The state of abortion in 2023
By / Jan 20

In a few days, President Joe Biden will speak before a joint session of Congress and deliver his second State of the Union address. In the message, the president will fulfill his constitutional duty to “give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient.” 

While President Biden might mention abortion in his speech, he is unlikely to discuss the varied ways the issue has changed since the overturning of Roe v. Wade and in the past few months. Here is what you should know about the state of abortion in 2023.

Most abortions are illegal in 14 U.S. states

Earlier this month, the Supreme Courts in Idaho and South Carolina issued rulings on pending cases concerning abortion. In Idaho, abortion is now allowed only to save the life of the mother or in cases of rape or incest. Sadly, in South Carolina the state Supreme Court ruled a 2021 Heartbeat Bill to be unconstitutional, granting the right of an abortion up to 22 weeks.

Abortion is currently banned in 13 states. In Georgia, where a complete ban was blocked by the courts, it is allowed only in the first six weeks. Eleven more states have restrictions between 15 and 22 weeks of gestation. Abortion is legal beyond 22 weeks’ gestation in 25 states and Washington, D.C. 

FDA allows retail pharmacies to offer abortion pill

In the final days of 2022, the U.S. Food and Drug Administration (FDA) updated a rule allowing retail pharmacies like CVS and Walgreens to dispense the abortion pill mifepristone. The change in expanding access to the drug came amid a wave of state efforts last year to impose restrictions. Until 2021, mifepristone could only be dispensed in person by a physician. The Biden administration relaxed that requirement during the COVID-19 pandemic and allowed the drug to be dispensed by telemedicine prescription and mail delivery. That rule was later made permanent. 

The new rule requires pharmacies to apply for a special certification process. The rule also will only apply in states that have not banned abortion. More than a dozen states have laws that would prohibit the abortion pill from being prescribed. However, women will be able to cross state lines and obtain mifepristone from states in which abortion is allowed within the first 10 weeks. 

Medication abortions—abortions that are a result of abortion pills rather than surgery—currently account for more than half of all abortions in the United States, so the ease of access is likely to increase the total number of abortions.  

Justice Department clears Postal Service to deliver abortion pills in states where abortion is banned

A day before Christmas Eve, the Justice Department’s Office of Legal Counsel issued a legal opinion concluding that the mailing of abortion pills does not violate Section 1461 of title 18 of the U.S. Code, commonly known as the Comstock Act. According to the Justice Department, that law does not prohibit the mailing of certain drugs that can be used to perform abortions where the sender lacks the intent that the recipient of the drugs will use them unlawfully.

“Because there are manifold ways in which recipients in every state may lawfully use such drugs, including to produce an abortion,” states the ruling, “the mere mailing of such drugs to a particular jurisdiction is an insufficient basis for concluding that the sender intends them to be used unlawfully.”

The decision allows abortion pills to be shipped through the U.S. Postal Service as well as by other carriers, like FedEx and the United Parcel Service. But it does not guarantee legal immunity for those involved in sending or receiving abortion drugs in states that restrict them. The opinion also does not prevent state or local prosecutors from using state laws to charge people criminally for violating abortion bans or restrictions.

Congressional Democrats still refuse to protect children born alive after abortion

On Jan. 11, all but two Democrats in the House of Representatives voted against legislation that would require immediate medical attention for babies who are born alive after an attempt was made to abort them. In contrast, 210 Republicans and one Democrat, Rep. Henry Cuellar of Texas, voted to pass the Born-Alive Abortion Survivors Protection Act (one other Democrat, Rep. Vicente Gonzalez of Texas, voted “present”). 

The legislation says that any infant born alive after an attempted abortion is a “legal person for all purposes under the laws of the United States.” Doctors would be required to admit such infants to a hospital for further care. Any violation of this standard could result in fines and imprisonment for up to five years. 

Despite passing by a majority vote in the House, the Democrat-controlled Senate is unlikely to bring the legislation for a vote.

Explainer: What you should know about the debate in Congress over the Born-Alive bill
By / Apr 14

Today, House Minority Whip Steve Scalise (R–La.), Rep. Ann Wagner (R–Mo.), and Rep. Kat Cammack (R–Fla.) will file a Discharge Petition for the Born-Alive Abortion Survivors Protection Act. This will be the first discharge petition filed in the 117th Congress, which seeks to force a floor vote of the lifesaving Born-Alive bill.

What is a discharge petition?

A discharge petition is a tool used in the U.S. House of Representatives that is a member-driven attempt to force a floor vote on a piece of legislation. A petition must receive 218 signatures in order to be successful. In the 116th Congress, Whip Scalise and Rep. Wagner filed a discharge petition on this same bill. Notably, that Born-Alive petition set a record for the most signatures within one legislative day of a discharge petition being introduced, receiving 193 signatures from members of Congress. Eventually, the petition received 205 signatures, including three Democrats. Discharge petitions do not expire, so members are able to sign the petition throughout the 117th Congress.

In her office’s press release, Rep. Wagner, the sponsor of the House bill stated, “every single life is sacred and precious — no matter the circumstances of birth. I will not stop working until this legislation becomes law, so newborns have a chance at life when they are at their most vulnerable. This should not be a matter up for debate, and I hope every Member of Congress signs this petition so these basic rights are enshrined into law.”

History of the Born-Alive bill

As explained in a previous article by the ERLC, the Born-Alive bill would amend the federal criminal code to require any health care practitioner who is present when a child is born alive following an abortion or attempted abortion to, first, exercise the same degree of care as reasonably provided to any other child born alive at the same gestational age, and second, ensure that such a child is immediately admitted to a hospital. The bill is important because current federal law lacks sufficient legal protection and medical provision for children who survive failed abortions. When a child is born alive, whether in a hospital, at home, or in an abortion clinic, any action taken to end that child’s life is and always ought to be considered murder. Withholding medical care from such an infant denies the human dignity affirmed to that precious child by God. Such a callous dereliction of responsibility by the legal system also denies that child’s basic human right of life as guaranteed by the United States Constitution.

The most recent legislative history on this issue was the successful passage of the Born-Alive bill in the House in the 114th Congress with a floor vote of 248-177. However, the Senate has never passed the bill, but each chamber has reintroduced it multiple times. Currently, the Born-Alive bill has been reintroduced in the Senate by Sen. Sasse (R–Neb.) and reintroduced in the House by Rep. Wagner (R–Mo.). 

In 2019, when the Born-Alive bill was on the Senate floor, ERLC President Russell Moore urged Senators to support the critical common-sense legislation. Moore said: 

“The fact that this bill is even necessary is chilling to consider. That somehow there would even be a question among elected officials whether it should be legal to leave a crying child to die on the table is shameful. Protecting the lives of living babies must not be a partisan issue. Children have intrinsic value that is defined not by their power, nor by the whim of doctors, but by the image of God each one of them bears.”

What’s next?

It is anticipated that most, if not all, of the 211 House Republicans will sign the discharge petition. The three Democrats who signed the discharge petition last Congress were not re-elected. In order to reach 218 signatures, a handful of Democrats would need to sign the petition. Unfortunately, it is difficult to see how the petition  would reach that threshold to receive a floor vote in the House. The ERLC is supportive of this important bill, committed to defending the vulnerable at every stage of life.

To learn more see these ERLC resources:

Blocking the Born-Alive Bill in the House is unconscionable

Explainer: Executive Order to protect born-alive babies

What’s happening with the debate on infanticide in Congress?

ERLC Supports Born-Alive Abortion Survivors Protection Act

Study shows preborn babies feel pain as early as 12 weeks’ gestation

Capitol Conversations: Melissa Ohden on Surviving Abortion