malice murder and drug-related offenses

• A judge called the charge “extremely problematic,” and prosecutors were hesitant to pursue it

A shift toward criminalizing pregnant individuals, not just providers

• Legal confusion about:

  • when personhood begins

  • how abortion laws apply

• Raises major concerns about:

  • medical privacy (hospital reporting to police)

  • over-enforcement and prosecutorial overreach

Is democracy being “foreclosed” after Dobbs?

• Gerrymandering + voting restrictions skew outcomes

• Laws (like in Brnovich v. Democratic National Committee) allow:

  • stricter voting rules

  • limits on ballot access (drop boxes, absentee voting)

• May produce policies not reflecting majority opinion

Counter (Democracy Still Works):

• High voter turnout despite restrictions

• Pro-choice victories in referenda (e.g., Ohio, Arizona)

• Suggests voters can still express preferences

Limits of Referenda:

• Not available in all states

• Legislatures may:

  • raise thresholds

  • restrict ballot access

Why does gerrymandering matter here?

• Can produce laws not reflecting majority views

• Especially affects abortion policy at state level

What is backlash theory? The Klarman Framework of Backlash

Backlash Theory:

• Judicial decisions on controversial issues can trigger political and social backlash, especially from the losing side

Klarman Factors:

• Salience: decision draws national attention

• No compromise: extreme ruling → stronger reaction

• Winner’s implementation: rapid policy change intensifies backlash

• Loser’s intensity: losing side mobilizes politically

• Political use: parties exploit backlash for support

• Media + emotion: stories (e.g., emergencies, victims) shape opinion

Roe vs. Dobbs:

• Roe: slow, long-term backlash

• Dobbs: immediate, intense backlash

Why is abortion uniquely hard to resolve?

• Competing moral frameworks:

  • autonomy vs life

• Biological connection (mother + fetus)

• No stable compromise

Why didn’t abortion follow the same path as same-sex marriage?

• Demystification:

  • Same-sex marriage → “coming out” increased acceptance

  • Abortion → harder to normalize, especially late-term

• Generational shift:

  • Same-sex marriage → consistent strong support

  • Abortion → support varies by stage (early vs late)

• Race analogy:

  • Same-sex marriage → clear equality framing

  • Abortion → contested (eugenics vs racial justice)

• Intensity of opposition:

  • Same-sex marriage → opposition declined

  • Abortion → opposition remains strong (seen as taking life)

Why will abortion likely become national again? Federal approach ideas (3)

• State-by-state “patchwork” creates conflict

• Interstate friction:

  • abortion travel (shield laws vs restrictions)

  • mailing pills (Comstock Act conflicts)

Federal options:

• National ban: unlikely politically + constitutionally weak

• Reinstating Roe: politically popular but hard to pass

• 15-week rule: most plausible compromise

What is the proposed compromise on abortion?

• 15-week limit

• Seen as middle ground

• Politically possible but controversial

Ohio Referenda

• Voters protected reproductive rights (even in red state)

• Evidence that:

  • democracy is still functioning

  • public opinion ≠ strict state laws

• Undermines “democracy is foreclosed” argument

Medina Case

• Medicaid patients cannot sue to enforce provider choice

• States can exclude Planned Parenthood

• Leads to reduced access to:

  • contraception

  • cancer screenings

  • reproductive care