'Abortion-Hushing' Can Restore Some Rights, But More Trouble Looms

The term “greenhushing” has become familiar shorthand for the ability of corporations to make progress on environmental issues, without running afoul of partisan political objections to ESG (environmental, social, governance) principles, by not talking much about the work they're doing. U.S. business leaders could apply a similar tactic to advocate for reproductive rights on a state-by-state basis, but progress in that area can only be guaranteed by strong federal protections for abortion and contraceptive access.

Abortion-hushing in Texas

One recent example of “abortion-hushing” occurred in Texas, a state that gained a particularly strong reputation for restricting abortion access with the passage of Senate Bill 8 in 2021.

Republican Gov. Greg Abbott is front and center among the state officials supporting the ban. However, as noted by reporter Selena Simmons-Duffin of National Public Radio, earlier this month he quietly signed a bill into law that undercuts the “fetal heartbeat” provisions of Senate Bill 8.

“Abbott signed a law giving doctors leeway to provide abortions in Texas when a patient's water breaks too early and for ectopic pregnancies,” Simmons-Duffin reported. “The new law, which goes into effect Sept. 1, is the work of a Houston Democratic lawmaker who built bipartisan support."

Simmons-Duffin, who reports on health policy for NPR, attributed the legislative achievement to the absence of the word “abortion” in the bill. The lawmaker behind the bill, Democratic state Rep. Ann Johnson, adopted that strategy after hearing from doctors in her constituency. She realized there was a sharp disconnect between what doctors know about abortion and what Republican lawmakers in Texas believe about abortion.

For doctors, abortion is a broad term that covers fatal or life-threatening medical conditions. In contrast, Johnson portrays the political opposition as rooted in a belief that abortion always consists of an “elective procedure on a completely healthy fetus," she told Simmons-Duffin.

Half measures are not enough

That view of the political opposition does not fully capture the full range of anti-woman, anti-pregnancy sentiment expressed in abortion bans. The Johnson bill also focuses narrowly on two instances where the pregnancy will clearly not result in a live birth, without including a range of other complications.

Still, the Johnson bill does represent some progress. It helps to shield some medically necessary abortions from the false portrayal of abortion as a self-centered act of cavalier individualism. The emphasis on medical necessity provides an opening for business leaders in other abortion-restricting states to advocate for at least a partial relaxation of the law.

However, a piecemeal, state-by-state approach is not enough. Republican office holders are already setting the wheels in motion for a national abortion ban that could supersede any state-based attempts to preserve the rights of pregnant people.

Elections have consequences, but judicial appointments are for life

A national ban on abortion may seem like a remote possibility, though that depends on the outcome of the 2024 election cycle. Of more immediate concern is the peppering of the U.S. judiciary with ultra-conservative judges, capped by the presence of a 6-3 Republican-appointed supermajority on the United States Supreme Court, including three justices appointed by former President Donald Trump. 

Regardless of which party prevails on legislative policy, the lifetime appointments to the Supreme Court will continue to impact abortion rights for the foreseeable future.

That impact has already proved devastating. Despite pledges of support for precedent during nomination hearings, the Republican-appointed Supreme Court supermajority upended 40 years’ worth of precedent on abortion rights when it overturned the 1974 Roe v. Wade decision last summer.

Extremist judges elsewhere in the federal system have also had a powerful impact on abortion access. In particular, U.S. District Court Judge Matthew Kacsmaryk of Amarillo, Texas, set off a firestorm of protest on April 7 when he issued a ruling that overturned the Food and Drug Administration’s approval of the widely used abortion drug mifepristone. That approval was first rendered 23 years ago, in the year 2000, and it has been expanded since then. 

Countdown to catastrophe

Mifepristone is still available for the time being. However, its future status is in doubt. The U.S. Department of Justice challenged the Kacsmaryk ruling, and the case was sent to the U.S. Court of Appeals for the 5th Circuit. A three-judge panel of the court issued its ruling last Wednesday, August 16.
 
“Access to the abortion pill mifepristone must be restricted, a U.S. appeals court ruled on Wednesday, ordering a ban on telemedicine prescriptions and shipments of the drug by mail,” Reuters reported.

It could have been worse. A two-judge majority on the panel narrowly applied the ruling to COVID-related expansions on access. Nevertheless, the ruling was not a surprise. “All three judges on the panel are staunchly conservative, with a history of opposing abortion rights,” observed Reuters reporter Brendan Pierson.

“One of them, Circuit Judge James Ho, said he would have gone further and pulled mifepristone off the market, but the other two judges said the lawsuit came too late to challenge the original 2000 approval,” Pierson added.

The panel did put a hold on the ruling, pending the results of an appeal to the U.S. Supreme Court by the Justice Department. The clock is ticking. If the Supreme Court decides to let the ruling stand, or if it throws further roadblocks against access to mifepristone, abortion access will be impacted in all 50 states, not just the states that restrict access.

The spillover of abortion patients from restrictive states to non-restrictive states has already resulted in backlogs and needless delays. Limiting telemedicine and mail-order shipments will push more patients into doctors’ offices, further straining medical systems.

The full implications for corporate DEI (diversity, equity and inclusion) programs are yet to be seen. However, signs of an impact on economic opportunity have already emerged, and the loss of obstetrics and gynecology services in some communities sounds an ominous note for employee recruitment and retention. 

Business leaders have long ignored the warning signs of anti-abortion extremism by continuing to lend financial support to Republican candidates who oppose abortion rights. The 2024 election cycle provides one final opportunity to undo some of the damage done, if they choose to take it. 

Image credit: Manny Becerra/Unsplash