Oregon has among the strongest protections for abortion rights and the fewest limits on the procedure of any state in the nation. Could Republican control of the presidency and both chambers of the U.S. Congress make things harder for abortion providers and seekers in Oregon, despite protective state laws? OPB health reporter Amelia Templeton fills us in.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Oregon has among the strongest protections for abortion rights and the fewest limits on the procedure of any state in the nation. But could Republican control of the White House and both chambers of Congress make it harder for people in Oregon to get abortions despite protective state laws? That’s what OPB’s health reporter Amelia Templeton looked into this week. She joins us now to talk about what she found. Amelia, welcome back.
Amelia Templeton: Thank you, Dave.
Miller: A lot of us have heard over the years that Oregon has the most liberal abortion laws in the country. What does that mean in practice?
Templeton: State law guarantees the right to abortion without a waiting period or any gestational limit for anyone who’s pregnant and 15 years or older. It also requires most insurers to cover the cost. And for patients on the Oregon Health Plan, the state’s Medicaid program, it’s covered.
Miller: So that’s a state level status quo. Let’s turn to the various ways that Republican control of Congress and the White House, plus the six seat conservative majority on the Supreme Court, could affect abortion access here. As you point out in your recent article, the most straightforward potential challenge would be a federal ban on the procedure. Would that just supersede state law?
Templeton: Probably. Speaking very broadly, the U.S. Constitution establishes federal law as the supreme law of the land. It generally takes precedent over conflicting state law. That said, it really depends on how a ban is written. There would certainly be litigation and challenges from Democratic attorney generals. But largely, federal law supersedes it.
Miller: Unless Republicans use the so-called nuclear option just to get around the filibuster, that would require Democratic votes in the Senate, which is highly unlikely, right?
Templeton: Yes, that’s what I heard. Passing a national ban is possible but unlikely. And the first reason is that the U.S. Senate gives the minority party considerable power to derail legislation that it doesn’t like. You need 60 votes to end debate in the Senate to overcome a filibuster and force a bill up for a vote.
And there’s also I think the second open question, which is would President-elect Trump sign a national ban? That’s a question I put to Lois Anderson. She’s the president of Oregon Right to Life. She’s a long time activist who does not think abortion should be legal under any circumstances.
Lois Anderson [recording]: It wouldn’t be shocking if maybe a pro-life member of Congress introduced it. But it would be shocking to me if leadership took it up.
Templeton: Anderson told me she’s relieved that President-elect Trump won. She views that as a sort of rebuke to Democrats and the way they tried to campaign on the abortion issue. But she does not see him prioritizing this.
Miller: Another avenue folks may have heard about that the incoming administration could look to is a 150-year-old Comstock Act. What is this law and how might it be used?
Templeton: It’s an anti-obscenity law from the late 1800s. It made it illegal to mail material relating to contraception or performing an abortion. The contraception piece of the law was repealed, but the abortion piece is still on the books. Before Roe v. Wade, courts had held it unenforceable. But since the Dobbs decision, it’s getting kind of a fresh look. I’ve heard that conservative groups are on the hill discussing how it could be used.
In particular, it could be used to block the mailing of abortion medication or abortion pills, which are used in the majority of abortions performed in the United States. But abortion providers in Oregon are very concerned about this possibility and that enforcement of it could go further, that it could also prevent them from accessing supplies that they need for procedural abortions. They told me this is their top concern, and that they view it as potentially more effective than a federal ban.
Miller: You also heard about concerns about the safety of abortion providers. What did people tell you?
Templeton: They’re concerned that there will be a renewed effort to prosecute medical professionals who provide care to patients from out of state. That could be a particular issue in Oregon, because this is a place where people come seeking abortion later in pregnancy. So there might be records establishing that a patient was pregnant before travel, and then wasn’t afterwards.
They also have just more basic safety concerns, which is that a Department of Justice that’s friendlier to opponents of abortion could be more permissive of harassment or even violence. Amy Handler is president and CEO of Planned Parenthood of Southwestern Oregon. She said, this is the thing that keeps her up at night.
Amy Handler [recording]: We had a brick thrown through a window in our Grants Pass Health Center a couple of years ago. And under the Biden administration, the federal DOJ prosecuted that person. I don’t imagine that happening in this administration.
Miller: Are healthcare organizations or state leaders doing anything right now in anticipation or preparation for everything that you’re talking about?
Templeton: The most recent thing they’ve done is OHSU’s pharmacy has basically purchased a large new supply of mifepristone, about 15,000 doses, with the idea that that’s a hedge against future limits on medication abortion. Democrats in the state who support abortion rights have done a lot in previous legislation, I think most notably shield laws that are meant to protect abortion providers in Oregon who provide care to patients from out of state.
Miller: What about the possibility of looming cuts to Medicaid?
Templeton: That’s huge. The Medicaid program writ large could be facing really massive overhauling cuts under a trifecta. Planned Parenthood could also see a very targeted effort to disqualify them from receiving any Medicaid funding. They have clinics across the state that also provide contraception, cancer screening and a lot of other types of healthcare. So that could have a significant impact.
Miller: My guess is that we will be talking a lot more about Medicaid, the Oregon Health Plan and maybe all of this in the coming years. Amelia, thanks very much.
Templeton: You’re welcome.
Miller: Amelia Templeton covers health and healthcare for OPB.
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