For the first time in decades, the House Appropriations Committee passed a spending bill last week without a ban on federal funds being used on abortions for patients on Medicaid. On the state level, however, Republican-dominated legislatures across the country are ramming through a raft of anti-abortion legislation that is not only harmful but incredibly costly.
On Thursday, the attorney general of Mississippi is expected to file briefs with the Supreme Court as it prepares to rule on yet another abortion case, Jackson Women's Health v. Dobbs, later this year. Experts predict the case could continue a long pattern of supposedly fiscally conservative, anti-abortion state governments spending significant taxpayer dollars on abortion laws that don't hold legal water, if the court strikes down Mississippi's 15-week abortion ban.
After all, just two years ago, a judge ruled Mississippi owed Jackson Women's Health Organization more than $750,000 in attorneys' fees, after blocking the state from enforcing its unconstitutional clinic shutdown law. Jackson Women's Health runs Mississippi's last remaining abortion clinics. Compared with around 90% of US counties, 99% of Mississippi counties lack an abortion provider.
Mississippi's clinic shutdown law had required abortion clinics to have hospital admitting privileges at nearby hospitals, despite the safety of abortion care, and the extreme rarity of abortion patients needing to go to the hospital. Medically unnecessary requirements like this, which were at the heart of the Whole Woman's Health v. Hellerstedt Supreme Court case of 2016, are specifically designed to force clinics to shut down. Following the Whole Woman's Health case which overturned a Texas law, a federal judge ruled the state of Texas owed the reproductive health organization $2.3 million in legal fees later that year. In Arkansas, a federal judge on Tuesday blocked a law banning nearly all abortions in the state while its constitutionality is reviewed in court.
Among the most common — and justified — criticisms of the anti-abortion movement is its single-minded focus on forcing pregnancy and birth, rather than investing in life, children, families, and pregnant people.
"It goes without saying that the [Mississippi] state government wastes huge sums of money on writing, passing, and defending abortion restrictions," Shannon Brewer, director of Jackson Women's Health, told Salon. According to Brewer, this "essentially deprives people of health care services," and "disproves the notion legislators refuse to fund abortion care and Medicaid expansion because of their fiscally conservative core values."
Texas and Mississippi aren't the only states where exorbitant amounts of state funding are dedicated to defending abortion bans in court.
The Washington Post reported in 2019 that between 2016 and that year, several states defending anti-abortion laws in court had spent nearly $10 million in legal fees. Some of the most notable offenders include North Carolina, which was ordered by a federal judge to pay more than $1 million in legal fees to attorneys who challenged and successfully overturned a state law requiring people seeking abortion care to first have an ultrasound, in 2016. That same year, another judge ordered Alabama to pay ACLU lawyers $1.7 million in legal fees, after federal courts struck down a 2013 hospital admitting privileges law in the state.
Also in 2016, Wisconsin was ordered to pay $1.6 million in legal fees to Planned Parenthood, Alaska was required to pay $995,000 to the Center for Reproductive RIghts, and North Dakota was required to pay nearly $500,000, also to the Center for Reproductive Rights — all in defense of these states' unconstitutional abortion laws. There are numerous other states, including Ohio, Arizona, Missouri, and others, that have been ordered to pay legal fees in a similar cost range while trying to defend the indefensible in the last three years.
Reproductive rights advocates in Missouri recently celebrated a crucial victory when their state legislature defeated an attempt to block a bill that funds the state's Medicaid health care program for the poor, due to its coverage of abortion and contraception. But states' approach to funding reproductive health care like abortion has long been a point of contention — especially as many states that severely restrict funding for abortion care are the same states that spend hundreds of thousands, even millions, on defending abortion bans in court.
Notably, many of these states, which also have the most restrictions on abortion, have some of the worst child and maternal health outcomes in the country. This is no coincidence, Elisabeth Smith, chief counsel of state policy at the Center for Reproductive Rights, tells Salon.
"When we think about the money that is being spent litigating unconstitutional abortion restrictions, that money could absolutely be better spent supporting people in these states through Medicaid expansion, child care support, family leave, extended post-partum Medicaid coverage, Title X funding," Smith said. "States with the most abortion restrictions have implemented the fewest social policies that have been proven to help pregnant people, children, families."
As recent as last summer, the Supreme Court ruled to strike down a clinic shutdown law in Louisiana, in the case of June Medical Services v. Russo. As a result, Louisiana could be forced to pay $9 million in legal fees to the Center for Reproductive Rights, which represented June Medical Services in the case. According to Smith, litigation around the case has continued even after the Supreme Court ruling, because the state has continued to "challenge protective orders and other orders that require information about the doctors' identities to be destroyed" to this day, nearly one year later.
Despite the jarring costs of defending laws that will likely be struck down by even some conservative judges, many states have continued to introduce, pass and sign abortion bans at an alarming rate. One week in April saw more states introduce abortion restrictions than any other single week in recent history. Hundreds of restrictions have been passed in the last decade alone. Smith says states are well-aware of the legal costs of their crusade — they also know they'll always have the taxpayer dollars to pay for it.
Who's really paying the price?
"State legislators know these bills will be challenged, and they know the state will pay for representation," Smith said. In fact, she cites how this session, legislators in North Dakota even said in a committee hearing for two total abortion bans that they had the budget to pay for the litigation to defend them.
Jennifer Driver, senior director of reproductive rights at the State Innovation Exchange (SiX), which is a network of state legislators who support reproductive health, rights, and justice, recalls a similar conversation in a South Carolina committee meeting on a six-week abortion ban. "We heard anti-abortion legislators say you can't put a dollar on the amount of life," Driver recalled to Salon. "Yet, these same legislators don't have the same philosophy when it comes to expanding social protections and programs for women and children."
According to Driver, some will pay the price of costly legal battles for abortion bans, more than others. During the Great Recession, after states slashed funding for education and health care budgets, the lasting impact of this, Driver says, fell hardest on "low-income, Black and brown communities," and "years of public divestment" has left these communities less prepared to weather public health and economic crises like COVID, today.
"Just this past winter folks in Jackson went without running water for a month and were still told to boil our water for an entire month after," Brewer said. "Our water delivery system had been openly crumbling and contaminated for years before the system finally broke."
But instead of offering Jackson residents any support or funding for clean running water, the state is continuing its costly war on legal abortion, all on the taxpayer dime.
A glaring double standard
Since 1976, Congress has repeatedly maintained the Hyde Amendment as a budget provision to restrict public coverage and funding of abortion care. Hyde, which is widely understood as an abortion ban for low-income people, is often portrayed by anti-abortion politicians as a fair compromise that upholds religious freedom and saves taxpayer dollars.
"Prohibiting coverage is never about saving a state money, but is completely about ideological opposition to standard reproductive health care," Smith said.
Aside from the obvious problems with Hyde, namely that it separates abortion care from all other health care, and can force one in four women on Medicaid seeking an abortion to carry an unwanted pregnancy to term, its existence — and the existence of dozens of state-level abortion coverage bans — highlights a glaring double standard in restrictions on how taxpayer dollars can be spent. On top of the millions of dollars in legal fees defending abortion bans, dozens of states have also directed funding to anti-abortion "crisis pregnancy centers," which target and deceive pregnant people with anti-abortion propaganda. At least 10 states have recently diverted federal welfare funding to anti-abortion clinics.
Citing the famous Turnaway Study, which found people who aren't able to afford abortion care become singificantly more likely to fall into poverty or remain in abusive relationships, among other detrimental impacts, Driver says it's important to consider who's most affected by Hyde and coverage bans. "Not only are we talking about continuing to keep folks in poverty, we're continuing to consistently keep folks of color in poverty," she said.
The Hyde Amendment, of course, exists all while people who are more likely to be targeted by police must pay for police departments they may morally oppose, or the inflated military budget. Residents of states that pass abortion ban after abortion ban must watch their tax dollars fund state governments' costly legal defenses of these bans in court.
"It would take hours to detail all the weak and hypocritical arguments used by governments to deny people their rights," Brewer said.
A glimpse at a broken court system
As the Supreme Court's ruling on Jackson Women's Health v. Dobbs looms ahead, advocates and health providers are holding their breath.
"Everyone at the Center is very concerned that the court decided to hear this case, but if precedent means anything, we will absolutely win," Smith said. "The ban at issue in the case flies in the face of nearly 50 years of precedent."
While Brewer notes that if Mississippi loses the case, the state "could be on the hook for over a million dollars in legal fees," she's concerned about how the court, which includes three Trump-appointed Justices, could rule.
"The state may finally be victorious in their long-fought crusade to end abortion access in the state of Mississippi," Brewer said. "The description of these laws being 'blatantly unconstitutional' is true today, but may not be true in 2022." She notes that what's deemed "constitutional" has continuously "fluctuated with the agendas of those currently in power."
According to Driver, while state legislatures have often been ground zero for dangerous abortion laws, the Republican US Senate's shaping of the judicial landscape has posed a threat to state abortion laws for years. "We saw Mitch McConnell change the Senate rules not once but twice in the last four years, in order to really pack the courts with conservative judges," Driver said. "States have the ability to then rush and pass additional restrictions, and if upheld, these would overturn Roe."
There's also been plenty of political interference with the court system to attack abortion on the state level.
In 2019, when a court in Alaska found the state's Medicaid program must cover abortion care, Gov. Mike Dunleavy line-item vetoed $334,700 from the judiciary system's budget — the same amount the state had spent on abortion care the year before. This move prompted legal action from the ACLU of Alaska, and an Alaskan judge ruled Dunleavy's veto had been unconstitutional last fall. (Notably, the court's 2019 decision in favor of Medicaid coverage of abortion cost the state $98,625 in legal fees to Planned Parenthood; it's not clear how much the state owes the ACLU of Alaska as of October.)
Just as states funnel millions of taxpayer dollars toward defending abortion bans in the legal system, many have also weaponized the legal system to prosecute people for their pregnancy outcomes. Several states have applied feticide laws meant to protect pregnant people from domestic violence to instead criminally charge them for harming their fetus, if they miscarry, self-induce an abortion, or struggle with substance abuse problems.
There have been several recent, high-profile cases in which women have been prosecuted and even jailed for pregnancy loss, including Marshae Jones, a Black woman who was jailed for losing her pregnancy after being shot in the stomach in 2019; Amber Abreu, who faced felony charges for "procuring a miscarriage" for using abortion pills in 2007; and Purvi Patel who was sent to prison for inducing an abortion, contradictorily charged with feticide and child abuse for using medication abortion in 2013. Just as states spend in the millions on defending abortion bans and restrictions, they're also leading efforts to prosecute and criminalize people for the outcomes of their pregnancies.
This is, again, one of the many hypocrisies of the state-level anti-abortion crusade that Brewer says are too expansive to be tracked at this point. "We are so used to injustices being imposed on us without just rationale that we don't even bother to point out the inconsistencies anymore," she said.
Ultimately, Driver sees the forthcoming Supreme Court case and ongoing legal battles as indication that "we can't solely rely on the courts."
"The courts are extremely important," Driver said, "but no matter what the outcome of the case is, we must continue to push, to resist policies that are denying people their basic human right to bodily autonomy and reproductive freedom."
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