In Abortion Disorientation (forthcoming
@DukeLawJournal
),
@caroline_mkelly
& I argue that the word 'abortion' is inherently ambiguous, leading to tragic (& entirely foreseeable) results. A new version is up on SSRN with a rewritten Part IV & updated
#s
. 🧵
The most frustrating thing about Trump demonizing perinatal hospice is that perinatal hospice is THE antiabortion response to fetal anomalies. Antiabortion activists have been pushing these programs as an alternative to abortion for a least a decade. 1/3
I really believe Democrats should be telling voters what exactly Trump is talking about when he says `post birth abortion` - because it’s so much worse than it sounds.
So for Trump to then demonize parents who use perinatal hospice shows that women will fail the test of motherhood one way or the other. You either killed your baby or didn't fight hard enough for their life, completely ignoring the baby's suffering.
I tend to be pretty stoic abt my work despite how personal it is, but hearing the court debate whether states must allow a small subset of health-saving abortions hit today. It took me 4 high-risk pregnancies in 4 years to get my 2 amazing kids. 1/2
Don't terminate a pregnancy affected by severe fetal anomaly, they say; instead, deliver the baby at term and use perinatal hospice. They have long argued that perinatal hospice allows women to grieve the pregnancy as "properly" as a mother, unlike abortion.
FWIW,
@jillwieberlens
& I talk about this at length in our Second Trimester Abortion Dangertalk article, noting that abortion AND perinatal hospice should be provided as options with truly neutral counseling for pregnancies affected by severe fetal anomaly.
Please don't let the hot take be that Kansas is not as conservative as people thought. It should be that abortion bans are as unpopular as polling has ALWAYS suggested.
If the result holds a very big deal. Not a huge surprise based on pre-election polls and Kansas is *slightly* less socially conservative than people assume. But still, confirms that the Dobbs decision was deeply unpopular and will motivate the midterm vote.
There is no role for the state in these decisions. I walked through fire for my girls & I would do it again in a heartbeat, but that is a decision for every person to make on their own. If I didn't want children so desperately, I would have made a different, reasonable choice.
@Anybodyhomehere
I’m so glad your friends had access to the goodbye they wanted for their son. But people have different preferences for this incredibly personal decision, and abortion bans take away parents’ ability to say goodbye a different way, a way that they thought would be less traumatic.
When
@jillwieberlens
& I wrote about how abortion bans are exposing the blurry line between abortion & pregnancy loss for
@nytopinion
, at least 5 conservative think pieces were written abt our op-ed arguing the line is clear. Here are some examples showing it isn't🧵
“When something sad or devastating happens, you’re always going to hear the anti-abortion movement saying, ‘That is not abortion,’ because they can’t come to terms with the fact that that is also an abortion,”
This is awful. And exactly the reason we should be worried about other 150-year old laws, presumed unconstitutional during the Roe era, coming back to life. (I'm talking about Comstock).
BREAKING: Arizona Supreme Court rules to uphold the state’s 1864 near total abortion ban, which will wipe out nearly all access in the state (currently up to 15 weeks). Voters will likely have the chance to override this ban in November via ballot initiative.
Those 4 years included a miscarriage, an abortion, a year of grief, 2 c-sections, 5 ER visits, a progression of my heart disease, massive disruption of my thyroid medication, months of nausea and shortness of breath, and an insane amount of anxiety.
Not only is there little evidence that drug use in pregnancy causes loss, but these prosecutions disproportionately target WOC despite similar rates of drug use in pregnancy. Everyone should read
@michelebgoodwin
’s amazing book, Policing the Womb!
Last week, a 20-year-old Oklahoma woman was convicted of manslaughter for experiencing a miscarriage at 17 weeks and sentenced to 4 years in state prison. (1/2)
The Kansas vote is not just important as a bellwether—the location of the state makes it incredibly important for access. This win will make it much easier (though still very hard) for folks in MO, TX, OK & AR to access care. Dr. Tiller would be proud.
“In the coming weeks and months, a lot of Americans who don’t think anti-abortion laws apply to them are likely to be shocked at how their health care is curtailed, often at the most vulnerable moments of their lives.” So true.
Spotted this mobile crisis pregnancy center on Pitt’s campus on my walk in to work this morning. Pitt students, this organization is religiously affiliated and will not provide neutral counseling on your options if you are pregnant.
The WA opinion arguably requires the FDA to exercise its enforcement discretion (FDA and its officers cannot alter the current status quo). At the very least, it gives the FDA enormous political cover to do so. And we should demand the agency use it!
Academics w young kids, how did you deal w travel? Did you sit everything out for a few years? Did you prioritize a few impt conferences or invited talks per year (if so, how did you choose)? Did you ever take a baby? When does it get easier?
🚨🚨🚨 Here we go!!! The first preemption lawsuits challenging state abortion bans have been filed -- one by Genbiopro in West Virginia and one by a provider in North Carolina!! Short thread on what's coming:
Tomorrow, the FDA is expected to announce that it will loosen or remove its unnecessary restrictions on medication abortion. I've been working on this issue for a while, so it will (hopefully) be an exciting day!! If you want to learn more about this topic: 1/3
To be clear: when a pregnant patient's health or life is threatened after fetal viability (roughly 24 weeks), the standard of care is to deliver the baby & try to save its life. Later abortions do occur for a variety of sympathetic reasons, but they have nothing to do w EMTALA.
Biden's attorney, General Elizabeth Prelogar, just tipped their hand.
It's not about saving the LIFE of the mother, it about "health" -- The word abortion lovers have used in courts since Roe and Doe to demand abortion through all 9 months, for any reason at all, and even with
My biggest accomplishment of 2022 was surviving nearly 8 months of a hard pregnancy w a toddler. I can’t wait to meet my daughter soon. If she’s anything like her sister, it will have been worth it (but still incredibly hard!). I can’t believe we force people to do this now.
I’m thrilled to announce that
@CornellLawReview
will publish my article, Early Abortion Exceptionalism, which explores FDA’s harsh regulation of mifepristone, the only drug approved to terminate an early pregnancy. I am so grateful to everyone who helped me with this paper:
In non-professional news, I had a baby! World, meet Leona Donley Rediker, born on Nov. 19. I’m already terrible at Twitter, but am definitely going to get a lot worse 😂.
Friendly reminder that
@JoeBiden
's administration has tools to improve abortion access and mitigate the damage of the coming crisis without Congressional action. A federal statute is not the only tool.
The "Biden admin can't do anything" angle is wrong. The easiest thing it can do -- which it should have done already -- is remove its unnecessary and burdensome regulations on medication abortion. 1/
The ONLY way for the FDA to comply with both orders is through enforcement discretion. In 7 days (barring a successful appeal w the 5CA), mifepristone will be an unapproved drug (the order was written to bypass any FDA action). BUT...
Hooray! “If a doc believes a pregnant patient is experiencing an emergency medical condition & abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. Contrary state laws are preempted” (I paraphrased). Good job!
Thrilled to see
@CMSGov
clarify that abortion needed to stabilize emergency conditions is protected and required under EMTALA and that these requirements preempt state laws that are more restrictive. This is what
@GreerDonley
& I were calling for!
If the point of Dobbs was to reduce abortions, it is failing spectacularly: "Despite the dramatic declines in access [in antiabortion states], the national monthly abortion volume remains similar if not higher than pre-Dobbs numbers."
#WeCount
Abortion storytelling is a big part of our movement’s future, which is why I decided to finally share my story and how it has influenced my scholarship on the
@MorePerfect
podcast. You can check it out here: Short 🧵on what you'll hear
Re EMTALA decision, remember that the Court allowing litigation to unfold in Idaho (good bc of injunction) also essentially allows a bad 5CA order holding that EMTALA does NOT preempt Tx’s abortion ban to stay in place. Given the populations in TX vs ID, that’s not a win.
The Kate Cox story is horrendous, but also commonplace. Since Dobbs, thousands of people in nearly identical circumstances have been forced to travel for abortion (or wait until their health fails). Cox is special only bc of her incredible bravery & strength to sue WHILE pregnant
Also, please remember that if Trump wins, he will appoint an FDA commissioner that will limit mifepristone as much as possible from INSIDE the FDA. Those actions will be challenged in court but with flipped presumptions, and I doubt this Supreme Court would stop him.
I'm obviously thrilled at the decision & think it's important to celebrate every victory (this is a big victory!). BUT, this result only demonstrates that the case was profoundly weak on both procedure & substance. It should have been thrown out long ago.
Though the abortion crisis is already devastating,
@dsc250
@RRebouche
& I explain in
@TheAtlantic
that the worst is yet to come. Expect states to impose their abortion laws outside their borders, to criminalize patients + helpers & to enact personhood laws
The EMTALA abortion case is extremely important symbolically. It's a case about whether pregnant people can have any expectation of being cared for during medical emergencies. But its practical impact is tiny. EMTALA would not have allowed Kate Cox's abortion.
Though I'm hopeful after today's argument that the Supreme Court will dismiss the mife case, it's important to remember how bonkers it is that this wildly meritless case reached the Supreme Court. The fact that plaintiffs made it this far is a serious problem.
I can’t listen to the whole argument, but if I had to guess based on what I heard, the Court will kick the case on standing and Alito and Thomas will write something about Comstock.
I love my congregation, which added this prayer to the Yom Kippur service. Reproductive Justice is a religious and moral value. To those observing the holiday today, I hope you have an easy fast.
I'm late announcing this bc life is relentless, but I was recently named a John E. Murray Faculty Scholar
@PittLaw
! I'm so honored & humbled to join
@MaryCrossley
@profmadison
& Debbie Brake who also have the title!
YES! My co-author, ER doc, and friend! Check out our
@TheAtlantic
piece, which might have been the first to make the argument that the Biden administration should create the exact policy it did. That policy is now before the Supreme Court.
FDA's updated its website. Haven't had a chance to read any full documents, but here's the punchline: no in-person dispensing requirement. And pharmacies can prescribe it. 1/3
On some level, I appreciate how honest Texas is about its complete disinterest in women's suffering. The EMTALA decision coming on the heels of Kate Cox (and soon Zurawski v. TX) makes that pretty damn clear. And the world deserves to know.
I'm very proud to have worked on & signed the first brief arguing that Dobbs must be overturned. HUGE thanks to the
@WomensLawProj
team for believing in the importance of building the case to overturn Dobbs now. Long term strategy begins today.
@dsc250
@RRebouche
⚖️🔥Just in: WLP attorneys filed a brief with SCOTUS on behalf of our brilliant colleague clients
@dsc250
@RRebouche
@GreerDonley
--> We believe it is the first brief urging the Court to overrule Dobbs
I agree with so much of this thread. For me, it took experiencing pregnancy to understand why the "abortion up to birth" argument is a straw man. Pregnancy is not some innocuous experience that people are happy to live with while they "put off" having an abortion. 1/
Remember: the well-documented, relentless, traumatic harms to women and reproductive healthcare as a result of abortion bans have not resulted in fewer abortions. Since Dobbs, the number of abortions has gone up. What can possibly justify this suffering?
New: At least two women in Georgia died after they couldn't access legal abortions and timely medical care in their state, ProPublica has found. This is one of their stories.
Want to know more about the abortion pill battles coming down the pike and how they will shape abortion narratives? Check out
@dsc250
@RRebouche
and my new article, Abortion Pills, now on SSRN!!
Unfortunately, I think the biggest impact of this law will be on miscarriage care. Docs aren't prescribing these meds in LA for abortion b/c of bans, and patients are exempt from prosecution. Docs ARE prescribing miso for miscarriage, and this law will likely chill that care.
My
@Cornell_L_Rev
article is finally out 🥳 & w a new title: Medication Abortion Exceptionalism. If you are looking for a paper that explains the FDA's regulation of medication abortion over time and in depth, this is it! Short 🧵 bc I can't help myself.
15 week bans are esp problematic for a few groups of people: (1) those terminating for fetal anomaly—the scan that diagnoses many anomalies happens around 18-22 weeks; (2) those who are poor or living in states that ban abortion—logistical & financial barriers to care delays
Rant: at my daughter's 6mo apt in July, her doc recommended I wait a few weeks until the new COVID vaccine came out. Seemed reasonable. A month later, COVID started circulating daycare. The ped's office no longer has the old vaccine & has no clue when the new one will come in...
I had cancer in my late 20s, and the only silver lining of that experience was a group of forever friends that I met at a young adult cancer support group. One of them, my dear friend Kate, died today, and the world is a lot darker without her in it.
Dobbs is terrible. But amidst it is this ridiculously big professional accomplishment I want to share -- the dissenting Justices (Breyer, Sotomayor, Kagan) cited the draft article that
@GreerDonley
,
@RRebouche
, and I have been working tirelessly on for the past year. /1
OK big picture thread pulling everything together from this week: (1) the TX order (as modified by 5CA) doesn't take effect until 12:01am on Saturday. If SCOTUS stays it, it could never take effect.
We (
@dsc250
,
@RRebouche
& I) are thrilled to announced that our article, the New Abortion Battleground, will be published in
@ColumLRev
! It has been a dream to collaborate with such smart and kind partners. More about the project in the abstract and thread below!
The New Abortion Battleground (with
@dsc250
&
@RRebouche
) is now available on SSRN: . We argue that twin forces are converging to transform the half-century battle over Roe into a new interjurisdictional arena. A 🧵!
This EO contains important, incremental steps (many of which my co-authors and I have advocated for), but it’s disappointing that this fairly tepid EO took two weeks to come out. The Biden Admin has shown no sense of urgency about this crisis.
This Court has made it clear it will not protect the rights of women.
I will. That’s why today I'm signing an Executive Order to protect access to reproductive health care.
Anyway, I'm glad to see NYT exposing the hypocrisy in antiabortion folks distancing themselves from the definitions THEY created in abortion bans when forcing birth would be unpalatable.
The "Biden admin can't do anything" angle is wrong. The easiest thing it can do -- which it should have done already -- is remove its unnecessary and burdensome regulations on medication abortion. 1/
My new paper with
@jillwieberlens
, Abortion, Pregnancy Loss, and Subjective Fetal Personhood, is on SSRN. This paper means a lot to both of us, and I want to tell you a little bit about it. A Thread!
Many ectopic pregnancies are wanted, and the pain of the loss can feel indistinguishable from early miscarriage. And historically, medical societies have not called these abortions. But it doesn't matter what doctors call it, it matters how legislatures define it.
It is such an honor to receive a Chancellor's Distinguished Research Award! The university is full of such amazing researchers across many disciplines - I am lucky to be amongst them. And how cool to be recognized alongside
@dharrislawprof
, whose public service is so inspiring!
Prof.
@dharrislawprof
and Prof.
@GreerDonley
were named recipients of a Chancellor’s Distinguished Public Service Award and a Chancellor’s Distinguished Research Award. Both will be honored at the Faculty Honors Convocation this coming Thursday. More:
My next piece, Abortion Disorientation, is up on SSRN & forthcoming in
@dukelawjournal
!!
@caroline_mkelly
& I argue the meaning of “abortion” is inherently ambiguous, leading to tragic (& entirely foreseeable) results that expose a workability problem. 🧵
First & foremost, abortion is not a type of procedure or a medication -- the same procedures and medications used for abortion are also used for pregnancy loss. The question is whether those procedures and medications are initiated before the embryo / fetus has died on its own.
This new antiabortion shift to say that Comstock only bans shipping mife doesn't make sense. The same people rejecting the majority interpretation that Comstock only covers "unlawful" abortions bc limiting text can't be added into the law, now want to add their own limiting text?
Just to be clear, the Comstock Act forbids the transportation of any “article or thing designed, intended, or adapted” to produce abortion—a vast category that includes medical equipment.
If Comstock bans mifepristone, it also bans shipping vacuum aspirators to abortion clinics.
We need to normalize talking about how hard pregnancy is. It's tough bc it feels ungrateful, esp if you (or someone you love) has experience infertility or loss. But people have no clue the sacrifices that pregnancy requires, and that ignorance has consequences right now.
Reading through a government brief defending its abortion ban and the phrase "minor discomfort from pregnancy" is making me feel.... minor discomfort, shall we say. 😡
If this opinion goes into effect (big IF - we have to wait for SCOTUS), the effects would still be significant. The brand and generic would remain approved, but the modifications to the REMS and label that occurred 2016 and 2021 would be stayed. Here's what that means:
🚨🚨🚨5th Circuit opinion in abortion pill case is out! 5CA says the challenge to the original approval is likely time barred and there is no injury related to the generic approval, but affirms district court's injunction w/r/t the 2016 and 2021 changes
The fact that an ectopic pregnancy is "nonviable" does not matter. Many pregnancies survive into the second and third trimester with nonviable fetal anomalies. There is no question that ending these pregnancies are abortions--completely banned in most states after 22-24 weeks.
I'm obviously thrilled at the decision & think it's important to celebrate every victory (this is a big victory!). BUT, this result only demonstrates that the case was profoundly weak on both procedure & substance. It should have been thrown out long ago.
A ton has been written about why life exceptions are inadequate. Ectopic pregnancy is a good example, as some doctors immediately after Dobbs reportedly forced women to wait until the EP ruptured, exposing them to a genuine threat of life, rather than treat the EP immediately.
Why are those parents who refuse life sustaining treatment at birth (or whose affected pregnancies end in stillbirth) considered bereaved parents when parents who chose termination are stigmatized? I wrote a whole paper on this in
@MinnesotaLawRev
here.
This is such a powerful story abt how abortion bans harm pregnancy loss. The thing that concerns me the most is how few people will recognize that abortion bans are the reason their care is delayed bc providers are not disclosing that fact. Why? Prob because doing so:
An Ohio woman was bleeding profusely for hours after her miscarriage. The ER sent her home anyway.
Legal experts say laws like Ohio's abortion restrictions leave doctors uncertain about what is legal — and can put patients in dangerous situations.
This is wonderful news! The fight for this was long & the outcome was by no means certain. The FDA expressed a lot of doubt at the advisory committee meeting earlier this summer. But it made the right call & approved it w/o any age restrictions!
Hot off the presses, just in time for the Supreme Court’s mifepristone decision! If you want to learn more about the case or the reason the antiabortion movement is going to the mat on abortion pills, check it out! CC
@RRebouche
& David Cohen
I can’t listen to the whole argument, but if I had to guess based on what I heard, the Court will kick the case on standing and Alito and Thomas will write something about Comstock.
It was great to talk to
@KatelynFossett
at
@politico
about what’s at stake in the Kansas abortion referendum. Voting already started and finishes on Aug 2nd. Kansans: if you don’t want the government to make your reproductive health decisions, vote no!
I hate to be contrarian, but I don't think we should be celebrating this FDA announcement too much for a few reasons: (1) this does nothing more than flesh out the FDA's decision from Dec. 2021. There is not much new here & it's frustrating it took over a year to get the details
I'm so excited to have received the 2020 Haub Law Emerging Scholar Award in Women, Gender & Law! Thank you to everyone at Pace who took the time to read my paper, Contraceptive Equity: Curing the Sex Discrimination in the ACA’s Mandate 🥳
Ectopic pregnancy treatment uses medication or surgery to stop the growth of a pregnancy, often before it has stopped on its own. Some state statutes exempt EP from the definition of abortion. If not, it is an abortion, but the life exception should *eventually* apply.
.
@chrissyteigen
provides another example. She had a life-saving abortion at 20 weeks due to partial placental abruption, but the media widely reported that it was a miscarriage. She only discovered it was an abortion years later. How is that possible?
Pharmacy certification is still very unnecessary, but WOW, it looks like Walgreens and CVS are planning to become certified, which is great news! One big asterisk: it could only be the branches that already have REMS compliance programs for other drugs.
Each of these cases are abortions, even though I would argue they are ALSO pregnancy losses. The line is blurred. Abortion is one type of reproductive healthcare that cannot be disaggregated from the rest. Read more from
@jillwieberlens
& I on this here:
So proud of this paper.
@jillwieberlens
& I both carried baby boys that did not make it, and those losses shattered and changed us. How do we hold space for this grief and support people through a variety of pregnancy endings without ceding ground on abortion rights? 1/3
Happy to share that Subjective Fetal Personhood,
@greerdonley
’s and my latest, is forthcoming in
@vandlrev
! It seeks to resolve the longstanding tension b/w pregnancy loss and abortion rts, and prepares us for their further entanglement post Roe. Very proud of this one.
#forcaleb
I think abt all the parents who would have sprinted to get their kids vaxed in Feb, but won't now bc their kids caught covid in the last 6 months waiting for the vaccine. IMO the FDA is going to regret its messaging + decision-making here.
The fact that antiabortion activists are fighting tooth and nail to ensure that people cannot get these medically necessary abortions should shock the conscience.
HHS issued a guidance document clarifying that absent a mandatory disclosure law or warrant, healthcare workers can’t disclose protected health information to law enforcement to report abortion crimes — I.e., what we wrote about in our most recent NYT op-ed!
How you access health care should not make you a target for discrimination. HHS stands with patients and providers in protecting
#HIPAA
privacy rights and reproductive health care information. Read our new guidance:
It’s such an honor to be in the top twenty-five most downloaded law profs last year! And so great to be in company w
@dsc250
&
@RRebouche
. (But the gender disparity here is atrocious — only 3 women!)
She had an induction abortion, where childbirth is induced before fetal viability. This type of abortion is very rare and mostly done for maternal health conditions and fetal anomaly. It allows parents to meet the child and say goodbye, like with stillbirth.
.
@ProfEmilyMurphy
texted me every day for months after my own traumatic pregnancy ending at 22 weeks. There is a silent community of law professors who grieve pregnancies together & support one another through it. I will always be grateful to Emily and Theo!
I’ve had many versions of this conversation: how can you support abortion rights and mourn Theo as a lost *child*? There is greater nuance than simple antagonistic narratives. We owe ourselves more than that.
@GreerDonley
and
@jillwieberlens
show us how
@RRebouche
As David (who is not currently on Twitter) said over text “38M people live under the 5th circuit decision’s jurisdiction. 2M people get the benefit of this” order in Idaho.
For those watching Kansas tonight who don't know Kansas geography, my county (Johnson County) is the largest and one of the bluest. It hasn't reported ANY votes yet. This is good for the Vote No campaign.
🚨🚨🚨5th Circuit opinion in abortion pill case is out! 5CA says the challenge to the original approval is likely time barred and there is no injury related to the generic approval, but affirms district court's injunction w/r/t the 2016 and 2021 changes
I'm supposed to "call back every few days to see if it has arrived," which I have done every 3 days for a month. Still no information. What kind of system is this? How are we 3 years into a pandemic & still dealing with this? COVID is everywhere & we are totally flat footed again
Folks, I met
@RRebouche
for the FIRST time today!!! It was amazing! I’m so lucky to know and work with such a brilliant and kind person.
@jillwieberlens
and
@dsc250
, I’m coming for you next!
When someone is forced to terminate a desired pregnancy for medical reasons (fetal or maternal), esp into the 2nd & 3rd trimester, the grief felt will be similar to pregnancy loss. And when the physical experience is also the same, the experiences are almost indistinguishable.
I was thrilled to join
@TheRyanHamilton
’s podcast to talk about how tragically vague & confusing abortion definitions & exceptions are. His wife’s story highlights how abortion bans are causing a chilling effect that harms all reproductive healthcare. Hope you tune in!
Excuse me if I'm a little extra excited about tomorrow's episode. After you've been on the receiving end of hundreds of thousands of pro life haters attacking you, a conversation w/ an
#Abortion
Law EXPERT like
@GreerDonley
is incredibly rewarding. Here's tomorrow's intro🙌🏻💙🔊
We need a Comstock repeal bill: “they should look their constituents in the eyes when they explain that, w/ Comstock still on the books for an antiabortion DOJ to enforce, there will be nowhere for them to go when they need an abortion” for any reason. Me,
@dsc250
&
@RRebouche
The FDA just announced changes to its medication abortion regulations. I haven't read the document fully yet, but the punchline is that the agency removed the in-person dispensing requirement and is allowing certified pharmacies to prescribe it.
Can someone please create Class Pass for media consumption? I'd like to be able to pay $20/month to access 200 free articles from a variety of fantastic, subscription media outlets. Please and thank you.
I.e., even if the 1864 law banned "procuring a miscarriage," in practice, women could not end a pregnancy until they knew it existed. People regularly bought herbs to induce a late period, and no one cared. Read more in
@jillwieberlens
& Evan's paper here.
On AZ: The law is from 1864.
Pregnancy tests did not exist (today's version didn't exist until 1970s). Drs didn't think even 2 missed periods meant pregnancy. Dr routinely prescribed meds to bring on the menses.
Seems wrong to apply the law under today's circumstances.