Nearly two years after the Supreme Court overturned Roe v. Wade and removed federal abortion protections, a legal chess game is taking place among states.
Since Roe v Wade was overturned, nearly half of states in the U.S. imposed abortion restrictions.
More than a dozen clinics in Texas closed, while others moved to New Mexico. New restrictions in Utah, Idaho and Wyoming are pushing women into Colorado and Nevada, which are working to protect reproductive care.
Lindsey Harmon is with Nevadans for Reproductive Freedom, a group working to enshrine abortion protections in Nevada’s constitution by a vote of the people — an attempt also being made in more than a dozen states.
"Today we've turned in over 200,000 signatures in all 17 counties across Nevada," Harmon said to a crowd gathered recently outside the Clark County Building in Las Vegas. Nevada advocates collected nearly twice as many signatures as needed to qualify their initiative for placement on the ballot.
She pointed out that Nevada is nearly surrounded by states that restrict abortion.
“Whether it’s travel bans or bans on emergency care as we're seeing out of Idaho or near total bans like we're seeing in Arizona and Utah respectively,” Harmon said.
Like a chess game, both sides in the nationwide battle are making significant, diametrically opposed moves before the clock runs out.
Opponents have turned to obscure laws – some from the 19th century. Lawmakers in Arizona wanted to rely on a Civil War-era law to ban abortions. (That Arizona law was later repealed, though the repeal didn't take effect immediately and the original ban could still be reinstated before the repeal takes place.)
Others want to invoke the Comstock Act, a federal statute from 1873 that prohibited mailing birth control materials. University of Nevada Las Vegas Professor David Orentlicher believes challenging this will be difficult since Comstock has been updated several times.
“That would suggest that Congress didn't object to maintaining that part of the law,” Orentlicher explained.
Meanwhile, those who support broader reproductive rights have celebrated as abortion medications like mifepristone became available in drug store chains, such as CVS and Walgreens.
Using a different tactic, Louisiana lawmakers recently re-classified abortion medications as “controlled substances,” making them much harder to obtain.
Those who want to restrict reproductive rights are also challenging the federal law that ensures public access to emergency medical services. It’s called the Emergency Medical Treatment & Labor Act (EMTALA).
Orentlicher said this means hospitals must provide stabilizing medical treatment.
“If you're in active labor, they don't want you sending you away while you're in active labor, that you deliver,” somewhere in the street, he explained.
This is at the heart of a case brought by the state of Idaho to the U.S. Supreme Court. Idaho has a near-total abortion ban, allowing doctors to terminate pregnancy only to save the life of the mother.
Following oral arguments in March, Idaho Attorney General Raul Labrador said Idaho's abortion restrictions do not conflict with the federal law.
Labrador told reporters after the Supreme Court heard Idaho’s position that “EMTALA requires that emergency rooms care for pregnant women and their unborn children. And under Idaho's law, doctors are expected to treat women facing life threatening situations.”
Ilana Rubel is the minority leader of the Idaho House of Representatives. She said women are not getting emergency care and doctors are leaving the state.
“It is awkward to come to terms with the fact that the law that they championed has caused complete disaster for the state of Idaho ... But facts are facts. Numbers are numbers,” said Rubel shortly after the Supreme Court hearing.
Idaho’s Coalition for Safe Reproductive Health surveyed 117 doctors and about two-thirds said they were going to or likely would leave the state because of its new laws and the liability it places on them.
A decision on the Supreme Court case is expected this summer.
The debate will continue as abortion goes on the ballot in several states this fall.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio (KNPR) in Las Vegas, Boise State Public Radio in Idaho, KUNR in Nevada, KUNC in Colorado and KANW in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.
