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After Roe v Wade, anti-abortion activists take fight to Capitol Hill

Congress replaces Supreme Court as site for the next March for Life, an annual anti-abortion rally
A matter of life and life.
A matter of life and life.
Photo: Alex Wong (Getty Images)
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Anti-abortion activists are once again gathering in Washington for the “March for Life,” but this time something has changed.

The annual protest first began the year after the Supreme Court’s ruling on Roe v Wade in 1973, which made abortion legal in the US. It’s been held every year ever since. But last year, just months short of its 50th anniversary, the Supreme Court overturned Roe v Wade.

So tomorrow (Jan. 20), anti-abortion activists won’t be setting their sights on the Supreme Court, but will march instead to the US Capitol—a switch that symbolizes how the fight over abortion is shifting from a legal one to a legislative one.

While the overturning of Roe v Wade was a major setback for the pro-choice movement, it led to significant victories for pro-choice ballot initiatives during the November midterms and has reinvigorated efforts to enshrine abortion rights through Congress instead of the courts.

Vice president Kamala Harris will commemorate Roe v Wade on Jan. 22 at an event in Florida meant to rally the pro-abortion movement.

Charted: 12 Republican-led states have banned abortion since June 2022

The attack on abortion pills

After the Supreme Court ruled that states have the power to decide their own abortion laws, a confusing patchwork of legislation has emerged across the US. A dozen states have now passed bans on abortion with few or no exceptions. Several other states have imposed some degree of restriction. And in Wisconsin, the overturning of Roe v Wade renewed debate over a mid-19th Century law that made abortion a felony. It’s now the subject of a lawsuit.

Where abortion clinics have largely closed, anti-abortion lawmakers are now turning their sights to the availability of so-called abortion pills. Steve Marshall, the attorney general of Alabama, one of the states that has banned abortion completely, said women could be criminally prosecuted under a “chemical-endangerment” law for taking abortion pills

The Federal Drug Administration, however, recently issued a new rule that would make it easier to get abortion pills from pharmacies. And the Department of Justice decreed that the US Postal Service can deliver abortion pills even to states that have banned the medical procedure.

In their fight to prevent the proliferation of abortion pills, anti-abortion activists have cited the 1873 Comstock Act, which was designed to stop people from sending “obscene” materials through mail. Some legal analysts argue that the repercussion of relying on the Comstock Act to ban the mailing of abortion pills would be vast, as it wouldn’t just prevent delivery to patients, but also to drug stores. But the anti-abortion activists don’t have to actually prove their case to cause disruption, legal scholar Mary Ziegler explained to NPR:

[A]nti-abortion activists who are invoking the Comstock Act are really playing the long game. They’re hoping either, 1) through lawsuits to get arguments about the Comstock Act before the Supreme Court, which is very conservative on abortion and may agree with anti-abortion activists’ interpretation of the Comstock Act, or, 2) just bide time until a Republican is in the White House and a Republican [Department of Justice] takes a different interpretation of the Comstock Act. So we’re seeing this argument crop up in lawsuits. We’re seeing it crop up in local ordinances passed by small towns in blue, red and purple states that mention the Comstock Act. So it’s become a kind of central part of strategy in some quarters in the anti-abortion movement.”

Next fight for anti-abortion activists: Fetal personhood

Anti-abortion activists are also fighting to establish a legal definition they call “fetal personhood.” Put plainly, they want the fetus to be considered a person at conception. Courts, however, aren’t likely to be so easily persuaded on this front of the battle. That’s because if personhood begins at conception, then the question becomes, “Are people born nine-months-old?” Several laws around voting, drinking, securing driver’s licenses, retirement, criminal liabilities, and more, would have to be revised, argued Hamline University professor David Schultz in an opinion piece for Bloomberg Law. In a provocative example of the repercussions of the fetal personhood argument, a pregnant woman in Texas challenged a fine she was given for driving alone in a high-occupancy lane, claiming her fetus counted as a passenger.

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