With abortion access already limited, some states are trying to impose extreme penalties for the procedure.
Wyoming on Friday became the first US state to outlaw mifepristone, commonly known as the abortion pill, outside of an overall abortion ban. Wyoming’s ban is just one of several new efforts across the nation to ban access to abortion — or severely punish those who seek abortion care.
With surgical abortion already difficult if not impossible to access in Wyoming, medication abortion was essentially the only option for abortion care in the state.
Since Roe v. Wade was overturned last summer, states like Wyoming, South Carolina, and Texas have made repeated attempts against abortion rights, with varying degrees of success. Wyoming outlawed abortion via a trigger ban passed before the Supreme Court’s decision in the Dobbs v. Jackson case, although it is currently being challenged in court. Anti-abortion legislation has proven unpopular and complicated to enact in several states, opening the door for extreme workarounds like Wyoming’s.
All forms of abortion are illegal in twelve states, including medication abortion. But Wyoming is the first state to criminalize the use of the abortion pill outside a full ban going into effect. Medication, or self-managed, abortion can be a preferred option for terminating a pregnancy of up to 10 weeks because it can be taken at home — especially important in states and situations where surgical abortion is hard to access — it’s safe and is less expensive than surgical abortion.
That option is now gone in Wyoming and could be eliminated or curtailed throughout the country depending on the outcome of a federal court case in Texas. Judge Matthew Kacsmaryk, a Trump-appointed judge with ties to conservative groups, is presently hearing an argument in Alliance for Hippocratic Medicine vs. FDA that mifepristone is unsafe, despite the fact that it has been approved by the Food and Drug Administration for more than 20 years. Kacsmaryk is expected to order the FDA to withdraw its approval of the drug, leading to a lengthy appeals process.
Even if Kacsmaryk sides with the FDA, other states could attempt to follow Wyoming’s lead even if they’re unable to ban abortion outright. Or they might try something like the bill proposed in South Carolina’s House of Representatives in January, which would qualify a fertilized egg as a person, thereby making anyone who had an abortion eligible for the death penalty under South Carolina law.
As state-level abortion bans are challenged in the courts, legislators are trying to find new, more creative, and draconian ways to limit access to abortion — and it’s not clear they’ll stop at banning mifepristone or charging women who have abortions with murder.
Abortion care will be an uphill battle for Wyoming women
Wyoming has attempted to enact anti-abortion legislation since before Dobbs was decided; Gov. Mark Gordon signed the contested abortion ban into law last March. That law, still held up by the courts, would ban all abortion except in the case of rape or incest, or if the pregnancy posed a serious risk to the mother’s health. In issuing a preliminary injunction, the judge in the case found the law to be too vague, and that it likely violates the state’s constitutional right to healthcare.
Wyoming’s ban on mifepristone depends on the Life is a Human Right act, which goes into effect Sunday and circumvents the constitution by claiming abortion isn’t actually medical care — otherwise, it would be subject to the same constitutional critique as last year’s trigger ban.
“The impact of that legislation not only infringes on our constitutional rights, it actually causes harm,” Dr. Giovannina Anthony, a gynecologist and obstetrician with Women’s Health & Family Care Clinic in Jackson, told the New York Times. “Criminalizing evidence-based medicine is really what this boils down to, and that, in the end, honestly, will lead to maternal deaths and horrible outcomes for both mothers and babies.”
Anthony’s clinic is the only facility in the state still practicing abortion care, and it only provides access to medication abortion — mifepristone. She is one of the plaintiffs in the suit against the trigger ban and told the Times that she and her fellow plaintiffs had filed for an injunction against the Life is a Human Right act. They will also challenge the ban on abortion pills, she said.
Court challenges are essentially the only recourse abortion care advocates have right now, Wyoming Rep. Mike Yin told Vox in an interview. “In Wyoming, there are five Democrats in the House out of 62, and two in the Senate out of 31, so our [legislative] options are kind of limited, unfortunately,” Yin, a Democrat who represents Teton County, said.
Wyoming’s just one place going hard after abortion rights
Of course, Wyoming is not the only state pressing for more draconian abortion restrictions. South Carolina also made national news this week as a bill that would qualify a fertilized egg as a human being is being considered by the state’s House of Representatives. Under the proposed South Carolina law, abortion would be akin to murder, and the person who had the abortion could be sentenced to prison time — or death.
“Legislators in South Carolina have tried in every legislative session to introduce a fetal personhood bill” for the past 25 years, Vicki Ringer, South Carolina director of public affairs for Planned Parenthood South Atlantic, told Vox in an interview. The new bill, called the Prenatal Equal Protection Act, “is the craziest” Ringer said she had seen during her work in reproductive rights.
The bill’s primary sponsor, Rep. Rob Harris, a Republican who represents Spartanburg County, is a member of South Carolina’s Freedom Caucus. Like its Congressional analogue, the group advocates for extreme far-right legislative positions based around controversial culture war issues. Harris himself last week said on the House floor that he believed the 2020 election was illegitimate.
Harris’s bill, which has 15 sponsors, makes exceptions for the life or health of the mother, but not for rape or incest. It’s also clear that no medical practitioner who performs an abortion to save the life of a pregnant person can be charged with murder under the legislation. Harris is himself a registered nurse with 10 children, according to a recent profile of him in The State. Harris did not respond to multiple requests for comment regarding his legislation.
Should Harris’s bill pass, it would override the state’s current abortion laws, Ringer told Vox. Abortion remains legal in South Carolina, despite several legislative attempts to limit abortion rights, including the most recent, the Human Life Protection Act. That bill has passed in the House already and would ban abortion with exceptions for death or grievous bodily harm of the pregnant person. It does not provide exceptions for rape or incest but prohibits criminal charges against people who do get abortions. According to Ringer, it also “leaves open the possibility that a miscarriage will be investigated” as murder, punishing a person for a medical emergency that they can’t control.
“What we’ve seen in South Carolina is that 75 to 80 percent of people support abortion rights,” Ringer said. “Rob Harris represents an extreme group.” Still, Ringer said, she could see a situation where the House could “make a tweak or two” and the bill would pass. As to whether South Carolina Gov. Henry McMaster, a Republican, would sign such legislation, Ringer told Vox, “I think McMaster will sign anything on abortion as long as the General Assembly passes it. He’s trying to prove his conservative bona fides.”
In Texas, abortion is already illegal and the state employs a vigilante enforcement mechanism — ordinary citizens can sue those they suspect of aiding or abetting an abortion. That’s playing out right now; a man is suing three friends of his ex-wife for helping her obtain abortion pills last year.
The lawsuit alleges that the three women “all knew that they were aiding or abetting a self-managed abortion, which is a wrongful act and a criminal act of murder under Texas law.” Two of the defendants offered to let the pregnant woman undergo her medical abortion in their homes and provided her with links to websites where she could order the abortion pills. A third defendant allegedly helped deliver the pills to Houston, Reuters reports.
The plaintiff, Marcus Silva, is suing each defendant for $1 million. “Anyone involved in distributing or manufacturing abortion pills will be sued into oblivion,” Briscoe Cain, Silva’s attorney and a Texas state representative, said in a statement.
The multiple, overlapping bans on abortion access in South Carolina, Texas, Wyoming, and possibly the country leave the door open for further, more extreme measures against reproductive health, like restricting or outlawing some forms of birth control. “It is a slippery slope,” Ringer said. “What’s next?”