Reproductive Rights

My work as a criminal prosecutor on the sexual assaults team at the District Attorney’s office put me into more than a few difficult conversations. Among the most gut-wrenching of these involved the Spanish-speaking mom of a teenage survivor of statutory rape case that I prosecuted. Her mother recognized me because she’d seen me attending mass at the same church, St. Joseph’s in San José, as she did. She described her moral torment over her daughter’s decision to terminate the pregnancy that resulted from the crime. I listened attentively, but said little. At the end of the conversation, my greatest fear was realized: she asked me my opinion. I recall feeling that I was the last person who should be weighing in, and I hesitated. Finally, I blurted out: if she were my daughter, I’d want her to know that I supported whatever decision she made for herself, and that I’d love her regardless. She nodded, and cried.

I grew up in a family of five kids, with three older sisters. My parents raised us Catholic, bringing us to church every Sunday, yet my parents reinforced to each of us that a pluralistic, democratic society respects the genuineness of others’ beliefs in making decisions affecting their lives. Abortion, my parents would say, was no different: although our Catholic teachings informed our own personal choices on the matter, every person must follow her own God-given conscience, and the law must allow every person to do just that.

In 2021, I recall the rising apprehension over the Supreme Court’s consideration of a Dobbs v. Jackson Women’s Health Organization, a case that could squarely place reproductive rights in peril. News reports suggested that the oral argument went poorly for the plaintiffs, and many of us feared the worst. I reached out to a senior official at Planned Parenthood Mar Monte as I drafted my proposed budget, seeking to understand how the City could help them deal with the onslaught of women across the country who lacked care in their home states. They told me that they needed to expand telemedicine and related services to help those elsewhere, and I committed that we’d get them some funding to help. They understood that San José—like 99% of the cities and towns in California—lacks a health department, and does not receive federal or state funding for any health program. Nonetheless, I proposed funding to Planned Parenthood Mar Monte at a level that far exceeded any prior grant of the City’s. The City Council unanimously approved it.^[1] It wasn’t a huge allocation—only $250,000—but we needed to do something. Like many communities, we sought to help women navigate the fallout.

Weeks later, during a morning staff meeting in my office, Rachel, our Communications Director, gasped when she looked at her newsfeed, and shared the news that she and tens of millions of women dreaded: the Supreme Court’s edict in Dobbs v. Jackson Women’s Health Organization.

Absent federal protection, conservative state legislatures and courts have enacted near-total bans on the right to an abortion, in one bizarre instance resorting to an antiquated 1864 Arizona law, until it was recently repealed.^[2] These laws deny patients care that their doctors deem critical for their physical and mental health, and overwhelm under-resourced clinics in states where abortion remains legal. We cannot allow laws to stand that force a ten-year-old rape victim in Ohio to seek an abortion out of state,^[3] nor can we stand by as a Texas mother with a lethal fetal diagnosis travels elsewhere to obtain an abortion critical to her health.^[4]

Protecting Reproductive Freedoms

At the very least, prior to fetal viability, Congress must prohibit states from restricting abortion procedures or drugs, or from offering such services via telemedicine. When a doctor deems a procedure medically necessary because of the risk to the life and health of the mother, Congress must ensure that states cannot delay its administration, regardless of fetal viability.^[5] Moreover, we must ensure that Congress eviscerates the many pretextual obstacles that state legislatures invent to undermine a woman’s choice, such as requiring unnecessary preliminary medical procedures, imposing conditions that apply to no other providers of medically comparable services, or mandating that patients make multiple in-person visits prior to the procedure. Where states have succeeded in imposing barriers that Congress cannot anticipate, we must enable women to freely travel to other states to receive medical assistance. Finally, where women cannot afford these procedures for their health and well-being, Medicaid and other federal funding should be available to the same extent it is provided for other health care.

Several bills have been introduced to provide these and other protections that are worthy of congressional support: the Women’s Health Protection Act, the Equal Access to Abortion Coverage in Health Insurance (EACH) Act, and the Right to Contraception Act. We must fight for them.

Can We Gain Ground in a Divided Congress?

In the near term, the abortion debate in a divided Congress will consist of little discernible progress despite great exertion. While we fight these larger battles, we should also look for opportunities to gain ground for reproductive rights in ways that may not draw as much partisan opposition.

One such opportunity lies in telehealth. That is, where prohibitions arise in Mississippi, a woman seeking care in Jackson might access New York doctors who can lawfully prescribe medication and offer needed guidance that Mississippi doctors would be prohibited from offering. The economics of health care has resulted in widespread closures of hospitals in rural and low-income urban areas, and a severe shortage of primary care physicians, pediatricians, and many specialties. Broadening access to needed care through telehealth could offer an important solution in many “red” states and the rest of the U.S. to improve health care generally—and it offers the additional benefit of improving access to reproductive care.

Here’s the problem: currently, four in every five states require health care providers to be licensed in the state where the patient is located.^[6] Others require an in-person consultation before providing care remotely through telehealth. Many other state regulatory barriers to telehealth include laws mandating testing and coursework, fees, interviews, medical malpractice coverage, and scope-of-practice restrictions.^[7] The practice of medicine remains within the nearly exclusive domain of state regulation. Creating a federal license for telehealth makes sense among the hodge-podge of competing state laws, but introducing a federal bill that would preempt state regulatory authority would likely draw a calvary of opposition from powerful interest groups who benefit from these restrictions.

Against this landscape, how can Congress help to expand telehealth access? Gabriel Scheffler, a law professor at the University of Pennsylvania, offers an interesting set of ideas that don’t require federal preemption, which he calls the “federalist” approach to reforming state licensing requirements.^[8] For example, rather than pushing states out of the way, Congress could ease licensing restrictions for providers working at military hospitals and the VA, over which the federal government has jurisdiction. Congress could encourage states to improve access to telemedicine, both through a carrot—providing federal funding to states and professional bodies to improve telemedicine access—and with a stick, by conditioning ACA funding on needed reforms. We could see greater FTC antitrust enforcement against licensing boards that engage in anticompetitive conduct.

We can also press for broader access to in vitro fertilization (IVF). Contrary to the pronouncements of some conservative state legislators and the Alabama Supreme Court,^[9] a supermajority of Americans support IVF access, across both parties.^[10] In the next Congress, we must push to pass a bipartisan equivalent of the Right to IVF Act that would protect access to IVF and fertility treatment nationwide, along with rights to insurance coverage.

While telemedicine and IVF won’t solve all of the challenges women will face in gaining access to reproductive care, they provide examples of a way in which we can creatively expand access and protect rights in a divided Congress. We will need to think creatively and act nimbly until the window of opportunity opens for a more comprehensive push.