Editorial: Supreme Court left abortion decision to the people

By The Herald Editorial Board

When the U.S. Supreme Court issued what’s now called the Dobbs decision a little more than a year ago, the opinion’s author, Justice Samuel Alito couched the 6-3 ruling — overturning nearly 50 years of precedent in its Roe v. Wade decision — as removing the issue of abortion rights from the court are returning it where it belonged: the people’s representatives; and the people, themselves.

Alito, to put a finer point on it, specifically cited his mentor, Justice Antonin Scalia in the 1992 Casey decision: “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

That distinction continues to escape some who are now seeking to expand their preferred restrictions on abortion beyond the wishes of a state’s people and even those in other states.

Consider the news in recent days from Ohio and Idaho.

Voters in Ohio on Tuesday overwhelmingly defeated — by 14 percentage points — a measure that would have increased the approval threshold for citizen’s initiatives to a 60 percent supermajority from the current simple majority. While not directly tied to the issue of abortion, Republicans in Ohio’s legislature placed the constitutional amendment issue on the ballot as a preemptive strike against a measure — already set for Ohio’s November ballot — that will allow its voters to determine whether to protect access to abortion as a right under that state’s constitution, similar to what Washington state’s voters accomplished in a 1970 referendum.

Hoping to avoid what happened a year ago in Kansas, when 59 percent of voters rejected a state constitutional amendment that would have denied the right to abortion in the state, Ohio’s Republican-dominated legislature hoped to set a higher — and minority-controlled — bar for constitutional amendments in general and for abortion in particular.

In Idaho, its Republican-controlled legislature has sought to extend its restrictions beyond its own state lines to penalize residents of other states, adopting an abortion travel ban that would make it a felony — punishable by up to five years in prison — to assist an Idaho minor with travel to another state for an abortion or to provide abortion services in another state, labeling the offense as “abortion trafficking.”

Never mind that labeling such assistance as “trafficking” serves to diminish the severity of the actual sexual trafficking of minors; Idaho’s law is unconstitutional on its face, barring the right to travel between states, a point made last week by Washington Attorney General Bob Ferguson and 19 other state attorneys general filing “friend of the court” briefs in a lawsuit filed by an Idaho attorney working with sexual assault victims, their advocates and advocates for abortion rights.

Idaho’s existing abortion law — among the most restrictive in the nation — has prompted an exodus of Idaho patients seeking abortion services and related care in Washington and other states.

Washington clinics reported a 75 percent increase in Idaho patients between January 2022 and early 2023, a release from the attorney general’s office said. Washington Planned Parenthood reported a 56 percent increase for Idaho patients seeking care in its clinics a year after the Dobbs decision, Oregon Public Broadcasting reported last month. Overall, Planned Parenthood reported an 18 percent increase in abortion patients with a 36 percent increase in out-of-state patients.

Idaho’s law, Ferguson said, not only endangers minors from Idaho, it threatens to punish medical providers and residents of Washington and other states, even prohibiting the sharing of information about abortion services or medication, violating free speech rights.

“This cannot be reconciled with Supreme Court precedent, under which States cannot prevent their residents from accessing abortion care in other states where it is legal; much less from even accessing information about such lawful care,” the brief reads.

This follows a decision in April by a Texas federal judge who ordered that the long-used prescription drug mifepristone, one of two drugs used in medication abortions in the first 10 weeks of pregnancy, be pulled from the market — in all 50 states, regardless of a state’s abortion laws — faulting the Food and Drug Administration’s approval of the drug in 2000.

As the office has in the Idaho case, Ferguson acted, this time in advance of the Texas’ judge’s decision, by filing his own suit against the FDA, this time challenging restrictions the agency had placed on the drug, and ensuring that the debate was more likely to land before the U.S. Supreme Court.

If Justice Alito believed the Dobbs decision would free the hands of courts from further rulings on abortion, he’ll need a word with the states and lawmakers who continue to push for restrictions beyond what the Supreme Court set forth. The legal challenges mounted by Ferguson and other attorneys general will give the court that opportunity.

Supporters of access to abortion services can and should continue to work toward a congressional solution that restores greater access nationwide to abortion services and medication.

In the meantime, if we are to live within the limits placed by the current Supreme Court majority — its determination that abortion should remain a question left to the people and their representatives — that ruling should garner more respect and adherence from the states and their officials who think they know what’s best for the people.