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D.C. Download: Are Democrats right that abortion is on the ballot in 2024?

Abortion rights are likely most at risk in the courts and through the executive branch.
Gabby Birenbaum
Gabby Birenbaum
Jannelle Calderon
Jannelle Calderon
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Happy Saturday, D.C. Download readers! If you are sufficiently tired of hearing debates over whether or not Nevada matters in the presidential primary elections (listen to On the Trail to hear our take), I present to you an issue that definitely matters for 2024: abortion. 

The News of the Week: Roe v. Wade anniversary 

Monday marked the 51st anniversary of the Supreme Court’s now overturned decision in Roe v. Wade, and Nevada Democrats were unified in their message — abortion is on the ballot in 2024.

Reps. Susie Lee, Steven Horsford and Dina Titus (D-NV) joined top Democratic state lawmakers in Las Vegas on Monday to hammer that message home.

“The only way to protect women's freedom is to protect [a] woman's right to choose nationwide,” Lee said. “And that means making our voices heard at the polls and making sure that we continue to let people know what is at stake.”

That’s a message Republicans have chafed against, particularly after it helped spur Democratic turnout and tamper down the red-wave-that-never-was in 2022. In Nevada, abortion up to 24 weeks is protected by a 1990 ballot referendum, and can only be undone by another statewide vote of the people. But Democratic leaders this week emphasized the risk of a potential national abortion ban if Republicans gain control of Congress and the White House — something that would likely supersede existing protections in Nevada.

But abortion rights have been Democrats’ iron claw move since Roe was overturned. (Side note to the Academy of Motion Picture Arts and Sciences: I will neither forget nor forgive Zac Efron’s nomination snub for "The Iron Claw"!)

However, congressional consensus on abortion has proven impossible to build over the past 50 years — neither the Roe standard protecting the right to an abortion absolutely in the first trimester and with potential restrictions in the second. Nor has a ban ever passed the Senate, where 60 votes are required to defeat the filibuster.

Savvy Republicans have noted this, saying Democrats’ characterization that “abortion is on the ballot” amounts to scaremongering — a position repeated by two candidates in Nevada's U.S. Senate Republican debate last week.

But challenges to abortion rights don’t just come from Congress. The executive branch can be used to bolster or dismantle protections — as it was this week, when President Joe Biden issued new federal guidance insisting Medicare and Medicaid provide contraceptives to beneficiaries at no cost. 

And of course, the biggest shift in abortion policy came from the Supreme Court when it overturned Roe in 2022. The court is poised to wade into two new abortion battles this term that could affect reproductive care, including in states such as Nevada.

Read about the potential non-legislative changes below:

Executive changes

While likely Republican candidate Donald Trump has yet to unveil his abortion platform, advocates in his orbit are studying ways to use federal agencies to restrict abortion access. 

Such a blueprint has been laid out by Project 2025, a presidential transition project organized by former Trump officials at the Heritage Foundation to provide a conservative policy playbook that a Republican president could begin implementing in January 2025. 

Should Trump embrace it — and the section on abortion was written by Trump Health and Human Services (HHS) appointee Roger Severino — his administration could sharply curtail the use of the abortion pill mifepristone, which is used in about half of abortions and can be used up to 12 weeks at home and beyond that in a doctor’s office. 

Under the proposal, HHS would issue guidance requiring the pill to only be prescribed and used in person at a doctor’s office and only available within the first seven weeks of pregnancy. Longer term, the federal agency would work to rescind the Food and Drug Administration’s approval of mifepristone.

Project 2025 also wants to revive the Comstock Act, a law dating from Ulysses S. Grant’s administration that criminalizes the sending of “obscene materials” — including contraceptives and abortion pills — through the mail. Congress later removed the part of the statute concerning contraceptives, and other Supreme Court cases protecting the right to privacy have been interpreted to nullify it. But a Trump Department of Justice could interpret it as a de facto abortion pill ban, and enforce it against providers and drugmakers in states such as Nevada.

“It's not clear whether Trump would have the legal authority to do that,” said Mary Ziegler, a legal historian at the University of California, Davis. “But it's also not clear, given that the Supreme Court is conservative, that he wouldn't have the authority to do that.”

If they’re successful, the Trump administration (if it follows the plan laid out in Project 2025) could also expand the definition of what qualifies as an abortifacient — like adding Plan B or other morning after pills.

Supreme Court challenges

Two pending cases at the Supreme Court could also affect abortion rights — including in Nevada.

The Alliance of Hippocratic Medicine v. FDA case challenges the federal Food and Drug Administration’s (FDA) 2000 approval of mifepristone and subsequent 2016 and 2021 changes. The court agreed in December to hear questions on those recent policy updates. The 2016 update permitted the use of mifepristone up to 70 days of pregnancy from the prior standard of 49 days, while the 2021 policy allowed providers to dispense the drug virtually and in certified pharmacies. 

“The challenge would either potentially take the drug off the market or require patients to make multiple inpatient visits to a physician before obtaining the drug,” Ziegler said.

Ziegler said she expects the court will not completely revoke the FDA’s approval of the drug, even though it’s possible. 

The mifepristone case also has somewhat dubious standing, according to UNLV political science professor Rebecca Gill. The Alliance of Hippocratic Medicine formed in 2022 in Texas, in the jurisdiction of a sympathetic judge, and are suing on the basis that the FDA’s science on mifepristone is faulty. 

“These people do not have an injury from mifepristone being on the market,” she said. “They said, ‘Well, maybe one day somebody will take this and then they will show up with complications in the hospital, and maybe I will happen to be the doctor who's there, and it will make me very sad.’”

The other pending case before the court is not likely to affect Nevada. The court agreed to hear a pair of cases based out of Idaho around a federal law called the Emergency Medical Treatment and Labor Act (EMTALA), which mandates hospitals treat patients experiencing an emergency medical condition. The Biden administration has argued that the law applies to abortion cases and supersedes state-level abortion bans if the mother’s health is in danger — such as in Idaho

The Supreme Court has already permitted the Idaho law to proceed while it considers the case, suggesting it will allow the ban to continue. But such a ruling would only affect states that have abortion bans, and Nevada doesn’t have one.

The Nevada Angle

Ziegler said the possibility of a national abortion ban is not the only point of abortion policy differentiation between the major parties.

“If you're in a state like Nevada, it may be a choice between the status quo and some modest chance of more protection at the federal level of reproductive rights under Biden, versus with Trump, the possibility of federal policies that mean you can't decide you want to have state reproductive rights,” she said.

Among the court cases, Ziegler said the only way the EMTALA case might impact Nevada is if the court agrees with conservative groups that have intervened in the case to argue that the law actually guarantees fetuses equal protection under the law.

“There's a sort of very unlikely but not completely outlandish scenario where the court interprets EMTALA to limit emergency access to abortion or to require some kind of treatment for an unborn child or fetus,” Ziegler said.

A conservative ruling in the case would nonetheless affect Nevada by increasing the number of patients in abortion-ban states such as Idaho coming to Nevada for reproductive care. 

But a ruling in favor of the plaintiffs in the mifepristone case could more directly affect Nevada — and the rural areas of the state in particular.

“Making multiple in-person visits to a certified physician is going to be potentially not possible for people,” she said.

Nevada Right to Life President Melissa Clement said she is against allowing mifepristone to be accessible via telehealth centers due to her concern for women’s safety, citing the death of Pahrump woman from complications from a septic abortion involving mifepristone in 2022. 

“The Democrats just want to blow [it] up,” she said. “They don't want doctors involved. They don't want any regulation whatsoever.”

A New York Times analysis of 101 scientific studies noted that all of the studies concluded that mifepristone is a safe means of terminating a pregnancy, even though 15 studies identified cases with serious complications.

A decision is expected by this summer.

Gill added that rulings undermining the power of the FDA to regulate medicine would be concerning.

“It opens the floodgates for anybody to complain about what the FDA is doing in its process of approving medications,” she said.

The Impact

Clement says Republicans need to reclaim the narrative around abortion and convince voters that Democrats’ embrace of abortion — particularly given that parental consent is not required in Nevada for a minor to get an abortion — puts them on the fringes of the issue.

It would be political malpractice for Democrats to not continue to make abortion a campaign centerpiece. Recognizing that, abortion advocates say their mission will be to explain the stakes to voters — and that Nevada’s protections are not necessarily secure. 

“President Biden and Vice President Harris are the only two candidates in the race who will always defend the right to choose,” Horsford said at the Roe-focused press conference Monday. “And if we want to restore our hard won progress, we must do everything in our power to send them back to the White House.” 

Around the Capitol

🚂All aboard — The Department of Transportation is granting $28 million to the Nevada Department of Transportation (NDOT) for the Elko Nevada Rail Corridor Enhancement Project. The project will improve tracks at the Union Pacific Elko Yard, including consolidating the Amtrak boarding platform to address both freight and passenger traffic.

The news was touted by Gov. Joe Lombardo, both Nevada senators and Rep. Mark Amodei (R-NV) — who did not vote for the Bipartisan Infrastructure Law that authorized the spending.

🧑‍⚕️A health care bill a year — Sen. Jacky Rosen’s (D-NV) “Train More Nurses” Act passed the Senate this week — her third health care-related bill to pass the chamber in the last three years. She now ranks first among sitting senators for the number of health care-related bills passing the Senate in the last three years.

The bill would require the departments of Health & Human Services and Labor to each review its grant programs to support the nursing workforce and suggest potential changes to boost the nursing pipeline.

🌍49 senators for two states — As negotiations continue over a national security funding package to provide aid to Israel, among other priorities, both Sens. Catherine Cortez Masto (D-NV) and Rosen signed on to an amendment affirming support for a two-state solution in the Middle East with an independent Palestinian state.

The measure was supported by 49 Democratic senators and no Republicans — all but Sens. Joe Manchin (D-WV) and John Fetterman (D-PA).

Notable and Quotable:

“Mitch actually said the quiet part out loud: Trump wants chaos at the border.”

— Sen. Catherine Cortez Masto (D-NV), on reports that Senate Minority Leader Mitch McConnell (R-KY) told his caucus that the politics of a border deal have changed given Trump’s desire to kill the deal

Vote of the Week

PN1255: On the Cloture Motion (Motion to Invoke Cloture: Kirk Edward Sherriff to be U.S. District Judge for the Eastern District of California)

The House was out this week and the Senate only voted on nominations, so we didn’t have any spicy votes. At least this one was for a judge nearby!

Cortez Masto: YES

Rosen: YES

Staffing Announcements

None this week.

If you have a new position in Nevada politics, reach out and let me know! 


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