WASHINGTON — U.S. Senate Democrats at a Wednesday hearing explored how nearly a year after the Supreme Court struck down the constitutional right to an abortion, multiple states and conservative-backed lawsuits are restricting access to reproductive care.
The chair of the Senate Judiciary Committee, Sen. Dick Durbin of Illinois, said the recent Texas lawsuit challenging the U.S. Food and Drug Administration’s more than 20-year approval of mifepristone has proven that the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has “paved the way for activist judges and Republican lawmakers to try to impose their anti-choice agenda on everyone else, even in states that have protected the right to abortion.”
The Supreme Court issued an emergency stay last week to keep access to mifepristone nationwide until the lawsuit over its use works its way through the appeals process.
“What’s next?” Durbin asked. “Is it going to be birth control pills? The morning after pill? Do we want to live in a country where judges and politicians replace doctors, medical experts and scientists as the arbiters of which drugs are safe?”
At the hearing, titled “The Assault on Reproductive Rights in a Post-Dobbs America,” Democrats detailed how some states are considering legislation to track or prevent people from traveling across state lines to access abortion. Democrats also discussed maternal mortality rates in states with near or total bans on abortion.
“Right now we have a patchwork of laws across this country,” Sen. Amy Klobuchar, a Minnesota Democrat, said.
So far, 14 states have passed laws banning abortion, and several have passed restrictive abortion laws.
“This period of time since Dobbs has unleashed criminal actions against women and their doctors — it has also unleashed civil surveillance,” Michele Goodwin, chancellor’s professor of law at the University of California Irvine School of Law, said.
Goodwin, one of the witnesses tapped by Democrats, pointed to a case in Nebraska where Facebook data was used to prosecute a mother and daughter for performing an abortion.
She added that Idaho recently passed a bill that would subject medical professionals to criminal penalties for referring patients to abortion care across state lines.
“What we see is the dismantling, the vulnerability of constitutional principles that date back centuries, and abortion is being used as a proxy to dismantle fundamental constitutional principles, including the right to travel,” Goodwin said.
Denied an abortion in Texas
Durbin said since the fall of Roe v. Wade, there have been horror stories about people trying to access abortion, such as a 10-year-old girl in Ohio who had to travel out of the state for an abortion after being raped.
One of the Democrats’ witnesses, Amanda Zurawski, told senators how during her second trimester, her water prematurely broke, meaning that there was no way that her daughter, named Willow, would survive, and if she did not get access to an abortion she could die due to septic shock.
Because of Texas’ law, her doctors could only perform an abortion if there was no fetal heartbeat or unless her life was in danger.
Septic shock, known as blood poisoning, can kill a person within hours. Zurawski said the closest medical center that could have performed an abortion was eight hours away, and she and her husband didn’t want to risk her going into septic shock in a car ride or in an airplane.
“I cannot adequately put into words the trauma and despair that comes with waiting to either lose your own life, your child’s, or both,” she said. “Would Willow’s heart stop, or would I deteriorate to the brink of death?”
She said three days later she went into septic shock. Zurawski said she was briefly stable and gave birth to her daughter, who was stillborn. She then spent several days in the ICU.
Several Republicans — Sens. John Cornyn of Texas, Thom Tillis of North Carolina and the top Republican on the committee, Lindsey Graham of South Carolina — said the doctors in Zurawski’s scenario misunderstood the Texas law and argued that in her case she would have had access to an abortion.
“This is a legal professional who’s guilty of malpractice and the legal advisers of the medical centers in the state of Texas should be honest, set their political agendas aside and give good legal advice so doctors can provide care that I think in Mrs. Zurawski’s case, she was entitled to, and instead they let her get very sick,” Tillis said.
Zurawski pushed back and said that for three days her doctors consulted the ethics board, called other medical centers and “across the board, no matter who they asked, they were told time and time again that no, they wouldn’t have been able to provide an abortion.”
Tillis questioned “what the motivation was to not read the plain text of the statute that a non-attorney can read and understand, that should have been a legal basis for saying that they could have proceeded with the procedure.”
In Texas, medical professionals who perform an abortion past six weeks can face up to life in prison and up to a $100,000 fine per abortion performed.
Zurawski is currently one of the lead plaintiffs in Zurawski v. State of Texas, in which several women who were initially denied access to medical care because of Texas’ abortion ban are suing the state.
Codifying Roe v. Wade
Graham said that Democrats “are basically declaring war on the unborn,” and expressed his disagreement with Democratic legislation that would codify Roe v. Wade and protect access to abortion.
Sen. Tammy Baldwin, a Wisconsin Democrat, introduced that bill, known as the Women’s Health Protection Act. It’s unlikely to meet the 60-vote threshold in the Senate or pass a Republican-controlled House.
Graham said that “states can take their own path,” and that the line that he has drawn on abortion is 15 weeks. He’s previously introduced legislation to enact a 15-week abortion ban across the U.S.
Prior to the Dobbs decision, federal law allowed abortions up to fetal viability, which is about 23 to 24 weeks.
Graham accused Democrats of allowing abortions “up until birth,” which is not in the bill. About 1% of abortions happen at 21 weeks or later in pregnancy; they are rare and usually due to a medical issue.
Sen. John Kennedy, Republican of Louisiana, asked the Democratic witnesses if they supported abortion “at birth.”
Dr. Nisha Verma, an OB-GYN who treats patients in Georgia, said that is “not how abortion care in this country works.”
Verma said she has never seen that in her practice, and “it’s a hypothetical that does a disservice to our patients.”
“Abortion up until the moment of birth simply (does) not happen,” she said, adding that 90% of abortions take place in the first trimester.
The Republican witnesses, Ingrid Skop, an obstetrician and director of medical affairs at the Charlotte Lozier Institute, which in a brief urged the Supreme Court to revisit Roe v. Wade, and Monique Wubbenhorst, a senior research associate for ethics and culture at the University of Notre Dame, said they do not consider abortion to be health care.
“(Abortion) is always lethal to the fetus,” Wubbenhorst said.
Maternal mortality rates
Democratic Sens. Cory Booker of New Jersey and Jon Ossoff of Georgia expressed concern over high mortality rates, especially among Black women, in areas with restricted or no abortion access.
“U.S. women are more likely to die during or after pregnancy than anywhere else in the world,” Booker said.
He added that Black women are nearly three times more likely to die during childbirth.
Booker asked Verma about maternal mortality rates in states that have restrictive or total bans on abortions and how that can impact patients.
“There is a link between places with stricter abortion restrictions and higher rates of maternal mortality in the United States,” she said. “Georgia has one of the highest maternal mortality rates in the country and has very strict restrictions on abortion.”
Ossoff also said he was alarmed that not only does Georgia have the highest maternal mortality rate, but more than half of the state’s counties do not have access to an OB-GYN.
Verma said she’s seen many medical students leave the state because they don’t want to be in an environment where they can’t “practice evidence-based care,” and those students are concerned they won’t be able to learn how to care for a patient who needs an abortion. Georgia’s law bans most abortions once “fetal cardiac activity” is detected, usually after about six weeks into a pregnancy.
“I am very concerned that the law in Georgia is going to make the health care shortage worse,” she said.