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How to make a state abortion ban go national


How to make a state abortion ban go national

Apr 13, 2023 | 12:00 pm ET
By Sofia Resnick
Idaho-based Stanton Healthcare parked its anti-abortion mobile clinic in front of the new Planned Parenthood clinic in Ontario, Oregon, on the same day that the new clinic opened, in response to Idaho’s abortion ban. (Courtesy of Brandi Swindell)

Idaho-based Stanton Healthcare parked its anti-abortion mobile clinic in front of the new Planned Parenthood clinic in Ontario, Oregon, on the same day that the new clinic opened, in response to Idaho’s abortion ban. (Courtesy of Brandi Swindell)

A fast-food restaurant was the last place she expected to have an abortion.

A month had gone by since the 26-year-old had found out she was about seven weeks pregnant. She’d gone to her closest Planned Parenthood, near Boise, Idaho, last August – the same week that abortion became a criminal act in her state. The woman, who asked not to be identified to protect her privacy, told States Newsroom that Planned Parenthood staff explained she could go across the border into Oregon for a legal telehealth medication abortion. 

She says the Idaho Planned Parenthood helped her set up the telehealth appointment with a provider in Oregon, where she would pick up the abortifacient mifepristone, which blocks progesterone from sustaining the pregnancy. She would need to take the mifepristone in Oregon before driving back home. And in one to two days, she would need to return to Oregon to take the misoprostol, which would cause her uterus to expel the pregnancy. For a surgical procedure, the nearest provider was at least 300 miles away.

“It was really crazy,” she says of all the legal and logistical questions she was trying to navigate, all the while feeling pressured by her boyfriend to have an abortion she wasn’t sure she wanted. 

Four weeks later she took the mifepristone pill and immediately felt regret. But, the next day, after confiding in a relative who told her about an ad that the procedure could be reversed, she found hope at Stanton Healthcare, an international network of anti-abortion pregnancy centers headquartered in Meridian, Idaho, right by Planned Parenthood. In addition to counseling against abortion and limited health services, Stanton offers a controversial and unregulated treatment which has been denounced by the American Medical Association for its limited data and unproven claims.

To Stanton Healthcare founder and CEO Brandi Swindell, this woman’s story sounded like a potential legal case for the organization’s influential policy arm that is at the forefront of an emerging legal anti-abortion strategy: to push states with abortion bans to criminalize abortion-related assistance and information as a way to prevent patients from accessing abortion in abortion-rights states. Their strategy is a window into how the anti-abortion pregnancy center movement has gotten into the game of trying to find the magic legal key to banning abortion nationwide in the absence of a federal ban.

Organizations like Stanton present a public mission of trying to save the unborn and offer resources. But Stanton has been the driving force to test the boundaries of Idaho’s strict abortion ban. Months after lobbying, gathering intel on Planned Parenthood and abortion-rights activist groups in Idaho, and sharing their client’s story, Stanton recently convinced their state’s most powerful prosecutor to adopt their extreme interpretation of what is already one of the nation’s strictest abortion laws. The Idaho attorney general has since rescinded his initial letter outlining his legal analysis, but it has added to chaos and uncertainty among Idahoans who need abortions and don’t know where to turn, reproductive rights advocates told the States Newsroom.

“Laws like the one in Idaho, you know, laws that ban abortion, have a chilling effect, not only on lawful conduct related to obtaining abortion care, but also other kinds of essential health care for pregnant people, like miscarriage management,” said Stephanie Toti, a reproductive rights lawyer who has argued major anti-abortion cases before the U.S. Supreme Court and whose organization the Lawyering Project is part of a new coalition of abortion-rights legal groups that offer mostly pro bono services to providers and patients. “It’s a terrible consequence of the Supreme Court’s decision to withdraw constitutional protection from abortion, and something that I think we’re going to see continue to play out in the courts in the coming months and years.”

AG opinion letter adds to confusion

Stanton says they exist to help women experiencing crisis pregnancies, but they don’t want those same women to go to places that offer help accessing legal abortion care in other states. Shortly after Idaho’s abortion ban took effect, the organization started building its case, telling reporters that giving women information on how to access abortion in other states was “potentially criminal,” even though that is not explicitly stated in Idaho abortion law

“They were coaching her in essence to skirt the law,” Swindell told States Newsroom. “[T]here are entities that think that they can be above the law and are engaging in potentially criminal activity. And the reality is there is precedent for a lawsuit in this situation.”

Stanton Healthcare Founder and CEO Brandi Swindell (Courtesy of Brandi Swindell)
Stanton Healthcare Founder and CEO Brandi Swindell (Courtesy of Brandi Swindell)

In early March, Swindell, who dates Idaho Congressman Russ Fulcher, said her organization’s national lobbying arm, Stanton Public Policy Center, asked Idaho state Rep. Brent Crane, R-Nampa, to seek an opinion from state Attorney General Raúl Labrador on whether Idaho’s anti-abortion laws precludes the type of help Planned Parenthood gave to Stanton’s new client. Is that what the statute means, when it talks about “assist[ing] in performing or attempting to perform an abortion in violation of this subsection”? 

Stanton – which has been campaigning against abortion drugs for years and has tried to unmask the secret headquarters of mifepristone distributor Danco Laboratories – also asked whether Idaho law specifically bans the provision and promotion of abortion drugs. She included in her letter to Crane pictures and video of a mobile billboard with instructions on accessing abortion pills produced by the abortion-rights group Mayday Health as it roamed Boise. 

The attorney general quietly clarified Stanton’s legal questions in a letter to Crane, which echoes Stanton’s belief that abortion assistance and referrals and information on medication abortion violate the law. Stanton published the attorney general’s letter in a press release warning abortion rights advocates and providers in the state not to talk to patients about where to go for a legal abortion. 

Planned Parenthood and the American Civil Liberties Union quickly sued the attorney general’s office, saying the opinion blatantly violates federal free speech and commerce laws.

“The Attorney General’s interpretation also demonstrates that he is taking the position that at least some abortions in other states are banned by Idaho criminal law—a truly novel, shocking and blatantly unconstitutional interpretation of Idaho’s Total Ban that risks further isolating Idaho patients by cutting them off from critical health care in other states that is legal in those states,” reads the complaint.

Labrador tried to backtrack, at least publicly. He wrote Crane a new letter, 11 days after the first, chastising the lawmaker for allowing the letter to become public, and telling him to consider his letter “withdrawn” and his analysis “void.” But the new letter attempted to delete itself without explicitly taking back the opinion that health providers in Idaho could lose their medical license for referring women to a provider in another state or calling in an abortion-drug prescription.

The attorney general’s office did not respond to a request for clarification on his opinion of Idaho’s abortion laws. 

Mack Smith, the communications director for Planned Parenthood Great Northwest Hawaii, Alaska, Indiana, Kentucky, said Planned Parenthood will keep fighting what she called “an extremely extreme legal opinion” in court until the attorney general further clarifies. 

For now, Planned Parenthood is declining people’s questions about where to access abortions legally. Smith noted that Labrador’s office has said they are not currently investigating Planned Parenthood, but his previous letter represents a real threat to providers. 

“[The Idaho attorney general] has not been explicit in what revoking the letter means for our providers on the ground, and obviously, we won’t be risking their licenses and safety,” Smith said. “So at this point, we’re not providing referrals until the judge returns.”

And Stanton is once again seeking clarification from the attorney general, and has asked for a meeting. 

“While it is profoundly disappointing and confusing that Idaho’s Attorney General Labrador has publicly rescinded his letter regarding important and valid legal analysis on chemical abortions in Idaho, Stanton Public Policy Center believes the information he provided in a letter to a state representative is still accurate and affirms the law,” Swindell told States Newsroom. “So while Attorney General Labrador has rescinded his letter, he has not ‘rescinded’ the facts and criminal sanctions detailed in the letter and those who violate them will face criminal violations.”

The quagmire over Idaho’s abortion laws coincides with legal uncertainty over the legality of the abortion pill nationwide and has intensified a political climate that threatens maternal health care throughout the state. As States Newsroom originally reported, two hospitals in rural Idaho are losing their entire maternity wards in part because of the stringent liability around pregnancy termination, even when it’s medically indicated.

“The people who bear the brunt of that are the patients in Idaho,” Smith said. “They’re the people who now don’t have an understanding of the medical options available to them, because their providers aren’t able to give them all of the medical options provided to them. And that simply cannot happen in any state in the country.” 

Labrador’s reading of his state’s abortion ban is further indication of his anti-abortion pursuit. Idaho has become an incubator for extreme anti-abortions laws, and recently became the first state in the nation to ban abortion travel for minors without parental permission. He has argued in an ongoing federal lawsuit against Idaho’s law that emergency room doctors do not need to be explicitly protected from prosecution, and he is among several state attorneys general interjecting in a Washington lawsuit trying to lift restrictions of medication abortion.

Labrador is among several attorneys general who have received campaign funding from major conservative legal influencer Leonard Leo, who co-chairs the conservative legal group the Federalist Society, which heavily backed judges and prosecutors with a history of anti-abortion views, including Texas Judge Matthew Kacsmaryk, who recently issued the controversial ruling to temporarily halt the approval of mifepristone. Leo donated approximately $2,000 to Labrador’s primary campaign in February 2022, according to a campaign funding report shared with States Newsroom by liberal watchdog group Accountable.US. During his campaign, Labrador vowed to be a more aggressive attorney general unafraid to sue the federal government. 

‘Abortion reversal’ as prosecutorial tool

Swindell founded the Stanton Health network almost two decades ago with a bold but yet-to-be-realized mission to replace Planned Parenthood with a network of clinics that offers reproductive health services except for abortion and birth control. Stanton’s flagship clinic in Meridian, Idaho, is licensed, unlike the typical anti-abortion pregnancy center. But like more traditional centers, Stanton leases buildings next to abortion clinics and advertises alternatives to abortion including reversal. They’ve even launched a new mobile clinic to follow a new Planned Parenthood clinic in Ontario, Oregon, and clinics with limited health services in California, Michigan, Ireland, and Scotland. 

Stanton Healthcare, headquartered in Meridian, Idaho, advertises a controversial and unregulated treatment that claims, without credible data, to reverse the effects of medication abortion.  (Courtesy of Brandi Swindell)
Stanton Healthcare, headquartered in Meridian, Idaho, advertises a controversial and unregulated treatment that claims, without credible data, to reverse the effects of medication abortion.  (Courtesy of Brandi Swindell)

Swindell says her mother regretted an abortion, and that inspired her to promote and offer an unregulated and disputed medical treatment called “abortion pill reversal.” Over the years her clinics have seen a handful of women like the 26-year-old who wanted to try the treatment after regretting their decision to have a medication abortion, sometimes because of outside pressure. 

Though people can experience regret for any medical decision, the mainstream scientific consensus is that women overwhelmingly do not regret their abortions. There is data, however, showing that risk factors for “negative emotions” following an abortion (at least initially, but not necessarily over time) include community and personal attitudes about abortion, something that is denounced as murder by many religious groups and lawmakers in the U.S.  

Stanton’s client told States Newsroom that she “grew up Christian, of course,” and that her mom, whom she’s very close to, never believed in abortion. She hadn’t planned on getting pregnant just yet, but it was her boyfriend who was adamant it was the wrong time to have a baby.

“I just felt not confident in my decision if I wanted to keep it because he was putting a lot of fear in my head,’’ she said. “He was thinking that if I [had the baby], it would ruin our lives. And so I just decided to make somebody else happy.”

But after a sleepless night, she was eager to try the treatment, whose ultimate champion is also a plaintiff in the high-profile lawsuit asking the U.S. Food and Drug Administration to revoke its approval of mifepristone and the two-drug medication abortion regimen. 

California family doctor George Delgado’s protocol involves a woman interrupting that FDA-approved regimen he’s trying to outlaw. After she takes mifepristone, she must forgo the second drug, misoprostol. Then a provider – usually referred at anti-abortion pregnancy centers – floods her body with progesterone for a couple weeks.

The anti-abortion movement – and several state governments, including Kansas – have been promoting this medical intervention in the absence of any evidence that it works or robust data on potential health consequences of not completing the abortion. Their websites advertise that abortion is reversible, which the American College Of Obstetricians and Gynecologists says sends the problematic and unfounded message that an abortion decision can wait till midway through a medication regimen. An OB-GYN who tried to scientifically test the abortion pill reversal protocol canceled the study after three of the subjects experienced excessive and abnormal bleeding.

Stanton’s client acknowledges that maybe it wasn’t because of progesterone capsules she took for two weeks that “reversed” her abortion. She had found out she was farther along – around 12 weeks pregnant – when medication abortion generally becomes less effective. But in another way, she believes those capsules made her a brand-new mom. Stanton says their client gave birth to a healthy baby earlier this month.  

“I thought of that progesterone just entering life back into him,” she said. “I felt like life was kind of going back into my baby again. I don’t know if it was like a placebo thing maybe, or like a spirit thing.”

And for Stanton, their client’s story helped them learn exactly how Planned Parenthood was helping women access legal abortion elsewhere, as they consider legal avenues. 

Though more and more states are floating proposals to prosecute women who have abortions, Stanton is among many anti-abortion groups that oppose criminalizing women for obtaining abortions, including self-managed abortions. Swindell said they have seen two patients who self-managed since Roe v. Wade was overturned. But they do believe in criminalizing advocacy and volunteer-based organizations that help women access abortions.  

“Our approach is dealing with the organizations and the entities that we feel are being predatorial and preying on these women,” Swindell said. “We are very pro-woman, very life-affirming in our approach, and we would never consider reporting a woman for a self-abortion. And in fact, we have not.”

Activists in other states are playing the same strategy Stanton is: going after organizations that offer assistance as a way to enforce and expand state abortion restrictions. Activists in Texas found their plaintiff – an ex-husband suing his wife’s friends for giving her information about how to access abortion pills. 

And these types of challenges are likely to spread, with the help of national groups that float model legislation, like the National Right to Life Committee’s model bill, which recommends that states permit civil actions against people or entities that allegedly violate abortion laws. 

These lawsuits and threats of lawsuits for helping women have abortions add to the general growing fear of criminal prosecution and can deter people from seeking care, or help from support systems, said Toti, the reproductive rights attorney. 

“I can’t speak to what the attorney general of Idaho will or won’t do, but I know that there are politicians across the country who have made false threats for the purpose of scaring and intimidating people who want to obtain abortion care or provide abortion care or help others obtain abortion here,” Toti said.

And that is Stanton’s ultimate goal: to end support and access for abortion care beyond Idaho’s borders. 

“We believe in the humanity and human rights of the preborn child,” Swindell said. “And so we’re continuing to work with the AG here in Idaho, and encouraging people to do that in states across the nation,” Swindell said.

Stanton’s client said she wants people to know they could try abortion pill reversal if they regret abortion, but was reluctant to talk about the politics around abortion in her state and across the U.S.

“I’m not talking about anyone else’s experience but mine,” she said, and declined to say whether she would get involved in any related legal action.

At which point, Swindell, who organized the interview with States Newsroom, interjected, “Maybe another interview down the road.”

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